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Eitay Mack is one of Israel’s foremost human rights lawyers. He’s done extraordinary research into Israel’s government archives to document its long history of military aid and corrupt dealings with dictators around the world. I have immense respect for him and his legal work, research and the journalism which documents these terrible deeds.
But I read with disappointment his latest op ed on international law regarding Israel & the Palestinians. His piece is a polemic against leftists who justify killing Israeli civilians in the name of the Palestinian struggle. I have so much respect for Mack that I wish it had been argued in a more nuanced fashion. But rather than quarrel with specific details of his piece, I’d prefer to lay out my own argument below.
Let’s start with the issues of occupation and resistance. Occupation by a foreign country of territory not its own, via war or other form of conflict is, once hostilities end, illegal. An occupied people may resist occupation. A UN General Assembly resolution declared that armed resistance against Occupation forces is also permitted. There are limits to who among the occupiers is a legitimate target. Civilians may not be targeted. But anyone with ties to the military, police or other enforcers of occupation may be.
As one of Israel’s pre-eminent human rights lawyers, Michael Sfard, wrote in answer to my query:
Resisting occupation is a legitimate reason for using force against the occupier’s armed force (so, yes, soldiers are legitimate targets). But that force must be used in accordance with the laws of war – so only combatants of the occupied people may use force, not civilians.
Ah, but who is a “combatant” in Palestine? It has no army. It isn’t even a country in the usual sense of that term (not through any fault of its own), with declared borders and a standing army. Those usual trappings of nations are, in Palestine, reserved for armed resistance groups like Hamas, Islamic Jihad, the Lions Den, etc. These are the “combatants” of the “occupied people.” As such, they have the right to armed resistance.
In terms of “legitimate targets,” how do we define who is a “soldier” in the Israeli context? In most western societies, we can fairly easily distinguish between civilian and military-law enforcement. But this is much more complicated in Israel. It’s easy enough to say that the 170,000 Israeli soldiers, 7,000 Border Police and 35,000 national police play key military and law-enforcement roles in maintaining Israel’s occupation. But you can’t stop there. Most of those who served in the IDF remain in the military reserves. They train every year and may be called for active duty in the event of war or other national emergency. Many, if not most such reservists have served during wars in Gaza, Lebanon, etc. They too are instruments of, and enforcers of occupation.
Nor can we stop there. Israel not only violates international law via its occupation of Palestine, it has transferred hundreds of thousands of its citizens into this occupied territory. These colonists were forcibly imposed on an occupied people. They have no legitimate status under international law. They too are occupiers and hence legitimate targets of resistance to occupation. Not to mention that Israeli settlements themselves are armed bastions which not only protect the inhabitants, but engage in systematic acts of terrorism against neighboring Palestinians. Many of these attacks are perpetrated under the protection of the Israeli army itself.
There are Israelis who truly are civilians and must not be the target of any such attacks: the elderly, children, Israeli Palestinians, and those ultra-Orthodox Jews who are anti-Zionist. They oppose the Israeli state and thus are not responsible for its crimes.
Israel’s indiscriminate attacks on civilians
Let’s talk about reality. What’s happening on the ground. Israel deliberately targets Palestinian civilians and has a long history of doing so. The far-right pre-state militia, Lehi, regularly targeted civilians. Future prime minister, Menachem Begin, was one of the key planners of the King David Hotel bombing, which killed scores of civilians. Lehi’s massacre at Deir Yassin killed women and children indiscriminately. Yitzhak Shamir orchestrated the assassination of UN peace negotiator, Count Folke von Bernadotte prior to the 1948 war.
Even if we accept the claim of Israeli apologists that Israel may kill civilians, but doesn’t deliberately target them, human rights groups have consistently rejected this argument. What is decisive they say, is not what the IDF says or even what it intends, but what it does in the field: the actual impact of its attacks. The toll of Palestinian dead is massively skewed toward civilians. Even worse, the majority of civilians killed are women and children. The overall number of dead is in the thousands, 2,300 in Operation Protective Edge (2014) alone; 1,700 of whom were civilians. Thus, according to human rights NGOs, Israel is culpable for war crimes.
The Double Standard: Israeli ‘self-defence’ vs Palestinian ‘terrorism’
This presents a moral conundrum: how can one hold Palestinians to a different standard than Israel? How can we demand that a resistance fighter restrict his targets to those who fit a conventional definition of military or law enforcement personnel? I cannot in good conscience grant to Israel what is denied to Palestinians. Of course, everyone would prefer Israel do everything in its power to avoid killing Palestinians. But it routinely flaunts such obligations under international law. Thus, one cannot hold Palestinians to a different or higher standard.
I also reject the Israeli designation of Palestinian armed resistance as “terrorism.” What is the difference between a Palestinian who murders a settler and Israeli soldiers who routinely murder Palestinian teenagers? Why is one defending the homeland and the other, a terrorist? If one is terror the other is as well. In fact, I would argue that Israel’s state policy toward Palestinians is terrorism. 40,000 dead Palestinians over the past century confirm it.
When, or if the International Criminal Court finally mounts a case against Israel for war crimes, Palestinians who’ve engaged in similar crimes should be charged as well. But keep in mind that vastly more Palestinians have been killed by Israel than Israelis have been killed by Palestinians. I would expect for every Hamas or Islamic Jihad commander charged, at least five or even ten IDF commanders and prime ministers would be charged.
The ICC investigation has dragged on for years. But Stanley Cohen, a friend and human rights lawyer, assures me the Court has taken voluminous testimony and the case is active. That offers hope. Though many Palestinians have despaired at the years it’s taken to see any clear progress.
In the meantime, what are Palestinians to do? Wait for the Court to finally place Israeli generals and political leaders in the dock in the Hague? Are they to remain defenseless waiting for justice? Aside from the ICC, there is no international body willing to hold Israel to account. Neither the US, European Union nor United Nations have the political will to act. They routinely either support Israeli occupation or remain silent in the face of its crimes. This too heightens the level of despair among Palestinians and motivates them to engage in acts of violent resistance. In the face of decades of such indifference, it is unfair to criticize Palestinian armed militancy.
We should remember our own US history. One of the most decisive acts that provoked the Civil War was John Brown’s raid on Harper’s Ferry. There, and in Kansas before that, he mercilessly killed anyone who represented slavery or its interests, including civilians. Though such attacks were shocking to Americans, many abolitionists supported him in his greater mission to end the crime of slavery.
Would I want Palestinians to target only police or soldiers? Of course. Would I want Israel to target only Palestinian militants engaged in armed conflict? Again, yes. Will I denounce or condemn Palestinians for avenging Israeli war crimes against their communities and families? Even against Israeli civilians? As long as Israel commits such crimes against the Palestinian people, I cannot.