Prime Minister Benjamin Netanyahu held a press conference on Wednesday evening in Jerusalem at which, unusually, he spoke at length in English, and focused on matters he had not addressed in his Hebrew remarks, setting out a moral justification for the IDF’s approach to battling Hamas’s civilian-centered war machine.
He began the English section of the event by screening rare Indian and other TV footage of Hamas rocket fire (and presenting supplementary information regarding mortar fire and tunneling activities) in Gaza residential areas — rare, he said, because Hamas intimidates journalists into not revealing its abuse of Gaza’s civilians as human shields. He implored those journalists leaving Gaza to ensure that the full truth now came out.
He then moved to the central theme of his remarks, which was to argue robustly about the imperative to tackle terrorism even when its perpetrators have perniciously embedded themselves — as Hamas has done — in the midst of the civilian populace. As you have seen, he said, Hamas “has adopted a strategy that abuses and sacrifices Gaza’s civilians. They use them as human shields; they endanger them and deliberately increase the death toll. They fire their rockets at Israel from schools, from hospitals, from mosques.”
In its resort to force, Israel had to protect its people “from roughly 3,500 rockets… fired on our cities, on our towns, on our civilians, on our children in the last month” and the cross-border “terror tunnels built to send death squads into Israel, to commit terrorist atrocities against Israel’s civilians, to kidnap and to kill.”
Acknowledging that “nearly everyone says that they support Israel’s right to defend itself,” Netanyahu focused, however, on “those who refuse to recognize or to let Israel exercise that right. They would allow Hamas to attack with impunity, because they say ‘they’re firing from schools or from mosques or from hospitals and Israel should not take action against them.’”
That, he argued, “is obviously a mistake. It’s a moral mistake. It’s an operational mistake. Because that would validate and legitimize Hamas’s use of human shields, and it would hand an enormous victory to terrorists everywhere and a devastating effect to the free societies that are fighting terrorism.”
If terrorists were given a free hand when operating in civilian areas, said Netanyahu, “more and more civilians will die around the world, because this is a testing period now. Can a terrorist organization fire thousands of rockets at cities of a democracy? Can a terrorist organization embed itself in civilian areas? Can it dig terror tunnels from civilian areas? Can it do so with impunity because it counts on the victimized country to respond as it must, as any country would, and then be blamed for it? Can we accept a situation in which the terrorists would be exonerated and the victims accused?”
This was not only an issue for the international community to internalize regarding Israel and its challenges, he said, but relates to “a wave of radical terrorists” elsewhere “that are now seizing vast cities, civilian populations and doing exactly the tactic that Hamas is doing. That’s exactly what ISIL is doing, what Hezbollah is doing, what Boko Haram is doing. What Hamas is doing is what al-Qaeda is doing.”
The test, he summed up, did not merely relate to the international community’s attitude towards Israel – “an embattled democracy using legitimate means against these double war crimes of targeting civilians and hiding behind civilians. The test is for the civilized world itself, how it is able to defend itself.”
Netanyahu also took a question on the matter: While the Israeli death toll was in the 60s, a CNN reporter noted, “we’ve seen more than 1,800 people killed in Gaza, 900 or almost 1,000 of which are civilians, estimated. Do you really feel that your actions, Israel’s actions were proportionate? And were you using the appropriate precision weapons even if Hamas is using them as human shields?”
The prime minister was adamant: “Yes, I think it was justified, I think it was proportional, and that doesn’t in any way take away from the deep regret we have for the loss of a single civilian…
“Let’s imagine your country is attacked by 3,500 rockets. Your territory is infiltrated by death squads. What would you do?” he asked. “What would you demand that your government do to protect you and your family? You’d demand that and you’d be right because security, protecting the people, is the first obligation of any government. But what if the rockets are fired from civilian areas? And the tunnels come from schools, from mosques, from private houses where civilians live? Should you then not take action? Do the terrorists have immunity because of the fear that some civilians will unfortunately get hurt?
“Let me tell you what I think disproportionality is,” he concluded. “It’s not acting to defend your people and giving the terrorists a license to kill. I think that’s disproportionate and that’s wrong.”
I asked Robbie Sabel, a former legal adviser to Israel’s Foreign Ministry and professor of international law at Hebrew University, for the legal perspective on Netanyahu’s argument, including how well it might hold up under outside investigation.
‘A democracy fights a war with one hand behind its back’
The prime minister, said Sabel, was on solid ground in arguing that if a civilian object — be it a mosque, a school, a hospital — is used for military purposes, it loses its immunity and becomes a legitimate military target. At the same time, Sabel stressed, invoking the rules of war as based on the first protocol of the Geneva Conventions of 1949, the use of military force is still subject to the law of proportionality.
“If a hospital was used for healthy soldiers to sleep in, it would become a legitimate military target,” Sabel elaborated theoretically. But those taking a decision on whether to target it “must weigh the proportionate civilian casualties against the military advantage.” In short, you couldn’t blow up an entire hospital to take out 10 gunmen.
The assessment might be different if the entire headquarters of a potent terrorist organization was sited at a hospital, Sabel went on. But speaking practically now, he noted that Israel did not target Gaza City’s main Shifa Hospital, even though it knew Hamas leaders were hiding out there. “We’d have been accused of causing excessive civilian casualties.”
How then could Israel, or any other democratic nation seeking to observe the rules of war, prevail over terrorist organizations amorally exploiting such considerations?
Sabel answered first by stressing that it is indeed only democratic nations that care about such matters. “Syria, for instance, doesn’t give a damn,” he said. He then cited former Israeli Supreme Court president Aharon Barak, who once noted that “a democracy fights a war with one hand behind its back.”
That said, he argued that the rule of proportionality still enables the defeat of terrorism emplaced in civilian areas. “There is no mathematical formula” when weighing military advantage against civilian casualties, he said, so one vital key is that “you try to minimize” such casualties. In this respect, he said, Israel was unique in that it issues warnings, “which no other air force does,” before striking at critical targets.
Netanyahu on Wednesday described Israel’s operational methods against Hamas, and the way they are judged, as a test case for the international community. In fact, said Sabel, the US and the UK had tackled terrorism in the heart of civilian areas in both Afghanistan and Iraq. And overall, he said, “I think we’ve been more careful.”
And will that “careful” Israeli approach now ensure that it is vindicated in the looming wave of UN probes and possible war crime suits? “It is irrelevant in terms of public relations,” Sabel said, where you can’t tackle the issue of “dead children by quoting Protocol 1.” But Israel would be on firm legal ground “if the issue were to come to a neutral court of law.” And in terms of the assessment of Israel’s peers, notably the Judge Advocate General’s Corps in the US and UK, for instance, “here we come out with flying colors.”
Sabel said he did not regard the planned UN probe or possible International Criminal Court attention as neutral legal forums, and said he did not anticipate even friendly governments coming out to praise Israel. “But in their internal discussions,” in the relevant departments of those responsible states, “they’ll say we complied” with the rules of war.
Incidentally, Sabel does not anticipate Israel finding itself before the ICC, because the Palestinians know that were they to accept the court’s jurisdiction, as they would be required to do, they too would be subject to its authority. “And Hamas deliberately and flagrantly ignores the rules of war.”