In 2001 I served as chief of staff and report drafter for the Sharm el-Sheikh Fact-Finding Committee, an international body charged with explaining the outbreak of Palestinian-Israeli violence in September 2000 and recommending steps to stop it. We focused on violence: why it happened, how to stop it and what would be required to return the parties to security cooperation and negotiations. Former Senate Majority Leader George Mitchell directed the effort.
We found that neither side accorded a high priority to the sanctity of human life. We condemned both terrorism — “immoral and ultimately self-defeating” — and more casual forms of thoughtless violence. One IDF officer told us that, “When [Palestinian] shooting comes from a building we respond, and sometimes there are innocent people in the building.” He gave no appearance of agonizing over the presence of innocents. On page 12 of our report is a passage that resonates 22 years later: “When we see the shattered bodies of children we know it is time for adults to stop the violence.”
Twenty-two years later I, like most Americans, support without reservation Israel’s right to hold accountable those who perpetrated the horrific, unspeakable attacks of Oct. 7, 2023. I do not equate the Israeli bombing campaign in Gaza with the systematic, unapologetic war crimes of the Assad regime, crimes I have decried in writing over the past 12 years. Still, the price being paid by Palestinian civilians in Gaza for the outrages of Hamas is unjustifiable and unacceptable. Although he may pay a politically steep price for doing so, President Biden must do all he can to bring this abomination to an end.
That which is abominable — the violent deaths, crippling injuries, trauma and terror being suffered by Palestinian children, their parents and their grandparents — may not, in my assessment, be illegal under international law. But it is abominable and counterproductive, nonetheless. Legal counselors to the Government of Israel and the Israel Defense Forces (IDF) will argue that civilians in Gaza are not, unlike civilians in Syria, the targets of military operations. They will maintain that civilian deaths in Gaza are unavoidable due to Hamas fighters embedding themselves within a highly concentrated civilian population, and that the number of civilians killed is “proportional” to the importance of enemy personnel and facilities being targeted.
There is, of course, no mathematical formula revealing whether the test of “proportionality” — embedded in international law — is being met. If Israel, acting on intelligence information it deems valid, determines that a key Hamas commander and a handful of staff are in a particular building, would 10 civilian deaths associated with the bombing of that building and the killing of Hamas personnel be “proportional?” How about 100, or 1,000 civilian casualties? Nothing in international law renders illegal, per se, the deaths and injuries of civilians in combat operations. No, they may not be targeted. But “proportionality” would seem to reside in the eyes of the beholder.
Or does it? Let us assume that every bomb dropped and every artillery shell fired by Israel into the densely packed neighborhoods of Gaza City is aimed specifically, in good faith and based on solid intelligence, at enemy personnel and facilities. Let us assume that the IDF lawyers advise that the test of “proportionality” is being met. Are these criteria sufficient to justify attacks that result in thousands — perhaps soon to be tens of thousands — of civilian casualties?
The view here is “No.” If Hamas had somehow seized Tel Aviv — a place of roughly the same population as Gaza City — how would the IDF proceed to liberate the city? What would be the roles of intense air strikes and artillery barrages in neutralizing Hamas fighters? How heavily would “proportionality” weigh on the minds of IDF planners, operators and lawyers if the population used as shields by Hamas terrorists were not Palestinian? International law, it should be noted, does not distinguish between civilians based on nationality, religion, who controls them or any other category.
I have no basis on which to allege war crimes on the part of Israel. Yet I also believe that what is happening in Gaza must stop immediately and permanently. There may not be a mathematical test for “proportionality,” but to paraphrase an American Supreme Court justice addressing a different issue, I think I know it when I see it.
Where then are the “adults” our 2001 report tried to summon to prevent, wherever possible, civilian suffering when armed conflict takes place?
Surely not in the ranks of Hamas. Bodycams on those who performed acts of sheer butchery on Oct. 7 surely confirm that Hamas expected and wanted a devastating Israeli response, one that would kill not only Palestinian civilians but any prospect of Israeli-Palestinian peace and Israeli normalization with the balance of the Arab world. I suspect Iran’s supreme leader, who seeks Israel’s isolation and eventual elimination, would welcome the deaths of 100,000 Palestinian civilians.
Where are the Israeli adults? Where are those in the Government of Israel and the IDF capable of seeing that the violent deaths so richly deserved by the perpetrators of Oct. 7 cannot justify the abomination gripping Gaza? Indeed, there are questions pertaining also to the mere utility of IDF bombing and ground operations as currently implemented. If Israel’s war goal is to end security threats emanating from Gaza, securing the cooperation of the Gazan population should be the definition of victory. But is there anyone in the senior ranks of Israel’s government and military able to see something fundamental: that what is happening now is not only wrong, but antithetical to victory? Or does the identity of the civilian population in question make such a perception difficult or even impossible?
Whether it is labeled a humanitarian pause or a cease-fire, the terror Gazan civilians are experiencing must stop now. Israel has every right to demand and receive accountability. If, however, it believes the price being paid by Palestinian civilians for the strategy now being implemented to secure accountability is acceptable, it is up to the United States to state plainly and unequivocally that it is not. And it is incumbent on the United States to work closely with its Israeli ally to devise alternate means to hold accountable those who murder Jews and then hide amid civilians.
President Biden communicated to Israelis the warmth most Americans, including this writer, feel toward the Jewish State. Now his task is to convince the government of Israel to behave in a manner that upholds Israel’s security interests and reflects respect for human life. He would likely pay a high political price for doing the right thing. But it must be done. American interests are at stake. And American values — the values of all democracies — are on the line.