Terror Tunnels The Case for Israel's Just War Against Hamas (19 page)

Hamas’s goal is to induce Israel to fire back in self-defense. The end result is civilian casualties, but I maintain, and I’d like to hear Professor Dugard’s response to this, that the civilian casualties under these circumstances are primarily the responsibility of Hamas.

An example from criminal law: If a bank robber robs a bank and takes the teller as a hostage and begins to fire from behind the hostage, and the police in order to prevent the killing of some of the bank customers come in and try their best not to kill the hostage, but in the end do shoot and kill the hostage, who is responsible for that murder? Certainly not the policeman who fired the shot, but rather the person who used the human shield. I think the same is true of Hamas in Gaza.

The question: When you have an enemy that wants to maximize civilian casualties both on its own side and on the Israeli side, how should a democracy respond? What can it do? Surely, I think Professor Dugard would agree that Israel has the right of self-defense. They try to destroy the rocket launchers and they try to destroy the tunnels from which terrorists come and can kill civilians. They have a right to attack such military targets even if the military targets are in densely populated areas, so long as the rules of proportionality are abided by.

The rules of proportionality, though complex, can simply be stated as follows: the military value of the target has to be proportional to the reasonably anticipated civilian casualties. The military targets that Israel attacked—particularly the rocket launchers and the terrorist tunnels—are extremely important military targets.

Indeed Israeli intelligence had reports, just before they went in on the ground to attack the tunnels, that there was a massive attack planned through the tunnels which would have killed many Israeli civilians.

Now, proportionality involves a difficult calculus, and it often has to be made during the fog of war and mistakes are made. The best evidence is that Israel killed a number of its own soldiers in friendly fire episodes.

The tunnels could not be destroyed without ground troops fighting in densely populated areas where Hamas chose to place their entrances. You cannot attack the tunnels from the air, because Israel doesn’t know exactly the route of the tunnels. They do know where the entrances are. The entrances are often in mosques, and there is a videotape of that,
⁵⁶
and near schools.

Israel had to send in troops on the ground knowing, to be sure, that there would not only be some casualties among their own soldiers—more than sixty of them were killed—but also casualties among the civilians that lived in the areas near the tunnel entrances that were selected by Hamas.

I maintain that Israel satisfied the rules of proportionality. They distinguished between military and civilian targets. And they did not engage in collective punishment. Their actions were not intended to be punitive in nature. They were intended to be preventive.

If Hamas had decided to put their tunnels in the open areas and fire their rockets from the open areas, there would have been few if any civilian casualties. In fact, during the Six-Day War, there were very few civilian casualties.

That’s my case for Israel’s actions in Gaza. Now, let’s turn to the future. If Israel were to be improperly condemned for its self-defense actions, as it was by the
Goldstone Report
, this will only encourage Hamas to continue to operate its dead civilian strategy because that strategy works.

Israel wins militarily on the ground, but always loses in the court of public opinion, because it’s far easier for the media to show dead children and dead women than it is to show the context.

In fact, Hamas refuses to allow journalists to photograph rockets being fired or photograph the entrances of the tunnels in densely civilian areas. All the public sees are the results, the dead children. To go back to my analogy, all they see are the policemen shooting the hostage. They don’t see the bank robber who held the hostage and caused his death.

What should happen now is that Gaza should be demilitarized. The blockade should end, with exceptions for military rockets and equipment necessary to build tunnels, and Israel and Palestinian authority should engage in peace talks toward a two-state solution on the West Bank.

If the Gaza Strip is then controlled by the Palestinian Authority, there could be a complete two-state solution. Israel should negotiate with, but it shouldn’t recognize or legitimate an organization like Hamas, which is really no different from ISIS.

Just yesterday Hamas claimed credit for the murder of three Israelis including one American citizen. You cannot legitimate an organization that engages in kidnapping and murder. Thank you very much.

Professor Dugard:
Let me begin by thanking you for inviting me. Just two preliminary points; I’m not going to comment on the history. That is the agreement, Professor Dershowitz’s portrayal of the history. Secondly I’m going to avoid the use of the term “terrorism” or “terrorist” because both sides accuse each other of being terrorists.

Before I start, I think it’s important we have the facts on the table because they do inform the debate. To date, two thousand Palestinians have been killed and ten thousand wounded. Sixty-seven Israelis have been killed, of whom three are civilians. Professor Dershowitz said, and I would agree with him, that Israel acted in self-defense, but quite frankly I do not.

I know that Israel argues that it acts in self-defense and President Obama had supported this and both houses of Congress had supported this unanimously. It’s the only thing those two houses can agree upon, but I think it’s important to stress that Gaza is occupied territory. It has been occupied for forty-seven years.

The test for occupation is effective control, and Israel is in effective control of Gaza. It controls the land crossings, the sea space, the air space, and it has regular incursions into Gaza, so it does have effective control over the territory.

Israel disputes this. It argues that it is simply a hostile entity in terms of international law, but the general view is that it is occupied territory.

Now, once you accept it is an occupied territory, it’s quite clear that Israel’s purpose is not to act in self-defense, but to punish occupied people. In other words, it acts not as victims as in fact it portrays itself but rather as policemen.

I think you seem to look at it in the context of the French Resistance in the Second World War. If the French Resistance had fired rockets into Germany during the Second World War, you wouldn’t have [criticized] it.

In the very nature of occupation, people are going to resist. From time immemorial, occupied people have resisted occupation. They have fought back and they will continue to do so whether Israel likes it or not.

Israel and Hamas must comply with the two cardinal principles of humanitarian law. They must observe the principal of distinction, which means that they should distinguish between civilian targets and military targets in firing rockets and bombarding each other.

Secondly, there is the principle of proportionality, which means that excessive force should not be used in the attack.

Now, I’m prepared to accept that Hamas is guilty of war crimes in the sense that it has fired rockets indiscriminately into civilian areas, but of course it has been rather ineffective in this respect because only three Israeli civilians have been killed.

Israel on the other hand has engaged in both indiscriminate firing of rockets and shots into Gaza, and it has done so by using force excessively. Over two thousand people have been killed. Ten thousand injured. There has been extensive damage to property and the whole Gaza community has been terrorized.

Today, I received news that the parents of a friend of mine from Gaza had been killed, so this does make one aware of the fact that it is a killing field. Schools have been destroyed. Rockets have been fired at mosques and at hospitals, and there are also serious allegations of executions [by the IDF] of Palestinians.

I carried out an investigation into Gaza in 2009. We had the same allegations from people who had been carrying white flags and consequently shot by members of the IDF.

Currently Israel’s defense, which has been eloquently put forward by Professor Dershowitz, [is] namely that Hamas uses human shields, that it places its rocket launchers in urban areas and not in rural areas. Obviously, it could place its rocket launchers in rural areas; it would be easy targets for Israel and its drones.

It places its rocket launchers in [urban] areas, but whether it does so in a way which exposes the civilian population is not clear. There is no evidence that it does so, and that’s a matter of fact which must be determined by an international judicial tribunal.

As far as tunnels are concerned, it seems that the tunnels are used to attack military targets. Recently, there was a debate on an Israeli website in which an Israeli made it quite clear that the tunnels did not lead to the kibbutz as Prime Minister Netanyahu has stated, but rather they led to military targets. Certainly to date, the tunnels have been used only for military targets such as the capture of Gilad Shalit and the killing of IDF members.

These are questions of fact, and facts must be determined by an international court; if not by the International Criminal Court, then by a special tribunal. I’m told that Israel has been taking photographs of its activities in the Gaza Strip, so presumably it has evidence and there’s no reason why it should not present them to an international tribunal.

I would say Israel is guilty of committing war crimes. I also believe that it is guilty of committing crimes against humanity, because it meets all the requirements for crimes against humanity.

Some argue that it meets the requirements for the crime of all crimes, genocide. On the face of it, there’s nothing to substantiate this predicate. My own view is that one should not infer, especially intent to commit genocide, which is required for the crime of genocide, from outrageous genocidal statements in the Israeli Knesset, parliament, or by the number of persons killed. When you look to what I think is the real purpose of Israel’s action, and that is to collectively punish the people of Gaza, to terrorize every day, and punish them.

This is in violation of the fourth Geneva Convention. It’s done so previously by collective punishment, and it is adventurous by shooting and bombarding Gaza. In my view, there’s a prima facie case against Israel, that it has committed war crimes, and crimes against humanity.

Can we now briefly turn to the future?

If necessary, international monitors should be employed to monitor this siege, monitor the crossings from both Rafah and [other] areas into Gaza. Secondly, I feel it’s very important that there should be direct talks between Israel and Hamas, and United States and Hamas. I find it ridiculous that the United States is prepared to talk to Taliban in Afghanistan, but not prepared to talk to Hamas, and that’s only because the Israeli government disapproves of direct talks.

Finally, there can be no peace without justice. That means that there must be accountability for those who have committed international crimes, both in Hamas and the Islamic Jihad, and in the Israeli government, and the IDF.

I cannot understand why Israel—if it has all this evidence, it claims to be innocent—[why] it is not prepared to further the matter to the International Criminal Court, or to suggest that an international ad hoc tribunal be set up to hear the case.

Instead, Israel and the United States have pressured the International Criminal Court into refusing to get into this conversation.

I conclude by saying that accountability is of great importance in this country. Thank you.

Professor Dershowitz:
The implications of Professor Dugard’s position are very dangerous. First, you give Israel no credit for ending the settlements, and ending the military presence in the Gaza Strip. That makes it much harder for Israel to accept a two-state solution on the West Bank, where rockets could close its airport and endanger all of its population.

Second, he makes the very questionable statement that a people under occupation are entitled to kill civilians with impunity, and that Israel has no right to self-defense. That it can’t defend its children against the Russian roulette of rockets being fired at its schools and school buses. My God, what kind of world would we live in if they couldn’t engage in such self-defense?

I was in one of those tunnels. The tunnel I was in six weeks ago exited yards away from a kibbutz kindergarten with fifty-seven children in it. My challenge to you, Professor Dugard, is are you actually suggesting that Israel had no legal way [of] stopping those tunnels, but that it simply had to wait for terrorists to come out, and risk killing 57, or 570, or 5,700 children? Is that your definition of international law?

What would South Africa do if there were tunnels dug under it from Zimbabwe, if rockets were being fired? Would it simply say, “No, we’re not going to do anything”? Does the fact that some people think that there’s a continued occupation, even though there was no military presence, deny Israel the most fundamental right of self-defense?

Professor Dugard:
I accept that Israel has the right to destroy tunnels that are being employed, not against civilians, but against its military. I accept that it is entitled to destroy the tunnels, but it does so not in self-defense, but as a policeman that is enforcing the occupation, that is suppressing a vote by an occupied people. I think that is where we differ fundamentally.

Secondly, as far as my failure to give credit to Israel for withdrawing from Gaza is concerned, I think it’s important to stress that Israel simply could not cope with the presence of the IDF in Gaza before 2005. Because there were small numbers of settlers in the territory.

There had to be a tremendous IDF presence in order to protect the settlers. Hopeless, but pretty strategically, and economically, impossible to continue occupying Gaza on the ground.