As the ICC moves to destroy the very international law it was created to uphold - by Evelyn Gordon

All law is based on two fundamental principles: that compliance is possible without leaving yourself or your country vulnerable to destruction; and that compliance protects you from legal trouble. If those two criteria aren’t met, nobody would have any reason to obey the law. The ICC’s decision to prosecute Israel eviscerates both those principles. And as such, it’s liable to destroy the very international law it was created to uphold.

Evelyn Gordon..
JNS.org..
18 March '20..

March 16 was the deadline for filing briefs on whether the International Criminal Court should recognize Palestine as a state. But important though that question is, the ICC prosecutor’s decision to open a criminal investigation against Israel poses a much bigger problem: Contrary to the court’s stated mission of trying to reduce the harm caused by war, it may well result in even higher casualties and more extensive property damage.

Like all Western countries, Israel makes great efforts to uphold customary laws of war, including by trying to minimize civilian casualties. As a group of high-ranking Western military experts wrote in a report on the Hamas-Israel war of 2014, Israel “met and in some respects exceeded the highest standards we set for our own nations’ militaries.” In fact, Israel has historically caused fewer civilian casualties and less property damage than other Western armies.

Many Israelis actually resent this, arguing that the restrictions imposed on the army’s use of force put Israel’s own soldiers and civilians at greater risk. And the Israel Defense Forces’ vehement denials can’t necessarily be taken at face value since it would hardly admit to putting Israelis at risk. Yet even assuming these denials are truthful, the fact that many Israelis believe otherwise means that the army is under constant pressure to be less stringent about using force.

Until now, however, it has had a strong counter-argument: These restrictions aren’t so onerous as to make effective military action impossible, and obeying them keeps our soldiers and politicians out of international legal trouble. Consequently, it’s worth the effort.

But now, ICC prosecutor Fatou Bensouda has declared that all the IDF’s efforts were worthless:

(Continue to Full Column)

Updates throughout the day at http://calevbenyefuneh.blogspot.com. If you enjoy "Love of the Land", please be a subscriber. Just put your email address in the "Subscribe" box on the upper right-hand corner of the page.Twitter updates at LoveoftheLand as well as our Love of the Land page at Facebook which has additional pieces of interest besides that which is posted on the blog. Also check-out This Ongoing War by Frimet and Arnold Roth. An excellent blog, very important work. 

.

Israel, Hamas and the Laws of Armed Conflict in Gaza - by Lt. Gen. John Toolan, USMC (ret.)

...Israel will survive misperceptions and ill-informed reporting, though at the cost of increased and unnecessary pressure from the outside world to terminate lawful operations in self-defense. But sadly the same prospects for survival will not apply for Arab civilians unless perspectives on the radical differences in how Israel and its adversaries operate become dramatically more objective.

Lt. Gen. John Toolan, USMC (ret.)..
realcleardefense.com..
14 August '18..

For months now, recurring clashes between Israel and Hamas in Gaza have featured a mix of old and new. Always seeking innovative ways to target Israel, Hamas has debuted new tactics like indiscriminate airborne incendiaries and interspersing terror cells in crowds of civilians attempting to infiltrate Israel. But the purpose of such tactics follows a dangerous, underappreciated pattern of terrorist groups intentionally trying to delegitimize Israel’s lawful self-defense.

In the case of Gaza, Hamas attacks Israel and violates the laws of armed conflict by forcing the deaths of civilians to trigger heated condemnations of Israel.

From the outset of ongoing fighting in March, Hamas’s attacks on Israel’s border were ostensibly peaceful protests declared to be the “Great March of Return.” These demonstrations, organized under the pretext of Palestinians exercising their “right” to return to ancestral homes in Israel, in reality involved Hamas encouraging thousands of Gazans to storm and potentially break through Israel’s border fence en masse. Hamas implanted its military operatives within the onrushing crowds, effectively using civilians as human shields.

These “peaceful” demonstrations are a win-win for Hamas. However infinitesimal the odds, successfully overrunning the border could be portrayed as advancing the terrorist group’s goal – stated in its founding covenant – ultimately to eliminate Israel.

Hamas enjoys far more success, however, when the attacks fail.

(Continue to Full Article)

Updates throughout the day at http://calevbenyefuneh.blogspot.com. If you enjoy "Love of the Land", please be a subscriber. Just put your email address in the "Subscribe" box on the upper right-hand corner of the page.Twitter updates at LoveoftheLand as well as our Love of the Land page at Facebook which has additional pieces of interest besides that which is posted on the blog. Also check-out This Ongoing War by Frimet and Arnold Roth. An excellent blog, very important work. 

.

The Red Cross Destroys the Laws of War, Making War More Deadly - by Evelyn Gordon

...The ICRC is not only encouraging terrorists to operate from among civilian populations by granting them immunity; it is also discouraging efforts to comply with the civilian protection measures mandated by the real laws of war. In other words, it’s actually making civilian casualties more likely on two counts – and thereby betraying its own humanitarian mission.

Evelyn Gordon..
Commentary Magazine..
14 November '17..
Link: https://www.commentarymagazine.com/foreign-policy/middle-east/red-cross-laws-war/

The International Committee of the Red Cross, self-appointed guardian of the laws of war, has embarked on an exciting new online project: destroying the very laws it ostensibly seeks to protect. Of course, the ICRC would put it differently; it would say it’s teaching the laws of war. The problem is that the “laws” it teaches aren’t the actual laws of war, as codified in international treaties, but a made-up version that effectively denies countries any right of self-defense against enemies that fight from positions inside civilian populations. And it is thereby teaching anyone unwilling to concede the right of self-defense that the laws of war should simply be ignored.

When Israel Hayom reported on the “Don’t Be Numb” project last week, it sounded so outrageous that I suspected reporter error. But the project’s website proved even worse.

The website has four sections – “behavior in war,” “medical mission,” “torture” and cultural property.” But the big problem is the first one, which consists of three questions users must answer correctly to receive a “medal of integrity.”

Question number one: “You’re a military commander. The enemy is hiding in a populated village across the front line. Can you attack?” The correct answer, according to the website, is “no.”

This is simply false. The laws of war do not grant immunity to enemy soldiers simply because they choose to hide among civilians, nor do they mandate avoiding any military action that might result in civilian casualties. They merely require that civilians not be deliberately targeted (the principle of distinction), that reasonable efforts be made to minimize civilian casualties, and that any such casualties not be disproportionate to the military benefit of the operation (the principle of proportionality).

The second question was, “What if you know for a fact that many civilians would be killed? Can you attack?” Since the ICRC had already ruled in the first question that attacking populated villages is never permissible, I’m not sure what purpose this question served; it would only make sense if the answer to the first question had been “yes” and this were a follow-up meant to explore the limits of the license to attack populated villages. But let’s ignore that incongruity and examine the question on its own merits.

The ICRC’s answer, of course, was “no.” But the correct answer is “insufficient information.” As noted, the laws of war don’t prohibit civilian casualties as collateral damage of a legitimate military operation. They do, however, require that such casualties not be disproportionate to the military benefit, and the question doesn’t supply the information necessary to determine whether this attack would be proportionate. For instance, how many civilian casualties does “many” actually mean – 10? 100? 1,000? Even more important, what price will your own side pay if it doesn’t attack? For instance, how many of your own civilians might be killed if you don’t stop the enemy’s rocket and mortar fire?

Holding Israel to an Impossible Standard

...perhaps of even more concern should be the fact that we appear to be moving toward a scenario in which every western war against terrorists will inevitably be held up as illegitimate. This report should begin by prompting world leaders to reconsider how they view Israel’s military activities. But then it should prompt some much deeper thinking about how they intend to fight and win their own wars while also holding Israel to the impossible standard that they currently do.

Tom Wilson..
Commentary Magazine..
15 December '15..

The debate about where the moral culpability lies for the casualties that resulted from the recent conflicts in Gaza is one that has been engaged in repeatedly, and is no doubt one that will be repeated the next time that Israel is compelled to undertake military operations in the Gaza Strip. In the case of the 2014 summer war in Gaza, both the U.N. and Amnesty International released reports slamming Israel for its role in that war. These purportedly impartial reports invoked the authority of human rights experts and international law in an effort to demonstrate beyond all reasonable doubt the criminality of Israel’s actions in Gaza.

Now, however, an 80-page report has been released by the international High Level Military Group that sets out a robust and evidenced case for why these other Gaza reports can be in large part discounted. As has been pointed out by Colonel Richard Kemp — one of the report’s authors — an assessment of Israel’s conduct during the Gaza operation ought to be undertaken with reference to the Laws of Armed Conflict, and yet most of the investigations into the Gaza conflict appear to have been conducted by those with woefully little military understanding.

The group, which includes senior military figures from the United States, Britain, France, India, Spain, Germany, Italy, Australia, and Colombia, concluded that Israel’s defense forces had gone far beyond the required level of care that a military is obliged to show when balancing the welfare of civilians against questions of military necessity. But crucially, this is by no means a finding that the Generals are entirely welcoming of. Rather, they point out that if this new rigorous level of humanitarian concern adopted by Israel comes to be accepted as the norm in the international community, then it will become impossible for other militaries to effectively fight future wars.

This is perhaps the most interesting matter raised by the report. Clearly Israel’s experience in Gaza has very profound implications for other democracies seeking to wage war against terrorist non-state actors. Terror groups who not only have no regard for international human rights law but that also have no fear of their international standing being tarnished equally do not need to worry about condemnation at the U.N. having repercussions such as the imposition of sanctions. In fact, these groups are clearly learning from Hamas tactics and seeing that it is possible to gain an advantage over western armies that restrain themselves in accordance with the stipulations of international law.

Some thoughts and notes on law and war

...Hamas does not simply commit war crimes in the process of fighting. The Hamas strategy is, quite simply, based on the commission of war crimes. Their offensive weapons are deliberately aimed at Israeli civilians, and they fire them from within their own population, with intent to deter Israel from striking back. These are both war crimes.

Vic Rosenthal..
Abu Yehuda..
17 July '14..

Many observers have pointed out that the asymmetric nature of the conflict between Israel and Hamas greatly favors Hamas. Elan Journo argues that the international laws of war “abet Hamas [and] undercut Israel”:

We can all agree that civilian casualties are an unwelcome fact of war, but these laws are rigged against Israel in this conflict—rigged against any free nation acting in self-defense. The more scrupulously Israel complies with these norms, the more it abets Hamas and undercuts its self-defense.

Morally, in defending itself, Israel’s priority must be eliminating the threat from Hamas. Hamas has declared its goal of destroying Israel in no uncertain terms. It is responsible for devastating suicide bombings and, over the years, thousands of rocket attacks from Gaza against towns and cities in Israel. Yet, against this backdrop, the laws of war enjoin Israel to practice restraint and to subordinate the objective of self-defense in the name of safeguarding civilians in a war zone.

He has a point, but I would put it differently: it isn’t the content of the laws of war, but rather their unbalanced enforcement that favors Hamas.

Hamas does not simply commit war crimes in the process of fighting. The Hamas strategy is, quite simply, based on the commission of war crimes. Their offensive weapons are deliberately aimed at Israeli civilians, and they fire them from within their own population, with intent to deter Israel from striking back. These are both war crimes.

There is no doubt that Hamas is violating international law with intent, while the IDF is going out of its way, to a greater extent than any other army in history, to protect enemy noncombatants. Despite some highly-publicized incidents, the total number of Gazan casualties in ten days of fighting is relatively low, and analysis shows that the complaint that a majority are civilians is probably false. The accusation that Israel intentionally targets civilians has no basis.

But there are two ways in which the laws of war are being misapplied. First, both because of Hamas’ status as a rogue non-state entity and its support from Iran, a rogue state itself, it is difficult to punish it for its transgressions. And second, because of the biased international establishment — the UN and the “human rights” NGOs — Israel is expected to adhere to an impossible standard of compliance. Given that no other nation has ever behaved in the way Israel is expected to, the hypocrisy of the establishment is blatant.

The Israel-Hamas conflict - The obligation of getting the law right

...Using human shields is not a romanticized effort at neighborhood defense — it is a war crime. Using hospitals as munitions depots or sites for rocket launchers endangers every civilian who needs medical treatment, because once the hospital is used for military purposes, it loses its protection from attack. Using houses for all manner of military activity amounts to using the civilian population as a shield and risks the life of every civilian in the neighborhood. This conduct demonstrates that Hamas not only views every civilian and every city in Israel as a target — which is wholly illegal — but that it also views every civilian and every neighborhood in Gaza as an expendable pawn in a propaganda war, a tragic and equally illegal approach.

Laurie R. Blank..
thehill.com..
11 July '14..
H/T This Ongoing War..

International law has quite a lot to say about the latest violence that has flared up between Israel and Hamas. So do the media. Unfortunately, they rarely match, leading to unfortunate — and sometimes egregious — misrepresentations. In an age when both real and perceived violations of international law have a substantial effect on the legitimacy of state action, getting it wrong is way more than just bad journalism.

The core purpose of the law of war — a centuries-old framework regulating conduct during wartime — is to protect civilians and minimize suffering during wartime. In any conflict, all parties — states, rebel groups, terrorist organizations — have obligations to minimize harm to civilians. For each party, these obligations take two primary forms: protecting civilians in the areas where it is attacking, and protecting its own civilians from the consequences of attacks by the enemy party. Attacking parties must 1) attack only enemy personnel and objects; 2) refrain from any indiscriminate attacks; 3) refrain from attacks in which the expected civilian casualties will be excessive in light of the military value of the target; and 4) provide warnings for civilians of attacks where feasible. In their own territory, militaries and armed groups must refrain from locating military objectives in densely populated areas and take other steps to keep civilians out of harm's way. Specifically, the law also criminalizes the use of civilians as human shields.

It is particularly disheartening, therefore, when perversions of this law, through biased or faulty media coverage, effectively promote the very opposite result. Consider media coverage of Israeli strikes on targets in Gaza, of Hamas and Islamic Jihad's rocket attacks on Israel, and of Hamas's actions in Gaza.
First, reports have described Israel's comprehensive system of warnings to civilians before launching strikes in Gaza as "contentious" and suggest that it is motivated solely by the desire to evade potential war crimes charges. Under the law of war, warnings are designed to protect civilians by giving them the opportunity to leave an area of hostilities and seek safety. Examples of such warnings include radio announcements, leaflets, or other generalized communications. Israel's use of individualized, specific warnings by phone and text goes far beyond what the law requires — it is hard to imagine how they could possibly be described as "contentious," instead of unprecedented or protective.

At the same time, the law of war does not require warnings before targeting enemy personnel — indeed, the law authorizes the use of lethal force as a first resort against enemy fighters and military objects. Imagine the absurdity of a system that required soldiers to give the enemy a chance to hide or plan an ambush by giving a warning before attacking: The United States did not warn German or Japanese soldiers before attacking them in World War II, nor should it have. Hamas militants are fighters, not civilians, and therefore are not entitled to protection from attack, just as Israeli soldiers are not protected from attack during conflict. It is the civilians of Gaza and Israel and every other conflict zone that the law seeks to protect, through a comprehensive web of protections and obligations.

The Debate over Gaza Tactics and Maintaining Clarity

David French..
nationalreview.com..
15 November '12..

If the past is any guide, increased conflict in Gaza will be accompanied by international demands for Israeli restraint, frivolous accusations of Israeli war crimes, and perhaps even complaints to the International Criminal Court. Before the outcry even has a chance to build, it’s important to remember how the Law of Armed Conflict (LOAC) actually applies to Gaza.

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). Applying these principles to the Gaza conflict, three truths emerge:

1. Every Hamas rocket attack is a war crime. Hamas rocket attacks — which are aimed directly at Israeli civilians — clearly violate the rules of necessity and distinction. In fact, it’s difficult to discern any true military purpose for attacks that are more likely to hit schools and homes than they are military targets. Worse, there’s no indication that Hamas even tries to aim its rockets at military targets. But there’s an additional, less obvious manner in which these rocket attacks constitute war crimes: Because they’re conducted from civilian areas by men wearing civilian clothes, Hamas violates its obligation to distinguish its own noncombatants from combatants. Wearing civilian clothes and blending in to the civilian population is a violation of the laws of war. In fact, the wearing of civilian garb is a war crime even if Hamas attacks only military targets.