Anyone who has heard the testimony of the survivors of the Hamas conducted massacres in Israel on Oct. 7th or has seen the gruesome body camera recordings of murder, torture and mutilation of men, women and children filmed by the exhilarated terrorists themselves, will be hard pressed to think of a war crime or crime against humanity that the barbarians did not commit.

Still, Israel is bound to uphold the laws that Hamas flouted. To this end, Israel incorporates international law in all aspects of its use of armed force, from providing military personnel with legal training to integrating legal supervision into operational planning and decision making. At the heart of this commitment is a conviction that, as President Biden asserted on his recent visit to Israel: "Democracies are stronger and more secure when we act according to the rule of law."

But are they? Not only is Israel being tested by its actions in Gaza, but so is international law itself. Do its principles actually enable a terrorist enemy to be effectively defeated? If international law fails this test, it is unlikely that any state facing similar threats will respect it in the future.

For this reason, statements by international officials that mis-state international law and rewrite its principles so as to render it ineffective and unworkable, are not only a gift to Hamas in the current war but constitute a major threat to the ability to enforce international law in other conflict situations.

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There have been many Palestinian movements with many different political leanings but they all sought to end Israeli occupation and establish an independent Palestinian state.

Consider the recent statement by UN Secretary-General Guterres, through his spokesperson, in which he “reiterates that all parties must abide by international humanitarian law” but then adds that he “condemns in the strongest terms any killing of civilians.”

This is a dangerous and fundamental misreading of international humanitarian law.

The death of civilians is tragic, but not necessarily a violation of international law. In a situation in which terrorist bases and armaments are embedded in the heart of dense civilian areas there is no principle of international law that says these terrorists must be left free to perpetrate attacks with impunity.

On the contrary, the law explicitly recognises that civilian facilities used to house or shield terrorist groups are indeed lawful military targets, and that collateral civilian casualties may be legitimate, if these are not excessive in relation to the military objective of the operation.

In the tragic reality that Hamas has deliberately created, meeting this proportionality test requires an agonising balance. The heart-breaking suffering of civilians is one side of this equation. But there is another: meeting the military goals of the operation and preventing more casualties in the future.

Under international law, both sides must be weighed. If a medical operation is described only in terms of the pain it might cause with no regard to the disease it aims to cure, it will always appear to be an unjustified assault on the patient.

This was the approach of a group of human rights experts in Geneva who condemned Israel's actions as collective punishment. The group lacked a single military expert to weigh in on the critical military goal that Israel was seeking to achieve.  Similarly, a group of UNHRC special reporters labelled an airstrike on the Jabaliya camp a “brazen violation of international law” without any knowledge or consideration of the military goals of the operation.  

In the current conflict, international law has been so twisted by some that even humanitarian measures are presented as violations.

In an attempt to minimise the risk of civilian casualties Israel has urged civilians to leave the areas of terrorist entrenchment and move to the safe zones in southern Gaza - by way of flyers, radio broadcasts, even individual phone calls.  Israel even delayed its ground operations for weeks to afford civilians ample time to evacuate, notwithstanding the increased risk to its own soldiers that resulted.

Still, international officials have argued that the call to evacuate the war zone is itself a violation of international law, with the Commissioner General of UNRWA terming the attempt to save civilian lives “forced displacement”. This mis-stating of the law plays directly into Hamas' strategy of trying to keep civilians within, around and above its terrorist centers as human shields.  

International law is not a suicide pact. It makes demands on a defending democracy, but presented accurately it leaves room to defeat terrorism. Not so the parody of international law that is offered by these international experts.

By failing to recognise that Hamas is cynically hiding not only behind its own civilians but behind their misinterpretations of the law, these experts are rewarding its disdain and undermining the laws they claim to uphold.  Inevitably, terrorist organizations become emboldened to continue to deploy these methods, confident in international support for their illegal and immoral actions.

It is challenging enough for a defending democracy to act in accordance with the laws of armed conflict as they are. Israel's supreme court, which insists that Israel's defence forces comply with international law, has stated that “democracies fight with one hand behind tied behind their back.” If international officials, who should know better, make democracies tie both their hands, international law itself may become a victim as well.

Daniel Taub is an international lawyer who served as Israel's ambassador to the UK from 2011-2015

The views expressed in this opinion article are the author’s and not necessarily those of Kyiv Post.

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Comments (4)
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It is well known the real anecdote of a US ambassador complaining many years ago at the State Department about a South American dictator, cruel and corrupt, and the answer from the State Department "Yes, but he is OUR son of a b....". Many years later, with a much more complex world, where social networks show everything that is going on in real time and with the manipulation from Russia and China, US has learnt nothing and continues supporting HIS son of a b..... Benjamin Netanyahu. On this matter Biden seems to have no inteligence at all, after too many years in politics, losing plenty of neccessary votes in the US and harming countries like Ukraine, when other countries that supported Ukraine against Putin see how the US has lost any credibility he could give for helping Ukraine against a criminal, a criminal that has killed less people in almost two years of war that "Our son of a b....." in two months. I really can´t understand how people that are supposed to be smart can be so stupid.
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Daniel Taub, this has to be one of the best articles I've read in the Kyiv Post, well done Sir, well done.
Ken Hallett
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Israel has plentiful cutting edge 21st century weapons and technology. They would use hypodermic needle precision to protect most Israelis. Of course Israelis revolting against Netanyahu's regime might not be as protected.

Israeli officers have made damning statements against Gaza's civilians. 'It's about damage not accuracy.' Razing high-rise apartment blocks to the ground with massive air strikes makes the contempt for Gazans clear.

Many went to great effort to get out of Israel's way by going to a crowded REFUGEE CAMP that was bombed to kill ONE Hamas leader. Did he have a name? Convince the world, what made one man worth so many innocent lives? How was he so threatening at that moment? No conceptualizations. His name and the instant threat?

Why should Gazans try to flee? Israel's order was illegal on its face, and their odds seem the same as staying put.

Put questions of war crimes against Israel's history of occupation of Palestine and its patterns of aggression. Several wars annexing Palestinian land. Over 51 years of state-sanctioned illegal settlement building, displacing untold thousands of Palestinians, eventually becoming more annexed land. This has been constant through my entire living memory.

Hamas' behavior is not excusable. I don't think Hamas expects forgiveness. I haven't heard a single such plea. Israel's behavior isn't excusable either. Yet these often lame excuses flow like water from a fire hose.

The US, at $4B per year, and others are complicit.
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Says the apologist for collective punishment and the indescriminate killing of innocent children, women, and non-combatants who have nowhere to run for safety.

But go ahead and justify it to yourself, just as others have done throughout history......

And please pedal your genocide-washing somewhere else......not here, where innocent civilians are being slaughtered by the Russian military.