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conflict

High death toll does not mean Israel’s violating international law

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7 minute read

From the MacDonald Laurier Institute

By Sarah Teich and Brian L. Cox

Many critics of Israel seem to be operating under a misunderstanding of the law of armed conflict.

The seven-day truce between Israel and Hamas ended on Dec. 1. Since the fighting resumed, calls to keep Israel accountable to international law have been intensifying, including, most recently, from Foreign Affairs Minister Mélanie Joly, who said that Canada will “support any form of accountability systems … at the international level that will look into” Israel’s conduct. On Tuesday, Canada voted for a ceasefire in Gaza at the United Nations, which will likely further embolden critics of Israel’s military operations.

Critics stand ready to lambaste Israeli military forces for the destruction of civilian infrastructure and civilian deaths, even accusing Israel of war crimes and genocide. Yet these criticisms often involve a distortion of the facts and a distortion of the law.

Oct. 7 was the single most brutal massacre against Jewish people since the Holocaust. The images and videos of the massacre are horrific. Women were paraded half-naked through the streets of Gaza; babies were ripped from the arms of their mothers and burned alive; elderly Holocaust survivors were terrorized and abducted. Approximately 1,200 people were killed and over 200 taken hostage in attacks orchestrated and carried out by Hamas, a recognized terrorist organization that receives funding and training from the Islamic Republic of Iran.

In the weeks that followed, and as Hamas continued to launch rockets indiscriminately at Israeli cities, Israeli forces initiated extensive ground, air and sea operations in Gaza, with the aim of dismantling Hamas and retrieving the hostages. These goals are, presumably, incredibly difficult for Israeli forces to achieve without risking harm to civilians, given that Hamas is known to use Palestinian civilians as human shields. Deaths in Gaza, according to local authorities, have surpassed 18,000.

There is a general prohibition on the use of force in international law. Unprovoked wars of aggression are illegal. States are, however, generally permitted to use force when acting in self-defence and with necessary, proportionate objectives. It is apparent that, following Hamas’s attack on Oct. 7 and continued indiscriminate rocket fire at Israel, Israel’s goal of dismantling Hamas and retrieving hostages would be considered necessary and proportionate objectives justifying the use of force. These strategic objectives comply with jus ad bellum, the body of law that governs when force may be initiated.

International humanitarian law, or jus in bello, governs the conduct of armed hostilities, even in the context of a lawful war. This is the law of war, or the law of armed conflict, and it applies to all parties to a conflict. Under the law of armed conflict (LOAC), the proportionality rule prohibits engaging in an attack “when the expected incidental loss of civilian life, injury to civilians or damage to civilian objects would be excessive in relation to the concrete and direct military advantage that is anticipated from the attack.”

Credibly determining that a violation of the LOAC proportionality rule has been committed requires evidence of the incidental harm anticipated and the military advantage expected at the time by those responsible for planning or conducting the attack. This assessment is difficult — if not impossible — to accomplish reliably based only on information available in the public domain.

Many critics of Israel seem to be operating under a misunderstanding of the law of armed conflict. As summarized by Charles Kels, senior attorney for the United States Department of Homeland Security and a judge advocate in the U.S. Air Force Reserve, there is a disturbing trend wherein academics and others conflate jus ad bellum and jus in bello.

What those who make this mistake are saying, writes Kels, “is that even if a state is acting in self-defence with a lawful objective, and even if their forces abide by (the laws of war) in military operations, they still have a legal obligation to stop fighting if civilian casualties are too high.” This is not the law, nor should it be.

The death toll in Gaza cannot be taken lightly. However, the magnitude of civilian harm alone is not a reliable indicator of compliance with international law. The fact that Hamas embeds itself within civilian populations, and actively prevents civilians from leaving dangerous areas, likely needlessly heightens the death toll.

International law prohibits deliberately making civilians the object of attack. Israel has committed publicly to complying with international law throughout this operation, just as it has done in the past. In contrast, Hamas has targeted, and continues to target, Israeli civilians with indiscriminate attacks. Hamas refuses to release all the hostages it abducted, which constitutes an ongoing serious violation of international law.

Accountability for atrocity crimes is something that should be encouraged, across the board. However, efforts should focus on the most likely perpetrators and the most egregious crimes. Hamas can and should be held accountable for its ongoing crimes against Israelis and Palestinians, and Israel should be supported as it defends itself in accordance with the law.

Sarah Teich is an international human rights lawyer, a senior fellow at the Macdonald-Laurier Institute and a legal advisor to Secure Canada. Brian L. Cox is a visiting scholar at University of Ottawa School of Law, a lecturer at Cornell Law School and a retired U.S. Army military lawyer.

conflict

Sec Def Austin Unveils $400 Million Arms Package For Ukraine — But One Thing Is Missing

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From the Daily Caller News Foundation 

 

By Jake Smith

Defense Secretary Lloyd Austin arrived in Ukraine but isn’t bringing the good news Kyiv wants to hear, as the country continues to struggle to hold the front line amid Russian advances.

Austin has been intimately involved over the last two years in overseeing U.S. military aid to Ukraine, of which there has been approximately $70 billion. The Defense Secretary touched down in Ukraine on Sunday in a show of continued support and announced a new $400 million arms package, but won’t be giving Kyiv what it really wants — the ability to use U.S.-provided long-range missiles to strike deep inside Russian territory, according to multiple reports.

The request to use the missiles for such a purpose has been something Ukraine has asked for for months; as Ukraine can’t produce such weapons, it is looking to the U.S. and Europe for help.

Austin arrived in Ukraine without signaling that the request would be filled, and that’s likely to leave Kyiv unsatisfied. The administration has been hesitant to allow Ukraine to use U.S. or European-provided missiles to conduct long-range attacks against Russia, in part because it could escalate the war and drag the U.S. further into the conflict.

“We think it is wrong that there are such steps,” Ukrainian President Volodymyr Zelensky said in early September, according to The Washington Post. “We need to have this long-range capability, not only on the occupied territory of Ukraine but also on the Russian territory, so that Russia is motivated to seek peace.”

The idea has been frequently discussed between U.S. and Ukrainian officials but nothing has come to fruition. Austin has also previously said that he doesn’t think it would significantly improve Ukraine’s odds of victory, noting in an early September press conference that “there’s no one capability that will in and of itself be decisive in this campaign.”

Ukraine is also pressing the administration for NATO membership, but Austin had no new updates to give on that request either, according to reports. The Biden-Harris administration has said that Ukraine’s fate is eventually to join NATO but hasn’t provided a timeline for when.

However, the U.S. is providing Ukraine with $400 million worth of weapons systems, Austin announced on Monday, including munitions, armored vehicles and tanks, according to reports. The aid will certainly meet some of the needs of Ukraine’s military but is not as large as some of the prior multi-billion dollar packages.

“The United States understands the stakes here, Mr. President,” Austin told Ukrainian Zelenskyy in Kyiv on Monday, Reuters reported.

President Joe Biden’s options to help Ukraine are starting to run out as he prepares to leave office in January. Even with U.S. and European-provided military aid, it has done little more than help Ukraine maintain a defensive position against Russia, which has shown no signs of stopping its invasion campaign.

Russia launched sweeping missile and drone strikes against targets in Eastern Ukraine over the weekend ahead of Austin’s visit, according to Reuters. Ukrainian forces staged a successful incursion into regions in Western Russia at the end of the summer but Russian forces have started to retake some of the territory in recent weeks, The New York Times reported.

The odds that Biden can secure substantially more funding from Congress to aid Ukraine are slim; it was already difficult for the president to secure the last $60 billion aid package in April, as the sentiment among some lawmakers is that the administration doesn’t seem to have a plan to end the war and move Ukraine toward victory.

It will be either presidential candidates Donald Trump or Kamala Harris who will have to pick up where Biden left off. Harris would likely mirror Biden’s approach to the war and continue strong U.S. support for Ukraine’s military campaign, but some critics fear that she lacks the needed foreign policy wisdom to properly maneuver the conflict.

Trump has vowed to end the war before January if he’s elected in November, touting his ability to negotiate with both Zelenskyy and Russian President Vladimir Putin. He has also signaled he may end military aid to Ukraine in favor of seeking a peaceful settlement between Kyiv and Moscow.

Austin on Monday dismissed ideas that U.S. support for Ukraine would end if Trump were elected in November.

“I’ve seen bipartisan support for Ukraine over the last 2-1/2 years, and I fully expect that we’ll continue to see the bipartisan support from Congress,” Austin said, according to Reuters.

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Middle East War Shows No Signs Of Stopping One Year After Oct. 7 — And No Clear Path To Exit

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From the Daily Caller News Foundation 

 

By Jake Smith

The chaos of Hamas’ October 7, 2023, invasion of Israel is still being felt one year later as the broader region grapples with a conflict that has shown no signs of stopping.

Hamas Oct. 7 terrorist attacks caught Israel by surprise and resulted in the murder of approximately 1,200 people and the kidnapping of hundreds of others, including American citizens. Israel retaliated and launched a war against Hamas in Gaza, which a year later has not ended but instead spilled into the broader Middle East and drawn in other bad actors such as Hezbollah and Iran.

“We’re still stuck in Oct. 7, 2023, in one unending day of terror, of fear, of anger, of despair,” Yuval Baron, an Israeli citizen whose father-in-law is still being held by Hamas in Gaza, told Reuters.

Israeli forces have largely occupied Gaza and killed thousands of Hamas operatives, largely crippling the terrorist group’s capabilities, although it has come at great humanitarian cost to the enclave, according to Reuters. The conflict has displaced millions of Palestinians and wreaked havoc across Gaza, leaving many areas uninhabitable, Bloomberg reported.

The effort to build Gaza after the fighting ends — whenever that may be — will likely be an incredibly costly venture that could take years and require joint cooperation between several Arab states, according to Bloomberg. Millions of tons of debris will have to be cleared from the enclave while buildings are repaired or replaced.

“We thought it would be two months [of fighting] — at most,”  Mohammed Shakib Hassan, a Palestinian civil servant who fled his home after Israeli forces entered Gaza last year, told The New York Times. “Twelve months have passed in front of our eyes.”

Israel, with the help of the U.S., has on several occasions made offers for a ceasefire in Gaza conditioned on the release of the remaining hostages held by Hamas and the surrender of the terrorist group, but these proposals have been rejectedmultiple times. Yayha Sinwar, the leader of Hamas who has been hiding underground in Gaza, reportedly believes that he is not going to survive the war and has zero intention of reaching a ceasefire deal with Israel at this point in the conflict, according to U.S. intelligence assessments reviewed by The New York Times.

The Biden-Harris administration has spent months brokering negotiations between Israel and Hamas and working with regional mediators to try to reach a deal, but these efforts have largely been fruitless. Though President Biden has on several occasions predicted that a ceasefire could be reached in short order, his own officials now privately believe it will be near impossible to get a deal done between now and January, the end of Biden’s term.

“They’re probably not going to get one before the election, or before January either. But that’s not on them, per se. It speaks to the difficulty of how far apart [Israel and Hamas] are,” former State Department official Gabriel Noronha told the Daily Caller News Foundation in September.

There have been various roadblocks to getting a deal done. Specifically, Israel wants to leave troops along the Gaza-Egyptian border, arguing that it would stonewall Hamas from trafficking in weapons, but Hamas has rejected this term.

Though the prospects of a deal are unlikely at this point, Israel’s war with Hamas in Gaza has largely come to a close as the terrorist group’s capabilities have been vastly diminished.

“Hamas is a shadow of its former self. Israel is going to continue to try to eradicate them, but it’s sort of a guerilla campaign. Hamas is being starved and smoked out. I suspect that you’re going to see Hamas go underground somewhat — more figuratively than literally at this point,” Noronha told the DCNF last month.

Instead, Israel has shifted much of its forces and focus away from Gaza and toward Lebanon, which houses the Iranian-backed terrorist group Hezbollah. Hezbollah is Iran’s largest terrorist group in the Middle East and has engaged in cross-fire skirmishes with Israel since last October out of support for Hamas, displacing thousands of civilians near the Israel-Lebanon border, according to NPR.

Hostilities between Israel and Hezbollah have reached a boiling point in recent weeks, as Israel has launched sweeping airstrikes against the terrorist group in southern Lebanon and killed the group’s leader in an airstrike in late September, according to The Washington Post. Israeli forces have begun ground raids against Hezbollah targets in Lebanon, in what could be the prelude to a much larger ground invasion.

The Biden-Harris Administration, along with other allies, also put forward on Sep. 26 a separate ceasefire proposal for Israel and Hezbollah, although it was seemingly ignored by both parties.

“It’s clear that Israel is determined to rid Lebanon of Hezbollah,” senior fellow at the Strauss Center and former Pentagon official Simone Ledeen told the DCNF. “They need Hezbollah to lay down their arms and surrender… the Israelis [are] really focused on getting to that objective.”

The multi-front Middle East conflict extends also to Iran, which — though it has helped orchestrate and fund the various terror attacks against Israel — made an unprecedented move in April and launched a sweeping missile strike against Israel from directly within Iran’s borders, according to the Center for Strategic and International Studies. Iran launched a similar attack against Israel last week in the form of roughly 180 missiles, most of which were intercepted by U.S. and Israeli forces.

Israel is expected to respond with an attack directly against Iran, although the timing and nature of the move is publicly unknown. The Biden-Harris administration is helping coordinate the attack with Israel, though it wants Israel to avoidgoing after the country’s nuclear facilities.

“The launch of over 180 ballistic missiles by Tehran requires a decisive reaction to prevent future attacks,” Israeli intelligence agent Avi Melamed said in a statement on Monday. “Currently, it seems that Israel is finalizing its operational plans while the U.S. prepares munitions to defensively counter any potential Iranian counterstrike.”

The conflict extends even further into Iraq, Syria and Yemen, all hotspots for other various Iranian-backed terrorist groups that have attacked U.S. and Israeli forces in the region since last October, according to Axios. Israeli forces have launched a series in those regions, too, in recent months.

Until the current Middle East conflict comes to an end, the possibility of regional peace may be too far out of reach, even as that remains a goal for other key Arab states and Western nations. Iran’s “axis of resistance” has taken severe blows since last October, according to Axios.

But Israeli forces are stretched across multiple fronts in a conflict with no clear end game, and the Israeli people seem to be growing more and more weary of the conflict; 23% of Israelis considered leaving the country in the last year, according to a recent poll cited by Axios.

“This war won’t end because nobody is willing to blink,” Thomas Nides, former U.S. ambassador to Israel, told the Times. “In the meantime, everyone is losing — hostages and their families, innocent Palestinians, Israelis displaced from northern Israel, Lebanese civilians. And it’s truly tragic.”

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