By Alan Dershowitz
The air attack by American and Arab forces against ISIS and other terrorist targets parallels Israel’s air attacks against Hamas terrorist targets in Gaza. According to retired General Wesley Clark, the United States air attacks are designed to degrade and destroy the infrastructure of the terrorist groups, including the electric grid, the sources of their finance and other mixed military-civilian targets.
When Israel attacked Hamas military targets, including some that had mixed uses, it was condemned by the same Arab nations that participated in the joint United States-Arab attack in Syria. The difference of course is that the threat posed by ISIS is not nearly as imminent as the threats posed by Hamas. This is certainly true in relation to the United States and may also be true in relation to its Arab partners.
Among the most hypocritical nations participating in the US attack is, of course, Qatar, which not only condemned Israel for defending its civilians against Hamas rockets and tunnels, but actually funded the Hamas attacks and provided asylum for the Hamas terrorist leaders who ordered them. Hypocrisy is nothing new when it comes to the double standard applied by the international community against Israel. The United States and its Arab partners have the right to take preemptive action against terrorist groups without fear of UN condemnation, a Goldstone report, or threats to bring its leaders before the International Criminal Court. Yet everything Israel does, regardless of how careful it is to minimize civilian casualties, becomes the basis for international condemnation.
If the US attacks in Syria continue, there are likely to be civilian casualties, because ISIS will embed its fighters among civilians and the many hostages it has taken. When that happens, American and Arab rockets will kill some civilians. It will be interesting to compare the world’s reaction to those civilian deaths with its reaction to deaths caused by Israeli rockets hitting human shields deliberately employed by Hamas. If the past is any predictor of the future, the ratio of civilian to terrorist deaths may be considerably higher in the American lead air attacks than it was in the Israeli air attacks. In past wars, such as those in Afghanistan, Iraq, Pakistan and the former Yugoslavia, the ratio of civilian to combatant deaths was far higher than the ratio brought about by Israeli rockets firing into Gaza where human shields are Hamas’s tactic of choice.
It will also be interesting to see the reaction of the international community and various NGOs to US led attacks on mixed military-civilian targets, such as electric grids and sources of financing. The international law on these subjects is vague, open ended and thus subject to selective application. Doubts are always resolved against Israel and in favor of other nations engaging in similar military actions.
The joint attack by the United States and the handful of Arab countries may finally persuade the world that the laws of warfare must be adapted to the new realities of terrorism. If one were to literally apply the words of Section 51 of the UN Charter, no country could defend itself against imminent attacks, either by terrorists or conventional armies. That section requires an armed attack by an enemy state to have occurred before the right of self-defense kicks in. That provision was unrealistic when drafted and it is far more unrealistic now in the face of terroristic threats. The laws of war also require proportionality, which is defined as demanding that the anticipated deaths of civilians be evaluated against the military value of the target. But it does not take into account situations where the enemy hides its valuable military targets behind human shields.
It has been easy for the international community to apply these rules rigidly and unrealistically when the only country to which it applies them is the nation-state of the Jewish people. But now it will have to apply them across the board, and that will require defining them in a sensible and realistic way that does not give undue advantage to terrorists who refuse to comply with the rule of law.