Martin Kramer: The Nazi case for Hamas
Nuremberg enforced a fundamental distinction. All civilian lives are equal, but not so all ways of taking them. The deliberate and purposeful killing of civilians is a crime; not so the taking of civilian lives that is undesired, unintended, but unavoidable. The errors made by a bomber squadron cannot be deducted from the murders committed by a death squad. It’s a difference compounded many times over when those civilian men, women, and children are subjected to torture, rape, and mutilation before their murder. To borrow Khalidi’s phrase, “in the last analysis,” this distinction is what separates modern civilization from its predecessors.Israel, Hamas & International Law: A Guide
More disturbing is the thought that it separates the contemporary West from its peers. Otto Ohlendorf and the regime he served did all they could to conceal their deeds from Western eyes. Nazi Germany still operated in a West founded on Enlightenment values. So massive a violation of a shared patrimony needed to be hidden from view.
In contrast, Hamas initially sought to publicize its deeds, assuming they would win applause, admiration, or at least tacit acceptance in the Arab and Muslim worlds. Here they succeeded beyond their expectations. The many millions who don’t share the West’s patrimony, and who know next to nothing about the Holocaust or Nuremberg, do see things as Khalidi says they see them. (So, too, does a sliver of alienated opinion in the West, where such views are cultivated and celebrated.)
Finally, and still more disturbing, is the fact that Ohlendorf’s defense has been revived to frame the massacre of Jews. Let’s be clear: this isn’t a world war. October 7 isn’t the Holocaust continued: in three months of 1942 alone, on average, the Nazis killed more than ten times the amount of Jews killed on October 7, every single day (Operation Reinhard). And Gaza is not Dresden, Hamburg, Pforzheim, Kassel, or any of the other German cities bombed so intensively that they literally burst into flames. The Israel-Hamas war is a skirmish by comparison.
But the Ohlendorf and Hamas defenses are the same, and so is the identity of their victims. That’s why it’s important that Israel take some of the Hamas masterminds alive, and place them on trial, Nuremberg-style. Israel owes it to the dead and wounded, their families, all Israelis, and all Jews. But it’s the Arabs and Muslims who most need to see the evidence, hear the testimonies, and weigh the arguments. No part of the world is further from drawing the line drawn at Nuremberg. October 7 is the place to start.
The Principle of Proportionality: Is Israel’s Response Disproportionate?A fake law of war will hurt Israel now and America in the future
With over 1,400 Israelis killed during the Hamas atrocities and subsequent rocket attacks, and over 6,000 Palestinians allegedly killed in Israeli retaliatory strikes according to the Hamas-run Ministry of Health, some commentators and activists have claimed that Israel’s response is disproportionate.
However, this stems from a fundamental misunderstanding of what proportionality means within international law.
In brief, the principle of proportionality dictates that civilian casualties (both killed and injured) cannot be excessive in relation to the military advantage that would be gained directly from an attack.
For every strike that Israel undertakes against Hamas, it calculates the potential harm to civilians against the weight of the military advantage to be gained from the attack and determines whether the attack is proportionate.
Even when Hamas is cynically using Palestinian civilians as unwitting human shields, those civilians are included in the IDF’s assessment of the attack’s proportionality.
According to Pnina Sharvit Baruch, the former head of the international law division of the IDF’s Military Advocate General (MAG), the concept of “military advantage” is also dependent on the circumstances of each war and the nature of the enemy.
Thus, in this war, due to the exceptional brutality of the Hamas attack, which proved the Palestinian terror group to be much more dangerous and impervious to the fate of civilians than previously thought, the military advantage may be given more weight than in other military operations that Israel has undertaken against Hamas.
As well, David French notes that proportionality also does not require the military to respond with the “same degree of force” that was used by the enemy. Thus, the Israeli response to Hamas rifle fire with fire from a tank or to Hamas rocket fire with a targeted airstrike is allowed under international law and is not considered to be a disproportionate response.
It should also be noted that according to Dr. Aurel Sari, an assistant professor of international law at the University of Exeter, the assessment of whether an attack was proportional can only be determined based on the intelligence that the military had on hand at the time of the attack and cannot be based on hindsight.
This argument stretches the law to its breaking point. Forcible transfers are generally prohibited, but integral to all “forcible” transfers is — well, force. Unlike Hamas, the Israeli military has not gone door-to-door and removed civilians from their homes using or threatening to use force. Moreover, Israel’s “orders” are literally unenforceable in Gaza. Instead, they are tantamount to a warning of an impending attack, a practice which the International Committee of the Red Cross says reflects “a long-standing rule of customary international law” and which is enshrined in both the Hague Regulations and Article 57(2)(c) of Additional Protocol I.
Quite the opposite of a “forcible transfer,” Israel’s warnings are an effort to remove civilians from the vicinity of military objectives — something U.S. policy not only permits, but actually describes as “appropriate” and “advisable” in some cases. Similar warnings were given by the U.S. and its allies to civilians in the Korean War, in the conflict in the former Yugoslavia, in Afghanistan and in Iraq — much to the international community’s acclaim.
But where are residents of northern Gaza to go? Where will they stay? How will their basic human needs be met? These questions are important, but they are ultimately an exercise in goalpost-shifting. Israel is not legally bound to provide for the human needs of those fleeing the battlefield. This is particularly true if, as mounting evidence shows, such humanitarian assistance is at risk of ending up in the hands of Hamas militants.
Other examples abound. The Israeli military has been lambasted, for example, for using white phosphorus — an incendiary weapon that, according to Human Rights Watch, “violates the international humanitarian law prohibition on putting civilians at unnecessary risk.” But white phosphorus is not prohibited under the law of armed conflict. U.S. policy explicitly states white phosphorus “may be used as an antipersonnel weapon” as long as such use complies with “the general rules for the conduct of hostilities, including the principles of discrimination and proportionality,” and “feasible precautions” are taken “to reduce the risk of harm to civilians.” In fact, white phosphorus was credited as “an effective and versatile munition” in the Second Battle of Fallujah, and has been used by the U.S. in Iraq as recently as 2017.
Indeed, Israel’s critics have put forth an extreme position — one as much at odds with common sense as the law. Israel suffered an armed attack by the de facto governing body of the Gaza Strip. It is entitled to exercise its inherent right to self-defense under Article 51 of the UN Charter and use every lawful means at its disposal to effectuate that right. Most importantly, however, it is allowed to succeed in exercising that right.
For its own interests, the United States must preserve today the legal means necessary to secure victory on whatever battlefield it may be forced to fight tomorrow. At this hour in history, that means protecting Israel’s power to do the same.
Thomas Wheatley is an assistant professor in the Department of Law at the U.S. Military Academy at West Point. The views expressed herein belong solely to the author and do not necessarily reflect the views of the United States Military Academy, the United States Army or the Department of Defense.