Originally published under the title “Iran’s Unhidden Plan for Genocide: A Legal Assessment (Second of Three Parts).” 

On June 7, 1981, Israel launched Operation Opera against Saddam Hussein’s nuclear reactor outside Baghdad. Officially, this preemptive attack on Osiraq – which ultimately saved a great many American and other lives ten years later, during the first Gulf War, was an expression of anticipatory self-defense. Interestingly, however, because Iraq had always considered itself to be formally at war with Israel, the Jewish state could just as easily and correctly have regarded this essential act of preemptive self-defense as something else.

Back in 1981, taking an alternative legal position, Prime Minister Menachem Begin could have justified Operation Opera as a permissible tactical action in the wider context of a longstanding and ongoing belligerency. Had he done so, Israel could then have pointed out that both of the pertinent legal obligations applying here had also been fully satisfied. These are the always twin obligations of “just cause” (facing an existential threat), and “just means” (minimizing collateral harms). To be acceptable, any act of anticipatory self-defense would have to fulfill classic law of war expectations that the means used to injure an enemy are not unlimited.

Jurisprudentially, it is significant that Begin chose, explicitly, to link Operation Opera to preventing, in his words, “another Holocaust.” Historically, of course, the rationale of including anticipatory self-defense under customary international law had been the prevention of aggression, not genocide. Logically, it was not until 1951, when the Genocide Convention first entered into force, that the legal question of defensive first strikes to forestall such crimes against humanity could even have been raised.

After the Holocaust, and subsequent Nuremberg Trials, it became plain that the prerogatives of sovereignty in world law could no longer remain absolute, and that the once-legitimate cover of “domestic jurisdiction” would now have to exclude certain crimes against human rights. With this very fundamental transformation, individual human life was to be held sacred everywhere, and individual states were no longer automatically precluded from entering into the “territorial sphere of validity” of other states. On the contrary, from then on the traditional norm of “non-intervention” would need to yield to indisputably compelling judgments of “international concern.”

It was now the reasonable expectation that all states, either individually or collectively, would acknowledge a distinct and overriding legal obligation to prevent Nuremberg-category crimes (after 1951, crimes of genocide) in other states, even to the extent of undertaking active intervention within those sovereign states.

This critical obligation was strongly reinforced at Articles 55 and 56 of the United Nations Charter, a core document that has the formal status of a multilateral treaty. Today we speak of all such permissible interventions as “humanitarian.” Sometimes diplomats and scholars prefer the closely related term “The Responsibility to Protect.”

Whichever term is preferred, the international legal order now accepts and expects that all states will feel co-responsible for each other, including the prevention of genocide and certain corollary crimes against humanity. Examples of this collaborative expectation, a concept that makes incontestably good sense in our still-anarchic system of world law – a system that first came into being in 1648, when the Treaty of Westphalia ended the Thirty Years’ War and that has yet to be replaced with genuinely effective supra-national legal institutions – can be found in at least four prominent post-Holocaust cases:

(1) the Tanzania-led invasion of Uganda in 1979, which put an end to Idi Amin’s almost decade-long genocide against the Acholi and Langi tribes;

(2) the Vietnamese invasion of Cambodia in 1979, which put an end to the Khmer Rouge mass murder of almost 2,000,000 people, a genocide that had targeted several diverse populations along many different ethnic, cultural, and tribal lines;

(3) the 1971 genocide against Bengali people, the “Bangladesh Genocide,” which covered an area then originally known as “East Pakistan,” and that was finally stopped by massive Indian military intervention; and

(4) the 1994 invasion of Rwanda by Tutsi rebels who had been “hosted” in neighboring Burundi, and also in the Democratic Republic of the Congo. This genocide, perpetrated largely by Hutu extremists (the interahamwe) produced almost 1,000,000 deaths in ninety-days, making it the “fastest” genocidal mass murder in human history. It is also infamously noteworthy because the European powers, the United States, and the United Nations had all abandoned every shred of responsibility for humanitarian intervention or the responsibility to protect.

The Obama administration refused on Monday to participate in a U.N. Human Rights Council meeting on Israeli settlements and slammed the body for its “disproportionate” focus on Israel.

The council, based in Geneva, debated on Monday a January special report on the settlements that called for Israel to immediately withdraw from the West Bank and suggested that Israel may be liable for war crimes if it does not.

U.S. delegates would not speak during the debate, according to DPA, the German news agency, and in separate comments Eileen Donahoe, the U.S. ambassador to the body, said that “the United States remains extremely troubled by this council’s continued biased and disproportionate focus on Israel.”

Israel no longer associates with the Human Rights Council, in part because of last year’s so-called fact-finding mission on Israeli settlements that culminated in the report. Israel did not cooperate with the council on the settlements report because of the anticipated built-in anti-Israel bias.

The council repeatedly singles out Israel for criticism and has ignored major human rights abusers, some of which are members of the council.

The Obama administration reversed its predecessor’s policy of not participating in the council, and has noted some progress in getting it to address abuses in countries like Iran.

B’nai B’rith International’s representative at the United Nations in Geneva, Klaus Netter, said in a statement to the council that the report was counterproductive.

“Far from advancing the peace process between the two main parties, the fact-finding mission report has only reinforced Israel’s doubts about returning to active participation in this council and produced yet another source of conflict that may occupy this council’s attention for months or years to come,” he said.

The recent disclosure that Omar Misharawi, the baby son of BBC reporter Jihad Misharawi, was actually killed by an errant Hamas rocket rather than by an Israeli missile, should have absolutely no moral implications. Of course the baby was killed by Hamas. He would have been killed by Hamas even if the missile that ended his life had been fired by Israel.

Hamas is totally and wholly responsible for this death, as it is responsible for every civilian death in Gaza and in Israel. It is Hamas that always begins the battle by firing rockets at Israeli civilians. Generally Israel does not respond. When it does, its rockets occasionally kill Palestinian civilians. That’s because Hamas wants Palestinians civilians, especially babies, to be killed precisely so that they can display the kind of photographs that were shown around the world: a grieving father holding his dead baby, presumably killed by an Israeli rocket. For years, I have called this Hamas’ “dead baby strategy.” The recent United Nations finding simply confirms the reality of this cynical strategy.

The errant rocket that killed Omar Misharawi was fired by Hamas terrorists from a densely populated civilian area adjacent to the home of the BBC reporter Jihad Misharawi. Hamas selects such locations for firing its rockets precisely so that Israel will respond by firing into civilian areas and killing Palestinian civilians. They regard such dead civilians as “shahids”, or martyrs for the cause. It is better for Hamas’ publicity campaign if the rocket that kills the Palestinian baby was fired by the Israeli Defense Forces, but even if the rocket was fired by Hamas terrorists, Hamas will claim, as they do regarding this death, that the lethal rocket was fired by Israel. Often the evidence is inconclusive, though the forensic evidence in this case points clearly to a Hamas rocket.

The important point is that it doesn’t really matter who actually fired the rocket that killed the baby. The baby was killed by Hamas as part of a calculated strategy designed to point the emotional finger of moral blame at the IDF for doing what every democracy would do: namely, defend its civilians from rocket attacks by targeting those who are firing the rockets, even if they are firing them from civilian areas. As President Obama said when he visited Sderot shortly before becoming President:

The first job of any nation state is to protect its citizens. And so I can assure you that if…somebody was sending rockets into my house where my two daughters sleep at night, I’m going to do everything in my power to stop that. And I would expect Israelis to do the same thing.

Babies like Omar Misharawi will continue to die in Gaza and in Israel so long as the world media continues to serve as facilitators of Hamas’ dead baby strategy. Every time a picture of a dead Palestinian baby being held by his grieving parents appears on television or on the front pages of newspapers around the world, Hamas wins. And when Hamas wins, they continue with their deadly strategy. The media, therefore, is complicit in the death of Omar Misharawi as it is in the deaths of other civilians who are victims of Hamas’ dead baby strategy. Pictures of dead babies in the arms of their grieving fathers are irresistible to the media. That won’t change. What should change is the caption. Every time a dead Palestinian baby is shown, the caption should explain the strategy that led to his or her death: namely that Hamas deliberately fires its rockets from areas in which babies live and into which Israel must fire if it is to stop its own babies from being killed.

It may sound heartless to claim that Hamas wants its own babies to be killed as part of its strategy of demonizing Israel. But there is no escaping the reality and truth of this phenomenon. Indeed it has been admitted by Hamas leaders such as Fathi Hammad:

For the Palestinian people, death has become an industry, at which women excel, and so do all the people living on this land. The elderly excel at this, and so do the mujahideen and the children. This is why they have formed human shields of the women, the children, the elderly, and the mujahideen, in order to challenge the Zionist bombing machine. It is as if they were saying to the Zionist enemy: “We desire death like you desire life.”

Of course these Hamas leaders don’t desire their own death. They build shelters for themselves and for the terrorists who fire the rockets at Israeli civilians. As soon as these rockets are fired from crowded civilian areas, the terrorist scurry into below-ground shelters, leaving babies, women and other civilians in the path of Israeli rockets that target the rocket launchers. This isn’t martyrdom by the leaders and terrorists. It is cowardice. That too is part of the dead baby strategy: make martyrs of babies, while the leaders and terrorists hide in shelters. In Israel, it is precisely the opposite; shelters are for civilians; soldiers put themselves in harm’s way.

Additionally, a Nov. 15 Telegraph Live Blog post on the Gaza war included this passage:

Jihad Misharawi, who is employed by BBC Arabic, lost his 11-month-old baby Omar. His brother was also seriously injured when his house was struck in the Israeli operation and his sister-in-law was killed.

Corrections: None.

Daily Mail. On Nov. 15, the Daily Mail published a sensationalist piece by David Williams, titled ‘What did my son do to die like this?’Anguish of BBC journalist as he cradles the body of his baby son who died in Israeli rocket attack on Gaza‘, which included multiple photos of Misharawi with his baby and the following passages:

“Tiny Omar…died after an Israeli airstrike on Hamas militants in Gaza.

Masharawi had arrived at Gaza’s Shifa Hospital after Omar suffered severe burns in an airstrike that sent shrapnel tearing into his home killing a woman and leaving his brother and uncle critically injured.

Corrections: None.

Spectator. David Blackburn published a piece titled ‘Israel’s public relations problem‘ which included the image of Misharawi with his baby, as well as the following passage:

The front page of today’s Washington Post shows a picture of the BBC’s Jihad Masharawi holding his dead 11-month-old son, an innocent victim of Israeli action against Hamas’ paramilitary targets following months of indiscriminate rocket attacks against civilians in southern Israel*

Corrections: The piece has now been updated, per the asterisk, and includes the following at the bottom:

*Since this article was published, a United Nations investigation has found that the incident described by the Washington Post was caused by the shortfall of a rocket fired by Palestinian militants at targets in Israel.

The Sun. On Nov. 15 The Sun published ‘The Innocents: Beeb journalist’s son dead, another hurt..babies hit as Gaza war looms,’ by Nick Parker, which included a photo of Misharawi and his baby, and this passage:

Omar was one of at least 15 Palestinians killed in air strikes as Israel retaliated over the Hamas missiles.

Corrections: None.

A “mantra” is supposed to be more like meaningless sounds to repeat as we tune out:

1. Hinduism A sacred verbal formula repeated in prayer, meditation, or incantation, such as an invocation of a god, a magic spell, or a syllable or portion of scripture containing mystical potentialities. 2. A commonly repeated word or phrase.

I sometimes refer to the phrase “two state solution” as a nightmare mostly because too many politicians, diplomats, academics and of course the media keep touting it as a “solution to the conflict between the Jews and the Arabs” without truly thinking about what it means and how it would affect the lives of Israelis and the security of the State of Israel.

The State of Israel and the Arabs aren’t two toddlers fighting over some blocks which can be harmlessly shared.

There are many Arab states, large and affluent, stable, unstable and most do not practice western-style values and democracy.  UNESCO identifies 21 Arab states, while Wikipedia lists 23 Arab states. In addition the Arab League is a regional organization of these states that was formed in 1945. It currently has 22 members.

The touted “moderate” Arabs promoted by the west, i.e., the United States, Europe and international organizations, such as the United Nations, aren’t moderate by international standards.  The so-called Palestinians don’t even get along with each other, and it’s dangerously unrealistic to think that they are capable of governing a state. We keep hearing these fantasies which claim that there’s a safe and just way to divide up Judea and Samaria between Jews and Arabs, which is preposterous.  I grew up in the 1960′s, and I remember what went on in divided Germany, especially Berlin.  These things just don’t work.  And please remember that the raison d’être of the so called Palestinians is the destruction of the State of Israel.

From a Palestinian Media Watch report:

The PA promises its people that in the future, the State of Israel will be completely erased and replaced by a State of Palestine. A Fatah member of Palestinian parliament, Najat Abu Bakr, told PA TV that the PA supports and adopts the “stages plan.” To the world, the PA claims that the Palestinians seek the West Bank and Gaza Strip, when in fact the goal is all of Israel: “It doesn’t mean that we don’t want the 1948 borders, but in our current political program we say we want a state on the 1967 borders.” [PA TV (Fatah), Aug. 25, 2008]Fatah Central Committee member Abbas Zaki reiterated this position on Al-Jazeera TV:

“It is impossible to realize the inspiring idea or the great goal in one stroke… Israel will come to an end… If I say that I want to remove it from existence, this will be great, great, [but] it is hard. This is not a [stated] policy. You can’t say it to the world. You can say it to yourself.” [Al-Jazeera TV, Sept. 23, 2011]

This is very worrying, especially since Prime Minister Binyamin Netanyahu has bought into the lie and has now appointed extreme Leftist Tzipi Livni to negotiate with the Arabs.

Already the Israeli Supreme Court and the Defense Ministry take “Arab rights” as more important than Jewish security.

The Head of Central Command in the IDF, Maj. Gen. Nitzan Alon, gave orders at week’s end to dismantle the fences protecting two Jewish communities, following the High Court’s ruling in the matter. The High Court found that the fences that surround and protect the communities of Ofra and Adam, in the Binyamin region, need to be dismantled because they prevent access to some Arabs’ agricultural plots. The fences were allegedly built without the necessary approvals. (Arutz Sheva).

This is a dangerous policy.  And that’s why I would have had preferred new elections and no coalition here in Israel.

Visit Shiloh Musings.

As Syria’s blood-soaked Assad regime approaches its demise, Israel’s northern border is getting greater focus in light of the growing scope of activity on the Syrian side by jihadist rebel forces.

A Ynet article today ["Fearing terror attacks, IDF boosts forces on Syrian border"] says the IDF is mainly concerned at this stage with the danger of shooting attacks from the Syrian side on the contract workers putting up a sophisticated border fence that includes sensitive new alarm systems incorporating a fiber that sounds an alarm at the slightest touch. But it’s clear that the far greater concern is with how dangerous the border is likely to become when a new Syrian jihadist regime is in place, which seems inevitable.

The Ynet report says Syrian rebels released a video clip yesterday (Saturday) showing their men firing weapons close to the Israeli-Syrian border and within sight of a U.N. sign indicating the area’s demilitarized status. Another scene captures verbal threats from one of the rebels:

“We are now in front of the occupied Golan, the blessed land sold by Hafez Assad… For 40 years, not a single gunshot has been fired on this land. For 40 years, not a single gunshot has been fired towards Israel…” [Ynet]

The U.N. has had a contingent of ‘peacekeepers’ in the area since 1971. But the United Nations Disengagement Observer Force (UNDOF) that was established by Security Council resolution has seen prouder days. Twenty-one soldiers from the Filipino contingent of UNDOF peacekeepers were kidnapped by Syrian rebels earlier this week and were handed over to Jordan’s Foreign Minister yesterday.

Ensuring that such embarrassments are less likely to happen in the future, U.N. management in New York has changed the ground rules, as Times of Israel reports:

U.N. peacekeepers on Syrian border halt night patrols: International teams fear more kidnappings, violence; Israel beefs up border security | Times of Israel | March 9, 2013 | Peacekeepers from the UN’s UNDOF mission have ceased patrolling the Israel-Syria Golan Heights border area at night, for fear of being kidnapped or hurt in the violence in the area, Israeli TV reported on Friday night… The news came as the UN continued efforts to extricate 21 members of UNDOF from the Philippines who have been held captive since being kidnapped Wednesday by rebels from a group calling itself the Martyrs of the Yarmouk Brigades. Their convoy was stopped on the outskirts of Jamlah, a Golan village less than a mile from the Israeli border. Eight more UN peacekeepers fled to Israel Friday, abandoning their posts to escape the fighting between the rebel groups and forces loyal to President Bashar Assad… The IDF has urged the remaining three UNDOF (United Nations Disengagement Observer Force) member-nations — Austria, India and the Philippines — not to abandon the 40-year mission, after Japan and Canada withdrew their forces in recent months, and Croatia announced plans to do so, a Channel 2 report said.

The outcome?

The reduced patrols in the buffer zone, which extends for some 50 miles along the border, are already enabling al-Qaeda forces among the Syrian rebels to take greater control of the Syrian side of the Israeli border, and Israel has accelerated work to bolster security at the fence, Channel 10 reported Friday night. Israel has also deployed troops from the standing army to replace the reservists who usually guard the border, the report added. [Times of Israel]

In case anyone fears an outbreak of do-nothing-ness on the part of the UNDOF men, their website assures us differently:

March 5, 2013 – UNDOF assisted again after more than one year in Apple Crossing in cooperation with the International Committee of the Red Cross. An eight-year-tradition continued when a range of ICRC trucks transferred apples again from A-Gate to B-Side… Within the next three months 18.000 tons of apples like Golden Delicious and Starking Delicious will be transferred. With assistance of UNDOF Military Police in coordination and traffic management, all apple boxes were carefully delivered to B-Side. The ICRC and UNDOF peacekeepers were well prepared to assist in this important procedure. The first apple crossing in UNDOF’s history took place in the year 2005, when 4.000 tons were transferred. It happened then after 31 years of no trading activities between Syria and Israel… [UNDOF website]

Visit This Ongoing War.

A report in today’s New York Times provides a clue as to why the United Nations does the things it does – the delegates are apparently inebriated, a lot of the time.

According to the Times’ report, U.N. offices are reminiscent of an episode of Mad Men, a show in which many of the main characters have alcohol abuse problems and no serious conversation can be had without a glass of whisky.

And as the U.S. often seems to be the designated driver in international politics, perhaps it is appropriate that the it was an American diplomat, Joseph M. Torsella, who proposed that “negotiation rooms should in future be an inebriation-free zone.”

Of course, this is not the explanation for the sheer madness of many countries’ behavior at the U.N. and on the world stage and their obsession with Israel. But if only it were.

With Tzipi Livni a possibility to head Israel’s negotiating team in talks with the Palestinian Authority, it is important to review her stance on the future status of Jerusalem – and to investigate what really is holding up all chances of a successful peace agreement between Israel and the Palestinian Authority.

In late 2008, Livni was elected to replace Ehud Olmert as head of the Kadima Party. She then proceeded to fail in her attempt to form a new government under her leadership – and the reason for this was her consent to grant Arab control to parts of holy city. This, together with the economic decrees against the “disadvantaged population,” led the Shas Party to refuse to join her government.

As foreign minister in 2008, Livni promised P.A. chief Mahmoud Abbas that Israel would cede it the entire Atarot airport complex in northern Yerushalayim in the framework of a peace agreement. She repeatedly stated that though she believes strongly in historic Jewish rights to the entire Land of Israel, she also believes in the “right of our children to live in peace” – to which end she was willing to make far-reaching territorial concessions even in Yerushalayim.

Is there any chance of reaching an agreement with the PLO that does not include some form of dividing Jerusalem with Muslims? The answer appears to be negative. Former Israeli ambassador to Canada Alan Baker, of the Jerusalem Center for Public Affairs, has written an important and thorough historic study of the issue, concluding that the current P.A. mindset “clearly render[s] hopeless any possibility of peacefully governing Jerusalem.”

Specifically, Baker writes, standing in the way of an agreement is the Moslems’ refusal to recognize the Jewish people’s religious and historic rights to Yerushalayim, even without accepting these as absolute and exclusively binding.

Just a few months ago, Abbas referred to “the alleged [Jewish] Temple” in Jerusalem, and vowed that “there will be no peace, security, or stability unless [all Israelis are] evacuated from our holy city and the eternal capital of our state.”

“This statement,” Baker wrote, “basically denying any Jewish linkage or right to Jerusalem, uttered by the head of the Palestinian Authority who is considered in the international community to be moderate and reasonable, serves as an example of the tremendous political, historical, psychological, legal, and religious challenge that the issue of Jerusalem poses to the Middle East negotiating process.”

Any agreement regarding Jerusalem, he continued, must be “predicated on absolute acknowledgement of, respect for, and acceptance by each side of the historic and religious rights of the other in Jerusalem. Continued mistrust, attempts to dislodge, undermine or destabilize the other side vis-à-vis its own constituency or the international community, and attempts to delegitimize the integrity or historical rights of the other side would clearly render hopeless any possibility of peacefully governing Jerusalem.”

It is not only Abbas who negates Jewish rights in Jerusalem. A P.A. survey in 2011 found that nearly three-quarters of the respondents – 72 percent – support the denial of thousands of years of Jewish history in Jerusalem.

We must remember, too, that Abbas has said no Jews would be allowed to live anywhere in a Palestinian state.

From Israel’s side, 77 percent told Dahaf public opinion pollsters in December that “Israel could not rely on the Palestinians to ensure freedom of worship” even in the framework of a peace agreement. Interestingly, it is not well-known that non-Muslims are prohibited from entering both Mecca and the center of Medina. Undoubtedly, if this fact were to be exposed more widely, it would dramatically increase the number of Israelis who realize the division of Jerusalem means the end of their visits to the Western Wall – for there is no reason to believe that if Jews may not visit Mecca or Medina, they would be able to visit the Temple Mount or anywhere else in the Old City under Muslim rule.

Ambassador Baker notes in his article that even when Israel supported various internationalization schemes in Jerusalem, this was basically to ensure universal freedom of worship in all holy places, not to give up sovereignty. The Arab sides did not accept even this.

Regarding the Arab refusal to accept the 1947 Partition resolution, historian Shlomo Avineri has written that unlike in the Jewish community, there was no debate within the Arab community: There, “an absolutist position – ‘we have all the rights, the Jews don’t have any right’ – continued to be the foundation of their response…”