An op-ed by Harvard Law School Professor Alan M. Dershowitz
The Jerusalem Post
March 13, 2008
Article 51 of the United Nations Charter guarantees its members “the inherent right to…individual self defense” against “an armed attack.”
In January 2006, Hamas was elected to govern the Palestinian Authority. After Israel ended its occupation of Gaza and removed all of its settlers, Hamas threw the Palestinian Authority out of the Gaza and assumed de facto as well as de jure control over the entire Gaza Strip. Its leaders then instructed its military wing to direct rockets at civilian targets in southern Israel.
At first these rockets were Kassams with a relatively short range. Now they include Katyushas, which can reach Israel’s large cities, including Ashkelon, with its population of 120,000 civilians. Hamas has officially declared that its policy is to develop or smuggle even longer range missiles capable of reaching Israel’s largest city Tel Aviv and its lifeblood, Ben Gurion Airport. It has promised to keep aiming its missiles at civilian targets until the Jewish state is finally destroyed.
If this is not an “armed attack” under Article 51, then I don’t know what is. The only argument against it being an armed attack is that rocketing civilian population centers, as Hamas is doing, is a war-crime. International law prohibits, even during a declared war, the deliberate targeting of civilians or the bombing of areas of civilian population centers with absolutely no military significance.
But war-crimes may also constitute an armed attack: Hitler’s invasion of Poland was both, as the Nuremberg Tribunal determined. If anything, an armed attack that is also a war crime justifies the right of self-defense even more than a mere armed attack.
Nor can it be said that these attacks on Israeli towns and cities are merely the work of individual terrorists or terrorist groups. The military wing of Hamas is in fact a terrorist organization, as the Untied States and the European Community have recognized. But since Hamas is in political and military control of the liberated Gaza Strip, the military wing of Hamas is also the official army of that government, as Hamas itself has proclaimed.
What then are Israel’s rights under international law, under the law of war, under historical precedents and under various treaties and human rights concepts? What have, and what would, other nations whose cities and towns were attacked by enemy rockets do? Israel certainly has the right to counterattack its enemy, destroy its capacity to fire rockets and engage in “belligerent reprisal.”
The only constraint on Israeli action is “proportionality.” Israel’s military actions must be proportional. But proportional to what? Certainly not to the actual number of people who have thus far been killed or injured by rocket attacks. Israel has spent an enormous amount of money building shelters to protect against rockets. Close to a thousand rockets have been aimed at southern Israel in recent years. Each one of them had the capacity to kill dozens, if not hundreds of civilians. The fact that no Hamas rocket has yet hit a school bus, a kindergarten, an ambulance, a synagogue, or a school yard is simply happenstance. It is only a matter of time until this happens. No nation has to wait until the goals of its enemy are fulfilled before it engages in a proportional response. Proportion must be defined by reference to the threat posed by the enemy and not by the harm it has produced. No nation need allow its enemies to play Russian Roulette with its children.
Israel has tried several options, each of which has been condemned by vocal members of the international community, human rights groups and religious organizations – some of whom have been silent about the Hamas war crimes that precipitated the Israeli actions. Israel has tried economic sanctions, border controls, targeted attacks on terrorists and ground incursions. Each of these generally acceptable war measures carry with it the risk of some civilian casualties. The reason for this is that the distinction between combatants and civilians has deliberately been blurred by Hamas.
Rockets are fired from densely populated areas, precisely in order to force Israel into choosing between allowing its own civilians to continue to be killed by its inaction, or taking actions that risk hurting killing some Palestinian civilians. Either way Hamas wins. If Israel does nothing, then Hamas accuses it of impotence. If it does something, then Hamas accuses it if disproportionally. Hamas leader Khaled Maashal characterized Israel’s military actions in Gaza as “the real Holocaust.” Even Mahmoud Abbas, the so-called moderate Palestinian leader in the West Bank said that Israel’s military efforts to stop the rockets was “more than a Holocaust.”
The time has come for Israel’s critics to tell Israel what it should do in the face of these escalating rocket attacks on its civilian population centers. If economic sanctions, border controls, targeting terrorists and ground incursions should not be done, what are the alternatives?
The answer to this question is important not only to Israel, but to the United States and other democratic nations that will surely face the prospect of having to take actions to prevent terrorist attacks by enemies who deliberately hide among civilians. The barrage of unconstructive criticism directed against Israeli self-defense actions will only encourage more terrorism of this kind.