International Court of Justice

Israel’s Conundrum

As Israel bombards Islamic Hamas military targets in Gaza, much of the world screams in protest that Israel has overreacted. Within minutes of the first Israeli air strike, the Arabs were screaming “massacre, ” “genocide” and a “Palestinian Holocaust” and the media had all but forgotten the missile assaults that provoked it. Despite thousands of missiles reigning down on Israeli cities, towns and villages over the past seven years, the majority of which were fired after Israel withdrew from Gaza in August 2005, the European Union finally broke its silence long enough for its then President, Nicolas Sarkozy, to condemn Israel’s “disproportionate use of force” against Hamas.

This is the same EU that, in March 2008, issued a communiqu? urging Israel to “refrain from all activities that endanger civilians” as “such activities are contrary to international law”. Human Rights Watch went further. It is on record for having suggested that civilians acting as human shields do not pose a direct threat to opposing forces and therefore retain their legal immunity from attack because they are not directly engaged in hostilities against an adversary.

Let’s translate this into practical terms. If the EU and Human Rights Watch are correct in their interpretation of international law (and they are not*), Israel’s targeted killings of Hamas leaders and its destruction of Hamas’s terror infrastructures in Gaza constitute a violation of international law because such actions, by definition, “endanger civilians”. If so, we have handed our enemies virtual immunity from attack because no war can be conducted without endangering (or even killing) civilians – especially those being used as human shields to protect that enemy.


What is at issue here is our enemies’ intentional blurring of the distinction between combatants and non-combatants. Hamas consciously engineers human tragedies by placing civilians in harm’s way to protect themselves and their assets. Terrorists are fanatics, but they are not fools. If the tactic of using human shields assists them in achieving their military objectives by eliciting mass media sympathy and forcing us to refrain from attacking their terrorist assets, they will certainly utilize them. Lacking our respect for human life and often mocking it, such organizations perceive our sense of humanity as a major tactical advantage. If the military assets of Hamas are deemed invulnerable because they are protected by human shields, Israel is presented with a true conundrum. By failing to destroy these assets, Israel endangers its major war objectives and, in the end, its citizenry. But, if it chooses to respond, it runs the risk of killing civilians, reaping international media censure, and inviting diplomatic pressure for a ceasefire before it has achieved those military objectives. In a nutshell, that’s what happened in its 2006 Second Lebanon War.

Our enemies understand this. That’s why, in many regions of the world including Gaza and Lebanon, militias use human shields as a viable military tactic. They wage war using high-density residential areas as launching pads for missiles and heavy-caliber weapons, embed themselves in towns and villages, deliberately place missiles in private homes and apartment buildings, use children to retrieve used missile launchers knowing they will be not be targeted by retaliatory strikes (or, if targeted, that their deaths will be condemned by the mass media), construct additions to existing civilian structures to house their missile launchers and place military equipment in schools, playgrounds, hospitals and even mosques.

Bosnian Serbs used human shields against Muslim and Croat forces to immunize themselves from indirect and direct fire. Cambodian government forces used ethnic Vietnamese civilians as human shields as they advanced on Vietnamese positions. Throughout the civil war in Sierra Leone during the 1990s, members of the Revolutionary United Front routinely abducted children and used them as human shields against government forces. Chechen rebels used ethnic Russian civilians as human shields during the brutal war in Chechnya. In 1993, the United States attempted to apprehend Somali warlord Mohamed Farrah Aidid in order to restore order to that country. Somali gunmen engaged U.S. forces by stepping out of large crowds of civilians, firing, then retreating into the crowd using their own people as human shields. They also used hospitals, orphanages, and other civilian buildings as places from which to direct fire at U.S. forces. And during the Second Lebanon War in the summer of 2006, Hezbollah prevented civilians from leaving their villages anticipating Israeli military strikes; used their mosques to stockpile weapons and used civilian residences as their bases of operations arguing all the while that the use of human shields is a legitimate tactical strategy under Islam – Geneva Conventions be damned.

As a matter of course, Hamas uses children as human shields on rooftops to prevent Israeli air strikes against the homes of its jihadist leaders, and uses civilian residential dwellings to hide the openings of tunnels used to smuggle arms, missile launchers and weapons into Gaza from Egypt. In effect, rather than protect non-combatants, post-modern terrorists have incorporated them into their tactical war strategy, and in the case of jihadists like Hamas, these “civilians” willingly sacrifice themselves to become shahids or “martyrs” for Allah. Hamas’ calculation is simple, cynical and evil – If innocent Israelis are killed – good. If innocent Palestinians are killed – even better.

As Alan Dershowitz wrote several years ago: “The Geneva Conventions have become a sword used by terrorists to kill civilians, rather than a shield to protect civilians from terrorists…Terrorists who do not care about the laws of warfare, target innocent non-combatants. Indeed, their goal is to maximize the number of deaths and injuries among vulnerable civilians for propaganda purposes. The terrorist leaders – who do not wear military uniforms – deliberately hide among non-combatants. They have also used ambulances, women pretending to be sick or pregnant, and even children as carriers of lethal explosives.”

International law governing the use of human shields must be well-defined and understood both by the media and all parties to a conflict. Those who voluntarily assume positions at or in close proximity to legitimate military targets must understand that they have assumed the risk of combat and forego their non-combatant immunity. Furthermore, high-value targets protected by non-voluntary human shields can still be attacked under international law so long as every effort is made to minimize civilian deaths. In Gaza, the Israel Defense Force has taken the unprecedented measure of amassing the complete list of cellular telephone numbers of Gaza Palestinians and through an automated telephone system is warning residents to evacuate targeted buildings prior to Israeli air strikes. Moreover, in excess of 2,500 tons of humanitarian aid, medical supplies and medication have been conveyed to Gaza through Israel’s Kerem Shalom cargo terminal since the war began – so much in fact that the World Food Program actually informed Israel that they will not be resuming shipments of food to Gaza due to the fact that their Gaza warehouses are full.

Nevertheless, the United Nations, the mass media, foreign universities, non-governmental and human rights organizations constantly play into the hands of terrorist organizations like Hamas by slanting their coverage to evoke public passion and sympathy regardless of Israel’s having acted in accordance with international law. Had the Allies been required to fight World War II under the same rules of engagement selectively applied to Israel, it is questionable whether we would have won that war. To expect Israel to hold back in its use of decisive power against legitimate military targets in Gaza is to condemn it to a long, drawn out and unsustainable war of attrition with Hamas which, by any standard in the Middle East, would be considered both an Israeli defeat and a Hamas (read jihadist) victory.

Israel’s current military operation constitutes a legitimate act of self-defense against an Iranian terrorist proxy. The Israeli military response was not merely a necessary one. It was the only one left. Hamas was created to fight and win holy wars – not to make peace with infidels. They seek an Islamic Palestinian state in place of Israel, not beside it. Genocidal jihadists cannot be wheedled, negotiated, bribed, or ignored into submission. When rule over Gaza passed to the Hamas government in January 2006, instead of bringing investors to Gaza, Hamas brought the guerrilla-warfare trainers of the Iranian Revolutionary Guard. Instead of launching economic projects, this government launched rockets every day at Israeli towns and villages across the border. There will be no peace in the Middle East and no prosperity for the people of Gaza so long as Hamas remains in power. The hard truth is that no matter how much Israelis crave peace, they cannot achieve it through concessions and compromises and “road maps” – not when their enemies view such overtures and agreements as signs of weakness, and as proof that terrorism works.

And if we want to live in a world where civilians are never used as human shields, there must be unequivocal international condemnation of those who use them as a deliberate military tactic. Unless and until the above organizations recognize the use of human shields as a war crime and prosecute those who place them in harm’s way, our enemies will continue to use human shields as they see enormous advantages in doing so. Failing to recognize this reality will place any future war effort we undertake in peril.

* Article 28 of the Fourth Geneva Convention provides that: “The presence of a protected person (i.e.: a civilian) may not be used to render certain …… areas immune from military operations.” To this was added Article 51 of the 1977 amendment to the 1949 Geneva Convention that elaborated on the latter by adding: “The presence of the civilian population or individual civilians shall not be used to render certain ….. areas immune from military operations, in particular in attempts to shield military objects from attacks or to shield, favor or impede military operations.” Nevertheless, the European Union, many international human rights organizations and much of the international media, for purely political reasons, choose to overlook this provision.

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