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.

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