Rise of ISIS Read online

  A terrible and hidden reality of both America’s and Israel’s wars is that hundreds of soldiers have fallen, killed by terrorists, because they were being cautious with civilian lives. This is an impulse that is utterly alien to jihadists, but is a core value for Americans and Israelis. Terrorists take a life for the purpose of taking a life. American and Israeli soldiers take a life in the effort to save civilians.

  * * *

  A terrible and hidden reality of both America’s and Israel’s wars is that hundreds of soldiers have fallen, killed by terrorists, because they were being cautious with civilian lives.

  * * *

  So, why then does the U.N. and much of the international left try to turn American and Israeli soldiers into war criminals? Why do they claim that Americans or Israelis are responsible for civilian deaths when it is the terrorists who strike from schools, hospitals, and mosques, often while using women and children as human shields?

  The answer is relatively simple: The U.N. and international left often want to see terrorists prevail. They want Israel and America to take terrible losses, to withdraw, and to accommodate terrorist demands. So they wage “lawfare.”

  A good definition of lawfare is the abuse of international law and legal processes to accomplish military objectives that can’t be accomplished on the battlefield. Can’t beat the IDF? Use the International Criminal Court to tie its hands, restricting its operations until terrorist forces have the upper hand. Can’t stop American attacks on al-Qaeda? Use the U.N. to try to declare its drone strikes unlawful, placing America in a terrible bind: either risk boots on the ground or let terrorists plot and plan in safety and security.

  At the ACLJ we’ve confronted this “lawfare” directly. After the 2008 Gaza war (called “Operation Cast Lead”), Palestinian officials attempted to charge Israel with war crimes in the International Criminal Court, a tribunal typically reserved for the worst war criminals in the world. Yet Israel’s alleged “crimes” were nothing of the sort. Indeed, Israel’s protective measures (including sending text messages or phone calls to civilian areas in danger of air strikes) far exceed even America’s.

  After a multiyear effort, which included multiple oral interventions at the ICC, we succeeded in persuading the ICC to drop the case. Unfortunately, however, the left never admits defeat. It just tries again.

  So Israel once again faces international condemnation and investigation for military tactics that are more conservative than America’s. If Israeli soldiers are judged to be war criminals, then so will our own men and women in uniform, and the terrorists will have won a dramatic victory without ever winning a battle.

  CHAPTER EIGHT

  THE 2014 GAZA WAR

  WHO ARE THE REAL WAR CRIMINALS?

  As explained previously, Hamas’s kidnapping and murder of three Israeli teenagers sparked the latest escalation in the ongoing war between Israel and Hamas.1 In response to the kidnappings, Israel launched Operation Brother’s Keeper in the West Bank, a search-and-rescue mission to find the missing teens.2 The Israeli investigation identified two Hamas operatives as suspects.3 While Hamas did not at first claim responsibility for the kidnappings, Hamas officials publicly praised the kidnappings and subsequent murder of the three Israeli teens as “heroic,”4 in itself a despicable act.

  The kidnappings were followed by rocket fire.

  On June 28, six rockets were launched from Gaza into Israel.5 In response, Israel struck twelve targets in Gaza on June 29.6 On June 30, the bodies of the three Israeli teens were found.7 Following the discovery of the slain Israeli teens, a Hamas spokesman warned that if Israeli prime minister Netanyahu “brings a war on Gaza, the gates of hell will open to him.”8 On July 1, Israel launched 34 air strikes on Gaza in response to 18 rockets fired at Israel from Gaza.9 On July 7, Israel Defense Forces announced from its Twitter account the commencement of “Operation Protective Edge in #Gaza against #Hamas, in order to stop the terror #Israel’s citizens face on a daily basis.”10

  When it comes to the use of force against or by nation-states, international law is clear: the threat and the use of force against a U.N. member state are prohibited.11 Thus, every Hamas rocket attack violates international law. Every single one.

  Article 51 of the U.N. Charter recognizes “the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.”12 It is essential to note that Article 51 does not create the right of self-defense; it is an inherent right of all states under customary international law.13 This inherent right of self-defense (and the responsibility for determining when self-defense is appropriate) lies, as it always has, with the government of each state. Customary international law also recognizes the right of self-defense against nonstate actors,14 like the terrorist group Hamas and its Islamist allies in the Gaza Strip.

  Additionally, when one is acting in self-defense, international law “does not require a defender to limit itself to actions that merely repel an attack; a state may use force in self-defense to remove a continuing threat to future security.”15 In other words, to use a historical example, when Imperial Japan attacked the United States on December 7, 1941, our right of self-defense was not limited to merely shooting back at the planes attacking Pearl Harbor but included the right to declare war on Japan and fight its military until it surrendered. Hamas’s rocket attacks give Israel the right—should it choose to exercise that right—to destroy Hamas.

  In addition, the standard for self-defense does not limit the defender to a totally like-kind response, but provides the necessary flexibility to reduce or eliminate the threat. In other words, the degree of force employed in self-defense can be considerably greater than that used in the original armed attack.16 So, yes, Israel can respond to rockets with F-16s.

  This means that Israel, as a sovereign state, has the inherent right to defend its territory and citizens. It was legally justified in engaging in the 2014 conflict against Hamas, as it has been in every significant clash with Hamas since Hamas was formed. Since the most recent conflict began, Hamas repeatedly refused to accept a number of cease-fire proposals,17 while Israel consistently honored cease-fire requests to allow humanitarian assistance into Gaza.18 Hamas breached at least four cease-fires during the conflict.19 The fourth negotiation resulted in an agreement to have a seventy-two-hour cease-fire. Hamas militants broke the cease-fire a mere ninety minutes after it had begun by attacking and killing Israeli soldiers.20

  Although more Palestinian civilians died than Israeli civilians, Israel was acting within the law of war while Hamas was not. War crimes are not proved merely by citing casualty statistics but by evaluating and understanding the reasons for casualties. Israeli civilian casualties occurred because Hamas was intentionally attacking civilians. Palestinian civilian casualties occurred because Hamas intentionally hid behind civilians and fought from civilian structures. Palestinian civilian casualties occurred despite Israel’s best efforts to minimize collateral damage.

  Article 52 of Additional Protocol I to the Geneva Conventions requires that “attacks shall be limited strictly to military objectives.”21 Military objectives are defined as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”22 Notably, “[t]he presence of a protected person may not be used to render certain points or areas immune from military operations.”23 This means that the use of human shields cannot trump Israel’s (or America’s) right of self-defense.

  Since the beginning of Operation Protective Edge in late summer 2014, many international organizations—including the U.N. and even, sadly, the International Committee of the Red Cross—roundly and publicly condemned Israel’s actions for damaging or destroying specific targets. Among such targets have been hospitals, schools, places of worship, and civilian areas that are normally protected objects under
the law of war. In the Red Cross’s own words, however, “[i]n combat areas it often happens that purely civilian buildings or installations are occupied or used by the armed forces and such objectives may be attacked, provided that this does not result in excessive losses among the civilian population.”24 Determining whether incidental injury or collateral damage violates the law requires analysis of the military advantage anticipated by striking the relevant military target. Many states, including the United States, judge military advantage in the context of the entire operation, not just an isolated part.25 The “security of the attacking forces” is also a critical part of the consideration in assessing military advantage (in other words, soldiers don’t have to die to avoid civilian casualties).26 The standard is intended to prevent “[m]anifestly disproportionate collateral damage inflicted in order to achieve operational objectives.”27

  Hamas repeatedly and continually used protected civilian sites for military attacks, rendering them legitimate military targets. An IDF study shows that Hamas fired rockets from amusement parks, first aid stations, U.N. facilities, playgrounds, hospitals, medical clinics, and schools.28 Consequently, Hamas, not Israel, is the party committing war crimes.

  Incidental or collateral damage on both sides may occur during an armed conflict. Such damage, including deaths and injuries of innocent civilians, does not automatically (or necessarily) constitute a war crime. Only “willful killing” or “[i]ntentionally directing attacks against civilian objects, that is, objects which are not military objectives,” constitutes a war crime.29 Civilian casualties alone do not render those attacks unlawful. Only civilian casualties that are excessive in relation to the importance of the military objective are forbidden.

  It’s important to go through Hamas’s actions and Israel’s response chapter and verse. The left has become all too good at simply reciting lurid casualty statistics, as if that proves Israel’s or America’s crimes. But in war—as always—facts matter. And as John Adams said, “Facts are stubborn things.”

  So let’s look at the facts.

  CHAPTER NINE

  HAMAS SYSTEMATICALLY AND INTENTIONALLY VIOLATED THE LAW OF WAR

  Each party to a conflict has a duty, “to the extent feasible, to remove civilian persons and objects under its control from the vicinity of military objectives” as set forth in Article 58(a) of Additional Protocol I.1 Furthermore, “in no event may civilians be used to shield military objectives.”2 In the context of the most recent conflict, both Hamas and Israel were required to do everything feasible to avoid locating military objectives near dense civilian populations3 and were forbidden to use civilians as human shields.

  This obligation is explicitly established by Article 51 of Additional Protocol I and is considered a reflection of customary international law:

  The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.4

  The prohibition on the use of human shields is reiterated in Article 28 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, which again prohibits the use of civilians “to render certain points or areas immune from military operations.”5 Furthermore, under the Rome Statute, the use of humans to shield a military target constitutes a war crime.6 Such use of civilians to shield military targets is contrary to the principle of distinction and violates the obligation to take feasible precautions to separate civilians and military objectives.7

  Article 48 of Additional Protocol I sets forth the following basic rule of distinction—a rule we’ve discussed repeatedly throughout this book: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”8 The Red Cross recognizes that “the parties [to a conflict] are obliged to take all feasible precautions to spare the civilian population,” pointing to the “distinction that must be made between civilians and those directly participating in hostilities” and recognizing that such a distinction lies “at the heart of international humanitarian law.”9

  These rules apply to “each” party to the conflict. Thus, Hamas and Israel are legally obligated to minimize their operations near civilians. While most on the left recognize the reality of this legal mandate, the left—along with the U.N. and the Red Cross—has overwhelmingly criticized Israel for targeting certain sites and objects, and has been silent about Hamas’s actions that have turned otherwise protected sites and objects into legitimate military objectives—a violation of the law of war. By so doing, the left, the U.N., and the Red Cross encourage Hamas to continue its illegal tactics by providing it a significant propaganda victory over Israel every time innocent women and children are killed or injured by an Israeli attack on a legitimate military target that Hamas has intentionally located in a civilian area. Every time the left defends Hamas, it provides direct incentives to ensure that more women and children die.

  Hamas intentionally rejects its duty to avoid civilian casualties. Hamas militants frequently and indisputably “operate in civilian areas, draw return fire to civilian structures, and on some level benefit in the diplomatic arena from the rising casualties.”10 Hamas has intentionally located its military compounds and weapons caches in or next to civilian houses, mosques, and hospitals.11 Where is the international condemnation?

  Let’s look at Hamas’s violations in detail.

  After all, details matter.

  According to Article 16 of Additional Protocol I of the Geneva Convention, places of worship are protected objects.12 To “use [such objects] in support of the military effort” constitutes a war crime.13 While the international community has condemned Israel for attacking mosques (not a war crime in itself, unless indiscriminately targeted), the U.N., the Red Cross, and other organizations steadfastly refused to condemn Hamas rocket launches from mosques.

  Hamas launched 331 rockets at Israeli civilians from mosques during the most recent Gaza conflict.14

  But Hamas did more than just launch rockets from mosques. On July 22, 2014, an IDF paratrooper was killed by an antitank missile fired from within the Khan Younis mosque.15 The Red Cross condemned Israel for attacking the Khan Younis area, without mentioning that Hamas had invited such attacks by engaging in military operations there.16 While Hamas is openly and notoriously committing war crimes, the lack of such information in Red Cross statements encourages Hamas to continue using houses of worship to launch attacks on Israelis.

  Schools are also protected sites—protected sites that Hamas regularly uses to launch attacks. Hamas located a rocket launch site near a complex of Gaza City schools.17 On July 16, the U.N. Relief and Works Agency (UNRWA) discovered twenty rockets hidden in a vacant Gaza school.18 Using the building as a weapons storage site turned that structure into a legitimate military target. More alarmingly, it has been reported that the rockets discovered by the UNRWA were returned to Hamas by U.N. officials.19 This not only rewards unlawful behavior but quite literally aids and abets Hamas in its unlawful war against Israel.

  Again on July 22, UNRWA found more rockets in a second Gaza school.20 The school in which the rockets were found in the second incident is located between two other schools that housed 1,500 refugees from the fighting—rendering them literal human shields for Hamas rocket storage facilities.21 The U.N. secretary-general, Ban Ki Moon, “expresse[d] outrage, and regret, at the placing of weapons in a U.N.-administered school.”22 Secretary-General Moon also acknowledged that the location of weapons i
n such schools transforms those schools into “military targets.”23 Unfortunately, despite this statement from even a biased U.N., the Red Cross has not condemned Hamas for committing a war crime by using schools for military purposes. Instead, it has criticized Israel for attacking them, which further encourages Hamas to violate the laws of war.

  Hamas launched 248 rockets from schools at Israeli civilians during the most recent Gaza conflict.24

  While Israel expends significant resources on building shelters and antimissile equipment to protect its civilians from rockets fired indiscriminately from the Gaza Strip, Hamas, instead of building shelters to protect the population of Gaza, diverts such resources to build tunnels in civilian areas for military uses,25 including under mosques, schools, and U.N. facilities. These tunnels were constructed and have been used by Hamas militants to enter and attack Israel.26 IDF forces have found at least thirty tunnels since the beginning of Operation Protective Edge;27 ten tunnel openings were found underneath the Shujaiya neighborhood.28 Moreover, Hamas has fired more than 140 rockets from the Shujaiya neighborhood into Israel.29

  By placing the entrances to its tunnel network within the densely populated Shujaiya neighborhood and firing rockets from the same area, Hamas intended to use the civilian population as a shield, thereby “render[ing] [the Shujaiya neighborhood] immune from [Israeli] military operations.”30 This is a clear and unambiguous violation of the law of war and constitutes a war crime under the Rome Statute.31

  Hamas launched 818 rockets at Israeli civilians from general civilian neighborhoods during the most recent Gaza conflict.32