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Sunday, November 18, 2012

Israel's Right to Self-Defense Against Hamas

Source: Haaretz
By Alan M. Dershowitz


The media and international community's failure to distinguish between the Israeli military and Hamas terrorists is not only immoral but encourages terrorism and erodes the basic principles of just warfare.


As Hamas continues to target Israeli civilians in their homes, Israel continues to target terrorist leaders and other legitimate military targets. Hamas has now succeeded in killing a family of three in their home. Targeting civilians, such as that family, is a calculated Hamas policy designed to sow terror among the Israeli population.  Hamas supporters celebrate the murder of Jewish civilians.  Every rocket fired by Hamas from one of its own civilian areas at a non-military Israeli target is a double war crime that should be universally condemned by all reasonable people.  Israel’s response—targeting only terrorists and Hamas military leaders – is completely lawful and legitimate.  It constitutes an act of self-defense pursuant to Article 51 of the United Nations Charter and universally accepted principles of international law. 


Running for cover after red alert siren


There is absolutely no comparison between the murderous war crimes being committed by Hamas and the lawful targeting of terrorists by the Israeli military. Yet the Egyptian government, now controlled by the Muslim Brotherhood, has condemned Israel while remaining relatively silent about Hamas. This should not be surprising, since Hamas is an offshoot of the Muslim Brotherhood. 

Some in the media also insist on describing the recent events in Gaza as “a cycle of violence,” without distinguishing between the war crimes committed by Hamas and the lawful actions undertaken by Israel to protect its citizens against such war crimes. It would be as if the media described lawful police efforts to stop illegal drug-related murders as a “cycle of violence.”  Yet J Street, an organization that persists in calling itself pro-Israel, insists on describing the situation in Gaza as a “spiral of violence."

What would Egypt do if Hamas or Islamic Jihad suddenly began to lob deadly shells in the direction of Cairo suburbs? What would any country do? President Obama was entirely correct in defending Israel’s right to protect its citizens from terrorist attacks and in condemning Hamas for initiating these attacks. He is also correct in calling for Israel to try its best to avoid unnecessary civilian casualties, as Israel has always done and continues to do. The targeted killing of Hamas military commander Ahmed al-Jabari is a case and point. He and a Hamas associate were killed in a pinpoint airstrike that apparently caused no collateral damage. 

There are some who argue, quite absurdly, that all targeted assassination is unlawful, since it constitutes “extrajudicial killing.” But all military deaths are extrajudicial killings, as are deaths caused in the civilian context by individual acts of self-defense or by the police shooting a dangerous fleeing felon. In fact, only Israel among all the countries of the world has subjected its policy of targeted killing of terrorists to judicial review. The Israeli Supreme Court has set out careful and precise criteria for when targeted killing is appropriate and which people constitute appropriate targets under international law. Ahmed Jabari plainly fits within those criteria.

Israel’s response to the Hamas rockets must of course be proportional, but proportionality does not require that Israel wait until a large number of its civilians are actually killed or seriously injured. Israel’s response must be proportionate to the threat faced by its civilian population.  Indeed, the goal of its actions must be to prevent even a single Israeli civilian death.


Israelis have been spending much of their time in bomb shelters


In addition to the Israel Supreme Court imposing constraints on its military, Israeli civilians and the Israeli media also serve as an important check. When, on occasion, Israeli military actions have caused a disproportionate number of civilian deaths, Israelis have become outraged at their military and demand a greater adherence to the principles of proportionality. This contrasts sharply with the population of Gaza, much of which applauds and celebrates every time an Israeli child is killed by a Hamas rocket. It is immoral in the extreme to compare Israel to Gaza or to compare the Israeli military to Hamas terrorists.  

It would be better, of course, if a permanent ceasefire could be arranged under which Hamas would stop firing rockets at civilians and Israel would no longer need to target Hamas terrorists. Egypt could play a more positive role by trying to bring about a ceasefire instead of unilaterally condemning the victims of war crimes, as it has done.

But until Hamas stops terrorizing more than a million Israeli civilians, the Israeli military will have no choice other than to use its technological advantage to prevent and deter Hamas terrorism. It is the obligation of every sovereign state, first and foremost, to protect its civilian population from terrorist attacks. Israel’s decision to use targeted assassination against Hamas combatants is preferable to other military options, such as a massive ground attack that inevitably will cause more collateral damage. 

But if Hamas’s rocket attacks persist, Israel may have little choice to invade the Gaza and take more extensive steps to protect its civilian population. It’s up to Hamas, which is entirely to blame for the current situation, as it was when Israel was forced to invade back in 2008. The international community and the media must begin to differentiate between war crimes committed by terrorists and legitimate acts of self-defense engaged in by a responsible military. Failing to emphasize that distinction encourages terrorism and erodes the moral basis of the important principle of just warfare. 

Alan M. Dershowitz, the Felix Frankfurter Professor of Law at Harvard, is a practicing criminal and constitutional lawyer and the author, most recently, of The Trials of Zion.


Sitting in a sewage pipe used as shelter against Hamas rocket attacks. An unacceptable way to live