The law is an ass

The term “collective punishment” conjures up images of Nazis executing entire villages in retaliation for a partisan ambush. No wonder Jews are acutely sensitive to charges of imposing collective punishment or targeting civilians.

And we hear those charges a lot: last summer in Lebanon; every time Israeli artillery hit back at the source of Kassam fire from Gaza. Were Syria to fire missiles at Israeli cities, and Israel to strike back at Syrian cities with even greater force, the international community would undoubtedly condemn Israel.

Accusations of war crimes by states attempting to defend against terrorist attacks have become a major weapon in the terrorist arsenal. In the words of Boaz Ganor of the Herzliya Interdisciplinary Center, so-called customary international humanitarian law (CIHL) is a “force multiplier” for terrorist groups, who think nothing of putting civilians in the line of fire.

That requires some serious rethinking of the laws of war predicated on an outdated model of opposing armies facing off on an open field far removed from civilian populations. Modern warfare inevitably implicates civilian populations.

The doctrine of Mutually Assured Destruction (MAD), which protected against nuclear conflagration during the Cold War, for instance, is predicated on the threat of collective punishment on a massive scale. Few citizens of the Soviet Union would have had any input into the decision to launch a nuclear attack on the United States. But they would nevertheless have been incinerated by the American retaliation. Similarly, Israel’s survival today depends on the credibility of our willingness to respond in kind to any attack on Israeli civilians by Iran or Syria.

One might distinguish Soviet citizens from residents of Gaza or southern Lebanon on the grounds that the former were part of a hierarchical governmental structure. But the distinction is far from clear. Hamas in Gaza and Hizbullah in southern Lebanon essentially function as autonomous governments. And they are far more representative of the populations they rule than the government of the Soviet Union ever was. Hamas was popularly elected, and Palestinian polls show widespread support for the ongoing Kassam attacks on Israel. And residents of southern Lebanon have more to say about Hizbullah rocket launchers in their backyard and weapons stored in their basements than Soviet citizens had about the actions of their regime.

IT IS TIME we recognize, to paraphrase Voltaire on the Holy Roman Empire, that “customary international humanitarian law” is neither customary, nor law, nor humanitarian. It is not customary because it is not based on the actual behavior of nations past or present. When the Southern states began executing captured former slaves fighting in the Union Army, president Lincoln announced that the Union would execute captured Confederate soldiers in reprisal. The executions stopped. (In the same vein, denying Palestinians access to security prisoners held by Israel would be far more effective in securing access to our captive soldiers than beseeching the international community to intervene.)

During World War I, the Allies blockaded the Central Powers to force them into submission via starvation. And in 1943, Churchill ordered 1,000 British bombers to hammer Hamburg. (For good reason did the British omit the bombing of civilian populations from the Nuremberg indictments.) The firebombing of Dresden in the waning days of World War II killed tens of thousands of German civilians. Was that firebombing, however, self-evidently immoral if it also saved thousands of far more innocent Jews in the death camps by hastening the end of the war?

Yet if Israel engaged in any of these actions, it would be roundly condemned by the international community.

NOR IS customary international humanitarian law law in any meaningful sense. Its “rules” were not enacted by any international governmental body to which sovereign nation-states ceded the right to legislate. Nor are they even embodied in reciprocal treaty obligations entered into by sovereign states. They are nothing more than “rules” derived from declarative statements made by any and everybody – from various tinpot dictators and tyrants to Human Rights Watch – on what they think international law should be; and presto, according to the International Committee of the Red Cross (ICRC), it is.

Nor are the “rules” humanitarian. As Ganor points out, they render civilian populations more vulnerable by creating incentives for terrorists to operate from their midst.

And notes Jeremy Rabkin, an incisive academic critic of the inanities of CIHL, the rules are designed to favor guerrilla and terrorist fighters. In particular, they sever the obligations on states trying to defend themselves against terrorism from any reciprocal obligations on the part of terrorists.

Those “rules” are the outgrowth of a Geneva Conference convened by the ICRC in 1975, at which Third World countries outnumbered Western powers. And they form a pattern with UN General Assembly resolutions of the period demanding a New World Economic Order. In effect, they have redistributed military power to terrorist groups.

In responding to claims that Israel has violated CIHL, our recourse must be to elementary logic and an examination of the actual conduct of nations. Just as the US Constitution is not a “suicide pact,” neither is international law. Until human rights advocates tell us what we can do to protect our cities from missiles and our citizens from suicide bombers, CIHL has no claim on our attention.

In the meantime, let Israel begin to place the lives of its citizens first, as has every other nation in history. We have no wish to see the people of Gaza starve, but unless the Hamas government stops the Kassams, closes the tunnels bringing in lethal weapons and returns Gilad Schalit, neither does Israel have any obligation to supply food, water and electricity to a quasi-state that has declared war on its existence.

Appeared in the Jerusalem Post.

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17 Responses

  1. Steve Brizel says:

    I think that I saw at least one recent article in Commentary that basically stated that the noble purposes of international law were hijacked by the Communist world and its successors of influence within the UN to serve as a means of destroying the sovereign rights of both the US and Israel to act in self defense. Given the rather fraudulent record of how “human rights” is applied today, this would explain why we see such a large crescendo of alleged “human rights violations” lodged against both the US and Israel.

  2. Charles B. Hall says:

    Rabbi Rosenblum could also have mentioned the firebombing of Tokyo and the Atomic Bombing of Hiroshima and Nagasaki. Had CIHL been followed during World War II by the allies regarding civilian casualties, the other side would likely have won.

    Human Rights Watch and Amnesty International have also been very loud in their criticism of the Arab terrorist groups for their violations of CIHL as well. The difference is that Israel actually pays attention to some of the criticisms. Neither HRW nor AI have made realistic suggestions as to how Israel SHOULD deal with the terrorism.

    I would not have included the reference to the “New World Economic Order”. The issue is much too complex and not necessarily related.

  3. Daniel says:

    Israel is free to disregard customary humanitarian international law and kill as many non-combatants as it wants. But as long as it does so, it will receive (and deserve) the moral opprobrium of people who respect international law, including Jews like me. If Israel wants respect it should play by the rules.

    Willfully killing non-combatants is wrong, whether in Dresden, Hiroshima, Moscow, Israel, Gaza or Lebanon.

  4. Bob Miller says:

    Since the PR in today’s stupefied media will be bad in any case, why don’t today’s Israeli leaders brush aside this body of “law” designed to disarm and defeat them? Because they have bought into the same ideas that underly these “laws”, and because they fear the wrath of their similarly confused allies more than the wrath of their own citizens or of G-d.

  5. Ori Pomerantz says:

    Moderators: I already posted it, and it got deleted. If that was an editorial decision, I apologize for bugging you again. If it was the result of a software bug, here it is. Also, please delete last message – I forgot to add something. Sorry.

    For a view of the actual laws of war, from a lawyer who served as an infantry officer, click here. The relevant part starts with Where the laws of war have worked to mitigate the horror.

    Daniel, do you have a better solution to stop terrorists who use civilians as human shields? If so, please enlighten us. If not, I think Israel would be wise to prefer your moral opprobrium to the Kassam and Katyusha rockets. It is less dangerous.

  6. Steve Brizel says:

    Daniel-Dresden was hardly just a civilian center with medieval architechture. Contrary to Kurt Vonnegutt, recent studies have shown that it was a crucial part of the German war effort. If the bombing of Hiroshima and Hagosaki saved the enormous casualties expected from a conventional invasion of Japan, it serves its function as a tool of war. WADR, your comments remind me of George Will’s comments re the American press and how if it had covered the American Civil War, we would still have slavery in the US. Like it or not, war is hell.

  7. Ahron says:

    “Were Syria to fire missiles at Israeli cities, and Israel to strike back at Syrian cities with even greater force, the international community would undoubtedly condemn Israel.”

    Certainly that’s partially a reflection of the fact that most Westerners simply don’t have any expectation to begin with that Arab nations will fight morally. Therefore in the public mind they’re held to a much lower measure of conduct.

  8. Bob Miller says:

    As regards Dresden:

    What more would the Germans have to had done during WW2 to merit that their cities be razed to the ground?

  9. Moshe Schorr says:

    Daniel, you wrote “Willfully killing non-combatants is wrong, whether in Dresden, Hiroshima, Moscow, Israel, Gaza or Lebanon.”

    Where did you see in anything Jonathan wrote, a call to willfully kill
    non-combatants? If these non-combatants are used as human shields, then any suffering they undergo is completely the responsibility of those who
    _use_ them as such human shields.

    But Israel is held to a higher standard than any other nation in the world, and much higher than the non-existant standard that the Arabs are (not) held to.

    I imagine you reside outside of Israel, so from the safety of your armchair, you can pontificate as how Israel is to conduct itself against those who seek its annihilation. Not everyone has that luxury.

  10. Bob Miller says:

    Above (July 16, 2007 @ 8:19 am), should I have written “had to have done”? This is an SOS to grammarians.

  11. Garnel Ironheart says:

    Firstly, “were Syria to fire missles at Israeli cities” is not hypothetical conjecture by R’ Rosenblum. One must recall that from 1949 to 1967 Syria regularly shelled the northern part of Israel from the Golan Heights and whenever Israel responded, the UN condemned them.

    To paraphrase Hillel in Mas. Shabbos – there is only one law – Eisav hates Yaakov. The rest is commentary. Go learn it.

  12. David says:

    Did you actually take the time to read the article? It doesn’t sound like you are addressing any of the points mentioned.

  13. Joe Fisher says:

    But Rabbi Rosenblum–we really are dependent on other countries’ support and aid! We can’t ignore their opinions of our actions. If they really start opposing us we’re sunk.

    You don’t walk into the path of a truck that’s obviously not recognizing the crosswalk laws. Even if you are legally in the right.

    If we turn off too much public opinion, however justified our self defense might be in our eyes, then England, Europe, and the other countries that help us–even the US–will turn the screws in ways we can’t resist. Rabbi Rosenblum is recommending too dangerous a path for the world we live in today.

    He made the same kind of ultimately erroneous recommendations with Iraq and the Lebanon war. He gets off on a tic that he is convinced is righteous, and urges us to take moves that are very damaging when the big picture unfolds.

  14. Bob Miller says:

    Joe Fisher,

    If its powerful “allies” were to decide that Israel was too much trouble and should fade away, G-d forbid, should Israel accept and implement that?

    Is this not already the policy of some “allies”?

  15. Ori Pomerantz says:

    Joe Fisher, you’re right that Israel is dependent on other countries. However, public opinion tends to have a very short attention span. A short embargo might be worth it to stop the Katyushas and Kassams. Also, a few big actions might look smaller on the TV than constant small actions.

  16. YM says:

    I totally agree with R. Rosenblum on this, and I have expressed this thought on multiple occasions. None of us really knows the consequences of his/her actions, but I speculate that both Israel and the Palestinians would have been better served if Israel had crushed the Palestinians in 2000.

  17. Daniel says:

    Ori: I don’t have a military solution against terrorists who use innocents as human shields. This is precisely what makes terrorism such a horrifically effective weapon. It puts countries like Israel in the unenviable position of either (a) allowing its citizenry to be slaughtered, (b) slaughtering other innocents or (c) acceding to the terrorists’ demands. In other words, you either surrender to the terrorists the military advantage, or become as bad as they are. And, as Rabbi Rosenblum correctly indicated, sparing innocents used as human shields only creates an incentive for terrorists to put further innocents in jeopardy.

    All that said, the murder of innocents is still wrong. Israel and other countries that are victimized by terrorism need to find another way. My advice is to minimize the benefits of terrorism by returning to the negotiating table. But there will still be terrorists who want to wipe us out, and no negotiation will stop that. I don’t have a solution.

    Steve: A large part of humanitarian international law is to make war less hellish.

    Bob: I haven’t polled the 35,000 Germans killed in Dresden to determine whether they deserved death. All I can say is, all of Sodom would have been spared if there had been 10 righteous people. I’d like to think Dresden had that many.

    It’s “have to have done.”

    Moshe: If victims used as human shields by terrorists are killed by Israeli soldiers, both the terrorists and the soldiers are to blame. Just as if bank robbers take hostages and the police shoot the hostages, both the police and the bank robbers are to blame.

    Yes, I have the luxury of living in relative safety (although sadly, no armchair). It’s hard for me to imagine what it would be like to live in Sderot, with concept Qassam attacks. And it’s even harder for me to imagine what it would be like to live in Gaza right now. I still condemn the killing of innocents, whether by terrorists or soldiers.

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