The Immoral Distortion of Legal Principles to Justify Hamas Atrocities

A picture of a child suicide bomber from Hebron, Judea & Samaria. Photo: Israel Defense Forces. CC 2.0

by Leonard Grunstein

10/29/2023, 1:08:17 PM

It is distressing to hear talking heads, pseudo experts and useful dupes spouting nonsensical interpretations of venerable legal principles in an effort to defame Israel so as to justify or excuse despicable Hamas atrocities.

Evil Hamas, backed by the Iranian terrorist regime, invaded Israel on Shabbat-Shemini Atzeret (October 7, 2023), brutally murdered over 1,400 Israelis, Americans and others, from over 40 countries, maimed over 4,000 and committed horrendous atrocities. Hamas also kidnapped more than 200 Israelis, Americans and others, including women and children, who they viciously abused and are continuing to hold hostage.

President Biden resoundingly and unequivocally denounced Hamas’ attack on Israel. He said, “Terrorism is never justified. Israel has a right to defend itself and its people, full stop”. He cogently described, “the bloody hands of the terrorist organization Hamas, a group whose stated purpose for being is to kill Jews…an act of sheer evil…Stomach-turning reports of babies being killed; entire families slain; young people massacred while attending a musical festival to celebrate peace…women raped, assaulted, paraded as trophies. Infants in their mothers’ arms, grandparents in wheelchairs, Holocaust survivors, abducted and held hostage. Hostages whom Hamas is now threatening to execute, in violation of every code of human morality. It’s abhorrent”.

He declared, “There is no justification for terrorism. There’s no excuse.” and noted Hamas’ “stated purpose is the annihilation of the State of Israel and the murder of Jewish people. They use Palestinian civilians as human shields. Hamas offers nothing but terror and bloodshed, with no regard to who pays the price.”

Biden recognized, “Like every nation in the world, Israel has the right… indeed has a duty to respond, to these vicious attacks.” He counseled the response should “be swift, decisive and overwhelming”. He then continued, “We now know that American citizens are among those being held by Hamas” and “statements from members of Congress calling for a ceasefire in Israel instead of issuing their full support for the country, following the surprise attack by Hamas, are ‘wrong’ and ‘disgraceful’.”

It was a masterful speech. The only deficiency was not addressing the ignominious role played by the Iranian regime. Congressional House members didn’t ignore it in their proposed resolution condemning Hamas, co-sponsored by over 400 of the 435 members, and neither should the President.

Press Secretary Karine Jean-Pierre (KJP), when asked about statements by a few members of Congress who called for a ceasefire and didn’t back the administration’s call for support for Israel, responded, “We believe they’re wrong. We believe they’re repugnant and we believe they’re disgraceful…Our condemnation belongs squarely with terrorists who have brutally murdered, raped, kidnapped, hundreds, hundreds of Israelis.” She then added: “There can be no equivocation about that. There are not two sides here”.

Rashida Tlaib, one of those few to whom KJP alluded, tried to justify Hamas’ murderous pogrom and atrocities, by absurdly and immorally characterizing them as resistance to a specious “occupation”, eventhough Gaza is not occupied by Israel as a matter of law or fact.

The foundational definition of the term occupation under International Law is embodied in the Hague Convention. It provides that a territory is only considered occupied when it is actually placed under the authority of a hostile army. As a threshold matter, the military forces of the conquered territory must have surrendered, been defeated or withdrawn. It also requires (1) a military presence in the occupied territory; and (2) exercising governmental authority over the area conquered, to the exclusion of the established civil government. Unless all of these criteria are satisfied, there is no occupation, as a matter of law. Merely having the potential to invade and control a territory, not coupled with an actual presence and effective control, is insufficient.

Israel conquered Gaza from Egypt in the 1967 defensive war and administered it until governmental authority was transferred to the PA, in 1994, under the Gaza-Jericho Agreement. It should be noted that the UN’s own records reflect the fact that the occupation ended in 1994. Israel entirely withdrew from Gaza, including removing any military presence and all Israeli residents in September of 2005.

Under the Oslo II Agreement and 2005 Disengagement Agreement, Israel obtained certain rights to patrol Gaza’s coastal waters and air space, which do not constitute effective governmental control over Gaza.

This was intended to enable Israel to interdict illegal weapons deliveries to Gaza, which are expressly prohibited under these Agreements. Hamas seized control of Gaza from the PA, in 2007 and remains the governing authority in Gaza to this day.

In reflecting on theses circumstances in 2008, the Israeli Supreme Court in the Al-Bassiouni case held there was no occupation by Israel of Gaza, under International Law. The European Court of Human Rights, in 2015, ruled control of the airspace above a territory and the adjacent sea was insufficient to constitute an occupation under International Law. As the Court held, an occupation is inconceivable without “boots on the ground”. (Gaza is not an “open air prison,” it is a place where elite Hamas leaders lived in laivsh villas near modern malls and pristine beaches, building themselves shelters and an underground tunnel city, while condemning the masses to unemployment and crowded living conditions, which, however, are photogenic, ed.)

Hamas supporters have also invoked another canard based on the law of war known as ‘Proportionality’, which they have thoroughly misstated to serve their insidious agenda. It is critical to distinguish the legal term from the generic usage.

War is legally permitted as a response to aggression or in self-defense. Thus, Israel is legally justified in declaring it’s at war with Hamas in response to Hamas’ murderous aggression and in seeking to prevent any possibility of a reoccurrence of Hamas’ aggression.

The principle of Proportionality is merely a tool for weighing the cost of a particular military action against a specific military target, in terms of the number of incidental civilian casualties and damage that might be expected, in relation to the concrete and direct military advantage expected to be gained. Thus, the greater the expected gain from the particular military action, the greater the tolerance for collateral damage. If the military gain is slight, then the tolerable proportion of civilian casualties would correspondingly be less.

Consider then the outsized benefit to be gained from a military operation directed at saving innocent hostages. It’s suggested it would far out-weigh most concerns about collateral damage. Use by Hamas of involuntary human shields is a war crime, but it does not negate the possibility of military action against Hamas, because otherwise it would perversely encourage the use of human shields.

Feasible and practical precautions are required to limit civilian casualties, taking into consideration all circumstances, including the risk of harm to friendly combatants. It should be noted that many experts consider civilians who freely choose to be human shields, to dissuade attacks on military targets, to be directly participating in the hostilities and therefore forfeit any protection under the Proportionality rule.

Apartheid is another reprehensible term misused to libel Israel. The use of this calumny is most insidious, because those who know the true meaning of the term and still defame Israel with it are forced to admit that strictly speaking it’s not applicable. They nevertheless use it because of its incendiary emotional impact.

Israel is not an apartheid state and it is patently absurd to claim otherwise. The term apartheid was the Afrikaans name given by the Nationalist Party, composed of members of the minority white community then ruling South Africa, to the country’s harsh, institutionalized system of racial segregation, in 1948. It came to an end in the early 1990s in a series of steps that led to the formation of a democratic government in 1994.

Israel is a democratic and diverse country where all citizens, Jewish, Muslim, Christian and others have the right to vote. There are no public toilets, benches or other public spaces, buses, trains, hospitals, public schools or universities segregated by race or religion. The professions, businesses and jobs are open to every citizen.

There is no racism institutionalized by the Knesset, enforced by the police and legitimized by the courts. Thus, for example, Muslim citizens serve as Justices of the Supreme Court of Israel, were members of the ruling coalition of Government, are attorneys, doctors and other medical personnel, university professors and students and patronize restaurants and shop at stores of their choice.

As Mesola Lekota, President of the Congress of the People party, former South African Defense Minister and senior African National Congress official, is quoted as saying, “I tried to find a comparison between how we lived under the apartheid regime and the situation in Israel and I could not find one”.

Bassem Eid, a Palestinian human rights activist, noted with respect to the prior ruling coalition government: “The new diverse government truly makes a mockery of the absurd ‘apartheid’ label. A devout Muslim and adherent of an Islamist ideology is now Israel’s Joe Manchin- a dealmaker at the center of a 50/50 legislative chamber with enormous clout. Anyone who chooses to look objectively can plainly see Israel as the bastion of diversity and democracy that it is.”

Lest there be any doubt that Israel is not an apartheid state, the US House of Representatives, in a bipartisan resolution overwhelmingly passed 412-9, affirmed that “Israel is not a racist or apartheid state”.

Another horrible blood libel accuses Israel of committing genocide. This is a particularly cruel canard because more than six million Jews were exterminated by the Nazis and their cohorts in the Holocaust. They were intent on committing genuine genocide, in what the Nazis referred to as the ‘Final Solution’ to the Jewish problem (Endlosung der Judenfrage). This was a euphemism, meaning the extermination of the entire Jewish people.

The crime of genocide requires the intent to destroy, in whole or in part, a national, ethnical, racial or religious group. It is patently absurd to impute such a horrible intent to Israel. Moreover, actual census data belies any such claim. Indeed, the Muslim Arab population of Israel, the PA controlled areas and Gaza has grown not declined. Consider the population statistics of ethnically diverse Jerusalem, Israel’s most populous city, as a pertinent example. Over the years since 1967, when the City was reunified, the population has grown; but the increase in the Muslim population has been proportionately greater.

Israel is also not doing any ethnic cleansing. Although there is no precise legal definition of ethnic cleansing under International Law, the term was used to describe the abhorrent conduct that occurred in the conflict that ensued among the constituent nations that emerged, in the aftermath of the dissolution of Yugoslavia. The UN Office on Genocide describes ethnic cleansing as ‘a purposeful policy designed by one ethnic or religious group to remove by violent or terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas’.

To put this in perspective, a landlord/tenant dispute in a Jerusalem neighborhood, which could be cured by just paying the rent, is not ethnic cleansing, by any stretch of the imagination of an objective observer. By way of comparison, there were two hundred thousand eviction cases pending in New York City in 2020. Employing the term ethnic cleansing in this context is not just preposterous, it’s venal and calculatingly designed to evoke unrestrained furor.

Use of these explosive and horrendous terms to vilify Israel in reference to some mythical misdeeds goes beyond merely being inappropriate and slanderous. It would appear like so many propaganda slogans and false narratives, the classic subterfuge of projecting unto others thine own flaws and sins may be at the heart of these meritless claims against Israel.

To this day, PA law prohibits land sales to Jews. Those, breaking the law are subject to harsh penalty that the PA does not shirk from imposing. The PA and Hamas also spew classical antisemitism, incite and glorify terrorism and call for Israel’s destruction. This includes promoting hateful antisemitic rhetoric in the media, as well as, teaching their children in school to hate Jews.

The Palestinian National Charter describes the entire Land of Israel, including the land within the ceasefire lines of 1948, as belonging to the Arab Palestinian people and calls for liberation through armed struggle. Despite assurances that it would be amended to recognize the State of Israel, this in fact never actually occurred.

The Hamas Covenant is overtly antisemitic. It compares Jews to Nazis, asserts Jews were behind World Wars I and II and finds Jewish conspiracies everywhere. It requires an armed Jihad against Israel to eliminate it.

Hamas and the PA, in their own words and actions, express their professed desire, in no uncertain terms, to commit the very crimes and evil deeds with which they speciously ascribe to Israel. In a typical propagandist fashion, they just contrive to accuse and impute their own criminal intent to Israel, in a cynical attempt to distract. How unfortunate that many still fall prey to these contrived ruses and canards.

Hamas is a terrorist organization, with the avowed goal, enshrined in its Charter, of destroying Israel. It also espouses antisemitic and genocidal doctrines directed against the Jews. Peace should have been achieved when Israel fully withdrew from Gaza, in 2005. As the wise Charles Krauthammer, Z”L wrote “…Israel evacuated Gaza completely. It declared the border between Israel and Gaza an international frontier. Gaza became the first independent Palestinian territory in history. Yet Gazans continued the war…Why? Because occupation was a mere excuse to persuade gullible and historically ignorant Westerners to support the Arab cause against Israel. The issue is, and has always been, Israel’s existence. That is what is at stake.”

Despite the raucous pro-Hamas protests, it is bracing to see so many others embrace moral clarity and know in their hearts and souls that Hamas is evil and there are no two sides or equivalence. Hamas is officially designated, by the US, EU, UK, Japan and Australia, as a terrorist organization. Israel must continue to be unequivocally supported in its efforts to root out the evil that is Hamas. This is no easy task, but Israel has no choice; it has the sovereign right and duty to protect its citizens.

May G-d grant Israel and the IDF success in their sacred mission, protect them and return the brave Israeli soldiers and hostages home safely.