Monthly Archives: June 2018

Talking to Hamas

Today, there appears to be a “kindler”, “gentler” but error based approach on how to deal with Hamas in Gaza. A few influential Israelis seem to think that “talking to Hamas” should be the order of the day instead of subduing them financially as well as thru a decisive military campaign.

Since 1967, Israel has striven to return the situation in the Strip to a status quo it could tolerate. While periodic “mowing the law” prevents fire from the Gaza Strip, sooner or later the shooting from Gaza resumes, and even if it was on a small scale and without causing many casualties for Israel, it is still an ongoing problem. Life is not normal if at any time a rocket or a mortar shell might fall on one’s home, working place, during walking or driving outside and so on.

However, this 2018 about-face to “talk” to Hamas instead of warring against it to crush it is not new. It is merely a regurgitation of an approach 11 years previous that demonstrably failed.

Specifically, back in 2007, no sooner had ex-prez Jimmy Carter met in Damascus with Khaled Mashaal to declare Hamas’ readiness to accept the Jewish state as a “neighbor next door”,  than the radical Islamist group demonstrated its vision of peaceful coexistence by making the most ambitious attempt to kidnap Israeli soldiers and detonate two car bombs at a border crossing used for the introduction of vital foodstuffs and humanitarian aid into the Gaza Strip (Karsh, 2008).

The notion that Hamas’ co-option into a political process aimed at stifling its overriding goal of destroying Israel would make it more hopeful and less despairing was always framed as a contradiction in terms.

Yet, former U.S. officials, led by Zbigniew Brzezinski and Brent Scowcroft, like some in Israel 11 years later, had previously called for “a genuine dialogue” with Hamas in the hope that Hamas could somehow be lured away from its genocidal agenda. Even Former Secretary of State Colin Powell told National Public Radio in 2007 that some way must be found to talk to Hamas.

Other Israelis joined the chorus calling for talks with Hamas. “Before we are dragged into Gaza, we must exhaust the other possibility,” wrote journalist Ari Shavit. “We should offer Hamas a deal: an Islamic republic in Gaza in exchange for full demilitarization. A full and fulfilling life for a Muslim community of brothers, in exchange for giving up violence and arms altogether.”

Events of 2008-9, 2012 and 2014 in the Gaza Strip showed just how much dialogue with Hamas was worth, and why that same errant approach is flawed today.

Hamas is demonstrably not interested in “talks”. Nothing in its history from 2005 to the present has ever indicated they intend to waver from their publicly stated charter which promises that “Israel will exist until Islam will obliterate it.”

In the next war, Hamas, like Hezballah, must lose decisively and be seen to have lost. Decisively.

I have written on social media and on my blog that “talking” to Hamas will provide it a bastardised legitimacy. Back in 2008 Karsh put it much more eloquently:

Legitimizing a jihadi group of this sort would undoubtedly undermine the broader struggle against Islamism, and deepen the doubts of many people in the Middle East and South Asia about the determination of the West to neutralize the current threat they all face at present.

Hamas is plainly not an organization whose ideology can be integrated into any political process without undermining democracy and poisoning the norms of civil society. Hamas is not interested in peace with Israel; indeed, Mashaal has plainly stated that any tahdiye, or state of calm, is really “a tactic in conducting the struggle.”4 Unfortunately for Israelis and Palestinians alike, that is not something the wishful thinking of well-meaning pundits and even former U.S. presidents can change.

The portrayal of Palestinians as innocent victims in distress has been the key to Palestinian propaganda’s popular success. Through the mass-production of heartrending imagery centered on children, women medics, staged “news,” manipulative rhetoric, and rigid censorship, Palestinian propaganda has successfully used the media to recast Palestinians as entirely blameless victims.

Clearly, this has also worked on certain elements within and without Israel’s military think tanks. There is no doubt that the humanitarian situation in Gaza today under Hamas is diabolical. However, violence against Israel has nothing to do with the socioeconomic despair of Arabs living next to a prosperous Jewish nation. No, it is, rather, total rejection by Hamas in Gaza of Israel’s right to exist that fuels the ongoing conflict.

It is clear that this fuel-load needs to be removed.

Under international law, customary and humanitarian, non-state actors are bound by customary IHL norms when they become a party to an armed conflict.  Hamas, however, continues to operate on the principle of the doctrine of a limited-liability war. Under this theory, an aggressor may reject a compromise settlement and gamble on war to win everything in the comfortable knowledge that, even if he fails, he may insist on reinstating the status quo ante. And co-opted, formerly altruistic NGOs like UNRWA enable and extend this deception.

“Talking with Hamas” is not a solution no matter the laudable humanitarian intent because the negotiations fallacy is especially evident in the Arab-Israeli conflict.

The solution is clear, even in our “gentler” and “more caring” times: For most of human history, military victories end wars. This is not the forum to explicate this further. Thus, in order for there to be peace between Israel and its Arab neighbours, Israel must win and the “Palestinians” (and, eventually, Hizballah) must lose. Decisively. Modern Israel’s short history is littered with military offensives which support this thesis.

Till now, it has generally been the policy of Israel’s main military backe, America, to prevent Israel from achieving a decisive military victory over its adversaries. Most recently, one needs no reminder of how the Obama administration pressured Israel to limit its objectives in its 2014 war with Hamas….

Such limitations of Israel encourages its enemies to take risks because Israel’s adversaries need not fret over irrevocable loss because they know the international community will do as much as it can to reverse those losses.

With the auspicious winds of change currently blowing through Israeli-Arab relations, now is the time to put an end to the violent Sunni Muslim organisation that is Hamas. While not intended as a zero-sum game for ordinary rank and file Gazans, Israel can only win the fight against Hamas if Hamas loses, and is seen to lose.  Decisively. This would additionally put an end to the current Gazan Arab delusion of a one-state solution, free of Jews.

Then, and only then, can/should Israel “talk to Hamas”.

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2018: The 100 Year spin on a century-old story

The current media support of something called a “return march” and the alleged genocidal attacks of the Zionist state against Arabs from Gaza who want to push down an Israeli border fence in order to massacre Jewish inhabitants on the other side is generating a lot of interest.

Leading the chorus of outrage and indignation in Europe is the EU which include quotes like this one: “We strongly condemn Israel´s flagrant violations of the human rights of Palestinians. We call for an end to Israel´s criminal behaviour and for the respect of the decisions of the international community and of UN resolutions.”

Of course, the EU may have forgotten that Israel exists BECAUSE of decisions of the international community and international law back in 1947-48. This however does not dissuade suitably blinkered others from stating that Israel is “…responsible for “calculated” killings of unarmed civilians in violation of international law, the human rights group states, warning that Israeli leaders could face prosecution abroad.”

Others like Omar Shakir of Human Rights Watch reaches two key conclusions: the Israeli violence against Palestinians was premeditated, illegal under international law.

In similar high dudgeon HRW states, “While some protesters near the border fence burned tires and threw rocks, Human Rights Watch could find no evidence of any protester using firearms or any IDF [Israeli army] claim of threatened firearm use at the demonstrations,” the group’s report states.”

This short exploration uses ideas and words by Martin Sherman and Kenneth Stein writing about 2018 and 1918 respectively. The reader will draw her/his own conclusions.

The Zionist intention at the Peace Conference in Paris in 1919 was to give statutory effect to the implications of the Balfour Declaration. Zionists wanted a trusteeship or mandate system for Palestine that would protect and enhance the rights of the Jewish minority. The wording of the British Mandate’s articles reflected the Zionists’ success.

British policy objectives, however, were more encompassing: they wanted to
strengthen their strategic presence in the Middle East while finding compromise solutions to Arab aspirations for independence in the Levant and in the Arabian peninsula.

Having courted Sharif Husayn during World War I, the British maintained their relationships with him and his son Faysal, who emerged as the diplomatic spokesman of Arab independence at the conclusion of the war.

In Jan 1918 the British reaffirmed their intent to see the formation of an independent Arab nation.  However, to make things worse, where the British had been vague about the inclusion of Palestine in the Husayn-McMahon correspondences of 1915 and 1916 , now the British and French failed to mention Palestine specifically as a geographic area where indigenous governments would be encouraged.

Since the French made no secret of their aim to control all of Syria, Husayn and Faysal had little choice but to cast their lot with the British. But in so doing, they reluctantly but tacitly accepted the attendant political ramifications of Britain’s Zionist entente.

Additionally, Arabs of British Mandate Palestine lacked a distinctive and cohesive nationalist movement at this time. In stark contrast, the Zionist movement was extremely clear in its focus on transforming policy into reality. Thus, it sought amicable relationships with the British military administration and the Arab community in Palestine. However, the individuals who staffed the British military administration did little to foster cordial Arab-Jewish understanding, let alone amiable intercommunal relations.

Together with this, during the Ottoman period, and during the Mandate, Jews and committed Zionists clearly realized that restrictions and regulations placed by the Ottomans and, later, the British, could be circumvented, in that, despite vocal protests, Arab sellers were willing and even eager to sell their land, and that therefore political opposition to the Zionist enterprise was insincere and artificial.

So much so that when Arab public condemnation of land sales to Jews rose in crescendo, and in 1940, when the Land Transfer Regulations were enacted, Zionists continuously received offers to purchase from large and small landowning Arabs and landlords in absentia who were glad to be paid so handsomely for plots of stone and thorns.

That was in 1918.

In 2018, the myth of the “Palestinian” ‘Indigeneity’ and “march of return” is also insincere. It is a (very successful) part of that same Arab strategy over a 100 years ago of speaking out of both sides one’s mouth.

It is what Martin Sherman alludes to when he quotes T.E. Lawrence in his latest article, Palestine – failing the test of history: “Freedom is enjoyed when you are so well armed, or so turbulent, or inhabit a country so thorny that the expense of your neighbour’s occupying you is greater than the profit. –From  a letter by T.E. Lawrence (a.k.a. “Lawrence of Arabia”) published July 22, 1920, in The Times of London setting out a case for the political independence for the Arabs (from the Ottomans) in the Middle East.

Even Lawrence had never heard of the Palestinians.

Lest you forgot.

 

Proportionality and the “Palestinian” pirouette

The ongoing deliberate confrontations at the Gaza fence by Hamas have nothing to do with peace or rights. The weekly border riots and the daily dispatch of kites designed to burn sovereign Israeli land are acts of war and, as such, fall under a host of rules and regulations which apply to all warring parties, states or their organs.

Specifically, Hamas is in flagrant and ongoing breach of the 4th Geneva Convention in several chapters of that document and continues to breach its responsibilities under a self-styled Doctrine of Limited Liability war.

The Doctrine of Limited Liability per Hamas demonstrably allows an aggressor to reject a compromise settlement and gamble on war to win everything in the comfortable knowledge that, even if he fails, he may insist on reinstating the status quo ante.

It is time to stop this travesty which has been a core Arab strategy against the existence of a Jewish state since 1948. This for several pertinent reasons in international law.

On page 31 of its Preliminary Remarks on the 1949 4th Geneva Convention, it is  stated that the content therein was inspired by the 1907 Hague Conventions which govern the laws of war, and was later codified in Article 49 of the International Law Commission’s 1980 Draft Articles on State Responsibility.

This stated that the “eternal principles of the Laws and Customs of War on Land are the foundation and the safeguard of civilization “, and was designed to “ensure the respect of human personality and dignity by putting beyond reach of attack those rights and liberties which are the essence of its existence”.

Of particular relevance to the thesis of this short exploratory paper, it prohibits in particular:

  1. a) Violence to life and person………
  2. d) Outrages upon personal dignity…..founded on differences of race… nationality [and] religion….

Hamas should have absolutely no truck with Israel. It rules Gaza which is bounded by a land fence on its eastern limit. Attacking sovereign Israeli territory both on land and through the air is in breach of the letter and spirit of the Convention.

Hamas attacks Israel because Israel is a Jewish state. And Israeli nationals are Jews.  It attacks Israel because the State of Israel practises Judaism as a majority religion.

Hamas has repeatedly called for the destruction and murder of all Jews east of the fence in often gory purple prose. Hamas calls for the eradication of an ancient indigenous race and people because those people are not Muslim.

These are wrongful acts.

Hamas is quick to tell its enablers that it is a legal governing entity voted in through the ballot box. On the bare face of it, let us accept this premise. In that case, the elected government of the Gaza strip has responsibilities in international law and is accountable to international courts for its actions if it is in breach of those laws. After all, the “Palestinians” boast of (observer) member State status of the United Nations…..

Article 28 of the International Law Commission’s 1980 Draft Articles on State Responsibility stated that “The international responsibility of a State which is entailed by an internationally wrongful act in accordance with the provisions of Part One involves legal consequences as set out in this Part.”

This “Part” was then explicated and codified in Article 49 of the International Law Commission’s 1980 Draft Articles on State Responsibility Article 29

Continued Duty of Performance which stated “The legal consequences of an internationally wrongful act under this Part do not affect the continued duty of the responsible State to perform the obligation breached.”

In other words, regardless of whether states are party to the treaties above, experts say the principle is part of what is known as customary international law. And, in other words, no governing entity gets a free ride where it can flout international law and then ask for a return to the status quo ante…….

In its defence, Hamas also argues that Gaza is not a State and that therefore the above rules and regulations do not apply to it. Following this line of reasoning, it would then make Hamas’ actions against the sovereign State of Israel acts of terror across an international border. Hamas does not accept this designation either.

However, in the chapter entitled Attribution of conduct to a State. Article 4 of the 1980 Draft Articles on State Responsibility is as clear as can be on this: “The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State (all emphases mine)”.

Hamas really has nowhere to hide. It is either a pariah “state” in flagrant and continual breach of international law, or it is a terror organisation which deserves the impositions place on it. Hamas’ actions in the international arena drip entitlement when in fact there are no moral, or legal reasons to grant it exception.

The international community needs to put an end to Hamas and their fiscal enablers pirouetting between the raindrops: if they are a legal government, then they are bound by international law. If they are a terror organisation then they need to be proscribed as such by the international community and disarmed.

With regard to Hamas’ claims of Israel’s use of excessive force, here again they are in error according to that same customary international law which applies to all governments.

According to the doctrine of customary international law, a state is legally allowed to unilaterally defend itself and right a wrong provided the response is proportional to the injury suffered (emphasis added).

Armed Hamas combatants approached a designated international border fence with hostile intention to overrun it and physically harm civilians and others on the other side. Israel defended itself and righted a wrong.

Israel targeted known and active Hamas terrorists in the process of trying to breach a security barrier in order to kill Jews. According to Hamas’ own reckoning, 85% of those killed in the weeks of staged hostile attacks were registered members of the terror organisation. Thus, the response was proportional to the injury threatened given the potential for an extended bloodbath had the terrorists succeeded in entering Israel.

Then too, in accordance with international law as explicated in the International Law Commission (2001), response in defending oneself must also be immediate and necessary, refrain from targeting civilians, and require only enough force to reinstate the status quo ante.

Nobody would refute the fact that this, Israel did.

Again, referring to international law, Article 3 of the 1907 Hague Convention on the Laws of War states that “A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.”

Israel should now legally prosecute its rights to demand that Hamas cease and desist from engaging on a war footing with Israel according to Article 30 of the Legal Consequences of an Internationally Wrongful Act.

Together with this, Israel should additionally prosecute Hamas and its fiscal enablers through the courts to demand Hamas’ sponsors/enablers pay for physical damages to the border fence in line with Article 31 of the same Act:

  1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
  2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.

Hamas and the “Palestinian” charade has wasted untold wealth both fiscal and moral for decades. It is time to call their bluff and make them responsible for their actions in line with that same international law they are so fond of quoting.

Finally, in case the reader wonders why I consistently put the word “Palestinian” in inverted commas, the reason is this: you do not become a nation, a state or a “people” just because you hate Jews.

The continuing forbearance of the State of Israel in the face of continuous wrongful acts is astonishing.

It has never happened in the recorded history of ANY conflict.

It should never be permitted to happen again.