Conservatives Need to Fight for Israel in International Courts

by David French

In remarks last month to the U.N. Human Rights Council, the United Nations High Commissioner for Human Rights indicated there was a “strong possibility” that Israel had violated International Humanitarian Law (a cousin to the law of war) and that Israel’s conduct “could amount to war crimes.” Given that Hamas fighters wear civilian clothes; launch and store rockets from civilian locations, including schools, mosques, and hospitals; and conduct military operations from within the heart of the civilian areas of Gaza, Hamas is not only guilty of a war crime every single time it fires a rocket, it is also responsible for the resulting civilian deaths when Israel exercises its inherent right of self-defense. Simply put, when Hamas uses a civilian facility for military purposes, that facility is converted immediately to a military target.

All of this is elementary within the laws of war and International Humanitarian Law (IHL). Our international ACLJ affiliate, the European Centre for Law and Justice, sent a letter today to the U.N. Commissioner to remind to remind her of the fundamental principles of IHL and — chapter and verse — how Hamas systematically violates each of these principles. As the ECLJ explains:

While openly condemning Israeli strikes, you have utterly failed to recognise—much less condemn—Hamas’ responsibility for repeatedly turning otherwise protected sites (such as hospitals, schools, and mosques) into legitimate military targets by using such sites to fire rockets at Israel, as military headquarters, and as weapons storage sites. You have also failed to recognise the fact that Hamas attempts to use, and has used, civilians as human shields to deter Israeli Defense Forces (IDF) from striking legitimate military targets. Accordingly, your statements are one-sided and misleading. Hence, the purpose of this letter is three-fold: First, this letter outlines the series of egregious events initiated by Hamas militants, which gave Israel no choice but to respond in self-defence. Second, the letter discusses applicable laws of armed conflict that Israel has consistently followed and Hamas has repeatedly violated. Third, we urge you to be balanced in your criticism and strongly and consistently address the unlawful actions taken by Hamas militants in firing its rockets indiscriminately, in using civilians as human shields, and in turning otherwise protected civilian sites into military targets, all in clear violation of IHL.

It is critical that Israel’s defenders not just write publicly about problems at the U.N. and other international organizations – we need to directly engage the U.N. itself. For too long, conservatives largely conceded international legal arguments to the Left and have watched — incensed — as legal principles have drifted in ways that narrow Western military options (and virtually every Western military adjusts its tactics to new legal norms, including often the American military). We must show up and make the key legal arguments. 

There’s important recent precedent for successful, relentless advocacy. After the 2008 Gaza conflict, Palestinians attempted to haul Israeli soldiers before the International Criminal Court. At the ACLJ (acting through our European affiliate), we intervened directly, making multiple arguments in person and through legal briefs. We won. The ICC ultimately relented, declining to exercise jurisdiction over Israel’s actions in Gaza. 

When engaging internationally, we lose hope only when we don’t fight. Our rule should be simple: never concede any territory – not one inch – to jihadists and their international enablers.