31 December 2008 - HuffPo flies the Hamas flag, defiantly

That great bastion of liberalism, the Huffington Post, shows its allegiances on its front page today:


How valiant.

UPDATE: A commenter points out that the same photo ran on an Israeli news site. Point taken, though some of HuffPo's contributions have left little doubt about where they stand.

31 December 2008 - Misunderstanding the proportionality doctrine

The Gaza War, like the Lebanon War of 2006, has provoked a controversy about whether Israel's response to Hamas rockets has been "proportional." French president Nicholas Sarkozy condemned Israel's "disproportionate" use of force, and a few journalists and bloggers, such as Michael Totten, have responded with appropriate contempt:

So what do they have in mind? What would a legitimate and "proportionate" response actually look like? Surely they don't believe Israel should scrap its sophisticated weapons systems, build Qassam rockets, and launch those at Gaza instead.

While I sympathize with Totten's point of view, the word "proportional" actually has a meaning in international law, and it is not what either side in this debate seems to think it is. (UPDATE: Totten revisits the proportionality idea in an excellent post here.)

"Proportionality" does not refer to the number of deaths on either side. Rather, it refers to the military objective to be achieved. A "disproportionate" response is one that causes death in substantial excess of what might be necessary to attain a particular (legitimate) military goal. 

So the question is not how the number of Palestinian deaths compares to the number of Israeli deaths, but whether the number of Palestinian deaths is excessive given the legitimate and legal military goals Israel is trying to achieve, namely, to stop rocket attacks against its population.

Let's look at the relevant international law. Israel is not party to the 1977 First Protocol Additional to the Geneva Conventions, but Israel's High Court of Justice has held that certain provisions of that protocol have been incorporated into Israeli law because they are customary international law. The relevant provision here is Article 51, which describes an attack as "indiscriminate" if it 

may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete an direct military advantage anticipated. (emphasis added)

Similarly, the Rome Statute of the International Criminal Court includes a long list of war crimes and violations, which includes intentionally targeting civilians (as Hamas has done and continues to do) and launching an attack in the knowledge that the damage will cause death and destruction 

"which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated" (Article 8(b)(iv); emphasis mine).

So, as Dore Gold points out in the Jerusalem Post, to consider whether Israel's responses to Hamas have been "disproportionate," we have to consider its military goals, how its targets correspond to those goals, and the intent of the military commanders in carrying out the attacks. Sheer numbers are not the primary factor, though they can offer clues to intent. 

Given that the worst casualty estimates put civilian deaths in Gaza at about one-sixth of the total, Israel is obviously not targeting civilians, and its commanders have clearly attempted to minimize civilian casualties. Israel's response hardly  qualifies as disproportionate, even if only a small number Israelis have died. Indeed, given the fact that Hamas continues to fire rockets at Israel, more fighting may be necessary to achieve Israel's legitimate military objectives. 

As long as Israel continues to target combatants, and does so with due regard for civilian lives and infrastructure, it will have international law on its side. Proportionality is not, primarily, a numbers game. It is, firstly, about distinguishing between legitimate military objectives and illegitimate ones. And by that standard, Israel is acting with legitimate and proportionate force.

30 December 2008 - Winner: Dumbest thing said about Gaza War


From Lorelei Kelly at the Huffington Post:

It's like the US Army fighting the Salvation Army.

30 December 2008 - Under Israeli fire, Palestinians killing each other

Justice and human rights in Gaza today. From the NYT (emphasis added):

GAZA–At Shifa Hospital yesterday, armed Hamas militants in civilian clothes roved the halls. Asked their function, they said they were providing security. But there was internal bloodletting under way.

In the fourth floor orthopedic section, a woman in her late twenties asked a militant to let her see Saleh Hajoj, her 32-year-old husband. She was turned away and left the hospital. Fifteen minutes later, Hajoj was carried out of his room by young men pretending to transfer him to another hospital section. As he lay on the stretcher, he was shot in the left side of the head. A bit of brain emerged on the other side of his skull.

Hajoj, like five others who were killed at the hospital in this way in the previous 24 hours, was accused of collaboration with Israel. He had been in the central prison awaiting trial by Hamas judges, and when Israel destroyed the prison Sunday he and the others were transferred to the hospital. But their trials were short-circuited.

A crowd at the hospital showed no pity after the shooting, which was widely observed. A man in his thirties mocked a woman who expressed horror at the scene.

"This horrified you?" he shouted. "A collaborator that caused the death of many innocent and resistance fighters?"

"Short-circuited" is a glib way of describing a judicial "process" through which people already denied the presumption of innocence are brutally denied the right to life.

When a society behaves this way in times of external pressure, it has completely collapsed from within.

29 December 2008 - Where is Obama on the Gaza War?

President-elect Barack Obama's response to the Gaza War, according to the New York Times:

He and his advisers have deferred questions — critics could say, ducked them — by saying that until Jan. 20, only President Bush would speak for the nation as president and commander in chief.

This marks the second international crisis in a row during which Obama has been on vacation in Hawaii. He's entitled to his rest--though it does seem rather inappropriate to be luxuriating while the rest of the country faces job losses and recession. But when he was still running for president, Obama at least emerged from his beach house to say something about Russia's invasion of Georgia.

President Bush was in charge then, too, and that didn't stop Obama from reacting. He was eager to prove his leadership credentials--but that was before he had victory in hand. Back then, he also touted himself as a great friend of Israel--but he's yet to issue a statement of support. And on the campaign trail, he attacked Bush's foreign policy in vicious terms--but now he is prepared to defer to Bush's judgment.

The election is over, so let's move on--but not before recognizing that Hillary Clinton and John McCain were right about Barack Obama, at least as far as foreign policy is concerned. The 3 a.m. call came, and Obama was on vacation, not ready to lead. Furthermore, he's not ready to offer Israel unconditional support against terrorism. That was already apparent during the campaign, when he spoke of Hamas's "legitimate claims," but no one noticed.

Instead of wondering about Obama's silence and inaction, the press is lamenting that the Gaza War may have made Obama's job as president more difficult. As if it should have been easy, as if simply electing the man ought to have made all of the world's problems go away, as if he deserves (or needs) more slack than any of his predecessors have had. How much effort does it require to take a clear stand--to say something like the following:

"I stand together with Israel in its fight against terror. For years, Hamas defied the basic demands of the international community by continuing to attack innocent civilians. Israel has shown exemplary patience and has been careful to avoid civilian casualties where possible. Ultimately, the solution to the conflict must be found at the negotiating table. Israel understands that. The Palestinians must as well. I will continue to monitor the situation."

Is that really so hard? And if it is--why? Deferring to Bush is not an acceptable answer, not even on vacation.

29 November 2008 - The media does its part to help Hamas

Israel has continued to strike Hamas targets in Gaza with a high degree of accuracy. The UN claims that 50 civilians have been killed. If true, that's 50 too many, but it also means that with over 300 total deaths, more than 85% of them have been combatants. As Dore Gold points out in this excellent post about international law and the Gaza war:

What is critical from the standpoint of international law is that if the attempt has been made "to minimize civilian damage, then even a strike that causes large amounts of damage - but is directed at a target with very large military value - would be lawful."

Meanwhile, the international media is playing its usual role: demonizing Israel and sanitizing terror. Let's take as an example an article from this morning's New York Times, by Taghreed El-Khodary and Isabel Kershner, among others (including someone identified merely as "an employee of The New York Times from Syria").

When the article was first published in the wee hours of the morning, it was entitled: "Israeli Troops Mass Along Border; Arab Anger Rises." We'll call that Version 1. This morning the article appears on the newspaper's website as "Israeli Aircraft Continue Raids on Gaza; Arab Anger Rises." That's Version 2.

Version 1 began:

Israel troops and tanks massed along the Gaza border and the government said it had called up reserves for a possible ground operation, as the death toll increased to nearly 300 after Israeli aircraft pounded Gaza for a second day on Sunday.

Note that the article does not mention whether the dead were Israeli or Palestinian, military or civilian. Version 2 adds more information about the attacks but still fails to distinguish among the dead:

In a third straight day of deadly air strikes against the emblems and institutions of Hamas on Monday, Israeli warplanes pounded targets in Gaza including the Interior Ministry while the Israeli Army declared areas around the beleaguered enclave a “closed military zone.”

The attacks brought the death toll in Gaza to more than 300, according to Palestinian medical officials.

Here at least the newspaper cited a source for its figure, but still failed to distinguish among the dead, which is critical for judging the legality and morality of Israel's campaign.

Next, we read about the justification for the attacks. Version 1:

The continued strikes, which Israel said were in retaliation for sustained rocket fire from Gaza into its territory, unleashed a furious reaction across the Arab world, raising fears of greater instability in the region.

Where to begin? The authors refuse to admit that the Israeli attacks were a response to Hamas; they have to frame that fact in subjective terms, as a mere claim by Israelis, vulnerable to potentially valid counter-claims from the other side. They also throw in the word "retaliation," as if Israel's "Operation Cast Lead" is mere tit-for-tat violence, morally equivalent to Qassam rockets aimed at civilian population centers in Israel, rather than a military operation with a clear military objective of ending Hamas's capability to launch rockets in the future.

Note, too, how Israel itself is blamed for the "furious reaction" in the Arab world, rather than the hatred and demonization in in Arab countries that causes any legitimate attempt by Israel to defend itself to be seen an unspeakable outrage. Also, the reaction hasn't even been that "furious," since several Arab countries are openly blaming Hamas for the violence. And the result of all of this, we are told by the journalists, is potential "instability"--whatever that means. Actually, if Israel crushes Hamas's ability to wage war, that will have the effect of increasing stability. But never mind. Let's see how this segment was cleaned up in Version 2:

Israel says that its onslaught — its most ferocious against Palestinians in decades — is designed to prevent Palestinians from attacking towns in southern Israel with missiles. But a rocket fired from Gaza killed a man and wounded seven in the Israeli town of Ashkelon on Monday, the Israeli Army said. Three Israelis were also stabbed by a Palestinian in a Jewish settlement in the West Bank, the army said.

This version actually reports Israel's aims accurately. But not without editorial commentary: we have to be told--mid-sentence--just how "ferocious" the attacks are. Not extensive, or widespread, or intense: just "ferocious," like the expression of some primordial animal rage. And the result? Complete failure, the newspaper suggests, because Hamas was still able to fire a lethal rocket from Gaza. Note that the tone of the sentence suggests not only that the operation has been a practical failure, but that the justification provided by Israel is somehow suspect.

It gets worse. Here's Version 1 on Israel's successful bombing of Hamas's tunnels under the Egyptian border:

At dusk on Sunday, Israeli fighter jets bombed over 40 tunnels along Gaza's border with Egypt. The Israeli military said that the tunnels, on the Gaza side of the border, were used for smuggling weapons, explosives and fugitives. Gazans also use many of them to import consumer goods and fuel in order to get around the Israeli-imposed economic blockade.

The bias here is staggering: Israeli claims about the uses of the Gaza tunnels--fully and extensively documented by the international media on several previous occasions, by the way--are reported as subjective opinion; Palestinian claims about the uses of the tunnels are reported as objective fact. The article also gets the embargo against Gaza wrong: it's not "Israeli-imposed," but endorsed by the entire civilized world because of Hamas's refusal to give up terror; and furthermore, it's not an economic blockade but a comprehensive military blockade whose primary aim is to prevent Hamas from smuggling weapons and which allows for the massive importation of humanitarian aid. Again, let's look at Version 2:

Footage recorded from Israeli warplanes showed bombs striking the entrances to tunnels allegedly used to smuggle weapons into Gaza from Egypt.

Allegedly, allegedly, allegedly! What is wrong with these people? Hamas itself has admitted it uses the tunnels to smuggle weapons--as reported one year ago by Kershner herself:

A Hamas representative in Gaza acknowledged on Wednesday that the group brought in weapons through tunnels.

Sigh. This article is just one example of the bias and willful idiocy that infests every major news source whenever Israel defends itself. It's getting so tiresome, and so silly, that one almost imagines people have stopped taking these reports seriously anymore. But they do, and the New York Times, despite its declining circulation and sinking revenues, still sets the tone for the intellectual and policy elite.

Please do yourself a favor and get your news from other sources. Here's one place to start.

27 December 2008 - The Gaza War is a Just War

It’s been a while since I blogged regularly here, due to my involvement in the McCain election effort (sigh), the launch of my book, and my third year of law school in general. But when I saw the headlines this evening, I knew it was probably time to crank things up again, in time to fight the ritualistic hatred that is roused every time Israel exerts its right to defend its citizens according to international law.

The Gaza War is a just war. It is a war to defend Israeli lives and Israeli sovereignty against attacks targeting Israeli territory and Israeli civilians. It is a war against a terrorist organization—Hamas—that has violated international law in its aggression against Israel, in its repeated attempts to kill as many Israeli civilians as possible, and in its treatment of Palestinian civilians living in Gaza.

Hamas brought this war upon itself. In the very recent past, it marked the end of a truce with Israel by firing rockets at Israeli border towns. Hamas and other terror groups encouraged or tolerated by it have also launched thousands of rockets at Israel over the last three years. They have kidnapped an Israeli soldier and refuse to permit visits from the International Red Cross; they have tried to kidnap others.

There are already protests from the usual crowd about “war crimes” and “baby killers,” as well as claims that Israel is trying to wipe out the Gaza Palestinians as a follow up to its ongoing blockade. Following the pattern we have seen in the past, these cries will increase in their shrill intensity until an atrocity occurs—or until one is manufactured for the cameras—an international opinion begins to shift.

Israel should avoid killing civilians if possible—for moral reasons first of all, and also because it is imperative that Israel stay on the right side of international law. But the most important thing Israel must do is maintain a clear strategic objective. If the goal is to end Hamas as a threat, ground troops will be needed. This is not a war that can be won from the air. The Lebanon experience cannot be repeated.

As for the critics: they are right insofar as they insist that Israel do its utmost to protect innocent human life. But that applies on both sides of the border, and it does not extend to Israel doing nothing or giving in to Hamas’s demands. In this war, the more important critics to watch will be those who do not say anything—those who are no friends of Israel but who tacitly hope Israel destroys Hamas.

26 December 2008 - Harvard Menorah Vandalized

This afternoon, while walking through town, I discovered that the menorah (chanukiah) displayed every year by Harvard Chabad on Cambridge Common had been vandalized:


One of the branches was broken, and six of the eight light bulbs (the ninth had not yet been mounted, apparently) had been smashed:


In addition, the entire structure had been tilted, and the electricity wires had been cut:


This is apparently not the first time the display has been vandalized. According to the rabbi's wife, the "Happy Chanukah" signs around the menorah have been torn up every night this week.

Harvard and Cambridge consider themselves beacons of tolerance, yet this destructive and apparently antisemitic act happened in the open, a stone's throw away from campus.

If you have information about the attack, please call the Cambridge police at (617) 349-3300.

The light of hope will not be extinguished.