Analysis from Israel

Today’s terror attack in Tel Aviv was unusual in that it originated in the West Bank, where a continuous, proactive Israel Defense Forces presence has virtually eradicated terror. In contrast, Israel suffers daily terrorism from Gaza, which the IDF left six years ago, and repeated “cease-fires” never actually cease the fire: This weekend, for instance, three rockets hit southern Israel despite the “cease-fire” announced last week by Hamas, Islamic Jihad and the Popular Resistance Committees.

During the last six years, Gazan terrorists have fired more  than 7,000 rockets and mortars at Israel. That successive Israeli governments have allowed this terror to continue is an abdication of any government’s primary responsibility: ensuring its citizens’ security. But it has also had devastating strategic consequences.

As former U.S. Ambassador to Israel Dan Kurtzer noted, it acclimated the world to the idea rocket fire on Israel is perfectly acceptable, with the result that when Israel finally did strike back in 2008, it suffered universal condemnation, culminating in the infamous Goldstone Report. As Haaretz Palestinian affairs correspondent Avi Issacharoff  noted, it has convinced the terrorists Israel fears them, emboldening them to escalate their terror. As Rabbi Eric Yoffie noted, it undermines the raison d’etre of a Jewish state, which is to protect Jews. And you needn’t be “right-wing” to reach these conclusions; all of the above are outspoken liberal doves.

Now, as I’ve written elsewhere, the terrorist enclave in Gaza also threatens Israel’s peace with Egypt. This month’s terror attacks near Eilat, perpetrated by Gazans who traversed the  Sinai to attack across the Egyptian-Israeli border, sparked a major diplomatic crisis with Cairo when several Egyptian soldiers were killed in the cross-fire; this success will surely prompt the terrorists to try to repeat it. And if enough Israelis and Egyptians are killed along their mutual border, an Egyptian-Israeli war could erupt.

For all these reasons, eliminating the Gazan terrorist enclave is imperative. But this can’t be done via a short-term operation like 2008’s; only a long-term IDF presence in Gaza will do.

The claim “there’s no military solution to rocket fire” is patently absurd. During those same years when Gazan terrorists fired more than 7,000 missiles at Israel, not a single rocket was fired from the West Bank. So unless you believe that West Bank terrorists, unlike their Gazan counterparts, never wanted to launch rockets,  the obvious conclusion is the IDF’s continuous, proactive presence has thus far prevented West Bank terrorists from acquiring rocket-launching capabilities.

The diplomatic arguments against such a move are far more serious: The international outcry would be enormous. But continued delay will only further embolden the terrorists, further accustom the world to the idea terrorists are entitled to shoot rockets at Israel with impunity, and make war with Egypt more likely. Indeed, the Eilat attacks put the diplomatic consequences of inaction on stark display: Though Israel had precise intelligence about the attacks, its government rejected a Shin Bet security service recommendation to thwart them via a preventive strike on Gaza, fearing Egypt’s anger. In consequence, the attacks went ahead and several Egyptians were killed – outraging Egyptian public opinion far more than a strike on Gaza would have.

Gaza’s terrorist regime must be destroyed. Israel can no longer afford any other outcome.

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The International Criminal Court’s fundamental flaw

In my last column, I noted in passing that the International Criminal Court’s blatant anti-Israel bias is merely a symptom of a more fundamental flaw. That isn’t self-evident; court supporters would doubtless argue, just as many people do about the United Nations, that while the court’s anti-Israel bias is regrettable, it’s an isolated flaw that doesn’t outweigh the benefit of ending impunity for atrocities.

What convinced me both that the ICC is unredeemable and that the impunity problem has a better solution was actually a book by one of the court’s ardent supporters—Philippe Sands, a law professor and international lawyer who has worked on ICC cases. In East West Street, Sands traces the development of two key concepts in international law—crimes against humanity and genocide—to their respective culminations in the Nuremberg Trials of 1945 and the Genocide Convention of 1948. But for me, the real eye-opener was his description of the international wrangling that preceded the Nuremberg Trials.

Nuremberg is sometimes derided as victor’s justice. And in one sense, it obviously was: Four of the victors of World War II—America, Britain, Russia and France—decided to put senior officials of their vanquished foe on trial. But what was striking about Nuremberg was the massive degree of international concord required to hold those trials. Lawyers representing several very different legal systems and several very different systems of government nevertheless had to agree on every word and even every comma in the indictments. And since those lawyers were acting on their governments’ behalf, political approval by all four governments was also needed.

In contrast, the ICC needs no international buy-in at all to pursue a case. Granted, its prosecutors and judges come from many different countries, but they represent neither their home governments nor their home legal systems. Politically, they represent nobody but themselves. Legally, they represent one particular interpretation of international law—an interpretation popular with academics and “human rights” organizations, but less so with national governments.

At first glance, both of the above may sound like pluses. Prosecutorial and judicial independence are generally good things, whereas many governments and legal systems leave much to be desired when it comes to protecting human rights.

But the ICC’s version of prosecutorial and judicial independence is very different from the version found in most democracies because the latter is not completely unconstrained. In democracies, prosecutors and judges are constrained first of all by democratically enacted legislation, and usually by democratically enacted constitutions as well. They’re also constrained by the fact that they, too, are citizens of their country, and therefore share concerns important to most of their countrymen—for instance, national self-defense—but unimportant to judges and prosecutors from other countries (which those at the ICC almost always will be).

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