The sense of horror over the discovery of the bodies of three dead Israeli teenagers — Naftali Fraenkel, Gilad Shaar and Eyal Yifrach — is matched only in the dread and disgust one feels over calls for Israel to show “restraint.”
We’ve seen this routine before – in the flotilla interdiction, in the Gaza operations and in the building of the construction of the security wall. Israel is viciously attacked without regard to whether the victims are civilians or military, old or young. Israel responds in self-defense and is immediately condemned for “disproportionate” use of force and even accused of war crimes if civilians are inadvertently killed (largely because Hamas hides behind the skirts of women and in the playgrounds of children).
Israeli-based writer Ruthie Blum observes:
As was to be expected, everybody’s main concern is that Israel will do what is necessary to defeat those who aggress against it. That the Arabs in Gaza and the [Palestinian Authority] wish to keep the “Zionist enemy” and “occupation forces” at bay is at least understandable.
After all, since Monday night, the Israeli Air Force has been striking dozens of terrorist targets throughout Gaza. . . . But it never ceases to boggle the mind that Western countries consider Israel to be a greater threat to “stability” than the Arabs who seek its destruction. Nor does it cease to amaze that the hackneyed phrase “enemies of peace” is still being used to refer to state-backed terrorists. They are not enemies of peace. They are enemies of Israel.
In this familiar exercise, there is no more misplaced sentiment nor abused concept than demands for “proportionality” in Israel’s defense against terrorists who abide by no international norms, target and kill innocents and expertly manipulate Western media.
For those who contend that international law is a crock and that calls for restraint are hypocritical and undeserving of response, none of this matters much. But for those who fancy international law, it is important at least to get the concepts correct. Israel has a right of self-defense, as does any country. Peter Berkowitz, an expert on Israel and the law of war, has previously explained:
The main tests of criminality in war are distinction and proportionality. They require fighters to strike a reasonable balance between humanitarian responsibility and military necessity, which sometimes are mutually reinforcing but also can be in tragic tension. Proper application of the laws of war necessitates an inquiry not only into the identity and suffering of civilians but also into tactics and strategy, battlefields and weapons, what troops and commanders knew and what they reasonably could have known. And thus their proper application depends not only on an understanding of fighters’ responsibilities toward noncombatants but also on expertise in the intricacies of battle and the requirements of victory. The inherent difficulties of applying distinction and proportionality are compounded when, as is the case with Hamas, one side unlawfully abandons the use of uniforms, refuses to carry its arms openly, hides amidst civilian populations, stores arms in ostensibly civilian facilities, and fires mortars, rockets, and missiles from civilian areas. Such blatantly unlawful conduct inevitably increases civilian casualties. But the international law of war is clear: Fighting forces that operate among civilians remain legitimate military targets, and fighters who use civilian areas and structures for military purposes cause them to lose their immunity.
Proportionality in the case of three murdered teens is somewhat absurd. Perfect proportionality – kidnapping and killing of three Palestinian teens – is unimaginable and grotesque. So Israel must find ways to respond, consistent with distinction and proportionality – but as properly understood under international law.
Berkowitz explains: “There is a legal test to determine whether the principle of distinction has been honored. The question is whether a reasonable combatant in the actual circumstances would believe that the target in question is being used to make an effective contribution to military action.” Targeting terrorists, shutting down tunnels used for arms smuggling and similar actions against Hamas even if civilian causalities occur is fully consistent with international law. Moreover, “under the laws of war, operating in civilian areas—hiding in mosques, schools, hospitals, and apartments—causes those objects to lose their immunity.”
As for proportionality, the test is not a mathematical equation (three victims per side). When terrorists killed 3,000 Americans on Sept. 11, 2001, the response was not “proportionate”; we went to war. The war against the Taliban and the al-Qaeda forces it gave sanctuary to was directly related to the end goal of preventing future attacks. (How effectively it was conducted is another matter.)
In the case of the three teens, Berkowitz comments via e-mails: “The problem is not with the principle of proportionality as inscribed in the international laws of war but with the abuse of the proportionality argument. The principle of proportionality does not say, as many progressives argue, that in defending itself a country may only inflict as much injury as it has suffered. Rather, according to the principle of proportionality, a country may attack legitimate military targets to the extent necessary to bring threats to an end. Harm to civilians and civilian infrastructure may result. They are only unlawful in the pursuit of a legitimate military objective if they are clearly excessive consequences of the effort to bring the threat to an end.” He acknowledged that there is room for controversy in applying to the principle to concrete cases. There is also room for Israel to destroy the Hamas infrastructure that funds, trains, and incites murderous terrorists.”
In other words, the extent to which Israel finds it necessary to root out and deter future terrorism is not limited by the number of buildings it hits or even by the terrorists’ body counts. The legal restraint on Israel is that the civilian deaths, if any, don’t overwhelm the objective – a pretty serious one in this case (deterring kidnapping and killing of innocent children).
Whatever your view on international law, the calls for restraint by Israel are perverse. The calls should be directed to the “unity” government and to Palestinian Authority President Mahmoud Abbas specifically. It is no longer tenable to do business with him so long as he remains in league with the teens’ killers. He must disentangle himself from his partnership with Hamas or lose the support and indulgence of the United States. As for Israel, the call should be for Israel to do what is necessary to bring the perpetrators “to justice” and to deter future attacks by our common enemies. Expecting the West to react in this way, I suppose, is a fanciful aspiration. That realization tells us volumes about the world’s treatment of Israel and the bastardization of international law.