International law is a profession, but even a layman can learn some of the basics to help defend Israel’s position against its myriad critics

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Israel has entered a new and more dangerous and problematic phase of Operation Swords of Iron. Dangerous, due to the risks IDF troops will face fighting terrorists on the ground in close quarters on Gaza streets and alleys, some of which will be booby-trapped. Problematic, because Hamas is believed to be holding at least 199 hostages who may be embedded in military targets the IDF must destroy to achieve its goal of eradicating the enemy’s military infrastructure.

Israel’s military strength is imposing, but when the media plays an outsized role in setting the narrative for global events, Israel must at least battle to a draw to maintain international support.

International law is a profession, but even a layman can learn some of the basics to help defend Israel’s position against its myriad critics. JINSA, the Washington–based Jewish Institute for National Security of America, convened a moderated discussion late last week with two members of its Gaza Assessment Team, which has produced comprehensive reports on the operational, legal, and associated challenges of both the 2014 and 2021 Gaza conflicts between Israel and Hamas and the lessons Israel has learned and needs to apply.

1 — Self-Defense Is Not Proportional

Article 51 of the UN Charter recognizes the inherent right of self-defense for any member nation under attack, at least until the Security Council intervenes.

The mass media has an arsenal of international law experts in its contact list who argue that self-defense must be “proportional” to the initial attack. Since the IDF possesses greater firepower than its enemies, Israel is chided to show “restraint” and limit the scope and scale of its response.

That argument represents a significant misunderstanding of the basic principles of self-defense, the most fundamental of which is “necessity,” according to Lieutenant Colonel Geoffrey Corn, a 21-year US Army veteran and civilian legal advisor who now serves as the director of the Center for Military Law and Policy at Texas Tech School of Law.

“There’s no rule that says if they fire ten rockets, you’re allowed to fire ten rockets, or if they kill 100 civilians, you’re allowed to kill 100 civilians,” Corn said. “The principle of self-defense is that I can take steps to terminate or eliminate the ongoing threat to my national security. So from a strategic standpoint, it is certainly legally permissible to destroy the military capabilities of this organized armed group [Hamas] so that the security of the state can be restored.”

While Israel’s critics repeatedly accuse it of committing war crimes for inflicting civilian casualties, Professor Corn said that the rules related to conducting attacks targeting civilians are not “effects oriented.”

“It’s not that you’re not allowed to kill any civilians, but that you are not allowed to deliberately try to kill civilians, and you’re obligated to do everything feasible to mitigate the risk when you’re attacking a legitimate target,” he said.

And that’s exactly what Israel does, according to fellow JINSA panelist Lieutenant General (ret.) Thomas Trask, a US Air Force combat veteran who flew more than 50 combat missions during the 1991 Gulf War to liberate Kuwait from Iraq’s invasion. Trask noted Israel’s practice of dropping leaflets warning civilians to flee before bombing raids.

“That is far beyond anything that is expected and is even anything beyond what the United States typically has done in theaters like Afghanistan or Iraq over the last 20 years,” said Trask.

2 — Why a Siege Can Be Legal

As we entered the second week of the IDF’s Operation Swords of Iron, criticism was mounting after Israel hermetically sealed its border crossings with Gaza and cut delivery of food, water, fuel, and electricity.

“Sieges are lawful unless deliberately aimed at starving a local population,” wrote Avi Bell and Erielle Davidson in a New York Post op-ed printed last week.

Bell, a professor of international law at Bar-Ilan University and the University of San Diego, and Davidson, an attorney and senior fellow at the Center for the Middle East and International Law at George Mason’s Antonin Scalia Law School, noted that both the Geneva and Hague conventions have a rule book on conducting sieges under international law, recognizing them as effective tools for bringing a conflict to a rapid and successful end. International law does require Israel to facilitate the passage of food and medicine by third parties, but only if such goods can be reliably delivered to civilians.

During the JINSA discussion, both Professor Corn and Lt.-Gen. Trask agreed that IDF commanders must take feasible measures to allow some type of humanitarian assistance for civilians, not just from a legal and moral standpoint, but also from a strategic one. Even after a ground invasion, the IDF could clear certain zones and declare them off-limits militarily, providing safe havens for civilians, especially the wounded and sick.

It’s been well-documented for years that Hamas has set up its command headquarters in caverns beneath Shifa Hospital in northern Gaza, knowing that Israel wouldn’t invade a hospital. However, Israel could legally do so. Even though Article 27 of the Hague Conventions demands belligerents do their utmost to spare edifices devoted to religion, art, science, and hospitals — that’s only provided that they are not being used for military purposes, which is what Hamas is doing.

3 — Saving the Hostages: Brute Force or Intelligence?

Every Jewish soul is a world unto itself. The concept that the IDF will leave no stone unturned to rescue a soldier or a hostage is etched into its operational ethos. Hamas captured at least 199 hostages from Israel during its barbaric Simchas Torah attack and has threatened to kill them if Israel launches a ground invasion of Gaza. Some foreign press reports indicate Hamas might already have carried out that threat against some of their captives.

At press time, the IDF was on the verge of launching its ground invasion nonetheless, but what about the hostages?

Some are also American citizens. The US has dispatched intelligence forces to Israel to assist Brigadier General (ret.) Gal Hirsch, whom Prime Minister Netanyahu appointed as the hostage coordinator on the Israeli side.

Lt.-Gen. Trask says that mounting any kind of rescue operation will require penetrating Gaza’s densely populated urban environment. The intelligence forces must discover where the hostages are being held, under what conditions, and what military threats are lurking in those areas.

“The Israelis have shown in the past that they won’t hesitate to use brute measures to do that, because sometimes that’s the only way to get to these targets,” Trask said. “I know there’s a part of society in Israel that’s clamoring for an immediate attempt to rescue them, but it’s just not reasonable to do that until you’ve had the time to build up sufficient intelligence.”

Israel has some leverage. It holds more than 5,000 Hamas security prisoners, but negotiations for a swap are unlikely until long after the war ends. Israel has also been burned many times by agreeing to lopsided prisoner swaps. Twelve years ago this week, Israel released more than 1,000 security prisoners to free Gilad Shalit, an IDF soldier kidnapped by Hamas and held captive for more than five years. Many of those freed terrorists returned to their evil ways, including Ali Qadi, one of the masterminds of the Simchas Torah atrocities. The IDF eliminated Qadi last week — too little, too late.

4 — Retaining International Support

Many Jews, both in Israel and abroad, have expressed appreciation for President Biden’s words and deeds in support of Israel. The leaders of Britain, France, and Germany have aligned themselves with Biden. Many other European capitals lit up their parliaments or other state buildings with blue and white lights to show their solidarity.

That support is not universal. In the UK, former Labour Party leader Jeremy Corbyn marched in a pro-Palestinian rally. Russia’s Vladimir Putin is pushing the UN Security Council toward a premature ceasefire. The EU’s foreign policy chief, Josep Borrell, along with a slew of “independent experts” at the UN Human Rights Commission, has either charged Israel with violating international law (Borrell) or accused Israel of “indiscriminate military attacks” and imposing “collective punishment” in Gaza.

Israel will never convince its most spiteful enemies to become steadfast supporters, if history is any guide. And even US officials, including Biden, have expressed concerns about a humanitarian crisis in Gaza, which could lead them to tug the leash on Israel.

The IDF may be famed for its pre-emptive military strikes, but Lt.-Gen. Trask contends they had better act proactively in the court of public opinion, even though winning that is always an uphill battle. He cites the May 2021 incident in which the IDF leveled an 11-story office building in Gaza City used by the Hamas intelligence operatives but also rented out to major media outlets, such as the Associated Press and Al-Jazeera. The IDF bombing triggered charges that Israel was trying to suppress freedom of speech and negative reporting of its war efforts. Trask says Israel should have been prepared for the bad press.

“The IDF could have used its information campaign to make sure that everyone in the world knew exactly what they did, and why, before we woke up the next morning to hear the Israelis had bombed an Al Jazeera press building,” Trask said. “You have to put out those reports publicly and then talk about them with each strike as you go along.”

Israel will be challenged throughout this battle, as the media portrays it as a Goliath fighting a weaker foe, but in his final piece of advice, Professor Corn argues that even though Israel is an armed state and Hamas is a nonstate group, the rules of warfare apply equally, and Israel must see its cause as justified.

“In the public commentary, there always seems to be this instinct that there also has to be equality of condemnation,” Corn said. “So people are coming out saying, yes, what Hamas did was terrible. It’s a war crime, but it’s almost like they have to find Israeli war crimes to talk about so they can be equal in their condemnation. That isn’t required by the law. Sometimes you fight when one side is doing the right thing and the other side isn’t.”e

(Originally featured in Mishpacha, Issue 982)