Analysis from Israel

Israeli Prime Minister Benjamin Netanyahu is being assailed by his own base for his restraint last week following Hamas’s massive bombardment of southern Israel. But in considering what Israel’s policy should be, it’s important to realize that for now, the option of permanently ending Hamas terror doesn’t exist—not because it’s beyond Israel’s capability, but because it lacks sufficient public support.

If someone came up with an idea for destroying Hamas that could be executed quickly and with minimal casualties, Israelis obviously would support that, but nobody has. Thus the only plan with proven capability to suppress terror over the long term remains the one Israel executed in the West Bank in 2002 in response to the second intifada: The army goes in, and it never leaves. That’s how Israel defeated the second intifada, and how it has kept West Bank terror within tolerable limits ever since.

But doing the same in Gaza would have very high costs—in soldiers’ lives, in international opprobrium and possibly in saddling Israel with responsibility for Gaza’s civilian problems. It would be far more costly than it was to reoccupy the West Bank because Hamas has used its 11 years of total control over Gaza to become far better armed and far more deeply entrenched than West Bank terrorists were in 2002.

No democracy could undertake such a costly plan without widespread public support, but especially not Israel, because any major military operation requires a massive call-up of reservists, and Israeli reservists tend to vote with their feet. They’ll show up in droves for an operation with broad support, but an operation widely considered unjustified will spark major protests.

That’s exactly what happened when, during the second intifada, Prime Minister Ariel Sharon thought Israelis’ overwhelming support for reoccupying the West Bank created a golden opportunity to do the same in Gaza. He was forced to scrap that idea after a massive public outcry, especially from reservists.

The crucial difference Sharon had overlooked was the level of pain that Israelis were experiencing. The West Bank was wreaking havoc nationwide at that time. A wave of suicide bombings and other attacks in cities throughout Israel killed 452 Israelis in 2002, including 130 in March 2002 alone. But Gaza was causing most Israelis very little pain. Though there were attacks on soldiers and settlers in Gaza itself, there were almost no attacks from Gaza inside Israel. Consequently, most Israelis weren’t willing to pay the price that a major operation in Gaza would have entailed.

And for all the differences in today’s situation, that same basic fact remains true: Gaza isn’t causing most Israelis enough pain to make them willing to reoccupy the territory. It has made life hell for residents of communities near the border for the last seven months, and it did the same for the entire south during last week’s rocket barrage. But the vast majority of Israelis have been completely unaffected. For people in Tel Aviv, Haifa, Jerusalem and most other major population centers, life continued as normal.

Hamas understands this very well. That’s why it deliberately confined itself to bombarding the south, despite having missiles capable of reaching most of Israel. It wanted to cause as much pain as possible without crossing the threshold that would provoke Israel into war—and it succeeded.

But with the option of reoccupying Gaza unavailable, the two main options left are both short-term fixes.

One is a smaller-scale military operation. The last such operation, in 2014, bought the south three-and-a-half years of almost total quiet, but at a price (for Israel) of 72 dead and massive international opprobrium. Another such operation might buy a similar period of calm, but at a similar or even higher cost. And it would have to be repeated again in another few years, by which time Hamas may be better armed and capable of exacting an even higher price.

The second option, which Netanyahu evidently favors, is to negotiate a long-term ceasefire. This might buy a similar period of quiet, though since it hasn’t been tried before, there’s no guarantee. And it has several obvious advantages: no deaths, no international opprobrium, and most likely, greater support within Israel (though judging by past experience, not abroad) for a more forceful response once the ceasefire collapses, as it will at some point.

But it also has some obvious downsides. First, it’s devastating to Israeli deterrence, since it shows that firing rockets is a good way to get Israel to capitulate to your demands. Second, it ensures that when the inevitable next round arrives, Hamas will be able to inflict much more damage than it could today.

To grasp just how much, consider that since the 2014 war, Hamas has been under a tight Israeli and Egyptian blockade. Yet according to Israeli intelligence, it has nevertheless managed to completely rebuild and perhaps even exceed the arsenal it had then. Indeed, Hamas fired more than 450 rockets in just two days last week, almost three times the daily average of 85 rockets during the 2014 war. If it managed such a massive rearmament despite the blockade, one can only imagine how much more military materiel it would acquire under a long-term truce that would relax the blockade and pour cash into Gaza (ostensibly for civilian projects, but Hamas makes sure to take a cut of every dollar that enters).

Either of these options would only postpone the inevitable: Barring a miracle, Hamas will eventually become overconfident and cause Israel enough anguish to provoke it to reoccupy Gaza. By postponing that day, and thereby allowing Hamas to further arm and entrench itself, Israel merely ensures that when it comes, it will come at a much higher price—in Israeli casualties, in Palestinian casualties and in international opprobrium.

But knowing that doesn’t change the political reality that such an operation isn’t possible now. In today’s reality, the most that Netanyahu can do is buy a few more years of quiet. And his only choice is whether to do so via a ceasefire or a limited military operation, each of which carries its own major price tag.

This article was originally syndicated by JNS.org (www.jns.org) on November 21, 2018. © 2018 JNS.org

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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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