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For Israel, the safety of its own people must come first

09/01/2009 | by Guiora, Amos N. (Prof.)  

Paper first published in The Salt Lake Tribune, January 9, 2009

War is terrible. It causes undue suffering and death to many. It has lasting impact on its victims. It must not--under any circumstances--be conducted in vain. Human life is too valuable. There are, however, just wars predicated on self-defense.

I understand the extraordinary dilemmas, tensions and uncertainties that are the essence of operational decision-making. For 20 years I served both as military legal adviser to Israel Defence Forces commanders and as a military instructor regarding the "laws of war." I have both authorized and prevented operational measures.

These lines are written hours after "friendly fire" killed three Israeli soldiers and wounded 20 others, some critically. As I write these lines, in my home outside Jerusalem, Palestinians living in the Gaza Strip continue to pay a heavy price.

There is no doubt that innocent Palestinians have been killed in the past several days. It is a safe bet that more will continue to die. Similarly, it is a safe bet that IDF soldiers will also continue to die.

For different reasons, both will lead to public, diplomatic and back-channel pressure on the Israeli government to withdraw from the Gaza Strip. Immediately. The deaths of innocent Palestinians -- tragic collateral damage -- have led to demonstrations against the military operation around the world and in Israel. The deaths of the soldiers will be "fodder" for domestic opposition to the military operation.

Both are legitimate. Both, I suggest, miss the point. While sensitivity to the public is important, there are times when a government must do what is right. This is one of those cases. Even if the measures are greeted with hostility in some quarters.

It is important to recall the background for the operation. For years, even after Israel disengaged from the Gaza Strip, Hamas has fired over 6,000 missiles into southern Israel. Israelis have been killed and wounded. Some have suffered property damage. Many have had their lives disrupted.

The operation is a classic example of self-defense. The ultimate responsibility of a government is to protect its citizens. That is what is Israel is doing.

That is precisely what Hamas failed to do after coming to power in the Gaza Strip. Rather than develop an educational system, rather than create infrastructure, rather than create jobs, rather than create opportunity for Gazans, Hamas fired thousands of missiles into Israel.

Who pays the price? In large part the Gaza population. One should and must ask the Palestinians living in Gaza, "Where were you" while Hamas was barraging Israeli cities? Why did you not demonstrate? Did you not understand that there is a limit to Israel's ability to absorb daily rocket attacks?

The silence is telling, for it suggests widespread support--passive or otherwise. That the population is now paying the price need come as no surprise. The support raises important questions regarding the significance and definition of collateral damage. Perhaps we need to rethink how we conceptualize the term, which has long been a bedrock of international law obligations with respect to the civilian population.

That is not to suggest that collective punishment is legal; it is not. But it is intended to ask who really is an innocent civilian. Put another way, does passive support which may facilitate rocket launching into Israel make one a "legitimate target." The instinctual answer is no; further reflection suggests this need be considered.

On the other hand, clearly innocent Palestinians are being killed. The IDF has the responsibility to minimize loss of life. But the finger of blame must be pointed directly at the Hamas leadership, which has caused extraordinary damage to the Gaza Strip. It has also attacked Israel.

To that end, until Hamas' infrastructure -- tunnels used for weapons smuggling, missile factories, ammunition depots -- is significantly weakened, the military operation must not stop.

To stop now is to guarantee that the next round will begin tomorrow morning. To continue the military operation does not guarantee the end of Hamas. It will, however, if conducted correctly, suggest a brighter future for Israelis and Gazans. The latter are the true victims of Hamas leadership.

The price is heavy for both sides. However painful, the eye must never be taken off the larger, strategic goal. To do otherwise would suggest that this was a vain effort and will guarantee that the Palestinian population will continue to suffer under Hamas.

Amos N. Guiora, a professor of Law at the University of Utah's S.J. Quinney College of Law, served for 19 years in the Israel Defense Forces' Judge Advocate Generals Corps.