Israel, Hamas and “Lawfare” - Dr. Mackubin Owens

Israel, Hamas and “Lawfare” - Dr. Mackubin Owens

      

Israel is under attack for defending itself. On 7 October, the terrorist organization Hamas launched an attack from Gaza that targeted Israeli civilians, ultimately killing some 1400 and wounding thousands more. It massacred entire families, sparing neither the young nor the aged. Hamas fighters did not hide their atrocities, recording them on cellphones and other devices.

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Israel has responded to Hamas by launching an attack that seeks to dismantle its infrastructure in Gaza. The Israel Defense Force (IDF) has moved systematically to eradicate the terrorist threat. Predictably, Israel has been accused of war crimes by Hamas and its apologists and enablers in Europe and the United States. There is a name for this nonsense: “lawfare,” the use of international law and the law of armed conflict to disarm one’s adversary.

Consider the case of the al-Shifa Hospital in Gaza. Early in the IDF’s Gaza operation, press reports—subsequently thoroughly debunked—claimed that Israel had struck the hospital, killing 500 civilians. Although the claim was false, the fact that the hospital shielded a Hamas military installation violated international law and, indeed, constituted a war crime.

According to Article 18 of the Geneva Convention, "civilian hospitals ... may in no circumstances be the object of attack but shall at all times be respected and protected by the parties to the conflict." However, Article 19 continues: “The protection to which civilian hospitals are entitled [ceases if] they are used to commit, outside their humanitarian duties, acts harmful to the enemy.” In fact, Hamas is, under the provisions of international law, the party whose actions removed al-Shifa hospital from the Geneva Convention’s very specific rules regarding the mutual requirement to exempt hospitals from military action.

Article 19 of the Convention goes on to say that this sphere of “protection may, however, cease only after due warning has been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded.” In every clash between Hamas and Israel, the latter has gone out of its way to warn civilians of a pending attack. It is Hamas, not Israel, which is in violation of international law. But in a victory for Hamas and lawfare, many people persist in toeing the Hamas victimization line.

In the broadest sense, military actions by the United States and Israel are guided by the principles of the Western “just war” tradition. This tradition is a species of moral realism that places the use of force between two poles: on the one hand, pacifism, which treats all force as immoral; and on the other, the idea of justice as merely the interest of the stronger. The latter is captured in the exchange between the victorious Athenians and citizens of Melos, as recounted by Thucydides in his history of the Peloponnesian War. When the Melians appeal to justice, the Athenians reply that “justice applies only to equals. As for the rest, the strong do as they will. The weak suffer what they must.” 

There are two components of this tradition. The first is “jus ad bellum,” which deals with the cause for which a war is fought. The second is “jus in bello,” the actual conduct of the war. Even if the cause is just according to jus ad bellum, the principles of the just war tradition require that, in accordance with jus in bello, the war be conducted with regard to discrimination and proportionality.

Discrimination requires making a distinction between combatants and non-combatants. The purposeful targeting of civilians violates discrimination.  Proportionality requires that the use of force is not excessive. For instance, calling in a massive airstrike to eliminate a single soldier is disproportionate. Both discrimination and proportionality must be balanced against completion of the mission, or military necessity. Thus a great deal of leeway is given to the commander on the ground who must make life and death decisions on the basis of imperfect information.

Rerarding jus ad bellum, Israel’s cause is just. All states have the moral right to defend themselves. The claim that Israel is illegitimate is based on the combination of ignorance and Jew hatred (“antisemitism” seems inadequate to describe the attitude of Hamas and its enablers). Israel’s claim to the right of self-defense is based on history and international law. Hamas and its apologists seek nothing less than the extirpation of Israel. If one doubts that, just read the charter of Hamas and listen to the chant, “from the river to the sea…”, a slogan that calls for ethnic cleansing at best, genocide at worst.

But even though the Israeli cause is just, the just war tradition demands that the conflict itself be conducted in accordance with the law and practice of armed conflict. And Israel has abided by those practices in its clashes with Palestinian Arabs for over six decades. If the population of Gaza is suffering from the Israeli operation, the blame lies with Hamas, which not only targeted Israeli civilians on 7 October but has persisted in using the civilians of Gaza as human shields, as in the case of the al-Shifa hospital cited above. The blood of the Gazans is on Hamas’ hands.

In his monumental study of Nazi Germany, The Rise and Fall of the Third Reich, William Shirer noted that the Nazis went out of their way to hide the execution of the ”final solution to the Jewish problem,” the systematic program for the extermination of the Jews of Europe. In contrast, the perpetrators of the 7 October pogrom merrily recorded their barbaric actions. Hamas and its enablers now resort to lawfare, hiding behind appeals to international law and the law of armed conflict. I believe that there is a Yiddish word for this: “chutzpah.”