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Legally Blind: The New York Times’ Muddled View of Law of Armed Conflict
In an investigative piece, “Israel Loosened Its Rules to Bomb Hamas Fighters, Killing Many More Civilians,” The New York Times reports that it found that “Israel severely weakened its system of safeguards meant to protect civilians; adopted flawed methods to find targets and assess the risk of civilian casualties; routinely failed to conduct post-strike reviews of civilian harm or punish officers for wrongdoing; and ignored warnings from within its own ranks and from senior U.S. military officials about these failings.”
The New York Times summed up its findings in a separate article, “Eight Takeaways: How Israel Weakened Civilian Protections When Bombing Hamas Fighters.” While there was actual acknowledgment that Jerusalem has complied with international laws of armed conflict, the Times reverted to type, revealing that their recent investigation found that Israel had “…severely undermined its system of safeguards to make it easier to strike Gaza.”
Critically, paper fails to mention that following the October 7 massacre, the elevated threat level posed by Hamas provided a legally justifiable reason for Israel to change the way it interprets its rules of engagement. By not acknowledging this point, the December 26 piece displays a remarkable ignorance of the legal doctrine of proportionality regulating the conduct of hostilities.
“Eight Takeaways” claims that the IDF is using “…flawed methods to find targets and assess the risk to civilians.”
But according to the law of armed conflict, as long as an attack is proportionate to the concrete and direct anticipated military gains, any incidental wounding or killing of civilians may not automatically be deemed an unlawful act, subject to individual assessment.
In other words, The New York Times is working off a false assumption, whereby the number of civilian casualties – potential and actual – between both sides of a conflict should be roughly even in order to not weaken one side’s ‘civilian protections.’
What Is Proportionality?
But, under the laws of armed conflict, an attack is only considered disproportionate, and therefore illegal, “if the anticipated collateral damage to civilians and civilian objects would be excessive in relation to the military advantage expected from the attack.”
Moreover, what is considered proportionate and legal can evolve based on changing circumstances.
Before October 7, Hamas was considered to be an ongoing security concern that Israel had managed to contain. But the post-October 7 reality is very different. Hamas now represents an existential threat to not only the citizens living in the region near Gaza, but the entire country. And let’s not forget Hamas’ Iranian connection.
Since the threat level is so much greater, Israel is legally justified to operate with more force.
The New York Times really needs better military reviewers. Their recent piece comparing targeting processes in counter-terror operations not in war against post-October 7th declared war military operations shows a major lack of understanding of the law of armed conflict,… pic.twitter.com/TaN6zGYntE
— John Spencer (@SpencerGuard) December 26, 2024
Who’s Really Driving Up the Civilian Casualty Numbers?
It is rich that a piece that includes “civil protections” and “Hamas” in the headline omits the very many ways that Gaza’s long-time rulers have for years embedded themselves and their terrorist command and control centers within the coastal enclave’s civilian population structures – including hospitals, schools, and houses of worship.
Indeed, the weakening of civil protections in Gaza is in no small part the result of the terrorist group’s human shield strategy, which its leaders acknowledge is deliberately intended to lead to elevated civilian deaths, thereby ratcheting international pressure on Israel to agree to a ceasefire that would leave Hamas intact.
Moreover, there is ample evidence that Hamas fighters have posed as medical staff, and journalists, and fought in civilian clothes so as to inflate the civilian death count.
From a legal standpoint as it pertains to armed conflict, Hamas is in violation of the Rule of Distinction, which demands that belligerents and fighters at all times distinguish between civilians and civilian objects on one hand, and combatants and military objectives on the other hand, so as to protect persons not taking part in the conflict.
Evidently, The New York Times was too preoccupied with depicting Israel as seemingly going out of its way to endanger Gaza civilians to note that it is, in fact, Hamas that is in violation of international law.
“Eight Takeaways” implies – by showing how Israel has expanded its list of targets, removed limits on how many civilians can be put at risk each day, used a simplistic risk assessment model, and dropped large, less accurate bombs – that the IDF’s approach to urban warfare is somehow unique.
The New York Times, inadvertently, is absolutely correct. Israel is creating a new standard for urban warfare. And there is a growing body of data to support the claim that the country has developed a way to reduce civilian casualties to historically low levels.
The UN, EU, and other sources estimate that civilians usually account for 80 percent to 90 percent of casualties, or a 1:9 ratio, in modern war. In the 2016-2017 Battle of Mosul, a battle supervised by the U.S. that used the world’s most powerful airpower resources, some 10,000 civilians were killed compared to roughly 4,000 ISIS terrorists.
But with regards to Israel, and given Hamas’ likely inflation of the death count, the figure could be closer to 1 to 1.
The New York Times’ rather sophomoric attempt at legal analysis here is not the result of sloppy journalism. Rather, it is part of a pattern, whereby “findings,” such as those revealed in “Eight Takeaways: How Israel Weakened Civilian Protections When Bombing Hamas Fighters,” somehow dovetail with the talking points of Israel’s most vociferous detractors.
Gidon Ben-Zvi, former Jerusalem Correspondent for The Algemeiner, is an accomplished writer who left Hollywood for Jerusalem in 2009. He and his wife are raising their four children to speak fluent English – with an Israeli accent. Ben-Zvi’s work has appeared in The Jerusalem Post, The Times of Israel, The Algemeiner, American Thinker, The Jewish Journal, Israel Hayom, and United with Israel. Ben-Zvi blogs at Jerusalem State of Mind (jsmstateofmind.com). The author is a contributor to HonestReporting, a Jerusalem-based media watchdog with a focus on antisemitism and anti-Israel bias — where a version of this article first appeared.
The post Legally Blind: The New York Times’ Muddled View of Law of Armed Conflict first appeared on Algemeiner.com.
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Gaza Terrorists Likely Have ‘a Few Hundred’ Rockets Left
JNS.org – On Jan. 6, terrorists in northern Gaza fired three rockets toward Sderot, Ibim and Nir Am, one of which was intercepted by the Israeli Air Force, with the other two causing damage but no injuries. The attack came after days of sirens in southern Israel, only some of which were false alarms.
These incidents underline the vastly reduced yet persistent threat posed by Hamas and Palestinian Islamic Jihad (PIJ), whose rocket arsenals and operational capabilities have been significantly degraded since the start of the war on Oct. 7, 2023.
At the start of the war, Hamas and PIJ reportedly held 15,000 rockets and a five-brigade, division-strong invasion force capable of seizing Israeli territory and committing massacres. Today, their remnants consist of scattered guerrilla cells with small arms, rocket-propelled grenades and explosives—as well as a handful of projectiles. Israeli assessments suggest that these groups collectively have no more than dozens of rockets left, perhaps as many as 100.
However, professor Kobi Michael, a senior researcher at the Tel Aviv-based Institute for National Security Studies and the Misgav Institute for National Security and Zionist Strategy in Jerusalem, believes it may be more than a handful.
“I think it’s more than dozens. I think we’re talking about a few hundred rockets. We have to remember that Hamas prepared in advance for launching very large barrages at Israel, and hence, many rockets were prepared ahead of time,” including in underground locations and in orchards, he told JNS.
Michael described the recent launches as the Gaza terrorist groups’ final performance, arguing that in the war’s aftermath they will not regain the ability to flood Israeli skies with rockets, retaining only the ability to sporadically launch a projectile.
Currently, the vast majority of the Hamas and PIJ arsenal has been destroyed, said Michael. He noted also that some of its precious few remaining rockets are being launched as IDF forces close in on them.
While Hamas retains small arms, TNT, and, potentially, the capacity for extremely restricted rocket production, “Compared to what they had in October, and even after Oct. 7, we’re talking about completely minimal capabilities,” he said.
IDF operations in northern Gaza since the ground operation there began on Oct. 27 have focused on clearing key areas such as Beit Hanoun and Jabalia of remaining Hamas elements. On Jan. 5, Israel’s Army Radio reported that rockets fired at the Erez Crossing had originated in Beit Hanoun, where the IDF’s Nahal Brigade had been operating.
A joint statement by the IDF and Israel Security Agency (Shin Bet) on Jan. 5 detailed recent strikes on over 100 Hamas targets, resulting in the elimination of dozens of operatives and the destruction of rocket launch sites. These types of operations, combined with precision strikes and intelligence efforts, have diminished Hamas’s ability to operate freely in the northern Gaza Strip.
While the IDF has made substantial progress in northern Gaza, new challenges are emerging in Gaza City, south of that area, Michael said. “They will try to regroup and rebuild capabilities in areas where we are less present, and we must be vigilant,” he told JNS.
The IDF’s responses would include continuous intelligence monitoring and targeted operations, he added.
Despite their diminished arsenals, sporadic rocket fire continues, and remains a threat that must be taken seriously, he told JNS. “Even a single rocket that is not intercepted can cause damage and casualties, as we saw in Sderot,” he said.
“We need to be prepared for occasional rocket fire even after the war concludes,” he cautioned. He emphasized that intelligence and operational freedom would allow Israel to maintain pressure and respond swiftly to any renewed threats.
During a Jan. 2 call organized by the Washington D.C-based Jewish Institute for National Security of America (JINSA), Maj. Gen. (ret.) Amikam Norkin, former commander of the Israeli Air Force, emphasized the ongoing need for military operations in Gaza, stating, “The IDF will be launching military operations against terrorists in Gaza every few weeks.”
Maj. Gen. (ret.) Yaakov Amidror, former national security adviser to Prime Minister Benjamin Netanyahu, stated on the same call, “I think that we succeeded in neutralizing Hamas as a military terrorist organization, but still Hamas is strong inside Gaza.” Amidror suggested that neutralizing Hamas entirely would take at least a year of sustained efforts, including targeting its leadership and infrastructure.
Amidror also raised the issue of governance post-conflict, asserting, “When it will not be relevant inside Gaza, we can call a third party to come into Gaza and take control of the civilian side. Until then, no one [externally] will be ready to take responsibility.”
On Jan. 4, IDF engineering units uncovered and destroyed a Hamas tunnel in central Gaza containing manufacturing facilities for munitions and explosives. The operation underscored ongoing efforts to dismantle the group’s remaining rocket production infrastructure.
The post Gaza Terrorists Likely Have ‘a Few Hundred’ Rockets Left first appeared on Algemeiner.com.
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New Lawfare Tactic Threatens all Israelis Who Serve in IDF
JNS.org – The specter of her sons and daughters being hauled before foreign courts on war crimes charges has shaken Israel.
The lawfare tactic came to the public’s attention this week with the drama of a reservist in the Israel Defense Forces on vacation in Brazil being forced to flee the country, aided by the personal intervention of Israel’s foreign minister.
Yuval Vagdani, 21, a soldier in the IDF’s Givati Brigade, found himself in the crosshairs of the Hind Rajab Foundation (HRF), a Belgium-based NGO that targets Israeli soldiers for legal action.
Its modus operandi is to monitor the social networks of soldiers for posts about their service—for HRF, service in Gaza appears to be prima facie evidence of war crimes—and then to launch a suit in the countries those soldiers visit, typically on holiday.
It signals an aggressive shift in anti-Israel legal strategy, Brooke Goldstein, founder and executive director of The Lawfare Project, a group dedicated to defending Jewish civil rights, told JNS.
“Previous failed efforts to prosecute Israelis for alleged war crimes have focused primarily on political and military leaders rather than rank-and-file soldiers. The move to target lower-level personnel, like the IDF soldier in Brazil, represents a major escalation in legal and advocacy strategies,” she said.
HRF lawsuits started from a handful, rising as of last count to 28 in multiple countries, including Sri Lanka, Thailand, Holland, Ireland and South Africa. It brought two complaints in Argentina this past week. Israelis fear the number of cases will become an avalanche.
“Given Israel’s mandatory military service … this tactic poses a threat to the broader Israeli population, effectively putting all citizens at risk of legal action,” noted Goldstein.
HRF’s success in convincing a federal Brazilian court to accept the case is unfortunately a shot in the arm for the group, agreed Jonathan Turner, chief executive of U.K. Lawyers for Israel (UKLFI), which works to “combat the use and abuse of law” by Israel’s enemies.
“I think there will be a lot more cases coming up of this nature,” he told JNS.
In July of last year, Turner’s group filed a challenge to the International Criminal Court (ICC) over its jurisdiction to issue arrest warrants against Israel’s Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant, predicting that the warrants against Israel’s leaders would encourage a wave of suits against ordinary Israelis.
“One of our observations to the International Criminal Court was [that] it would make it more likely that arrest warrants could be issued secretly against a multitude of other Israelis,” Turner said.
The ICC warrants made war crimes charges against Israelis seem credible, leading national authorities to be more willing to investigate, he said. “The completely bogus allegations made by the prosecutor of the International Criminal Court, Karim Khan, are now liable to be treated as reasonable grounds for courts to issue arrest warrants against other Israelis.”
Worth noting is that no country has yet actually charged an Israeli (even in the Brazil case a court only asked the police to open an investigation). The Israeli government is clearly determined to keep it that way. Israeli Foreign Minister Gideon Sa’ar convened a team of Security Cabinet ministers on Sunday, the first of a series of planned meetings to build inter-ministerial cooperation to deal with the emerging threat.
Sa’ar instructed the army to brief soldiers against uploading anything to the Internet related to their operational activities. Turner agreed with the approach. He also “strongly advised” Israelis who have served in the IDF in recent years not to post information about their travel plans as that gives Israel’s enemies “an opportunity to locate them and contact the authorities in that country.”
This happened in the case of Vagdani, the soldier forced to flee Brazil. Interviewed by Israeli radio station Kan Reshet Bet on Wednesday, he said that HRF claimed he had “murdered thousands of children, and turned it into a 500-page document. All that was there was a picture of me in uniform in Gaza.”
Adding insult to injury is that Vagdani is a survivor of the Nova music festival massacre, where Hamas on Oct. 7, 2023, slaughtered more than 350 people.
Vagdani praised the work of Israel’s Foreign Ministry. On Jan. 4, “I woke up in the morning, opened the phone and suddenly saw eight calls— the Foreign Ministry, my brothers, my mother, consuls,” he said. He was on a plane out of Brazil the next day.
The vacation was to have been his “dream trip,” one which he had planned for four years. “I was in the best place of my life, with my friends. I thanked God for every moment there,” he told Israeli radio.
While the Foreign Ministry acted with alacrity in this case and has woken up to the danger, with Minister Sa’ar calling for setting up an information hotline and instructing staff to monitor NGOs acting against IDF soldiers abroad, Turner said Israel’s government has “not handled the information war particularly well, unfortunately, and that has made fighting the lawfare war more difficult.”
Israel could act more aggressively on the lawfare front, he said, providing several examples, including Israel’s failure to challenge the bias of the current president of the International Court of Justice, Judge Nawaf Salam, a former Lebanese ambassador to the United Nations, “backed by Hezbollah to be a candidate for prime minister of Lebanon.”
Nitsana Darshan-Leitner, president of Shurat HaDin-Israel Law Center, an Israel-based group focused on fighting lawfare, told JNS that Israel must take a multi-pronged approach to counter the newest tool in the campaign to “delegitimize and demonize our nation.”
First, Israel should brief and prepare soldiers traveling abroad, so they know what to do when facing such situations, she said.
Second, should they be arrested, it should deploy “every legal and diplomatic resource to secure their release and uphold their rights,” she continued.
Third, it should target pro-Palestinian groups and countries that “arrogate international jurisdiction to themselves, masquerading as champions of justice while blatantly advancing biased political agendas.”
UKLFI’s Turner expressed doubt that groups like HRF could be easily targeted, though he noted a determined U.S. president and Congress might impose sanctions on and target the financing of such groups.
HRF is so new, having been established late last year, that little is known of its financing, said Yona Schiffmiller, director of research at NGO Monitor. “I don’t think that information has been made public yet,” he told JNS.
“The fact that it was founded in September of 2024 is very much indicative of the fact that the organization’s whole purpose is simply to go after Israeli soldiers and Israelis,” he added.
Other groups are engaging in the same lawfare tactics, he noted, referring to DAWN (Democracy for the Arab World Now), a U.S.-based organization that has been submitting names of Israeli soldiers to the ICC and to American authorities.
Despite Israelis’ concerns, The Lawfare Project’s Goldstein expressed confidence Israel is up to the challenge. “This strategy is destined to fail. Israel will always prioritize the protection of its citizens, no matter the cost. We, the Jewish people, have survived centuries of attempts to delegitimize us.”
The post New Lawfare Tactic Threatens all Israelis Who Serve in IDF first appeared on Algemeiner.com.
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A Fake Genocide Meets a Real One
JNS.org – For more than a year, Jews inside and outside the State of Israel have been besieged by false claims of the “genocide” of Palestinians in the Gaza Strip. The rhetoric of the pro-Hamas mob—“We don’t want no Zionists here,” “Go back to Poland” and so on—has been ugly enough to make Nazi Germany proud. The real-world impact—arson and gun attacks on synagogues and other Jewish institutions from Canada to Australia, a pogrom in Amsterdam, physical and sexual assaults on those wearing identifiably Jewish symbols, creeping discrimination against “Zionists” in the worlds of art and medicine and academia, and too many other such episodes to comprehensively list here—is all too reminiscent of Nazi thuggery.
There is no longer any doubt that Jewish communities are facing the worst upsurge of antisemitism since World War II. At the root of the current onslaught is what my JNS colleague Melanie Phillips calls “Palestinianism,” which, she argues, “seeks to write the Jews out of their country, their history and the world.” That explains the fixation with affixing the label “genocide” to Israel’s military response to the atrocities of Oct. 7, 2023, which were themselves an act of genocide, intentionally targeting Jews because they are Jews living in their historic homeland. Yet in public relations terms, we have to concede that this has been a blood libel with legs, embraced not just by the keffiyeh-clad automatons but by governments from Ireland to South Africa, as well as by the United Nations, whose secretary-general, António Guterres, opined last September to his eternal shame that he had “never seen such a level of death and destruction as we are seeing in Gaza in the last few months.”
It’s important to recognize that the trauma Jews have experienced since Oct. 7 has also impacted non-Jews. I don’t mean our immediate neighbors in Europe and North America who, apart from a courageous and vocal minority, have followed in the ignoble tradition of their forebears by looking the other way. I am referring to those minorities and stateless nations around the world whose fate at the hands of repressive regimes and their proxy militias has been drowned out by the noise of the pro-Hamas mob and its enablers. Silence and indifference have greeted the Turkish regime’s bloodthirsty pledge to “eliminate” the Kurdish-led, U.S.-backed resistance forces in Syria in the wake of the overthrow of Bashar al-Assad’s vile dictatorship. The same U.N. Human Rights Council that lambastes Israel last month co-hosted a “human rights” conference with the same Chinese Communist Party that is waging a genocide in the northwestern region of Xinjiang.
It’s the ongoing slaughter in Sudan, however, that really exposes the moral rot at the heart of “Palestinianism.” For the first time since the term “genocide” was given legal standing with the 1948 adoption of the U.N. Genocide Convention, the world’s attention has been gripped by a fake genocide while a real one has been raging at the same time. Hamas propaganda preying on the minds of the stupid and the gullible in our own societies is largely to thank for this sordid outcome, which leaves an indelible stain on Western civilization.
Since the outbreak of Sudan’s latest civil war in 2023, the Biden administration has placed the issue at the bottom of its foreign-policy pile. But one of the last acts of outgoing Secretary of State Antony Blinken was to issue a Jan. 7 statement concluding that “members of the RSF and allied militias have committed genocide in Sudan.” Too little, too late, certainly, but not wholly useless.
The Rapid Support Forces (RSF) are an outgrowth of the feared Janjaweed paramilitaries that carried out a genocide in the western region of Darfur 20 years ago. The latest fighting followed the decision of RSF leader Mohamed Hamdan Dagalo, known as “Hemedti,” to split with the military government that took power in a 2021 coup in Khartoum. As Blinken correctly pointed out, both the military regime and the RSF “bear responsibility for the violence and suffering in Sudan and lack the legitimacy to govern a future peaceful Sudan.” But the RSF and its allies have, to quote Blinken again, “systematically murdered men and boys, even infants, on an ethnic basis, and deliberately targeted women and girls from certain ethnic groups for rape and other forms of brutal sexual violence.”
The overall humanitarian cost is staggering. More than 11 million human beings have been internally displaced, and another 3.1 million have fled across Sudan’s borders—about 30% of the country’s population. Nearly 640,000 are suffering from one of the worst famines in Sudan’s history. More than 30 million people are in dire need of humanitarian assistance. The number of dead lies in the tens of thousands. The number of demonstrations, rallies and performative protests stands at zero.
Included in the raft of sanctions that accompanied Blinken’s announcement are seven companies based in the United Arab Emirates—a U.S. ally and partner in the broader Middle East peace process—that have helped the RSF purchase weapons and smuggle gold from Sudan’s lucrative mines through Dubai. The UAE operates an embassy and three consulates here in the United States, whose addresses are easily available with a quick online search. A demonstration outside one of these, under the slogan “UAE: Stop Funding Genocide in Sudan,” would be perfectly feasible and eminently laudable. But those organizations that might be in the position to organize one—like Black Lives Matter, a sentiment that clearly doesn’t apply to Black Lives in Africa when Arabs are doing the killing—are absent.
This brings me back to the point I made earlier about the impact of this present surge of antisemitism. I’ve never been a fan of the oft-made assertion that Jews are the canary in the coal mine and that what starts with them won’t end there, because it assumes a much greater degree of overlap between antisemitism and other forms of bigotry than is actually the case.
However, a more salient point is that the obsession with Jews and Israel diverts column inches and airtime away from those humanitarian crises that are far more dire than Gaza and far more intractable, given that the war in the Strip would be over as soon as Hamas releases the remaining hostages it kidnapped on Oct. 7 and lays down its weapons, as growing numbers of Palestinians—as distinct from their Western cheerleaders—are exhaustedly urging.
As long as the outside world continues to indulge the Palestinian strategy of being the only victims worth the name, we are abetting the genocides that don’t get talked about.
The post A Fake Genocide Meets a Real One first appeared on Algemeiner.com.