Israel, Hamas, and the Laws of War - Dr. Mackubin Owens

Israel, Hamas, and the Laws of War - Dr. Mackubin Owens

A recent Israeli air strike inadvertently killed seven aid workers in Gaza, a mistake for which at least two Israeli army officers have been cashiered. The tragedy has led to worldwide condemnation of Israel, including a demand by President Biden that the Israelis accept Hamas’s demand for a cease-fire, which would constitute a victory for Hamas.

No country in modern history has done more to protect noncombatants than Israel.  Indeed, Israel has accepted responsibility for the welfare of the Palestinian civilian population over and above its legal obligation not to target civilians, unlike Hamas, which not only purposely targets Israeli civilians but also uses its own civilian population as human shields.  

The fact is that Hamas is responsible for protecting the Palestinian civilian population of Gaza. Contrary to claims of Israel’s enemies, the Jewish state is not an occupying power in Gaza.  In an attempt to “trade land for peace,” Israel pulled its soldiers and civilians out in 2005.  Hamas took power in a 2007 coup.

GET THE LATEST BREAKING NEWS HERE -- SIGN UP FOR GOLOCAL FREE DAILY EBLAST

The debate over Israeli actions in Gaza resonates with any of us who fought in Vietnam. We have had to contend with the charge that American soldiers routinely committed atrocities and war crimes in Vietnam. In his infamous testimony before the Senate Foreign Relations Committee on April 22, 1971, John Kerry, claimed that atrocities committed in Southeast Asia “… were not isolated incidents but crimes committed on a day-to-day basis with the full awareness of officers at all levels of command. . . .” But that was a disgraceful calumny. For many of us, Kerry’s betrayal of his former comrades in the name of political expedience places him beyond the pale of decency.

Of course, atrocities did occur in Vietnam, as they have in all wars; the most notorious was the 1968 My Lai massacre, in which hundreds of civilians were killed. However, this was most of all a failure of leadership. But despite the accepted image of the Vietnam War as particularly brutal, atrocities were fairly infrequent. Between 1965 and 1973, 201 soldiers and 77 Marines were convicted of serious crimes against the Vietnamese. Needless to say, the fact that many crimes, in war as in peace, go unreported, combined with the particular difficulties encountered by Americans fighting in Vietnam, suggest that more such acts were committed than reported.

The late Ron Ridenour, the soldier who publicized the My Lai massacre, has been quoted as saying, “There were plenty of My Lais”–but this claim is simply false. Even Daniel Ellsberg, a severe critic of U.S. policy in Vietnam, rejected the argument that My Lai was in any way a normal event: “My Lai was beyond the bounds of permissible behavior, and that is recognizable by virtually every soldier in Vietnam. They know it was wrong. . . . The men who were at My Lai knew there were aspects out of the ordinary. That is why they tried to hide the event, talked about it to no one, discussed it very little even among themselves.

On the other hand, there is ample documentation supporting the charge that the North Vietnamese communists and Viet Cong DID routinely commit atrocities. Among the most brutal was the widespread execution of many thousands of South Vietnamese during the battle for Hue that began during Tet of 1968. According to Stanley Karnow, "Balanced accounts have made it clear…that the Communist butchery at Hue did take place—perhaps on an even larger scale than reported during the war." In his history of Vietnam (2017), Ben Kiernan wrote that "thousands" were killed at Hue in "possibly the largest atrocity of the war."

The fact is that both the United States and Israel have tried to conduct their wars in accordance with the law of armed conflict, which derive from the Western “just war” tradition. According to this tradition, combatants are expected to abide by the principles of discrimination and proportionality. As I wrote in GoLocal last November, “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.”

Israel has largely abided by the principles. Hamas has violated them at every turn. Yet the Biden administration seeks to punish Israel. Indeed, before the war, Biden had already endangered Israel by restoring hundreds of millions of dollars in aid to the Palestinians that Trump had cut, including to the terror-linked United Nations Relief and Works Agency (UNWRA). The Biden administration also has helped to fuel internal division in Israel. By punishing Israel, Biden seeks to diminish its objections to the establishment of a Palestinian state, which would be a disaster for both Israel and the United States.

The idea of a Palestinian state has been an obsession for the Biden administration that predates the war between Israel and Hamas. Of course, a Palestinian state is a non-starter for Israelis, who had just been attacked by a self-governing Palestinian territory. But for Biden, it offers a way to placate his critics at home, e.g. Arab and Muslim voters in Michigan while scoring a foreign policy “achievement.”

But here’s what Bill Clinton said about Hamas and a potential Palestinian state in 2016. “I killed myself to give the Palestinians a state. I had a deal they turned down that would have given them all of Gaza… between 96%-97% of the West Bank, compensating land in Israel, you name it….Hamas is really smart. When they decide to rocket Israel, they insinuate themselves in the hospitals, in the schools, in the highly populous areas, and they are smart. They said they try to put the Israelis in a position of either not defending themselves or killing innocents. They’re good at it. They’re smart. They’ve been doing this a long time.”

Clinton’s observations illustrate how the Democratic Party has changed. Its “center” has shifted substantially to the “left.” And that’s not good for either the United States or Israel.