This week Senators Lindsey Graham and Ted Cruz have posed a challenge for would-be presidents and all Americans: if the United Nations criminalizes Israel’s exercise of the right of self-defense it will pay a heavy price. The organization has no right to expect billions of U.S. taxpayer dollars to be doled out every year when they are spent undercutting our deepest values and our national security.
Graham and Cruz’s comments come after learning that UN Secretary-General Ban Ki-moon is now weighing whether to sign off on a report emanating from an Algerian U.N. “human rights expert” that analogizes Israel to ISIS, Boko Haram and Al Qaeda. Leila Zerrougui’s rights expertise includes eight years (2000-2008) as legal advisor to Algeria’s President-for-life Abdelaziz Bouteflika.
Moreover, in the coming weeks, the U.N. will issue another report on Israel’s “criminal” response to Hamas genocidaires in Gaza, commissioned by UN Human Rights Council authorities like Russia, China and Saudi Arabia.
These attacks on Israel are part of a concerted effort by the vast U.N. machinery to rewrite international law to the advantage of terrorists who use civilians as human shields – thereby encouraging the use of more civilians as human shields. What begins as the demonization of Israel, affects every democratic society forced to defend itself against Hamas or Hezbollah or ISIS or Boko Haram or al-Qaeda.
In the summer of 2014, Israelis were under fire from Palestinian terrorists in Gaza who are openly committed to genocide against the Jewish people and the destruction of the Jewish state. More than 70% of Israelis were within target range of Hamas’ Gaza rockets. Once fired, half a million people had less than 60 seconds to find shelter. Underground tunnels were discovered that opened into Israeli territory, with terrorists emerging on their way to cause mass casualties among Israeli civilians.
In response, the United Nations launched a full scale assault on…Israel.
This year marks the 80th anniversary of the Third Reich’s adoption of the Nuremberg laws. Now is the time to remember that the Holocaust was preceded by the subversion of law, the corruption of the judiciary, and the perfidy of lawyers. The Nuremberg laws – rules for Jews only – were interpreted, applied and enforced by masses of seemingly upstanding lawyers and judges.
Today, the United Nations is concocting another set of Nuremberg-like laws – rules for Israel only – which smug international lawyers and judges will elucidate and administer. Flying under the banner of “accountability,” the travesty has the appearance of propriety. But make no mistake. The distance between so-called law and morality at the UN today is as great as it was 80 years ago in Nazi Germany.
Actual international humanitarian law requires that “the anticipated loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained.”
In other words, civilian loss of life is legally anticipated in war. The legally recognized aim is to gain military advantage, that is, to win. The legal test is proportionality between the loss of civilian life anticipated and the military advantage gained.
The exception for the U.N.? Israel. In Israel’s case, none is too many. We know that because when Israel killed Hamas leader Abdel Aziz al-Rantisi, there were zero civilian casualties and then U.N. Secretary-General Kofi Annan still said Israel had violated international law.
International law does not demand tallying Palestinian civilian casualties and comparing them to Israeli civilian casualties, a test that would promote mothballing Israel’s Iron Dome or giving it to Hamas (as UN High Commissioner for Human Rights Navi Pillay once suggested).
Nor does international law give Hamas – or ISIS or Al Qaeda – the power to block an otherwise lawful attack against military objectives by deliberately placing civilians in harm's way. When civilian casualties result from an illegal attempt to shield a military objective, their blood is on the party that abused them as human shields.
Watching ISIS increasingly seek to blend in among Iraqi civilians is the predictable result of ignoring this principle, intended to save civilian lives overall. Perverting the law in the case of Israel, therefore, has clear ramifications for America’s defenses.
To date, painstaking casualty analyses by Israeli sources – Hamas is refusing to produce a full list of its fatalities – indicate approximately 1,100 civilian casualties in Gaza. This was accompanied at the time by an astounding 107 condemnatory U.N. resolutions, reports, statements, press releases, press conferences and emergency meetings – denouncing the aggressor’s Israeli victims. Despite Israel taking extraordinary precautions to minimize civilian casualties, and Hamas rejecting or violating 11 ceasefires that would have saved the majority. UN focus on civilian deaths in Yemen, Libya, Egypt, Sri Lanka, Iran, Nigeria, etcetera, is a fraction of this legal onslaught.
The U.N.’s Gaza reports present a challenge to all law-abiding citizens. When the law becomes an instrument of Jew-hatred, people of good will are called upon to discredit it, to reject its application, and to shield its Jewish targets from the legal artifice – lest we become the anti-Semites’ willing executioners. The senators’ challenge should resonate across the land.
Anne Bayefsky is director of the Touro Institute on Human Rights and the Holocaust. Follow her on Twitter @AnneBayefsky.