Canadian Jewish Political Affairs Committee
Israel, terrorism and the laws of war

Louise Arbour’s comments on international law as it applies to Israel’s military actions in Lebanon are as superficial as they are simplistic as a matter of law, and uninformed and misleading in their appreciation of and application to the facts.

First, it is a basic postulate of constitutional law that a government’s first duty – be it in Canada or in Israel – is the protection of its citizens. Second, and not unrelated, international law mandates the right, if not the duty, of self-defence against aggression, and the reasonable use of military force for that protective purpose, whether in response to an armed attack from another state or a terrorist act.

In the case at hand, the triggers for the present hostilities include the abduction of Israeli soldiers and the intentional and unprovoked rocket and missile bombardment across international boundaries of Israeli cities, towns and villages by Hezbollah and Hamas. The root cause is the unwillingness of these terrorist entities and their supporters, like Iran, to recognize the legitimacy of Israel within any boundaries. By their own avowed declarations, they are sworn to the destruction of Israel and the killing of Jews wherever they may be – aided and abetted by their sponsors, Iran and Syria.

Accordingly, the declarations of Arbour, the United Nations’ high commissioner for human rights and a former Canadian Supreme Court justice, to the effect that international law “prohibits the bombardment of sites with military significance but resulting invariably in the killing of innocent civilians” is wrong as a statement of international law, and dangerously wrong in the application of that alleged international law principle to the facts at hand.

First, it is legitimate under international law to attack military targets located in cities, as long as every effort is made to reduce civilian casualties. Second, targets located in cities – including even apartment buildings, bridges and infrastructure – are legitimate military targets if they become the infrastructure from which war is waged, whether they are used to store and launch rockets and missiles, or to house and shield the terrorists themselves, or, as in the case of bridges, to transport both the terrorists and their weapons.

Indeed, Arbour’s statement of the law is not only simplistic as a matter of law, but dangerously so in this instance. For if Israel is to be prohibited from exercising its right of self-defence to counter the indiscriminate bombardment of its citizens, the whole of Israel becomes a “sitting duck” for Hezbollah’s and Hamas’ international criminality. It would transform international law – and Israel’s constitution or that of any democracy– into a suicide pact, with Hamas and Hezbollah able to commit war crimes with impunity.

Fortunately, the basic principles of international treaty and customary law respecting the reasonable use of force to repel aggression make it clear that the intentional co-mingling of combatants with civilians – or the embedding of combatants in civilian areas such that an attack on combatants would necessarily entail an excessively large number of casualties – is a flagrant violation of international humanitarian law. Hezbollah and Hamas are in violation of the laws of war when they launch missiles and rockets from villages and homes in order to immunize themselves from Israeli reprisals.

Accordingly, Hezbollah and Hamas are legally and morally responsible for any civilian casualty that results from any Israeli bombardment of areas containing missiles, rockets or the terrorists themselves, as long as the Israeli intention is for the purpose of protecting its civilians and Israel makes every effort to limit the civilian casualties in its response.

Admittedly, the right of self-defence in the response of Israel (or any other democracy) to such acts of aggression is not unlimited. The principle of “reasonableness” and “proportionality” in response still applies even when terrorist organizations like Hezbollah intentionally and indiscriminately target Israeli civilians and commit the war crime of using their own civilians as human shields. But then the test of “proportionality” for Israel (or any other democracy) – and the question of whether there has been excessive injury to civilians – must be assessed in the context of the intention and actions of both the aggressor and the responding state, including:

• The intentional and unprovoked acts of war across international boundaries by the terrorist organization to begin with;

• The use by the terrorist organizations of civilians as human shields to immunize themselves from an Israeli response;

• The avowed and publicly declared intention to destroy a state (Israel) and kill as many of its citizens as possible;

• The support for these terrorist organizations by states like Iran, which help recruit, train, supply, finance, harbour and instigate the terrorist movements, and which have their own genocidal ideology;

• The fact that terrorist organizations like Hamas and Hezbollah act as proxies or surrogates to the strategic objectives of Syria and Iran and which, in the case of Iran, include not only “wiping Israel off the map” but changing the map of the Middle-East itself;

• The intended and anticipated moral and strategic gains for Israel, which include better protecting from rocket and missile attacks more than two million Israelis – and with Tel Aviv in central Israel, protecting the country’s entire population of seven million – must also be factored into any judgments about the “proportionality” of Israel’s operations against Hezbollah.

It is painful and tragic to see hundreds of thousands of civilians fleeing the war zone; and the death of any innocent, Israeli, Palestinian or Lebanese, is a tragedy. But it must never be forgotten that there would have been no terrorist Hezbollah if UN Security Council Resolution 1559 had been complied with and enforced. There would have been no need for an Israeli response and no civilian casualties on any side if there had been no unprovoked act of aggression across international boundaries by both Hezbollah and Hamas to begin with. There would have been no Hezbollah capacity for an indiscriminate missile and rocket bombardment of the Israeli civilian population were it not for the Iranian and Syrian supply of some 15,000 of these deadly missiles and rockets to Hezbollah alone. There would have been nowhere near the number of Palestinian and Lebanese civilian casualties if Hamas and Hezbollah were not embedding themselves in the civilian population and using the civilians as human shields. And, as a matter of fundamental principle, there should no moral equivalence between the terrorist intention to maximize civilian casualties and the Israeli intention to minimize civilian casualties.

This discourse about the laws of war may, in the light of individual tragedies and civilian deaths, appear to be insufficiently sensitive to the human tragedies involved. Indeed, the “laws of war” may appear to be a contradiction in terms. But the very notion of laws of war and the theory of just wars presuppose that wars will still be fought, but that they must be fought justly.

In the end, Hamas and Hezbollah launched an unprovoked act of war against Israel. Israel had no choice but to respond to protect its citizens. The question is whether that response is just, and the answer has to be one rendered with full appreciation of the principles of international law and the facts and circumstances of the present conflict.