I thank Roxana for her long and detailed reply to my response to the Open Letter on the Humanitarian Crisis in Gaza. I note that she stands by the Open Letter that she signed. This implies that she stands by the claim that the civilian casualties in Gaza constitute an “unprecedented human catastrophe”. Presumably she believes them to be a greater catastrophe than the Nazi Holocaust, the Armenian genocide by the Turkish Ittihadists, Hiroshima and Nagasaki, Pol Pot or Rwanda, which I mentioned in my reply to the Open Letter. She does not gainsay this. This is surely astonishing. Does she really continue to believe that this tragedy is an unprecedented human catastrophe?
Roxana claims that I pleaded to contexualize the current conflict. I did not plead anything. I pointed out that to understand the present conflict it is necessary to see it in its current context in order to understand that Hamas is an Iranian proxy and that its onslaught was intended to put a stop to any rapprochement between Saudi Arabia and Israel that itself might have initiated a movement to a highly desirable two-state solution, on which Crown Prince M. bin Zalman rightly insists. I wonder whether Roxana denies this.
She claims that if contextualization leads to “an impossible standard for combat” (her suggestion, not mine), this is the product of “colonial historical contextualization”. I am not sure what this opaque remark signifies. I hope it does not mean that Roxana is under the illusion that Israel is or was ever a colonial power. If she does, I recommend that she read the article by Simon Sebag Montefiore in the 27 October issue of The Atlantic. The Jews were never colonial settlers in the Ottoman empire prior to 1914 or in the British Mandate, or in the State of Israel. They were refugees from Russian pogroms, from the Nazi Holocaust, and, since 1948, 800,000 were refugees from Arab states and Iran (more, incidentally than the Arab refugees from the 1948 attack by seven Arab armies on the nascent Jewish State of Israel) and more recently a million were refugees from persecution in the Soviet Union.
Roxana asserts that Israel is an occupying power in the Gaza Strip. Of course, that is untrue. Israel withdrew from the Gaza Strip in 2005, forcibly uprooting nine thousand Israeli settlers and giving the Gazans the opportunity to become a peaceful, flourishing tax-free port in the Eastern Mediterranean. Instead, they elected Hamas to rule them in the legislative elections of 25 January 2006, the upshot of which was armed conflict between Fatah and Hamas in the Gaza strip in mid-June 2006, which Hamas won, subsequently murdering Fatah officials and supporters. Hamas initiated incessant warfare against Israel with the ultimate intention of wiping it off the face of the earth. This accorded well with the ideology of its subsequent and current supporter – Iran.
Roxana suggests that Hamas’s use of civilians as human shields is a mere assumption that has not yet been proven. I wonder what standards of evidence she employs, when we can daily see rockets being fired at Israel from sites adjacent to schools, hospitals, and UNWRA buildings, and there are well attested photographs of Hamas gunmen firing from hospital windows. As I observed, there are none so blind as those who do not wish to see.
Roxana is, she declares, “an international law scholar”. Her scholarship, however, is challengeable. She contends that the principle of proportionality in international law is “a calculus that balances the likelihood of harm for civilians against the likely military gain”. That is false. The principle of proportionality is not a calculus of any kind. It involves probabilistic reasoning, based on probabilistic evidence. The principle of proportionality is, she says, a significantly high bar, and “even higher when further danger is not immanent”. She asserts this at a time when Hamas continues to fire dozens and often hundreds of rockets every day at civilian targets in Israel, as far north as Haifa. Is this not immanent danger? Or does danger to “Jewish colonials” not count? The bar of proportionality, she claims, is also higher “when the armies have very different capabilities at their disposal”. I wonder where she got this idea. There is some reason to question her scholarship. Luis Moreno-Ocampo, who was the chief prosecutor at the International Criminal Court investigating allegations of war crimes during the invasion of Iraq in 2003. He wrote as follows:
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,[12] even when it is known that some civilian deaths or injuries will occur. A crime occurs if 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) (Article 8(2)(b)(iv)).
Article 8(2)(b)(iv) criminalizes: Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva Conventions but restricts the criminal prohibition to cases that are "clearly" excessive. The application of Article 8(2)(b)(iv) requires, inter alia, an assessment of: (a) the anticipated civilian damage or injury; (b) the anticipated military advantage; (c) and whether (a) was "clearly excessive" in relation to (b).
Since Hamas has been incessantly firing rockets at Israeli civilian targets, some 6,000 so far according to Major General Rupert Jones (who led the allied reconquest of Mosul from ISIL), and is overtly sworn to repeat murderous onslaughts on Israel for the indefinite future (see my quotation from Ghazi Hamad from 24.10.23 in my Reply), it is patent that Israel is acting within the requirements of international laws of war in responding to a clear and present danger, while striving to minimize civilian casualties. It does not aim to kill civilians, but to kill terrorists. It is also fulfilling its duty to protect its citizens.
Roxana insists that telling Gazans that a land attack on northern Gaza was immanent and instructing them to move to southern Gaza was itself a “human rights violation”? Is she suggesting that it would have been preferable for almost a million of them to remain in northern Gaza? That is exactly what Hamas wants. Is Roxana willing to be complicit in the machinations of these evil men? To be sure, more than four hundred thousand Israelis have been displaced, from the vicinity of Gaza and from the vicinity of the Lebanese border. Is that not a human rights violation by Hamas and Hezbollah? Has Roxana simply overlooked this? Or is it that “Israeli Jewish colonials” don’t count? She claims that Israel not only recommended relocation, but also attacked en route those who did indeed flee? The Israeli army denies this, suggesting that it was Hamas gunmen who shot at them and giving evidence to support that contention. Roxana might ask herself how likely it is, given Israel’s interests, that the Israeli army would pointlessly shoot at fleeing Gazan civilians, and how likely it is, given Hamas’s interests, that Hamas should shoot at the fleeing civilians. But maybe such probabilistic reasoning is too difficult for Roxana.
I questioned the veracity of the Hamas casualty figures and pointed out that they did not distinguish between dead or injured terrorists and civilians. Roxana declares that their source is UNWRA, an international organization under UN auspices. She seems unaware of the indisputable fact that UNWRA, in the schoolbooks it publishes and in its school-teaching, assiduously cultivates antisemitism. She does not mention that the UN, with more than seventy Muslim states, is not known for its impartiality. It has just appointed Iran to chair the human rights committee. But Roxane avows that she sees no grounds for doubting Hamas figures of casualties. Apparently she sees no reason for investigating how many are terrorists either.
Roxana ends her reply by avowing her deep empathy for all the sufferers, although not once in her reply has she expressed concern for the 240 hostages held by Hamas. I am not sure what good her empathy is to the present dreadful and tragic situation. Is she calling for a cease fire? – a cease fire that would allow Hamas to regroup and continue to murder? That would make her complicit in evil, which I trust she does not wish to be.
What I should like Roxana and her co-signatories to explain is this: What good did they think their Open Letter would do? How would it contribute to benefiting anyone or to ameliorating the current ghastly situation? In what way would it further a rational two-state solution to this 75-year-old struggle? Was it anything other than a self-indulgent exercise in self-righteousness?
Sincerely,
P.M.S. Hacker