With hundreds of largely civilian Palestinians dead, Israel’s attempts at crippling Hamas in the Gaza Strip have resulted in grim headlines and news broadcasts around the world. Regardless of whether or not Israel is winning on the ground in Gaza, it is slipping in its worldwide battle for hearts and minds.
It stands to reason, then, that friendly intellectuals are stepping forward to present their justifications for Israel’s actions. Harvard Law professor Alan Dershowitz, for example, toured a Hamas tunnel and dined with Israeli prime minister Benjamin Netanyahu before describing him as “a reluctant warrior,”echoing Israel’s official position that Hamas is forcing the Israeli Defense Forces to bomb civilian areas.
Unfortunately, some of these defenses invite rather unflattering comparisons.
In today’sWall Street Journal, Thane Rosenbaum, a senior fellow at New York University’s law school, outlineswhat he sees as Israel’s “moral dilemma” of whether or not to strike suspected Hamas targets also populated by civilians.
Rosenbaum goes on to question the very idea of what a “civilian” means. It’s worth quoting him at length, to avoid running the risk of misrepresenting his position:
On some basic level, you forfeit your right to be called civilians when you freely elect members of a terrorist organization as statesmen, invite them to dinner with blood on their hands and allow them to set up shop in your living room as their base of operations. At that point you begin to look a lot more like conscripted soldiers than innocent civilians. And you have wittingly made yourself targets… .
Surely there are civilians who have been killed in this conflict who have taken every step to distance themselves from this fast-moving war zone, and children whose parents are not card-carrying Hamas loyalists. These are the true innocents of Gaza. It is they for whom our sympathy should be reserved. The impossibility of identifying them, and saving them, is Israel’s deepest moral dilemma.
Rosenbaum presumably didn’t realize that his words in defense of Israel echo those of none other than Osama bin Laden. In his 2002 “Letter to America,” bin Laden laid out his justifications for targeting American civilians.
“The American people are the ones who choose their government by way of their own free will; a choice which stems from their agreement to its policies,” bin Laden wrote, arguing that American voters thus “have chosen, consented to, and affirmed their support for” what he saw as American crimes. Bin Laden continued:
“Thus, if we are attacked, then we have the right to attack back. Whoever has destroyed our villages and towns, then we have the right to destroy their villages and towns… . And whoever has killed our civilians, then we have the right to kill theirs.”
VF Daily asked Ryan Goodman, a colleague of Rosenbaum at New York University School of Law, and the editor-in-chief ofJust Security, whether Rosenbaum’s position was defensible under international law. “Controversial puts it mildly,” Goodman wrote via e-mail. “It is a radical, outlier position.”
“The implications of such a theory would be enormously dangerous in the hands of states across the world,” Goodman wrote. “Mr. Rosenbaum’s argument has no basis in existing law. His vision is anathema to the existing structure of the Geneva Conventions and utterly unrecognizable from the perspective of international humanitarian law.”
Such theories may be designed to absolve Israel of its legal obligation to work to avoid civilian deaths. The percentage of civilian Palestinians killedin the present conflict between Israel and Gaza was higher than 77 percent as of July 14 (per U.N. numbers). As of the time of this writing, some 604 Palestinians had been killed in the conflict, with about 20 percent of those being children. On Monday,a single Israeli air strikekilled 25 Palestinians, including 19 children, who had come together to break their Ramadan fast. Israel claimed one Hamas military wing member was a guest in the house.
One reason the number of children dying in Israeli attacks is so high is that the Gaza Strip is home to an unusually youthful population. Almost half of Gaza residents are currently under the age of 18, according to the C.I.A. World Factbook. That means that even if they wanted to, they could not have voted for Hamas in the 2006 election.
Note: A previous version of this article identified Thane Rosenbaum as a professor at N.Y.U.’s law school. He is not a professor, despite being identified as such by The Wall Street Journal. The error has been corrected above.