OpinionIsrael at War

Beyond vengeance

Israel should begin the process of putting Hamas war criminals on trial.

Nazi war criminal Adolf Eichmann at his trial in Jerusalem, 1961. Credit: Israel Government Press Office.
Nazi war criminal Adolf Eichmann at his trial in Jerusalem, 1961. Credit: Israel Government Press Office.
Harvey E. Bines
Harvey E. Bines is a former member of U.S. Navy Fighter Squadron 84 and a partner in the Boston law firm of Sullivan & Worcester.

In the face of the unspeakable brutality of the events of Oct. 7, all Jews of conscience and decent people the world over expect Israel to exact a vengeance that will “blot out” Hamas, the modern Amalekites, “from under heaven” (Exodus 17:14). Consistent with the biblical injunction, Israel’s political leadership has stated its war aims bluntly: The total destruction of Hamas.

But what if Israel is seen to be seeking to “blot out” Hamas vengefully?  

Let’s be clear-eyed: Even, perhaps especially, if none of Israel’s other enemies join the fight, anything short of Hamas’s total destruction will be portrayed as a Hamas victory. It will also embolden Hezbollah, Iran, Syria, the Houthis and other asserted jihadis, accelerating their preparations for the next round.

Moreover, the precedent will have been established that the war crime of targeting children, women, the elderly and the disabled is not a war crime when the victims are Jews.

Let’s also be clear-eyed about another key issue: Israel is unlikely to achieve its war aims if the United States decides Israel shouldn’t. The prospect that American support will waver cannot be gainsaid. The question is, can Israel do anything to prevent, or at least delay, American wavering? The answer is “yes.”

So far, in word, deed and body language, the message the Israeli government is sending is one of vengeance. Yes, this time the Hamas butchery went so far beyond Hamas’s previous war crimes that total annihilation of Hamas is not just appropriate, but deserved.

But so what? There are already hordes of people making the case that Israel’s conduct (and very existence) justified Hamas’s Oct. 7 atrocities as an act of vengeance. Friends of Israel reject this proposition, of course, but does Israel really want the external political debate to be about whose vengeance is more just.  (“Vengeance is mine” (Deut. 32:35)).

 I strongly urge the Israeli government to leave notions of exacting a just vengeance to the hearts of its citizens and its friends. Instead, the government should make the case with repeated public displays of the evidence and human testimonies that Israel is prosecuting a perpetrator of abominable war crimes and will bring all Hamas elements that survive the coming battles to trial and justice under international law based on the American-led Nuremberg trials of the Nazis.

The venue for such trials is all important. Regrettably, despite scrupulous adherence to process, Israel is the primary victim and cannot successfully and credibly try surviving Hamas perpetrators. True, the Nuremburg trials were conducted by the victorious Allies, but the proceedings were led by the Americans, whose civilian population was not subject to the Nazi crimes suffered by the British, French and Russian civilian populations. Accordingly, Israel should urge that the venue for such trials be the United States.

To be sure, defenders of Hamas will demand equal rights to prosecute. Although responding to specific charges will require superior legal work by Israeli lawyers, such efforts by Hamas apologists will not succeed even as a diversion.

For one thing, apart from the fact that the IDF is responding to Hamas’s commencement of a hot war, Hamas’s defenders will not be collecting and preserving evidence of specific events causing injury or death to civilians—who, in any event, have been told by the IDF to leave the combat zone—that could be used against IDF soldiers.

More generally, the IDF code of conduct is recognized as the gold standard for justified conduct under the laws of war. As Col. Richard Kemp, a British Army officer who commanded troops in Afghanistan, has written, the IDF “does more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare.”

If Israel cannot successfully defend itself against phony charges of war crimes in an American court of law, what does Israel think will happen to it in the international courts that may soon charge the IDF and Israel’s political leaders with war crimes?

Israel should not wait for the end of hostilities to move on the legal front. Israeli lawyers versed in international law affecting combatants should, beginning now, indict Hamas perpetrators with detailed charges and supporting evidence, whether the perpetrators are in custody, likely to be apprehended or dead as a result of IDF operations.

Finally, Israel cannot ignore the inevitable decline in support that it will experience in international circles. If Israel persists in characterizing or permitting others to characterize its mission as vengeance, it should be realistic about a fearful prospect: A decline in American support. The longer the IDF operation against Hamas, the more likely it is that American support will wither.  To gain time to finish the job, Israel must show that its aim is justice (“Justice, Justice shall you pursue” (Deut. 16:20)), not vengeance. If Israel does so, buttressed by issuing near-daily factual, evidence-based indictments that demand trial of the Hamas perpetrators, American support—and perhaps even Western tolerance—will remain much firmer for far longer.

And, not to be ignored, Hamas will be destroyed as a viable political entity on both the battlefield and under adjudicated international law.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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