The war of aggression waged by Hamas, against which Israel has commenced a robust response, must not be seen in a vacuum. Hamas is an agent of radical Islam's revolutionary jihad. Israel, the "ittle Satan," is a proxy of Western modernity. The conflict in Gaza is merely the latest round: a continuation of the war which flared up during the summer of 2006 and which rages still in Afghanistan, Pakistan, Iraq, Somalia, Sudan, and other theaters.

So what can the big Satan do to help? Obviously, we are not going to contribute military force. We already subsidize Israel's defense, and, more importantly, the IDF doesn't need that kind of aid. What Israel needs is to be allowed to win: to finish the grisly work of "breaking the will of the Palestinians, of Hamas, to continue to fire at Israel," as Israeli Interior Minister Meir Sheetrit so aptly put it.

Our best means of bringing about that urgently needed outcome is to nullify the militarily overmatched Palestinians' primary asset: the skewed state of international politics and international law.

NO STATEHOOD

On the political front, it is high time to acknowledge the failure of the fantasy that the Palestinians are legitimate actors worthy of statehood and its privileges. Contrary to the prevailing elite view, legitimacy is not conferred by such facile exercises as the holding of popular elections — though such exercises are not without consequences, which we will come to momentarily. There are certain minimal requirements for statehood, not least of which is accepting the right of one's sovereign neighbor to exist.

At present, no representative of the Palestinian people concedes this right to Israel. As its 1988 charter makes plain, Hamas unapologetically seeks Israel's destruction. This is why Hamas was formed: to eradicate the Jewish state as a preliminary step in the jihadist quest for global hegemony.

That leaves Fatah, the legacy of Yasser Arafat and Hamas's rival. In their foolish desperation to "solve" the currently unsolvable Israeli/Palestinian dispute, our rose-tinted solons portray Fatah as a "moderate" party which seeks peaceful coexistence with Israel. It's a dangerous illusion.

Regardless of what Palestinian Authority President Mahmoud Abbas may say to Western audiences, his message to the Arab world is that Palestinians should put aside their internal divisions and, as he put it in 2007, "direct our guns against Israeli occupation." To anyone outside Brussels or Foggy Bottom, that cannot be a surprise: Fatah, Abbas's organization, is pledged by its constitution to the destruction of Israel. (See, e.g., Article 12: Fatah's first stated "Goal" is the "Complete liberation of Palestine, and eradication of Zionist economic, political, military and cultural existence"; see also, e.g., Article 19: "Armed struggle is a strategy and not a tactic, and the Palestinian Arab People's armed revolution is a decisive factor in the liberation fight and in uprooting the Zionist existence, and this struggle will not cease unless the Zionist state is demolished and Palestine is completely liberated.")

When we appraise hostile countries, it has become de rigueur in our foreign policy circles to distinguish the "people" (always good) from their nasty governments. So it is with the noble Palestinians. Secretary of State Condoleezza Rice insisted in a 2006 interview, for instance, that the "great majority" of them — i.e., upwards of "70 percent" — are "perfectly ready to live side by side with Israel because they just want to live in peace."

This is preposterous. Palestinians are weaned on Jew-hatred through schools and media controlled by the competing factions and other jihadists. Their national heroes are those dedicated to killing Jews, most especially the "martyrs" (or shaheed) who self-implode in suicide attacks. It is to be expected, then, that when the public is polled in the actual Palestinian territories, rather than in Condi-world, a very different reality is reflected: About three in four Palestinians deny Israel's right to exist, a figure that soars to over nine in ten when only the fighting-age demographic (between 18 and 25) is considered.

It is, moreover, only natural that Palestinians would choose Hamas in a free election, as they did in 2006. Of course, no shortage of delusional gibberish has been spouted about this outcome by democracy devotees — who typically twaddle about elections having consequences right up until the moment when the election happens and they don't like the consequences. So, to maintain the fiction that we are dealing with decent, peace-loving people, we are urged to blinker the Palestinians' choice to be led by unabashed mass-murderers. That, we are told, merely indicates a desire for less corruption and better social services — metrics by which Hamas is putatively superior to Fatah. I somehow doubt we'd be so nuanced if a cognate electoral choice were made by our neighbors in Canada or Mexico.

In any event, we must halt the mindless "two state solution" rhetoric. Before the Israelis finally acted, Palestinian forces had launched over six thousand missiles at Israel from Gaza since 2005 — when Israel bowed to international pressure and ceded control of Gaza to the Palestinian Authority. And that onslaught must be considered in context, both with Hamas's provocations that led to the 2006 war and with the two intifadas orchestrated by Arafat's Fatah — including one commenced after a breathtaking settlement offer which would have awarded the Palestinians about 90 percent of their land demands.

Those are not the actions of a people who will be ready to function as a legitimate state anytime soon.

Let's be blunt: we are looking at a generation or more before the Palestinians might be prepared to assume the obligations of sovereignty. So we should stop talking about it. Doing so only indicates to the Palestinians that we are more interested in the simulacrum of a settlement than in cultivating a mature statehood that is stable, hopefully democratic, and respectful of its peers — such that it is capable of negotiating with them absent the notion of annihilating them. "Roadmaps" and "peace processes" which hold out the possibility (indeed, the likelihood) of near-term statehood tell the Palestinians that terrorism succeeds and that they can reap enormous benefits while continuing to work toward Israel's demise.

In short, we can help Israel enormously in the here and now — while simultaneously setting the Palestinians on their only realistic path toward long-term prosperity — by making clear that statehood is absolutely off the table until the Palestinians convincingly abandon terrorism, acknowledge Israel's right to exist, rescind or amend all covenants to the contrary, and demonstrably overhaul their institutions (especially their media and education systems) in a manner that conveys their commitment to this new state of affairs.

END THE INTERNATIONAL LAW FARCE

We can further help Israel, and greatly advance the cause of counterterrorism, by unmistakably signaling our support for Israel's determination to defeat Hamas. Not just to win another half-round in an endless series of pauses that allow Israel's terrorist enemies to regroup, but instead to break the enemy's will.

This will call for taking a strong stand on a crucial matter of international law: namely, there is no consensus international law of armed conflict.

For far too long, we have abided — even encouraged — the fiction that there is a community of nations all playing by the same rules. There is not. For present purposes, the most significant demonstration of this is that many nations, including our European allies, have joined the 1977 Protocol I to the Geneva Conventions. The United States has not. Israel has not. Since this is about national life and death, we can no longer afford to keep papering over that difference.

As has happened to us repeatedly since our military response to 9/11, Israel is being accused of war crimes based on standards to which it has never consented. For people who care about their international obligations — and the Israelis deeply do, just as we do — such allegations have a devastating effect on the national cohesion needed to see through a difficult war. They are also slanderous.

These Protocol I standards were designed for the benefit of terrorist organizations, national-liberation movements, and third-world tyrannies. We don't accept them, nor do the Israelis, and nor would the Europeans had they not abdicated responsibility for their own security. As construed by human-rights activists, Protocol I makes the conduct of warfare illegal — certainly if the combatant nation has any notion of achieving its objectives, which is the point of going to war in the first place.

Protocol I, furthermore, is a betrayal of the human-rights mission. Its effort to convert war from a military campaign run by soldiers to a regulatory exercise run by lawyers invites two outcomes, both deadly: either war will be protracted, increasing the inevitable collateral carnage, or guarantors of global stability will refrain from acting — abandoning the field to terrorists and dictators who are unmoved by legal obligations. These are unacceptable choices. We are under no duty to cede moral ground to self-styled human-rights activists just because they see warfare as the greatest of human evils when we know, based on hard experience, that it is not.

The ethos we are dealing with here is best demonstrated by the ludicrous contention that Israel's operations are "disproportionate" because so many more Palestinians than Israelis have been killed or wounded at this point in the fighting. The concept of "proportionality," which has long been a guideline in the conduct of war, has nothing to do with comparative casualties. It refers to a weighing of the military advantage to be derived from an operation versus the risk of inordinate collateral damage (i.e., excessive harm to civilian lives and infrastructure).

Of Protocol I's many failings, among the worst is its attempt to impose legal exactitude on proportionality and its companion concept, the "distinction" between military and civilian targets. In the original contemplation, these standards were left to the best judgment of commanders, mindful of the facts that the primary objective in war is victory and that some civilian casualties are unavoidable.

Yet, as military law experts David B. Rivkin Jr. and Lee A. Casey explain in "Leashing the Dogs of War" (an important 2003 article published in The National Interest), Protocol I demands that military forces contemplating operations ceaselessly consider alternatives with a view toward causing the least conceivable danger to civilians. Indeed, military forces must "take all feasible precautions" and otherwise "do everything feasible" to avoid incidental loss of civilian life. Consequently, the principal objective of warfare becomes preserving the lives of the enemy's civilians. Military success is subordinated despite the fact that this could endanger one's own civilians (over whose security war is often fought in the first place) and extend the war (thus placing enemy civilians in further danger anyway).

In this framework, there is a steady warping of standards, to the aforementioned point that proportionality is now absurdly invoked as if each side were required to sustain roughly equivalent casualty counts. War crimes, too, are trivialized, with antiwar activists finding them whenever injury or death is sustained by a civilian — or at least an alleged civilian.

On the matter of who is a civilian, Protocol I is a humanitarian disaster. The point of the Geneva Conventions was to civilize warfare. They accord benefits, particularly honorable prisoner-of-war status, to combatants who comply with the laws of war: by identifying themselves as warriors and refraining from attacking civilians. Terrorists, of course, target civilians (the more killed the better, from their perspective) and compound this imperilment of innocent life by assuming the appearance of civilians, hiding in residential areas, storing their weapons in schools, hospitals, and houses of worship, and so on. Nevertheless, Protocol I awards terrorists the benefits of Geneva despite their flouting of Geneva's humanitarian burdens.

To make matters worse, Protocol I eviscerates the principle of distinction, "recognizing" that there are, purportedly, "situations in armed conflicts where, owing to the nature of the hostilities, an armed combatant cannot . . . distinguish himself" from the civilian population. Given that Protocol I at least feints at protecting civilians, one would think "the nature of the hostilities" here would not be, for instance, a Hamas operative driving along the road with missiles in his trunk or walking into a caféwith an explosive vest strapped to his chest. But it is sadly true, as Rivkin and Casey write, that "things have reached a point where the use of irregular attacks purposefully directed at civilians in the form of suicide bombers has been practically, if not formally, accepted by virtually all of the Arab countries, by much of the Third World, and by many in Europe as a legitimate form of Palestinian ‘resistance.' "

That is where Protocol I gets you. And if you are the legitimate armed force of a sovereign state like Israel, you are expected to absorb an attack — or perhaps 6,000 attacks — before you even think about defending yourself . . . against perfidious attackers who must be regarded as civilians unless you are fortunate enough to catch them in the act. For very sound reasons, this is not our law. Nor is it Israel's. Governments with real security responsibilities cannot protect lives this way. If they try to do so, they are effectively elevating the lives of their enemies above their own populations. That would be inappropriate in any event, but it is especially inane when the enemy is the Palestinians. They have willingly chosen to be led by a terrorist group whose sworn mission is to obliterate a neighboring country. Of all the civilians on earth, they are the least deserving of such indulgence.

With each day's perusal of news accounts comes new accusations of Israeli international law violations and war crimes. In response, we shouldn't cower behind the usual diplomatic niceties. We should be clear: there are no international law obligations in warfare absent consent. We can't stop transnational progressives from designing suicidal compacts, and we can't stop Europeans from adopting them. But we are not obliged to engage the fiction that these arrangements constitute law in our own country, in Israel, or in any nation sober enough to reject them.

Fighting a defensive war for survival is not a war crime. It is an obligation. It is primarily what governments are created for. To claim otherwise is make a perverse mockery of international law. We must defend Israel full-throatedly on this point. In doing so, we are defending ourselves.
 

National Review's Andrew C. McCarthy chairs FDD's Center for Law & Counterterrorism and is the author of Willful Blindness: A Memoir of the Jihad (Encounter Books 2008). This article was published January 06, 2009 on National Review Online
National Review Online - http://article.nationalreview.com/?q= YTE1YWZkMzkwYmQyNWM5MzBkOTZhZTAyZDExZDFhNzQ=

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