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OpinionIsrael at War

Hamas, its supporters and prevarications about international law

‘Occupation’ and ‘proportionality’ do not mean what pro-terrorism propagandists claim they mean.

Rashida Tlaib in 2018. Photo by Stephanie Kenner/Shutterstock.
Rashida Tlaib in 2018. Photo by Stephanie Kenner/Shutterstock.
Farley Weiss and Leonard Grunstein
Farley Weiss and Leonard Grunstein are authors of the new book Because It’s Just and Right: The Untold Back-Story of the U.S. Recognition of Jerusalem as the Capital of Israel and Moving the U.S. Embassy to Jerusalem.

Following the Oct. 7 Hamas attack on Israel and the atrocities the terror group committed, U.S. President Joe Biden was unequivocal.

“Terrorism is never justified. Israel has a right to defend itself and its people, full stop,” he said.

Importantly, he asserted that “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.”

White House Press Secretary Karine Jean-Pierre, when asked about statements by anti-Israel members of Congress who did not 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 added, “There can be no equivocation about that. There are not two sides here.”

One of these repugnant figures was Rep. Rashida Tlaib (D-Mich.), who tried to justify Hamas’s war crimes by characterizing them as resistance to a specious “occupation,” even though Gaza is not occupied by Israel in any way.

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 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 As a threshold matter, the military forces of the conquered territory must have surrendered, been defeated or withdrawn.

The definition 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.

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. This does not constitute effective governmental control over Gaza. It was intended only to enable Israel to interdict illegal weapons deliveries to Gaza, which are expressly prohibited under the aforementioned agreements.

Hamas seized control of Gaza from the Palestinian Authority in 2007 and remains the only governing authority in the territory to this day.

In 2008, the Israeli Supreme Court in the Al-Bassiouni case held that there was no occupation of Gaza under international law. In 2015, the European Court of Human Rights ruled that control of the air space above a territory and the adjacent sea is insufficient to constitute an occupation under international law. The Court held that an occupation is inconceivable without “boots on the ground.”

Hamas supporters have invoked another lie based on the law of war known as “proportionality,” which they have deliberately distorted to serve their insidious agenda.

It is critical to distinguish the legal term “proportionality” from its generic usage.

War is legally permitted as a response to aggression or in self-defense. Thus, Israel is legally justified in declaring that it is at war with Hamas—which is the clear aggressor in this case—and in seeking to prevent any possibility of a reoccurrence of Hamas’s aggression.

In legal terms, the principle of proportionality is merely a tool for weighing the cost of a particular military action against a specific military target. It does so in terms of the number of incidental civilian casualties and the damage that might be expected in relation to the concrete and direct military advantage to be gained.

Thus, the greater the expected gain from a 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 would far outweigh most concerns about collateral damage. Hamas’s use of involuntary human shields is a war crime, but it does not negate the possibility of military action against Hamas. If it did, 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 in order to dissuade attacks on military targets to be directly participating in the hostilities. Therefore, they forfeit any protection under the proportionality rule.  

In any event, neither of these two terms is used by the Palestinians and their supporters as anything other than a propaganda tool. As the late Charles Krauthammer once noted, “Israel evacuated Gaza completely. … 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.”

It is wonderful to see so many embrace moral clarity and acknowledge that Hamas (a U.S. and E.U.-designated terrorist organization) is truly evil. Israel must continue to be unequivocally supported in its efforts to root out this evil. May God grant Israel and the IDF success in their sacred mission, protect them and return the brave Israeli soldiers and hostages home safely.

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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