Analysis from Israel

Just about everything that’s wrong with the current conception of “international humanitarian law” was encapsulated in a UN official’s response to the recent escalation between Israel and Hamas in Gaza.

Surprisingly, it started off well. The agency’s special coordinator for the Middle East peace process, Robert Serry, condemned the rocket attacks from Gaza, saying they were “in clear violation of international humanitarian law and endanger civilians.” Then, noting Israel’s retaliatory air strikes, he even declared that Israel had “a right to self-defense.”

Had the sentence ended there, it would have been fine. But it didn’t. Israel, said Serry, has “a right to self-defense consistent with international humanitarian law” [emphasis added] — which requires it to “exercise maximum restraint and take every precaution to ensure Israeli forces do not endanger civilians in Gaza.”

And that’s where the whole concept breaks down. Because what happens when “maximum restraint” and taking “every precaution” fail to stop the rocket fire? After all, we already know they will: Israel tried precisely this kind of pinpoint strike — in which pilots are strictly forbidden to fire if there’s any chance of hitting civilians — for three years after leaving Gaza in 2005, but it had no effect whatsoever on the daily rocket fire.

That’s why Israel finally went to war two years ago. It still worked hard to avoid hurting civilians: with even Hamas now admitting that it lost some 700 combatants, it’s clear that civilians constituted only about 40 percent of fatalities — far below the 90 percent norm for modern warfare. But this certainly wasn’t an exercise in “maximum restraint.” It was a full-scale military operation.

The war produced two results. One was a dramatic reduction in rocket and mortar strikes on southern Israel, from about 4,000 in 2008 to 180 this year. The other was the Goldstone Report, which accused Israel of “war crimes” and urged its prosecution in the International Criminal Court.

In short, under the modern conception of “international humanitarian law,” countries have two choices: either use “maximum restraint” and take “every precaution” to avoid hurting enemy civilians, with the result that lethal attacks against your own civilians continue undisturbed, or take effective military action to protect your own civilians and be branded a war criminal.

This is a travesty. International humanitarian law was never meant to strip countries of the ability to protect their own citizens, nor was it meant to force countries to protect enemy civilians at the expense of their own. The statesmen who drafted the agreements from which this law ostensibly derives, like the Hague Conventions and the Geneva Conventions, all understood that a country’s first duty is to protect its citizens. And nothing in the actual text of these documents would prevent any country from doing so.

The West needs to return to these original texts and abandon the warped interpretation promulgated by so-called human rights organizations and international bodies like the UN. Otherwise, it will find itself defenseless against any aggressor, from al-Qaeda to North Korea. For aggressors share one common denominator: they don’t consider themselves bound by any kind of international law.

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Israel’s constitutional crisis has been postponed, not resolved

After years of leftists crying wolf about democracy being endangered, Israel finally experienced a real constitutional crisis last week. That crisis was temporarily frozen by the decision to form a unity government, but it will come roaring back once the coronavirus crisis has passed.

It began with Knesset Speaker Yuli Edelstein’s refusal to let the newly elected Knesset vote to replace him as speaker and culminated in two interventions by the High Court of Justice. I’m one of very few people on my side of the political spectrum who considers the court’s initial intervention justifiable. But its second was an unprecedented usurpation of the prerogatives of another branch of government, in flagrant violation of legislation that the court itself deems constitutional.

Edelstein’s refusal, despite its terrible optics, stemmed from a genuine constitutional concern, and was consequently backed even by Knesset legal adviser Eyal Yinon, who had opposed Edelstein many times before and would do so again later in this saga. The problem was that neither political bloc could form a government on its own, yet the proposed new speaker came from the faction of Benny Gantz’s Blue and White Party that adamantly opposed a unity government. Thus whether a unity government was formed or Prime Minister Benjamin Netanyahu’s caretaker government continued, the new speaker would be in the opposition.

But as Yinon told the court, speakers have always come from the governing coalition because an opposition speaker can effectively stymie all government work. And once elected, he would be virtually impossible to oust, since 90 of the Knesset’s 120 members must vote to do so. An opposition speaker would thus “hurt democracy,” warned Yinon. “We’re planting a bug in the system, and this, too, undermines our constitutional fabric.” That’s why Edelstein wanted to wait, as Knesset bylaws permit, until a government was formed and could choose its own speaker.

Yet despite this genuine and serious concern, the fact remains that a newly elected majority was being barred from exercising its power. Moreover, it had no parliamentary way of solving the problem because only the speaker can convene parliament and schedule a vote. Thus if you believe majorities should be allowed to govern, the court was right to intervene by ordering Edelstein to hold the vote.

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