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Outlawing the Law of War



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Earlier this week, the New York Times published an op-ed by George Bisharat, a professor at UC Hastings College of Law, calling for the Palestinians to bring complaints against Israel in the International Criminal Court based on Israeli military operations against Palestinian terrorists. The Palestinian Authority has tried this tactic before, but the ICC’s chief prosecutor declined the case because Palestine is not a state. (Full disclosure: My colleagues at the ACLJ filed briefs and made arguments at the ICC in support of Israel.) With the PA’s recent receipt of nonmember state status at the U.N., I fully expect it to try again. Professor Bishart obviously thinks the PA should:

Since the outbreak of the second Palestinian intifada in 2000, the Israel Defense Forces, guided by its military lawyers, have attempted to remake the laws of war by consciously violating them and then creating new legal concepts to provide juridical cover for their misdeeds. For example, in 2002, an Israeli F-16 dropped a one-ton bomb on an apartment building in a densely populated Gaza neighborhood, killing a Hamas military leader, Salah Shehadeh, and 14 others, including his wife and seven children under the age of 15. In 2009, Israeli artillery killed more than 20 members of the Samouni family, who had sought shelter in a structure in the Zeitoun district of Gaza City at the bidding of Israeli soldiers. Last year, Israeli missiles killed two Palestinian cameramen working for Al Aksa television. Each of these acts, and many more, could lead to I.C.C. investigations.

There’s much one can say about Professor Bisharat’s piece, but let’s be clear about one thing: It is not the Israelis who are seeking to “remake the laws of war.” The laws of war are being remade by a coalition of European powers, NGOs, and even hostile Middle Eastern states as part of an effort to reduce Israeli and American freedom of action.

First, let’s define our terms. The “laws of war” typically refer to the Law of Armed Conflict (LOAC), the body of law developed to govern the behavior of belligerent parties to a military conflict. In a previous post, I gave a short explanation of LOAC: 

The fundamental aim of LOAC is to prevent unnecessary casualties and destruction within the context of military conflict. In pursuit of that goal, three principles govern: necessity, distinction, and proportionality. In general, “necessity” requires that combatants only attack targets necessary to accomplish military objectives. “Distinction” requires that combatants not only distinguish between civilians and combatants, but they also distinguish themselves from civilians (through the wearing of uniforms, use of clearly identified military vehicles, etc.). Finally, “proportionality” requires a combatant to use only that force necessary to accomplish the military objective. It does not require you to use the same force as your enemy (you can bring a JDAM to a gun fight).

As a matter of course, both American and Israeli soldiers take much greater care in their military operations than LOAC requires. Our enemies, however, violate LOAC in virtually every single armed operation: They intentionally target civilians, they refuse to wear uniforms or distinctive insignia, they use human shields, and their operations are generally designed to maximize, not minimize, collateral damage. In fact, the civilian casualties that result from the terrorists’ attempts to blend in with — and hide behind — civilians are the legal responsibility of the terrorists, not Israel or America.

Faced with this inconvenient reality, the European/NGO/Middle Eastern legal coalition is essentially attempting to overturn traditional LOAC doctrine — especially in the context of anti-terror or counterinsurgency operations — and replace it with international human-rights law (IHRL). As a general rule, when you hear a commentator declare, with great certainty and feeling, that Israel is “violating international law,” that’s what they mean.

Both America and Israel have traditionally argued against this legal change in part because, well, it’s absurd. IHRL essentially places military forces in something like a law-enforcement posture, treating heavily armed terrorist militias such as Hamas and Hezbollah more like Mafia crime families than military forces with military weapons and capabilities. (No matter how powerful the Gambino crime family became in New York, it could never launch 5,000 missiles from Brooklyn to Queens.) It’s vital that America and Israel maintain their traditional position applying LOAC to military conflicts; otherwise both nations’ ability to defend themselves will be severely impaired.

It is telling that that primary proponents of the IHRL paradigms are European countries that are now three generations removed from primary responsibility for their own defense (we’ve handled that quite nicely), highly ideological NGOs, and hostile Middle Eastern countries that have no intention of complying with either LOAC or IHRL and also know that the European and NGO community will largely look the other way. In other words, the proponents do not bear the primary cost of their legal advocacy — America and Israel do — and terrorists are the prime beneficiaries of any victories the plaintiffs win.

At a time when one Middle Eastern regime has intentionally killed tens of thousands of its own citizens, it’s disappointing to see the New York Times give prime op-ed real estate to yet another ideological attack against the only military power in the region that actually tries to protect civilians.



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