There has been much accusation flung about during this latest conflict
accusing Israel "disproportionate force" in her air attacks against missile
caches, command and control sites for the missiles, as well the operators
and members of the command chain for said missiles.
Clarity of language is often the first non-human victim of a deeply
emotional conflict, and the present Israel –Hamas conflict is no different.
I deeply believe that laws are to be lived by and must be accessible and
reasonable to any somewhat educated person. This is my attempt to share a
reasonable interpretation of international law regarding Israel's choices
with regards to defensive action against the deadly rain of rockets coming
Disproportionate force under international law is the use of more force
than necessary to accomplish a legitimate military objective
Here is a definition given in a ruling by the International Criminal Court
(italics mine): *"Under international humanitarian law and the Rome
Statute, the death of civilians during an armed conflict, no matter how
grave and regrettable, does not in itself constitute a war crime.*
International humanitarian law and the Rome Statute permit belligerents to
carry out proportionate attacks against military objectives, even when it
is known that some civilian deaths or injuries will occur.
A crime occurs if
A) There is an intentional attack directed against civilians (principle
of distinction) *(Article 8(2)(b)(i))*,
· Or an attack is launched on a military objective in the knowledge
that the incidental civilian injuries would be clearly excessive in
relation to the anticipated military advantage (principle of proportionality*)
(Moreno-Ocampo, Luis <http://en.wikipedia.org/wiki/Luis_Moreno-Ocampo> (9
February 2006), *OTP letter to senders re Iraq*
, International Criminal court <http://www.icc-cpi.int/Pages/default.aspx>.)
II. Let us analyze this carefully in seven steps, doing so in the light of
the incontrovertible facts regarding the present conflict:
1) Hamas has launched over 1000 rockets against entirely civilian areas of
Israel. Each of those rockets, if it hit a populated building or market
could kill hundreds. It is only through much help from Providence that this
has not happened. Meanwhile, having to live 15 seconds from death and
running to shelters all the time is in itself a crime against humanity with
all the negative medical and psychological effects of stress, especially
2) Hamas has hidden its arsenal in and among civilian dwellings and builds
shelters in these areas, not for civilians to hide, but to hide its weapons
of terror (they have no conventional military use).
3) The only way to neutralize these weapons –an absolute military necessity
is to hit them where they are, before they are fired.
4) Israel does give as much warning as it can through phone calls and
pre-strike firing of empty warheads – so called "door knocking"- both
levels of attempts at mitigation of civilian casualties engaged in by no
other nation in the history of warfare.
This behavior by Israel is in line with a classic ruling of Judaic law (one
seen as having its roots in the Biblical period) that demands that if an
army besieges a city or area, anyone not desiring to be caught up in the
conflict be offered an opportunity to leave by not entirely closing the
siege lines around a city.
Jewish law is driven more by ideal and ethical constructs than by
precedent, so I suppose (whether deliberately or by "cultural osmosis")
these tactics of the Israel Defense Forces are the modern version of this
principle as applied to the highly dynamic and multidimensional modern
5) Hamas orders people not follow these warnings and incites them to form
human shields -thereby Hamas is once again putting civilians in harms way
6) Since this is the only way to stop the rockets threatening Israel's
people, her military response is proportionate to their military goal,
which is to end Hamas' practice of attempting, by rocket fire, to murder
civilians in an indiscriminate manner.
There is no other way to neutralize rockets, their commanders, and their
firers, when the rockets are both stored and fired from an incredibly
densely populated civilian area. All civilian deaths are a result of Hamas'
breathtakingly immoral and irresponsible criminal behavior
7) All civilian deaths in Gaza are therefore entirely within the laws of
proportional responses, and entirely the fault of Hams. Hamas alone bears
the moral responsibility for every single civilian death in Gaza. Even if
the harm was perpetuated by the physical agency of Israeli ordnance, the
moral agency and crime against humanity, is entirely that of Hamas
Any thinking person can understand that all of the outrage against the
deaths of children and other civilians in Gaza, ought to be directed
completely at Hamas and its utter callousness to all human life.
It is my hope and prayer that by doing so, we begin to restore our
shattered world's commitment to the sanctity of each and every human life.
(Rabbi) Shlomo Yaffe,
Dean, Institute for American and Talmudic Law