Terror attacks against Israeli civilians by Palestinian organizations increased in 2023. Recent victims included two young brothers (six- and eight-years-old) killed by a car that rammed a bus shelter, two sisters and their mother shot as they were driving to a holiday dinner, two brothers killed on their way to a wedding, an Italian tourist, and six worshippers leaving a synagogue on a Friday evening. Various other knife and car ramming attacks were thwarted.
Perhaps of equal concern, Palestinian veneration of terrorists and joy at Jewish deaths have escalated to hysterical levels. Videos and photos of beautiful Palestinian boys carrying weapons announcing their intention to die, equally lovely schoolgirls calling for Palestinians to kill all the Jews and uncontrolled dancing and singing over the bodies of terrorists are ubiquitous. After Israel eliminated the two terrorists in Nablus who killed the mother and her daughters, Palestinian news media aired a report by the mother of a terrorist who said, “The Jews are our enemies, we should fight them, devour them with our teeth.” Another fired a gun in the streets while a Palestinian sang.
So, you might think that this statement by the European Union’s “spokesperson on the situation in Gaza” was aimed at Palestinian terrorists: “We urge all parties to exercise maximum restraint, promote calm and work towards a political horizon and regional stability in line with the commitments in the Aqaba and Sharm el-Sheikh declarations.”
You would be wrong. Following rocket fire from Gaza, the IDF struck back. Hamas strategically locates its military commanders, missile stocks and rocket launchers in civilian neighborhoods, counting on two things: First, that Israel will be deterred, thus safeguarding the Hamas operatives who live behind their human shields (a war crime everywhere in the world except, apparently, in Gaza). Second, that Israel’s retaliation, carefully planned as it may be, will kill children or old people, and Israel will be called a war criminal or a baby killer.
The E.U. obliged on the second count. Its statement was directed at Israel: “The European Union is gravely concerned by the escalation in Gaza following today’s Israeli air raids. The E.U. deeply regrets the loss of civilian lives, including children, and calls for the respect of international humanitarian law. Civilian lives must be protected under all circumstances.”
The E.U. is twisting the concepts of preventing civilian casualties, proportionality and collateral damage in order to harass Israel as it defends its people. Civilian casualties, while much to be mourned and regretted, are not war crimes and the protection afforded to civilians living among armies or terrorists is not considered a top priority.
The following two examples, not related to Israel, make the point.
Luis Moreno-Ocampo, chief prosecutor at the International Criminal Court, investigated allegations of war crimes during the 2003 U.S. invasion of Iraq. In 2006, the Court published an open letter containing his findings. Included was this section on proportionality: “Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur.”
“A crime occurs if there is an intentional attack directed against civilians (principle of distinction) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality),” he stated.
Dr. Françoise Hampton of the University of Essex also wrote about the concept of “military necessity.”
“Military necessity is a legal concept used in international humanitarian law (IHL) as part of the legal justification for attacks on legitimate military targets that may have adverse, even terrible, consequences for civilians and civilian objects,” he said. “It means that military forces in planning military actions are permitted to take into account the practical requirements of a military situation at any given moment and the imperatives of winning.”
“What constitutes a military objective will change during the course of a conflict,” Hampton noted. “As some military objectives are destroyed, the enemy will use other installations for the same purpose, thereby making them military objectives and their attack justifiable under military necessity. There is a similarly variable effect on the determination of proportionality. The greater the military advantage anticipated, the larger the amount of collateral damage—often civilian casualties—which will be ‘justified’ or ‘necessary.’”
The Council on Foreign Relations stated: “According to the doctrine, a state is legally allowed to unilaterally defend itself and right a wrong provided the response is proportional to the injury suffered. The response must also be immediate and necessary, refrain from targeting civilians and require only enough force to reinstate the status quo ante.”
Israel struck again this week, with the successful targeting of three top Islamic Jihad leaders. They were clearly legitimate targets and, as is their custom, were bunking with Palestinian civilians, several of whom—including children—were killed in the attack. It is possible to mourn the Palestinian children while accepting the righteousness of Israel defending its own children from terrorist attacks. The E.U. should do so.
Shoshana Bryen is senior director of the Jewish Policy Center and editor of inFOCUS Quarterly.
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