Hamas is a wicked organisation but that doesn’t put Israel above the law.

The law of self-defence is easy enough to state.  It is much harder to apply in practice.

In a typical criminal case an argument breaks out in a pub. A punch is thrown. The situation escalates and a drinker smashes his glass into someone’s face causing deep cuts. He claims that he did so in the heat of the moment because he thought he was about to be stabbed.

Was his action lawful?

It is impossible to give a purely legal answer. It all depends on what the jury make of his explanation. If the jurors are sure that he’s lying when he says “I thought I was about to be stabbed,” and that in fact he just wanted to join in the fight, he will be convicted.

On the other hand if they accept that he may have thought he was about to be stabbed they will probably acquit him. A glassing is a terrible thing, but if the alternative is a potentially fatal knife in the ribs then it is the lesser of two evils. It would, though terrible, be a proportionate response to an imminent and terrifying threat.

In English domestic law whenever a defendant claims to have acted in self-defence juries are directed that they should consider whether the force he used was “reasonable”. The issue of proportionality is central to that question. The classic exposition comes from Palmer v. R [1971] A.C. 814:

It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. …It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have [to] avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence… If there has been an attack so that self-defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.”

The principle has now been given statutory force. What it boils down to is that a person may use reasonable force in necessary self defence. He is judged on the facts as he believes them to be, and the law accepts that it is impossible to weigh the exact degree of defensive force required.

Very similar principles apply in all common law and many continental jurisdictions.

The international law of self defence has many similarities to this principle of criminal law. It is the law that Israel uses to justify its current incursion into Gaza. But does it in fact provide a legal justification?

As with the pub glassing, it is impossible to give a purely legal answer. A court hearing evidence after the event could give a verdict. An onlooker observing from afar cannot give a verdict, only an opinion .

As children are killed in their hundreds so the temperature of the debate rises in the West. In fact “debate” hardly seems the right word: the dispute is conducted with an extraordinary vehemence.

Other conflicts – not least the current Syrian civil war – have resulted in far higher casualties without exciting the passion of Western commentators to anything like the same extent. There is a repulsive anti-semitic flavour to some of the anti-Israeli comment. But for many it is precisely because we believe that Israel broadly shares Western values, especially democracy and the rule of law, that we are particularly disturbed to see it engaged in such a brutal conflict.

Some supporters of Israel appear to see no particular moral or legal problem with almost any number of Palestinian civilian casualties as long as they are caused as “collateral damage” in a war against Hamas. They can seem callous to the point of amorality in defending its actions irrespective of the numbers of civilians killed.

On the other hand there are those who regard all Palestinian civilian deaths as tantamount to murder. There are even some in the West who are prepared to justify attacks on Israeli civilians as legitimate acts of resistance.

It is impossible to join in the debate without attracting abuse from one side or the other, and often from both; but here goes.

Into this hideous mess the law, though providing no absolute answers, is probably as good a guide as any.

Some things should be completely clear.

Israel exists and has a right to exist. Legally and morally this right to exist – within its 1967 borders – is as clear as that of Britain, France or America. Given that starting point a number of things follow.

First, it is entitled to defend itself. International law is completely clear on that. The right of self-defence is recognised in customary law, and codified in Article 51 of the United Nations which provides:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security ….”

Secondly, it has been under attack from Hamas rockets for years. The rockets may be relatively primitive and inaccurate but they are also potentially lethal and indiscriminate. The precise number of such attacks may be disputed but it certainly runs into thousands. Hamas have also used mortar fire against Israel. The number of Israeli civilians killed by either rocket or mortar attacks since 2004 is not easily accessible but it appears to be in the region of 35 (of whom 5 were killed in July of this year). Prior to July the last Israeli fatality from a Hamas rocket was in November 2012. By comparison, the total number of civilian deaths attributable to terrorists in Northern Ireland between 1970 and 1980 was 1,207. The population of Northern Ireland was about 1.5M in the 1970s; the current population of Israel is about 8M. The chance of an Ulster citizen being killed during the 1970s by an IRA bomb or bullet was a great deal higher than the chance of an Israeli citizen being killed by a Hamas missile in the last ten years.

Such a direct comparison though is misleading. Apart from the rockets there have been other terrorist attacks in Israel, including some that have involved the use of tunnels.

More importantly, Irish terrorists, cruel and murderous though they were, used violence to force a change of government in Northern Ireland but posed no genocidal threat to its population as a whole. Hamas, on the other hand, does precisely that. Its Charter is an anti-semitic rant littered with absurd but chilling threats against world Jewry, as represented not only by the state of Israel (“Nazi Zionists”) but also by Rotarians, Freemasons and Lions Clubs. The Charter helpfully points out that the Jewish plan for world domination is set out in The Protocols of the Learned Elders of Zion. The goal of Hamas is not to restrict Israel to its 1967 borders: nor is it interested in a negotiated peace, as Article 13 of its charter makes clear:

As far as the ideology of the Islamic Resistance Movement is concerned, giving up any part of Palestine is like giving up part of its religion. …

There is no solution to the Palestinian Problem except by Jihad. The initiatives, options, and international conferences are a waste of time and a kind of child’s play ….”

Its aim is quite unambiguous; to eliminate Zionism and establish an Islamic state as a part of its battle against a world-wide Jewish conspiracy. One can readily understand why Israel, a country founded to provide a safe haven for Jewish people, would be profoundly alarmed by such a neighbour. If the weapons Hamas has at the moment are relatively weak that is certainly not through choice.

Moreover, while the death toll from Hamas rockets may be relatively low, the effect on the Israeli population of the constant threat of indiscriminate bombardment must be considerable. Clearly any government of Israel has not only the right but the duty to defend itself against such attacks which are unquestionably illegal under international law.

However, the fact that Israel has a right to defend itself certainly does not mean that it has complete legal freedom to pursue that defence in any way it thinks fit. It is generally accepted in international law that for a state to rely upon the law of self-defence the following conditions must be met:

  1. The force used must be a response to an armed attack (or at least to an imminently anticipated armed attack);

  2. The use of force, and the degree of force used, must be necessary and proportionate;

(A further condition is imposed by Article 51 of the UN Charter: that the use of force must be reported to the Security Council and must cease when the Security Council has taken ‘measures necessary to maintain international peace and security’).

There is no necessity that the “armed attack” should have been launched by a sovereign state. The UN security council, for example, accepted that the Al-Qaeda 9/11 attacks engaged the right of a state to “individual or collective self-defence,” even though the Taliban government of Afghanistan was not directly responsible for the attacks. Nor, for the purpose of exercising self-defence, does it matter how serious the attack is. Subject to the question of proportionality, a state has as much right to defend itself against a small attack as against a large one.

A further argument has been raised to suggest that Israel is not entitled to use military force. It is said that as Israel is in “occupation” of Gaza so that it is bound by the duties of an occupying power rather than those of a neighbouring state. A similar argument was accepted by the International Court of Justice in its Advisory Opinion Legal Consequences of the Construction of a Wall on Occupied Palestinian Territory (I.C.J. Reports 2004, p. 136). The short answer to that is that whatever may have been the case in the West Bank, Israel is not in occupation of Gaza. The last settlers left in September 2005. The relevant law during a short term incursion into Gaza is not that of occupation but that of war.

The nub of the question is whether Israel’s action against Hamas is “necessary” and “proportionate”.

Whether a military act is in “necessary self-defence” depends upon whether some other act, falling short of military force, could bring the attacks to an end. International law is rather different from the ordinary criminal law in this respect. A man in a pub can reasonably be expected, at least sometimes, to walk away from a threat. That is not an option available to a state. While Hamas remains in control of Gaza it is very difficult to see anything except some form of military force stopping the missile attacks. Obviously a political solution could do so, but even if Hamas were willing to agree a short term truce – as to which its messages have been decidedly mixed – its long term policy of annihilating Israel makes it inconceivable that it could be a partner in any lasting agreement.

The “Iron Dome” anti-missile system has destroyed some missiles, especially over cities, but many still get through. Hamas has rarely shown the slightest inclination to stop firing the rockets. It may be that the rocket attacks have been relatively ineffective, but they have continued nonetheless. Diplomacy, persuasion and economic pressure have all been unable to halt the rockets.

Israel’s partial blockade of Gaza has also failed to stop the attacks, although it may well have restricted Hamas’s ability to obtain more sophisticated weapons.

It is therefore hard to dispute that the criterion of “necessity” has been made out.

According to the Israel Defence Force (IDF) in early July: “the single goal of [Operation Protective Edge] is to stop Hamas’ incessant rocket attacks against Israel’s civilians.”

This may have been so (although destroying tunnels now seems to have become a second goal) but the events which led to the latest incursion into Gaza – Operation Protective Edge – were not started by any dramatic increase in the firing of rockets at Israel. Rather, they followed the kidnapping and murder of 3 Israeli teenagers, not in Gaza but in the West Bank, by Palestinians who (whether or not they were members of Hamas as Israel originally claimed) were congratulated by Khaled Meshaal, the organisation’s political leader.

But even granting that only military action of some sort would be able to stop the rockets, the question of proportionality remans.

This has two aspects: it must be proportionate to resort to force in the first place, and the force that is then used must be proportionate .

To what must the force must be “proportionate?” There are various ways that this requirement can be understood: it must be proportionate to the damage that the attack has done and to what it will do if left undefended. One could add that it should also be proportionate to what is necessary to bring it to an end: the forcible deportation of the whole population of Gaza followed by its annexation by Israel (as has been seriously suggested by one Jerusalem Post columnist) would indeed end these particular rocket attacks but it would also be grotesquely disproportionate (as well as morally indefensible and illegal for several other reasons).

 

If the question is whether Operation Protective Edge is proportionate to the damage done, or likely to be done, by the firing of rockets at Israel it is difficult to see the actions of the IDF, taken overall, as anything other than disproportionate.

Although over the years thousands of rockets have been fired at Israel from Gaza, in the 18 months immediately preceding July 2014 they had failed to kill or seriously injure a single Israeli civilian. The intention of Hamas may be genocidal, but (because of other defensive measures put in place by Israel including its widely criticised “blockade”) its effectiveness was minimal.

To say that the deaths of over 1500 Gazans killed in the last 3 weeks, many of them civilians and children, to say nothing of those injured and the destruction of vast tracts of Gazan buildings, is “proportionate” to the killings of 30 Israeli civilians as a result of rockets fired at Israel in the ten years since 2004 is surely to drain the word of most of its meaning.

If the action as a whole is disproportionate to the scale of the armed attack it is unlawful.

This is separate from the question of whether individual acts in which large numbers of civilians were killed might themselves constitute war crimes. Where this has happened the argument that Hamas has been using civilian facilities for military purposes does not, in itself, provide a defence.

The fog of war may make it impossible at the moment to say for sure that Israel has flouted international humanitarian law in this way. Nevertheless, as Aeyal Gross, Professor of Law at Tel Aviv University has pointed out:

The multitude of civilian casualties by itself doesn’t prove that war crimes were committed. But in many cases … a real suspicion arises that violations were committed. It’s not just the deliberate targeting of civilians that’s prohibited; so are attacks that by nature indiscriminately harm civilians, or civilian property, in addition to their military targets.”

It is, as Amos Oz has observed, a “lose-lose” situation for Israel:

The more Israeli casualties, the better it is for Hamas. The more Palestinian civilian casualties, the better it is for Hamas.”

It is sadly even more a lose-lose situation for the civilians of Gaza. They are ruled by fanatics whose actions invite death and destruction, and under attack from an Israeli government which seems all too ready to accept that invitation.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

29 thoughts on “Hamas is a wicked organisation but that doesn’t put Israel above the law.”

  1. This is a very thoughtful analysis of a truly gut-wrenching situation. One question it didn’t seem to answer, though, is about the significance of the tunnels for law and just war theory. Suppose Israel had good evidence that the tunnels were going to be used as part of a large-scale, mass-casualty attack on its territory, but without knowing all the specifics (how large an attack? what other modes of attack? what specific targets?), and without knowing exactly when the expected attack would occur. (Again keep in mind we’re supposing legitimate intelligence, not manipulated pre-Iraq invasion “intelligence”.) What would be the legal status of fighting intended to remove the tunnel threat, and how would proportionality be determined if the full ramifications of the threat were unclear. Thanks to anyone who can shed light.

    1. Thanks for the kind words Phil. On the whole I think the existing situation is complicated enough without dealing in hypotheticals. In the English criminal law of self-defence a person’s response is generally judged on the facts as he believed them to be. Whether such a rule is appropriate for a state I will leave to others to debate.

      1. Fair enough, and thanks for the reply. But I didn’t mean the question to be purely hypothetical. Although there remains some uncertainty about exactly what’s been discovered, the scenario I’ve described may very well be actual, i.e., with plans for a large-scale attack via the tunnels being discovered during the operation. It would seem odd to me if that kind of information, if confirmed, had no bearing on the issues at hand.

  2. Just imagine Gaza is the Isle of Wight, and that much of Southern England is subject to rocket and mortar attack.

    Now, what sort of response do you want from the British armed forces? How much “sense of proportion” do you expect? Do you think it’s all right if just some mortars and rockets are fired?

    Or do you say: Get in and make it impossible. And if the Wighters are using schools and hospitals to cover their launchers, that’s their responsibility. And never mind the people in other countries who are nor subject to these attacks.

    As one member of the House of Lords remarked: Hamas use civilians to protect their missiles; Israel uses missiles to protect its civilians.

  3. I think your analogy rather falls down once you bring the Isle of Wight into the equation. The Island, which I have visited quite often over the years, is about as quintessentially English a place as anywhere in the country. Should it be occupied by foreign invaders the correct response would be to try to drive them out, although trying to keeping civilian casualties to the absolute minimum.

    Even in the heat of a battle for national survival one should try to avoid civilian casualties, and indeed that is something the Israelis repeatedly stress that they are doing.

    So your suggestion (if that is what it is) that the Israelis should “get in … and never mind the people in other countries who are not subject to these attacks” is not one that would be endorsed, certainly not officially, by the Israeli government and not by any civilised person.

    One comes back to proportionality. This war was started in order to stop rocket attacks. The rocket attacks had killed nobody and done very little physical damage in the 18 months before the latest events began. I find it very hard to see how wreaking the death and destruction of the last 4 weeks can be said to be proportionate to that, and if it is not proportionate it is not legal.

    Incidentally it has also handed a huge propaganda victory to a thoroughly nasty organisation.

  4. Well, no analogy is perfect. But I stand by my point that no nation on earth should be expected to tolerate what Hamas has done from Gaza – and only Israel is. Higher standards are expected from Israel than from her neighbours.

    .Incidentally, the separation fence is often and wickedly compared to the Berlin Wall. If in the weeks and months before August 1961 there had been a series of West Berlin fanatics going into the East of the city and blowing themselves and others up – the world might have regarded Ulbricht differently.

    1. I served in Iraq and Afghanistan. Mistakes were made by the British Army, but never the wholesale slaughter of civilians. The Isle of Wight comparison is ludicrous because it overlooks the root cause of the issues: the occupation. Israel is occupying Palestinian land, not vice versa. The British Army (eventually) recognised in both Iraq and Afghanistan, as we did in Northern Ireland decades earlier, that these were political problems with political solutions. The British Army could have murdered Nationalist children to ‘send a message’, or because the IRA had the perfidy to launch attacks from civilian estates, and such children were ‘fair game’, as the Israelis have effectively argued. That never happened, because as a nation we are not savages, and we respect the rule of law; since 1967 the same is increasingly difficult to say of Israel.

      This is a useful article, among many others:

      “Israel’s assault on Gaza, as pointed out by analyst Nathan Thrall in the New York Times, was not triggered by Hamas’ rockets directed at Israel but by Israel’s determination to bring down the Palestinian unity government that was formed in early June, even though that government was committed to honoring all of the conditions imposed by the international community for recognition of its legitimacy.

      The notion that it was Israel, not Hamas, that violated a cease-fire agreement will undoubtedly offend a wide swath of Israel supporters. To point out that it is not the first time Israel has done so will offend them even more deeply. But it was Shmuel Zakai, a retired brigadier general and former commander of the IDF’s Gaza Division, and not “leftist” critics, who said about the Israel Gaza war of 2009 that during the six-month period of a truce then in place, Israel made a central error “by failing to take advantage of the calm to improve, rather than markedly worsen, the economic plight of the Palestinians in the [Gaza] Strip. … You cannot just land blows, leave the Palestinians in Gaza in the economic distress they are in and expect Hamas just to sit around and do nothing.”

      This is true of the latest cease-fire as well. According to Thrall, Hamas is now seeking through violence what it should have obtained through a peaceful handover of responsibilities. “Israel is pursuing a return to the status quo ante, when Gaza had electricity for barely eight hours a day, water was undrinkable, sewage was dumped in the sea, fuel shortages caused sanitation plants to shut down and waste sometimes floated in the streets.” It is not only Hamas supporters, but many Gazans, perhaps a majority, who believe it is worth paying a heavy price to change a disastrous status quo.

      …Netanyahu made clear that he has no interest in a genuine two-state solution. As Horovitz puts it, “the uncertainties were swept aside … And nobody will ever be able to claim in the future that [Netanyahu] didn’t tell us what he really thinks. He made it explicitly clear that he could never, ever, countenance a fully sovereign Palestinian state in the West Bank.” The IDF, Netanyahu said, would remain permanently in the West Bank. During the Kerry-sponsored negotiations, he rejected out of hand the American proposal that U.S. and international forces be stationed on the Israeli-Palestinian border, which he insisted would remain permanently under the IDF’s control…

      [Netanyahu] is doing all of these things because, as suggested by Yitzhak Laor in Haaretz, he and his government are engaged in a frenzied effort to eliminate Palestinians as a political entity. Israel’s government is “intent on inheriting it all” by turning the Palestinian people into “a fragmented, marginalized people,” Laor writes. It is what the Israeli scholar Baruch Kimmerling described as “politicide” in a book by that name he wrote in 2006.

      So exactly who is putting Israel’s population at risk?”

      http://www.politico.com/magazine/story/2014/07/israel-provoked-this-war-109229.html#.U-JCt2K9KSO

  5. I have a question about occupation: isn’t there an argument that Israel is the de facto occupying power? Israel exerts near-complete control of Gaza’s borders via the blockade it has imposed – with lethal consequences for its residents. Does this not comprise de facto occupation because it exercises “effective control”?

    While ECHR jurisprudence doesn’t apply per se, I’m wondering whether the effective control doctrine of Al-Skeini, Al-Jedda et al is now part of the lex specialis beyond Strasbourg?

    On a tangential note, I particularly loved the concurring opinion of Judge Bonello in those cases:

    “37. I confess to be quite unimpressed by the pleadings of the United Kingdom Government to the effect that exporting the European Convention on Human Rights to Iraq would have amounted to “human rights imperialism”. It ill behoves a State that imposed its military imperialism over another sovereign State without the frailest imprimatur from the international community, to resent the charge of having exported human rights imperialism to the vanquished enemy. It is like wearing with conceit your badge of international law banditry, but then recoiling in shock at being suspected of human rights promotion.

    38. Personally, I would have respected better these virginal blushes of some statesmen had they worn them the other way round. Being bountiful with military imperialism but bashful of the stigma of human rights imperialism, sounds to me like not resisting sufficiently the urge to frequent the lower neighbourhoods of political inconstancy. For my part, I believe that those who export war ought to see to the parallel export of guarantees against the atrocities of war. And then, if necessary, bear with some fortitude the opprobrium of being labelled human rights imperialists.

    39. I, for one, advertise my diversity. At my age, it may no longer be elegant to have dreams. But that of being branded in perpetuity a human rights imperialist, I acknowledge sounds to me particularly seductive.”

    http://echrblog.blogspot.com/2011/07/long-awaited-al-skeini-and-al-jedda.html

    Needless to say, there is no suggestion that Israel has taken much care to respect human rights, something which the IDF should rightly fear in the promised ‘Goldstone 2’ report:

    “…The Goldstone Report struck extraordinary fear into the Israeli political, defense and legal establishments because it was the first UN report ever recommending criminal proceedings against individual Israeli soldiers and policy-makers as opposed to deriding Israel as a country…

    The legal universe and playing field transformed on November 29, 2012 when the UN General Assembly made Palestine a non-member state.

    In a less widely-reported speech, ICC Prosecutor Fatou Bensouda in Paris on March 20, 2013 reportedly said that the ICC is “waiting” for the Palestinians to “come back,” implying that following the UN vote, she would view Palestine as a state, even though the UN Security Council has not recognized it.

    Put succinctly, the threat of criminal allegations against Israelis going anywhere (though there are many obstacles besides the statehood bar) at the ICC are far greater now than they were when the Goldstone Report came out…”

    http://www.jpost.com/Operation-Protective-Edge/Why-Israel-may-miss-Goldstone-369105

  6. Apologies, I had missed this detailed and well-written analysis from Monday (http://www.salon.com/2014/08/04/they_were_war_crimes_the_specific_legal_case_for_international_charges_against_israel/), which answers my question:

    “…This conflict has not occurred in a vacuum, and as such, it is worth noting that the West Bank and Gaza Strip have been designated as occupied territory by the United Nations since 1967. The first talking point by supporters of the offensive is generally mentioned as a retort to the word ‘occupation.’ They argue that Gaza is no longer occupied and that Israel has no duty towards the Palestinian population.

    Gaza remains occupied under international law, because Israel maintains control over its borders, water sources, electricity, population registry and reserves the right to enter, shell, and bombard Gaza, which we have seen escalate to epic proportions over the past three weeks. Last week, Israel shelled Gaza’s sole power plant, and most Palestinians now have access to electricity for only two hours a day. According to the Palestinian Energy Authority, it could take months to repair the damage. Israel’s complete control over the residents of Gaza confirms that it still maintains a duty as occupier to ensure the well-being and security of the Palestinian people…”

    The article concludes:

    “…This alleged restraint that the Israeli ambassador to the U.S. wants us to recognize is simply not present in any of the IDF’s actions. Israeli talking points promote the view that the IDF complies with international law. But when we look at these distinct cases, and the soaring civilian death toll, we are not fooled. Self-defense, if applicable in this case, warrants only the necessary amount of force to quell the armed attack. Israel is going above and beyond, and this operation will only be measured in the loss of lives, limbs, and loved ones in Gaza, and the continued terrorization of 1.8 million people.

    The Palestinian Authority has submitted a complaint to the International Criminal Court for the prosecution of Israeli war crimes in Gaza. If the ICC finds jurisdiction over Palestine, a non-member observer state, it will make history. Israeli officials have threatened that they will submit claims of war crimes against Hamas to the ICC. To them I say, if you have committed a crime against humanity, you should be held accountable. The prosecution of all war criminals is the responsibility of the ICC, and we cannot allow another episode of collective punishment against Gaza to go unnoticed and unaddressed by the international community. There must be justice for the Palestinian victims of these blatant violations of the laws of war.”

    http://www.salon.com/2014/08/04/they_were_war_crimes_the_specific_legal_case_for_international_charges_against_israel/

    1. It is certainly not established law that Gaza is “occupied” in international law. It’s a point of view on which there are differing opinions. I mention the Wall case in my post, but that creates no binding precedent for Gaza. I’ve referred to draining the word “proportionate” of meaning in the post. I wouldn’t want to do the same thing with “occupation”.

        1. I agree that the label doesn’t mattter. But controlling the borders is not the same as occupation. Even if a city is under siege we do not, in ordinary language, talk about it being occupied until the attackers have got inside the city walls and taken over the government. If Israel was the occupier why would they let Hamas rule the roost?

          1. It is the same thing in practice. Occupation isn’t an intellectual exercise. It is a lived reality. It is like saying the Native Americans weren’t occupied when they forcibly put on reservations. It flies in the face of common sense and basic decency.

  7. This article explores the question of whether Gaza is still ‘occupied’ by Israel. It essentially summarises the position of various international parties on this issue. It seems that the UN and US still deem it to be occupied, despite Israel’s ‘unilateral disengagement’. Given the total control Israel exercises over aspects of state sovereignty such as airspace, maritime rights, borders, immigration, banking and finance, power, water and telecommunications (to name a few), combined with the positions of the UN and US, I think it would be disingenuous to continue to suggest that it is anything other than ‘occupied’ under international law.

    http://edition.cnn.com/2009/WORLD/meast/01/06/israel.gaza.occupation.question/index.html

  8. The fact that it is being used to launch attacks on Israeli civilians seems to me to establish that it us not occupied. If it was that would not happen.

    1. I’m sorry, but I don’t quite follow your logic. An ability to launch attachs does not preclude one’s territory being occupied. France had an active resistance during WW2 and the Taliban launched attacks on neighbouring Pakistan during much of the occupation of Afghanistan. As I have said, the US and UN both consider Gaza occupied by Israel.

      Perhaps you would prefer the term ‘beseiged’, but that would suggest ongoing active military hostility on the part of Israel, which would, under international law, give Gaza the right to retaliate to what would effectively be an ‘act of war’ by Israel.

  9. Hamas is a “wicked organisation” entirely because of Israel. It has been created and motivated to its aggressive behaviour because of Israel’s unlawful occupation of Palestinian land, unlawful apartheid regime, unlawful ‘kettling’ of Palestinians into Gaza and then unlawful blockade of Gaza.

    The rockets are weapons of self defence and there can be no question whether they are proportionate. The evidence you have set out above shows that they clearly are.

    You write that “no nation on earth should be expected to tolerate what Hamas has done from Gaza” but what Hamas has done is in self defence. It is a heroic defence and resistance against an oppressor of disproportionate military power. No nation or people could possibly be expected to tolerate what Israel has done to Palestine – the systematic theft of its land and brutalisation of its people by a regime that is criminal in its intent and actions.

    There is prima facie evidence of war crimes by Israel on an epic scale. I’m certain that Hamas has also stepped over the line but anything it does is dwarfed by Israeli might.

    Your anaylsis is far too sympathetic to Israel because you start from its ‘right to defend itself’. It isn’t defending itself. All of its actions are in support of its unlawful acts of aggression.

    1. Well I don’t agree with you that Hamas has acted in “heroic self-defence”. You don’t mention the Hamas charter which makes clear it is not interested in anything short of annihalation of Israel.

      1. Words on paper are pretty lies, but bombs on children are ugly truths. If we start looking at charters, the Likud charter specifically states that Israel will never cede the West Bank – it also states that the party will continue to stregthen and support the illegal (under international law) settlements in that area. This is in direct contravention to the ‘two state’ solution that Israel signed up for and is also a violation of international law. (settlement/transfer of civilians of an occupying power to an occupied territory).

        The fact is that charters are rhetoric and we have to judge the parties not by their propaganda documents, but by their actions on the ground. Further, one must also consider that most Palestinians consider Israel illegitimately created by seizing their land – Israel refuses to consider the right of return of Palestinian refugees, so I hardly think that we should expect Hamas to recognise the state of Israel or wish for anything other than its dismantling.

        1. What do you and what does Hamas think should happen to Israelis and especially the sabras?

          The mortars and rockets fired at Israe from what some people claim is still Israeli-occupied territory are a very ugly truth and so are launchers placed near schools and hospitals. Israel is a civilised democracy – the only one in the region – which uses missiles to protect its children; Hamas is a gang of criminals which uses children to protect its missiles; and all the ignorant nonsense spouted by people who don’t live in the area won’t change that. I just wish somebody would explain what response to the aggression from Hamas would be “proportionate”. If it leaves Israeli civilians at risk it is inadequate; there is your starting-point.

        2. Likud is not Israel, and Likud has a 2014 constitution which is (although I am not aware of an English language version) is apparently more ambiguous.

          The Hamas document is a catalogue of anti-semitism from beginning to end & I cannot see how any Jewish nation could possibly “negotiate” with people who explicitly want to wipe them out. It would be like asking Jews to negotiate with Nazis. I’m not supporting Israeli West Bank settlements by the way. I am sure that they are one of the main obstacles to peace and that they should go, as they did from Gaza. Nor do I support Netanyahu’s policies towards Gaza or the West Bank which I think are appalling, as the piece, I think, makes clear.

          But recognising that does not mean supporting Hamas. Hamas’s “actions on the ground” in the last few weeks have included deliberately ending successive ceasefires and inviting yet more destruction to Gaza. So whether you judge Hamas by words or recent deeds you seem to come to the same conclusion.

        3. “Words on paper are pretty lies, but bombs on children are ugly truths.”

          Precisely and well said.

          This shameful attempt to invalidate Hamas’ legitimate role within Palestine just because some of its declared aims are clearly ridiculous is a distraction from the real issue – the systematic murder of civilians.

          Yes, it’s murder by dint of its sheer recklessness,.

          If what Hamas has written is so terrible that it negates its right to self defence, what about this from Eli Yishai, Israel Deputy PM?:

          “We must blow Gaza back to the middle ages”

          Or Michael Ben-Ari, member of the Knesset?:

          “There are no innocents in Gaza. Mow them down. Kill the Gazans without mercy”

          1. Bombs on children are indeed ugly truths. This is what Israeli children had to endure from suicide bombers dispatched by Hamas and other terrorists groups until 2008.

            http://en.wikipedia.org/wiki/List_of_Palestinian_suicide_attacks

            These were deliberate attacks against civilians, intended to kill and maim as many as possible. They finally came to an end because of Israeli defensive measures (including the much maligned West Bank security barrier).

            The actions of Hamas are wholly consistent with the “pretty lies” in its charter. It has always tried to kill as many Israeli Jews as it could, publicly celebrating each murder and eulogising the murderers. It’s role in the affairs of Palestine are as legitimate as the role of the Nazi Party in Germany.

          2. It is Hamas that is guilty of wilful and reckless disregard of its own population. Regardless of whether you believe Hamas uses its population as human shields, it’s undeniable that they fire rockets at israel without providing for the safety of their citizens. That is clear to anybody but the most ideologically deluded, because (1) they don’t built bomb shelters for their people, even though they fire rockets at Israel and know what the likely response will be; (2) they fire from populated areas; and (3) they keep weapons and ordnance in and near populated areas.

            Given all that, it’s clear that in the race for the “reckless disregard for the Palestinian population” title, Hamas wins hands down.

  10. Pretty much what happened to Hamburg, in fact. Please explain why Israel should tolerate being rocketed and mortared and retaliate?

  11. I am afraid you have argued a poor and erroneous case. The laws governing war are not the same as those in respect of domestic violence, as in your pub. You argue incorrectly – by false analogy. Firstly there was a – casus belli – for the ground invasion, namely the discovery through infiltration of tunnels intended to attack, kill, maim or kidnap the civilian centres adjacent to the strip. Up till that point there was rocket exchanges, something that hardly needs a justification for a response given the noted thousands that are directed indiscriminately at Southern Israel, but were now being fired further into large population centres, and a build up of forces, but no decision on an incursion or full operation. Then your use of proportionality is entirely incorrect for war, and swallows wholesale Hamas view that it is about numbers of dead and injured, and therefore your position collapses as merely repeating their propaganda. In war, as against a domestic situation, the principles are of distinction – to distinguish between civilian and military targets, or those used for military purposes, and also proportionality, which does not mean proportionate ‘to the damage done’ or number of casualties – it has the more limited meaning – that the effect of firing at a particular target should not be to cause damage or injury out of proportion to the particular military benefit achieved, Given that Israel has the right, or actually, the obligation, to protect its citizens, once the cause for war had been established, it remains to be assessed whether its actions, within the scope of the campaign were – to use a different word for a change – balanced. Given the steps taken to warn the population, the clear instances of steps taken to abandon actions were civilians may have been in the way or close, the conduct of the campaign by Hamas, with booby traps, a network of tunnelling, highly trained and well armed combatants, used to the terrain and operating in an urban setting to full advantage, and given the number of Israeli soldiers killed and injured, and the number of dead amongst the Palestinian casualties of combatants age, (and the not inconsequential fact that the number of civilian dead will no doubt, as with the last campaign, be substantially reduced in the months ahead and the true number of Hamas operatives engaged in fighting and dying will be all too latterly admitted), the likelihood is that the Israel acted fully proportionally. I am afraid you like everyone else has been swayed by a propaganda war that never showed anything but civilian casualties – I did not see one report of Hamas injured in the whole month and by a tightly run, but very suspect, control of information. The fighting was restricted to two or three limited areas, and must have been very intense, but the impression given is that Israel flattened the whole strip. No doubt that intense fighting caused considerable damage, but again the impression given is that Israel just flattened it, without any reason, to kill children. Israel also has an obligation to protect its troops, and 64 of them, the cream of Israeli youth, did not die in those battles from the actions of the ‘mostly civilian dead’ – they died in what must at times have been a monstrous battle with a ferocious enemy, determined to kill as many IDF personnel as possible, who had no regard for the rules of war in doing so. Having planned for this battle for years, the nonsense about disproportionate response is risible. Of course, as in any war, no doubt you will find acts by individuals, as well as accidents and mistakes, causing civilian deaths that will warrant investigation, and in some instances may be crimes, but your argument is not only wrong, it adds to the general campaign of vilification, which is part of Hamas’s purpose, and you should know better.

  12. If only I too could write with a barrister’s deductive logic. You put the case very persuasively, and I cannot help but agree. It is an intractable problem, with no winners.

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