The Right to Defend
By Alan M. Dershowitz
FrontPageMagazine.com | 1/5/2009
Israels military actions in Gaza are entirely justified under international law, and Israel should be commended for its act of self-defense against international terrorism. Article 51 of the United Nations Charter reserves to every nation the right to engage in self-defense against armed attacks. The only limitation international law places on a democracy is that its actions must satisfy the principle of proportionality. Israels actions certainly satisfy that principles.
When Barack Obama visited the city of Sderot this summer, he saw the same things that I had seen during my visit on March 20 of this year. Over the last four years, Palestinian terroristsin particular, Hamas and Islamic Jihadhave fired more than two thousand rockets at this civilian area, which is home to mostly poor and working-class people. The rockets are designed exclusively to maximize civilian deaths, and some have barely missed schoolyards, kindergartens, hospitals, and school buses. But others hit their targets, killing more than a dozen civilians since 2001, including in February 2008 a father of four who had been studying at the local university. These anticivilian rockets have also injured and traumatized countless children.
The residents of Sderot have fifteen seconds from the launch of the rocket to run into a shelter. The rule is that everyone must always bee within fifteen seconds of a shelter, regardless of what they are doing. Shelters are everywhere, but the aged and the physically challenged often have difficulty making it to safety. On the night I was in Sderot, a rocket landed nearby, but there had been no red alert. The warning system is far from foolproof.
In most parts of the world, the first words learned by toddlers are mommy and daddy. In Sderot, they are red alert. The police chief of Sderot showed me hundreds of rocket fragments that had been recovered. Many bore the name of the terrorist group that had fired the deadly missiles. Although firing deliberately to kill civilians is a war crime, the terrorists who fired at the civilians of Sderot were proud enough of their crimes to sign their murderous weapons. They know that in the real world in which we live, they will never be prosecuted for their murders and attempted murders.
Barack Obama reacted to what he had seen in Sderot by saying that if his two daughters were exposed to rocket attacks in their own homes, he would do everything in his power to stop such attacks. I hope and believe that President Obama will take the same position he did as candidate Obama.
The residents of Sderot were demanding that their nation take action to protect them. Most seem to agree with the Israeli decision to end its occupation of the Gaza Strip, to withdraw its soldiers and settlers despite the reality that during the occupation, rocket attacks increased against the residents of Sderot. But Israels post-occupation military options were limited, since Hamas deliberately fires its deadly rockets from densely populated urban areas, and the Israeli Army has a strict policy of trying to avoid civilian casualties.
The firing of rockets at civilians from densely populated civilian areas is the newest tactic in the war between terrorists who love death and democracies that love life. The terrorists have learned how to exploit the morality of democracies against those who do not want to kill civilians, even enemy civilians. In one recent incident, Israeli intelligence learned that a particular house was being used to manufacture and store rockets. It was a clear military target since their rockets were being fired at Israeli civilians. But the house was also being lived in by a family. So the Israeli military phoned the house, informed the owner that it was a military target, and gave him thirty minutes to leave with his family before the house was attacked. The owner called Hamas, which immediately sent dozens of mothers carrying babies to stand on the roof of the house. Hamas knew that Israel would never fire at a home with civilians in it. They also knew that if, by some fluke, the Israeli authorities did not learn that there were civilians in the house, and fired on it, Hamas would win a public relations victory by displaying the dead civilians to the media. In this case, Israel did learn of the civilians and withheld its fire. The rockets that were spared destruction by the human shields were then used against Israeli civilians.
This, in a nutshell, is the dilemma faced by democracies with a high level of morality. The Hamas tactic would not have worked against the Russians in Chechnya. When the Russians were fired upon, they fired against civilians without hesitation. Nor would it work in Darfur, where janjaweed militias have killed thousands of civilians and displaced 2.5 million in order to get the rebels who were hiding among them. Certain tactics work only against moral enemies who care deeply about minimizing civilian casualties.
Over the past months, a shaky cease-fire, organized by Egypt was in effect. Hamas agreed to stop the rockets and Israel agreed to stop taking military action against Hamas terrorists in the Gaza Strip. The cease-fire itself was morally dubious and legally asymmetrical.
Israel, in effect, was saying to Hamas: if you stop engaging in the war crime of targeting our innocent civilians, we will stop engaging in the entirely lawful military acts of targeting your terrorists. Under the cease-fire, Israel reserved the right to engage in self-defense actions such as attacking terrorists who were in the course of firing rockets at its civilians.
Just before the hostilities began, Israel offered Hamas both a carrot and a stick. Israel reopened checkpoints to allow humanitarian aid to reenter Gaza. It had closed these point of entry after they had been targeted by Gaza rockets. Israels prime minister also issued a stern, final warning to Hamas that unless it stopped the rockets, there would be a full scale military response. This is the way Reuters reported it:
Israel reopened border crossings with the Gaza Strip on Friday, a day after Prime Minister warned militants there to stop firing rockets or they would pay a heavy price. Despite the movement of relief supplies, militants fired about a dozen rockets and mortar shafts from Gaza at Israel on Friday. One accidentally struck a house in Gaza, killing two Palestinian sisters, ages 5 and 13
the deliveries could ease the tensions that might have led to a military action to end the rocket attacks. Palestinian workers at the crossings said fuel had arrived for Gazas main power plant and about a hundred trucks loaded with grain, humanitarian aid and other goods were expected during the day.
The Hamas rockets continued and Israel kept its word, implementing a carefully prepared targeted air attack against Hamas targets.
On Sunday, I spoke to the Air Force General, now retired, who worked on the planning of the attack. He told me of the intelligence and planning that had gone into preparing for the contingency that the military option might become necessary. The Israeli Air Force had pinpointed with precision the exact locations of Hamas structures, in an effort to minimize civilian casualties. Even Hamas sources acknowledged that the vast majority of those killed have been Hamas terrorists though some civilian casualties are inevitable when--as BBC's Rushdi Abou Alouf,who is certainly not pro Israel--reported that "the Hamas security compounds are in the middle of the city." Indeed his home balcony from which he observed the bombing of a compound was 20 meters from that military target.
There have been three types of international response to the Israeli military actions against the Hamas rockets. Not surprisingly, Iran, Hamas, and other knee-jerk Israeli-bashers have argued that the Hamas rocket attacks against Israeli civilians are entirely legitimate, and that the Israeli counterattacks are war crimes. Equally unsurprising is the response of the United Nations, the European Union, Russia, and others who, at least when it comes to Israel, see a moral and legal equivalence between terrorists who target civilians and a democracy that responds by targeting the terrorists.
The most dangerous of the three responses is not the Iranian-Hamas absurdity, which is largely ignored by thinking and moral people, but the United Nations and European Union response, which equate the willful murder of civilians with legitimate self-defense pursuant to Article 51 of the United Nations Charter. This false moral equivalence only encourages terrorists to persist in their unlawful actions against civilians. The United States has it exactly right by placing the blame on Hamas, while urging Israel to do everything possible to minimize civilian casualties.
There are some who claim that Israel has violated the principle of proportionality by killing so many more Hamas terrorists than the number of Israeli civilians killed by Hamas rockets. That is an absurd misapplication of the concept of proportionality for at least two reasons. First, there is no legal equivalence between the deliberate killing of innocent civilians and the deliberate killings of Hamas combatants. Under the laws of war, any number of combatants can be killed to prevent the killing of even one innocent civilian. Second, proportionality is not measured by the number of civilians actually killed, but rather by the risk of civilian death and the intentions of those targeting civilians. Hamas seeks to kill as many civilians as it can. It aims its rockets in the general direction of schools, hospitals, playgrounds and other entirely civilian targets. The fact that it has not killed as many civilians as it would have liked to is a tribute to Israels enormous devotion of resources to the building of shelters and to the construction of early warning systems. Hamas, on the other hand, refuses to build shelters, precisely because it wants to maximize the number of Palestinian civilians inadvertently killed by Israels military actions. It knows, from experience, that when it forces Israel to take military actions that result in the deaths of even a small number of innocent Palestinian civilians, many in the international community will condemn Israel. Israel understands this sad reality as well, and goes to enormous lengths to reduce the number of civilian casualties, even to the point of foregoing legitimate targets that are too close to civilian areas. Accordingly, Israels actions satisfy the principle of proportionality as well as the principle of self-defense against armed attack.
Until and unless the United Nations and the rest of the international community recognize that Hamas is committing three war crimes--targetting Israeli civilians, using their own civilians as human shields and seeking the destruction of a member state of the United Nations--and that Israel is acting in self-defense and out of military necessity, the conflict will continue and perhaps escalate. If Israel succeeds in destroying the terrorist organization Hamas, it may well lay the foundation for a real peace between the Palestinian Authority and Israel. But if Hamas persists in its capacity to target increasing numbers of Israeli citizens, Israel will have no choice but to persist in its self-defense efforts. No democracy would do otherwise.
Alan M. Dershowitz is a Professor of Law at Harvard. His most recent book The Case Against Israels Enemies: Exposing Jimmy Carter and Others Who Stand In The Way of Peace is being published by Wiley at the end of this month.
