By Alan Dershowitz
The key question-both legally and morally-in evaluating Israel’s recent military actions is whether the Israeli government was justified in ordering ground troops into Gaza to destroy the Hamas tunnels. This question is important because most of the deaths-among Palestinian civilians, Hamas terrorists and Israeli soldiers-came about after Israeli ground troops attacked the tunnels.
These tunnels went deep underground from Gaza to Israel and were designed to allow Hamas death squads to cross into Israel and to kill and kidnap Israeli citizens. No reasonable person can dispute that these terrorist tunnels were legitimate military targets. Nor could there be any dispute about their importance as military targets, since Hamas was planning to use them to murder and kidnap hundreds if not thousands of Israeli civilians and soldiers. And Israel had no way to discover from the air the exit points from these tunnels on the Israel side of the border, since they were hidden from view and known only to Hamas. The only way to disable them was through boots on the ground.
If Israel had the right to try to destroy the tunnels, then the resulting deaths of Palestinians must be deemed proportional to the military value of Israel’s actions, since it is unlikely that the tunnels could have been destroyed without considerable loss of life, because their entrances had been deliberately placed by Hamas in densely populated areas.
The law is clear that military targets may be attacked, even if civilian casualties are anticipated, so long as the importance of the military target is proportional to the anticipated civilian casualties and that reasonable efforts are made, consistent with military needs, to minimize civilian casualties. This sensible rule of proportionality was devised in the context of ordinary military encounters, in which the enemy is not using their own civilians as human shields. If the enemy is deliberately using civilians as human shields, the rules of proportionality should allow for more anticipated civilian casualties, especially if the target is of great military significance, as these terror tunnels were.
The reason that civilian casualties, as well as military casualties among both Hamas terrorists and Israeli soldiers, could be anticipated, is because the entrance to these terror tunnels were deliberately placed by Hamas in densely populated civilian areas, including mosques, schools and private homes. These tunnels could not be destroyed from the air without causing a far greater number of civilian casualties than those resulting from a ground attack. Moreover, the only way to ensure their destruction was for ground troops to go from tunnel to tunnel and to blow them up one by one. This inevitably risked civilian casualties. Had Hamas built the entrance to the tunnels in the many open areas of the Gaza Strip, away from the most densely populated urban centers, the number of civilian casualties would have been considerably reduced.
Hamas thus made a calculated decision to put the Israeli government to a difficult choice: either allow the tunnels to remain, thus risking the lives of thousands of Israeli civilians; or send ground troops into densely populated areas to destroy the tunnels, thus risking the lives of Palestinian civilians and Israeli soldiers. Every democracy in the world would choose the latter option if faced with this tragic and cruel choice. That is why the laws of war authorized Israel to do what it had to do to destroy the tunnels.
To be sure, the law of proportionality also required Israel to take reasonable steps, consistent with its military needs, to minimize Palestinian civilian casualties, even when attacking legitimate military targets. The key word here is “reasonable,” and Israel has gone well beyond what other countries have done in analogous situations. They issued warnings, by leaflet, phone and other means-warnings that Hamas countermanded in its efforts to keep civilians in harm’s way and continue to have them serve as human shields to protect their terror tunnels. Israel did not issue warnings when it needed to act quickly to save its own soldiers from ambushes and other serious risks. Israel thus tried to minimize Palestinian civilian casualties, while Hamas tried to increase both Palestinian and Israeli civilian casualties.
The Israeli government is conducting several investigations as to whether any of its soldiers violated its carefully designed rules of engagement that were drafted by lawyers familiar with international law. If they did not, then there is no valid legal or moral case against Israel. If they did and are prosecuted by Israeli authorities-either military or civilian-then the rules of the International Criminal Court would preclude it from bringing charges against any Israelis.
The right of Israel to target these terrorist tunnels is thus central to any analysis of the legal consequences of civilian deaths in Gaza. Yet a recent “report” by a group of self-described legal experts that accused Israel of “war crimes” did not even mention the tunnels. This report, deceptively entitled “Joint Declaration by International Law Experts on Israel’s Gaza offensive,” also deliberately ignored the facts that Hamas combatants do not wear uniforms, repeatedly fired rockets and mortars from densely populated civilian areas, and stored weapons and ammunition in and around mosques, schools, and designated refugee centers-all in violation of the laws of war.
Legally, the report misrepresents a crucial dimension of International Law, by claiming that Israel violated the principle of “distinction” by targeting civilian buildings, without mentioning that a civilian structure becomes a legitimate military target when it is used for military purposes.
More serious is the accusation that Israel committed the war crime of collective punishment by deliberately attacking the civilian population. Again, this is a blatant mischaracterization both of Israel’s actions which were preventive rather than punitive in nature, and a willful misappropriation of a term defined in the context of mass executions during World War II. Hamas knows that in the modern media environment it profits from the deaths of Palestinian civilians, so much so that it repeatedly refused ceasefire offers proposed both by Israel and international mediators. The vast majority of Palestinian deaths came after Hamas refused to accept these cease fires.
The title of the report is doubly deceptive because very few of its signatories are recognized experts in international law. Those who are-such as Richard Falk, John Dugard and Peter Weiss-have notorious reputations as anti-Zionist zealots. The very fact that they labeled Israeli defensive actions as “offensive” demonstrates their bias.
No self-respecting lawyer would ever file a brief making the kind of unsubstantiated factual and legal claims made by this report. Were a lawyer to file a brief that did not mention the most salient facts that undercut its conclusion-here the tunnels and use of human shields-that lawyer would be disciplined, perhaps even disbarred. This report is a disgrace to the legal profession and to the academic institutions-such as Boston University, Georgetown, and UCLA-whose names are highlighted for identification purposes. Its biased authors should be called to account for this unprofessional and unethical document and no credibility should be accorded it by fair minded people concerned for the truth.
Nor should people of good will pay any attention to Bishop Desmond Tutu’s most recent screed, accusing Israel of conducting a “disproportionally brutal” military attack and “indiscriminate killing” in Gaza. Tutu also deliberately fails to mention the terrorist tunnels of death, as if by ignoring them, they would stop posing a lethal threat to thousands of Israeli citizens.
Those who condemn Israel’s recent military actions have an obligation to answer the following questions: did Israel have the right to try to prevent those tunnels of death from being used to murder and kidnap its citizens? If so, how could Israel have accomplished that with substantially fewer casualties?