International Law is not a Suicide Pact
by Jonathan Rosenblum
March 12, 2008
When I speak about Israel's security situation, there is one question I always count on being asked at the end: Why doesn't the Israeli government just fife on (ignore) what the Americans and Europeans say and do what it has to do to stop the terrorism? I invariably answer by pointing out some of the constraints that prevent Israel from remaining totally oblivious to the expressed concerns of the international community, especially the United States.
For one thing, Israel does not manufacture F-16s and is dependent on the United States for most of the major weapons systems that ensure her qualitative superiority over neighboring Arab armies. Second, Israel lacks economic self-sufficiency. It is almost totally without natural resources, and its economy is dependent on trade with other countries, chief among them those that comprise the European Union.
But even granted that Israel cannot ignore world opinion, there is a limit to how much it can allow that opinion to determine its policies before it has completely sacrificed its own sovereignty. That limit has long since been reached.
Secretary of State Rice does not hesitate to publicly order Israel to do things, in a tone she would never employ with far more faithless recipients of American largesse, like Egypt or even the hapless Palestinian Authority. And Israel – at least the Olmert government – is always quick to comply. The cessation of all offensive operations in Gaza is but the most recent example.Read Jonathan Rosenblum's other articles at Jewish Media Resources
Since the onset of the Oslo Process, Israel's leaders have repeatedly issued assurances after every territorial withdrawal that the stage is now set for a powerful Israeli response in the event of attack from the areas just evacuated. Those threats, however, have never been acted upon. As George Will once bitterly quipped about former prime minister and current defense minister Ehud Barak, "Even his ultimatums are penultimate."
By their failure to respond to the first probes from the other side – e.g., Hizbullah's kidnapping of three Israeli soldiers shortly after the May 2000 withdrawal from Lebanon – Israel has allowed the world to acclimate itself to attacks on Israel and to view such attacks as "normal." Every act of Israeli restraint further constrains Israel's freedom of action by normalizing attacks on Israel. By acting so tentatively Israel only guarantees a greater hue and a cry when it is inevitably forced to respond, for it is Israel which is then accused of having broken the status quo.
When Israel's enemies observe the degree to which Israel is immobilized by fear of international opinion, they are further confirmed in their belief that they have hit upon a winning strategy. That strategy is as cunning as it is evil, and is based on deliberately placing Palestinian civilians in harm's way.
Both the Palestinians and Hizbullah have successfully adopted strategies based on putting Israel in a double-bind. If they fire upon Israeli civilians and kill them, they win; and if Israel responds by going after those firing the missiles, with the inevitable loss of the lives of Palestinian civilians, given that the attackers operate from densely populated areas, they also win by further delegitimizing Israel in the eyes of the international community.
The Hamas and Hizbullah leadership can pursue this strategy because, as they ceaselessly proclaim, they love death, while the weak and effeminate Westerners invariably prefer life. Islamic fatalism allows them to view the sacrifice of their own civilians as essentially doing them a favor by allowing them to die as martyrs.
The international community and media are fully complicit in the deaths of Palestinian or Arab civilians. If they did not play along with such predictable regularity every time a Palestinian or Lebanese civilian is killed in the course of an Israeli military operation, Hamas and Hizbullah would have less incentive to maximize the danger to their own civilians.
ISRAEL CANNOT AFFORD to take too seriously international condemnations because those condemnations are not offered in good faith. The immediate calls for Israel to show restraint and avoid being lured into a cycle of violence after every attack on Israeli civilians demonstrate that lack of good faith. And that is even more true of the automatic condemnation of Israel for having violated international law and having employed "disproportionate" force every time it does respond.
That lack of good faith can be summarized in a single question: What would you do if your nation's civilians were being attacked by terrorists operating from civilian areas? In Terminello v. Chicago, Justice Robert Jackson wrote, "If the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact." What he said of the United States Constitution is no less true of international law: To be worthy of consideration, international law must show that it is not a suicide pact.
If critics of Israeli actions cannot specify alternative courses of action that Israel could adopt to eliminate attacks upon Israeli civilians from across her borders – short of ceasing to exist, Israel may assume that her actions are permitted by international law. Nor is Israel required to view any level of attacks on her civilians as acceptable. Just as a parent's first duty is to protect his or her children, so is the first duty of every state to protect her citizens -- any and all of them -- from attack.
U.S. Secretary of State Condoleeza Rice has no right to demand that Israel avoid attacks that might kill civilians, as she is quoted as doing by the Washington Post, unless she can tell Israel how it should go about killing terrorists who operate missile launchers from civilian areas without the risk of civilian casualties.
No state in history has ever declared the civilians of enemy states sacrosanct at the expense of its own civilians. When the Russians faced a rebellion in Chechnya, they simply leveled Chechnya's largest city of Grozny at the cost of tens of thousands of lives. And the international condemnation was far less than that heard last week about the ten or so Palestinian civilians killed during Israeli operations in the Gaza Strip.
Much of what is styled as "international law" goes by the name of customary international law, i.e., it is based on the customary actions of other nations in similar circumstances. By that standard, Israel has nothing to fear from judgment of its actions. No other nation has ever showed such restraint in the face of daily attacks on its citizens. (For good reason, no other government that tolerated such attacks would stay in power for long.)
Whatever it does Israel stands condemned. If it adopts passive means, such as the reduction of the supply of electricity and fuel to Gaza, it is condemned as practicing collective punishment. And if it goes after those who are manufacturing and firing rockets on Israel, it is condemned by the European Union for "all activities that endanger civilians," or by the Secretary-General of the U.N. for a disproportionate response.
Somehow the rights of Israeli civilians to their lives are never factored into the equation. Nor do the critics ever explain precisely what they might consider a proportional response. Therein lies the bad faith.
Common sense alone dictates that Israel has no obligation to supply electricity and fuel to Gaza. The popularly elected Hamas rulers of Gaza have repeatedly declared their intention to wipe out Israel. Israel has no obligation to help them achieve their designs. A de facto state of war exists between the Hamas-ruled Gaza and Israel, and in war civilians always suffer.
Throughout the Cold War, the United States deterred a Soviet first strike by the threat of launching a return strike against the Soviet Union that would surely have incinerated millions of Soviet civilians. Those Soviet civilians would have had far less say about the actions of their Soviet government that precipitated their deaths than the citizens of Gaza had in choosing Hamas to rule them. (Palestinian public opinion polls, incidentally, continue to show widespread support in Gaza for the Kassam and Katyusha attacks on Israel.)
In point of fact, Professor Avi Bell of Fordham University has shown, there is no positive obligation in international law on Israel to supply electricity or fuel. Nor are fuel and gas even in the list of materials -- such as food -- that Israel would have to let pass to certain classes of people. Israel has done nothing to prevent Egypt from supplying electricity and fuel to Gaza.
Far from immunizing civilians from any possibility of danger, the Geneva Accords specifically forbid attempts to protect military targets from attack by placing them in civilian areas, and they place the onus for any civilian casualties that result from doing so squarely on the party employing civilian shields. In the case under consideration, that would be the terrorists who launch missiles from civilian areas and maintain their workshops there.
The automatic claim that every Israeli response to attack is disproportionate is never buttressed by any analysis of what is meant by proportionate. If by proportionate, the critics mean a response in kind, then Israel would be entitled to fire hundreds of rockets indiscriminately into Palestinian civilian areas or send its own suicide bombers, chas ve'shalom. Presumably that is not what the critics have in mind.
Indeed the critics seem to mean little more than that Israel has killed more Palestinians than they have killed Israelis. But surely the aggressor is not entitled to establish the level of acceptable casualties. In point of fact, proportionate, as a term of art in international law, refers to the relationship between the force used (and the accompanying danger to civilians) and the importance of the legitimate military objective. That objective is not limited to retaliation for a particular previous attack, but includes the goal of removing the threat of future attacks as well.
After a series of NATO bombings of Yugoslavia during the Balkan Wars left dozens of civilians dead, the International Criminal Tribunal established a special commission to determine the standard to be applied in evaluating those bombings. That commission determined that the weighing of military advantage against risk to civilians must be that of a reasonable military commander.
Clearly there was no presumptive prohibition against any action that endangered civilians. The NATO bombings not only endangered civilians they killed dozens. The rule that any civilian deaths are disproportionate is applied to only one state: Israel.
Tragically, Israeli leaders have begun to internalize the perspective of their critics rather than that of a "reasonable military commander." Caroline Glick has argued, based on the Winograd Commission testimony of Attorney-General Mani Mazuz and Military Advocate Avichai Mandelblit, that one of the reasons for the IDF's generally poor performance in the Second Lebanon War was that every military action had to be vetted by legal authorities. Mazuz and Mandelblit had fully internalized the Supreme Court's message that compliance with "international law" takes precedence over national defense, and both had absorbed the perspective of our critics that the protection of the civilians among whom our enemies shelter takes precedence over the lives of Israeli civilians and soldiers.
That degree of deference to our carping critics reflects something akin to a national Stockholm Syndrome. Israel cannot afford such deference if it hopes to survive surrounded by those who do not hesitate to kill our civilians or sacrifice their own.
This article appeared in Yated Ne'eman March 12 2008