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Israel Under Fire – Israel’s Survival: Little Room to Maneuver

 
Filed under: International Law
Publication: Israel Under Fire

Israel Under Fire – Israel’s Survival: Little Room to Maneuver
November 29, 1947, the UN General Assembly recommended to the Security Council that the League of Nations Mandate for Palestine be partitioned, with one new Arab state, a Jewish state, and a special regime for Jerusalem. (Government Press Office)

“[I]n war, something must be allowed to chance and fortune, seeing it is in its nature hazardous, and an option of difficulties”1

“Strategy is the use of armed force to achieve the military objectives and, by extension, the political purpose of the war.”
– Peter Paret2

“Yet, grand strategy is a matter involving great states and great states alone. No small states and few medium-size states possess the possibility of crafting a grand strategy. For the most part, their circumstances condemn them to suffer what Athenian negotiators suggested to their Melian counterparts in 416 BC about the nature of international relations: ‘The standard of justice depends on the equality of power to compel and that in fact the strong do what they have the power to do and the weak accept what they have to accept.’”
— Williamson Murray3

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Introduction

Strategy is all about goals; tactics are about how to achieve them. While a planning process is indispensable, plans rarely survive contact with reality. Strategy is developed and implemented in a world of uncertainty and variables—that is to say, the fluidity of human affairs and politics in particular.4 In politics, the composition of the next influential or governing group is unknown, and in democracies, political coalitions affect the content of strategy. Uncertainty, incompetence, and other hazards of all kinds form part of the fog of war. War does not follow a script. It is not a game. Nothing recently demonstrates the truth and relevance of these propositions for Israel’s situation so clearly as Hamas’s attacks of October 7, 2023, and Israel’s response.

Hamas’s goal, as set forth in the original and revised charters, is the elimination of Israel.5 On October 7, 2023, Hamas flooded Israel with notoriously inaccurate, unreliable, and terrorizing rockets. If they are useful—a doubtful notion—it is only against large civilian areas or troop concentrations where accuracy in targeting is irrelevant.6 In addition, Hamas carried out commando-style terrorist attacks on Israeli civilians, committing murder, rape, and other offenses, which Hamas fighters filmed. Those fighters seized hostages and destroyed whatever they could. They truly are terrorists: they use terror and spread fear to help achieve political objectives and change behavior.

Hamas did not act alone. Palestine Islamic Jihad joined it in the Gaza Strip. Hizbullah, Iran’s arm in Lebanon, fired rockets at Israel. Terrorist attacks occurred in the West Bank, and Houthis fired missiles from Yemen at Israel. One observer has called this anti-Israel group, armed and financed by Iran and others, including North Korea, a “ring of fire around Israel.”7 Since October 7, 2023, Iran-supported groups in Iraq, Syria, Lebanon, and Yemen have attacked Israel in an all-points-of-the-compass strategy, and U.S. forces and U.S. and allied shipping in the Red Sea and Gulf of Aden.

Hamas and Israel had blind spots. Hamas likely did not anticipate that Israel, which for months had been politically divided, would unite, almost immediately forming a coalition war cabinet, including as members leading opponents of the Netanyahu government. Nor is it likely that Hamas foresaw a grinding, multi-arm, multi-dimensional Israeli response, a counter-offensive aiming to remove Hamas as a factor in the Gaza Strip and the region. Probably, no one predicted that Israel’s friends, especially the United States, would give Israel more than five months to achieve its aims or that Hamas’s allies would hesitate fully to join the fight. By taking Israeli and non-Israeli hostages, Hamas held itself hostage to this form of human shield protection in this sense: Hamas could not readily give them up without great risk to itself. Hostage-taking and release, moreover, ceased to be a question only of how many prisoners in Israeli jails would be traded. In Israel’s case, self-delusion involved the notion that a modus vivendi existed with Hamas and the sense that the status quo with respect to Gaza and the West Bank could endure indefinitely.

Hamas’s actions and achievement of tactical surprise traumatized Israel. Israel suffered, not only immediate psychological and physical pain, but also the revival of the specifically Jewish, historical, Shoah, existential nightmare. Commentators like to compare October 7, 2023, and September 11, 2001. But the events on those days were markedly different. Apart from the different scale of the events measured in per capita terms, before September 11, Al Qaeda’s real success attacking the United States had occurred in Yemen and Africa. Though U.S. territory generally was not where international terrorists successfully conducted operations, a group led by Ramzi Yousef, nephew of Khalid Sheikh Mohammed, mastermind of 9/11, had almost destroyed New York’s World Trade Center in 1993. The Gaza Strip, which borders Israel and whose urban centers are within 100 kilometers of Tel Aviv, for years provided a base for attacks on Israel. Since 2005, Hamas regularly has attacked Israel with rockets and cross-border incursions.

After October 7, Israel had to decide what to do. Improvement in the decision-making process and outcomes is always possible. A better decision-making process might have prevented some Israeli officials from letting their fury guide their words, which helped fuel the cries of “genocide” and gave South Africa additional ammunition in its suit before the International Court of Justice. Better decision-making processes might have permitted a more precise goal definition for military action in Gaza than “destruction of Hamas,” however much Arab governments privately say they share that goal.8 Different decision-making processes might have led to a better integrated diplomatic, media, and military approach than the one it adopted.9 Israel, caught by surprise on October 7, developed its responses ad hoc, seemingly with a great deal of improvisation, although it had fought Hamas and its allies off and on for nearly 20 years.

Good decision-making processes protect everyone involved. The United States would have been well-served by following established decision-making and legal procedures in its response to September 11. Yet, fear that September 11 was only the beginning of a series of attacks forced the pace of action. October 7 was followed by attacks from all points of the compass dedicated to the destruction of Israel. For Israel, the conflict has seemed existential.

For decades, political, legal, and public opinion constraints have created a difficult international environment for Israel. They put every Israeli action under a global microscope. Israeli governments ignore this reality at peril to Israel itself, not just to the coalition in power. The Israeli government should make decisions with this context in mind, not to avoid acting, but to design action contextually. In all cases, governments have to live with their decisions and do not often have the chance to revisit them. As Dean Rusk, U.S. Secretary of State in the Kennedy and Johnson Administrations, once remarked in a different context, “If I urge a course of action on the President, he adopts it, and things go wrong, I can call up and say ‘Sorry, Sir,’ resign, and disappear. The President must live with his decisions and their consequences.”10 Rusk’s insight is applicable to all governments.

This essay highlights permanent features of Israel’s strategic position in light of the October 7, 2023, attacks. Therefore, it recalls relevant history because each generation has to learn that history and because it illuminates the fact that Israel’s room to maneuver diplomatically and politically is limited. Finally, the essay emphasizes again the asymmetrical reality that Israel cannot afford to lose a war.

I. How We Got Here

Since 1948, Israel’s fate has been to be at war. Syria, Lebanon, and Iraq have never agreed to enter a peace treaty with Israel. Iraq was not a party to an armistice agreement ending its role in the 1948-49 war.11 Saudi Arabia, which sent troops against Israel in 1948, also has eschewed formal peace. Lebanon itself has not exchanged fire with Israel since 1948 but has been too weak to prevent its territory from being a base of anti-Israel operations. For decades, Syria and now Iran, via Hizbullah, have used Lebanon as a launch pad for attacks. Militarily, Iraq has been on the sidelines since the overthrow of Saddam Hussein in 2003. Since the U.S. withdrawal from Iraq in 2011, Baghdad has lived under Iranian influence, if not control, and still officially regards Israel with hostility. Iran, which consistently calls for Israel’s destruction, uses Hamas in Gaza, Hizbullah in Lebanon, Houthis in Yemen, and other groups and organizations as proxies to fight a war with no other purpose than the eradication of Israel. The world has seen this playbook used before and knows that no good comes from it. Only Egypt in 1979 and Jordan in 1994, among the five Arab states that fielded armed forces in 1948, have entered into peace treaties with Israel. Despite those landmark steps, Israel has known no real peace.

To date, Israel has emerged victorious from its battles and wars, but military victory by itself has never secured Israel’s political objectives apart from cease-fires, separation agreements, and other temporary measures interrupting what otherwise would be continuous war. This fact emphasizes the weakness of Israel’s position despite its military power. That power, which is essential to Israel’s survival, means that its enemies know not to throw their regular armed forces against the Israel Defense Forces (IDF). At the same time, the fundamental and inescapable asymmetric reality of Israel’s position remains: Israel’s enemies treat defeats neither as final nor as politically determinative.

Israel, thus, has never been able to force its state and non-state enemies to make peace. In 1948-49, Israel had to settle for Armistice Agreements, not peace. In 1957, it defeated Egypt and conquered the Sinai Peninsula but had to withdraw its forces without conditions. In 1967, it achieved a quick, smashing victory over Egypt, Jordan, and Syria, only to confront the three “nos” of the Khartoum Declaration of the Arab League on September 1, 1967: “no peace with Israel, no recognition of Israel, no negotiations with it, and insistence on the rights of the Palestinian people in their own country.” In Resolution 242 of November 22, 1967, the UN Security Council took a different view and articulated principles for a negotiated peace. It has proved to be the one durable, agreed framework:

Affirms that the fulfilment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles: (i) Withdrawal of Israel armed forces from territories occupied in the recent conflict; (ii) Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force; 2. Affirms further the necessity (a) [to guarantee freedom of navigation], (b) For achieving a just settlement of the refugee problem; (c) [to guarantee the territorial inviolability and political independence of all states in the region].12

Subsequent UN Security Council resolutions tried to advance diplomatic solutions, principally to the Israel-Palestine conflict after Egypt made peace with Israel in 1979.

After the 1973 Yom Kippur War, Israel’s strategic position showed improvement. The Yom Kippur War led to formal Egypt-Israel peace (1979) and relative tranquility on the Israel-Syrian border via the Israel-Syria Separation-of-Forces/Disengagement Agreement (1974). Syria nevertheless continues to claim it is in a state of belligerency with Israel and has refused Israeli peace proposals. The end of the Cold War facilitated the 1993 Oslo Agreements between Israel and the Palestine Liberation Organization establishing the Palestine Authority with governing responsibility for parts of the West Bank and the Gaza Strip. Oslo was to lead to negotiation of a final settlement and agreement on all outstanding issues, including borders and Jerusalem, within the framework of UN Security Council Resolution 242 (1967). Jordan and Israel agreed on a peace treaty in 1994.

For more than 30 years, however, the Israelis have found the Palestinian governing authorities unwilling to take the final step in peacemaking. President Bill Clinton could not persuade Yasser Arafat to take that step in 2000; Arafat’s successor has not done so.13 The Palestinian governing authorities assert that Israeli settlement activity in the West Bank amounts to annexation by another name. Together with a substantial number of members of the international community and observers, they see Israel in the West Bank as engaged in efforts to change facts on the ground. To those holding these views, Israel often gratuitously takes actions disconnected from security requirements that humiliate the Palestinian population. Palestinians interpret UN Security Council Resolution 242 as requiring Israel to relinquish every inch it conquered in 1967 as a precondition to peace and peace negotiations. Those who negotiated Resolution 242 understood that the withdrawal language allowed changes to Israel’s 1949 boundaries in Israel’s favor. In 2002, despite great terrorist violence to which Israel responded with force, the Security Council “Affirm[ed] a vision of a region where two States, Israel and Palestine, live side by side within secure and recognized boundaries.”14 Today (Spring 2024), that vision seems like a mirage.

The social and psychological impact of war on all parties does not help peacemaking. The pressure of war has led to some harsh and occasionally brutal Israeli behavior and attitudes. For Palestinians and others who resist peace with Israel, war has had an equally poisonous attitude on behavior and perceptions. It reinforces willingness to engage in terrorism, tenacious insistence on zero-sum goals,15 and the unwillingness of governments to prepare their people for peace. It, therefore, is not an accident that attacks on Israel of whatever kind generate approbation, not criticism, among Palestinians and other Arab populations. Muslim fanaticism and its influence in the Arab world also discourage those in the Muslim or Arab world who might otherwise seek agreements on coexistence with Israel. And, of course, Hamas and others try to deter with threats of bodily harm any Arab who might seek peace.

While there is no general obligation for parties to an armed conflict to enter into a peace treaty, as a matter of international law, all states are to refrain from the threat or use of force against the territorial integrity or political independence of another state, whether by its armed forces or non-state proxies and armed bands. In the case of Israel, the UN Security Council has reinforced this fundamental norm set forth in the UN Charter with repeated resolutions calling for peace, an end to states of belligerency, and settlement of such outstanding and difficult issues as refugee claims. Therefore, states like Iran, which freely speak of destroying Israel, and Syria, which refuses to end its state of belligerency, are in flagrante delicto in terms of international law. Terrorists, of course, ignore all law.

Does anyone care?

II. Law and War, 2023-24

UN organs have a record of hostility to Israel. The UN General Assembly routinely takes positions harshly critical of Israel, whether or not justified by a particular Israeli action. In 2003, the General Assembly asked the International Court of Justice (ICJ) for an advisory opinion on “the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?” The framing of the question told the ICJ what answer the General Assembly was requesting.16 The ICJ did not disappoint. Not only did it not say where Israel’s borders were, it only discussed Palestinian self-determination. The Court ignored Jewish self-determination, which the League of Nations Mandate for Palestine specifically had endorsed.17

The law should provide a common language, facilitating dispute resolution. After the ICJ issued its 2004 advisory opinion, one UN Ambassador (now an ICJ judge) remarked at a symposium at the Columbia Law School that Israel’s opponents use the law and legal institutions like the ICJ to advance their political agenda against Israel.18

In 2023, the General Assembly asked for another advisory opinion. This time, the subject was, among other things, “the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement, and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character, and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures?”19 Again, the General Assembly, using words chosen to make its point, told the ICJ what answer to give.

South Africa’s 2023 ICJ case against Israel under the Genocide Convention echoes the 2003 and 2023 advisory opinion requests and further illuminates Israel’s strategic challenge. South Africa asked the Court to decide that Israel was violating the Genocide Convention and to require that, among other things, it immediately cease military operations in the Gaza Strip. On January 11, 2024, South Africa’s Ambassador to the Netherlands opened oral argument:

At the outset, South Africa acknowledges that the genocidal acts and omissions by the State of Israel (“Israel”) “inevitably form part of a continuum” of illegal acts perpetrated against the Palestinian people since 1948. The Application places Israel’s genocidal acts and omissions within the broader context of Israel’s 75-year apartheid, 56-year occupation and 16-year siege imposed on the Gaza Strip—a siege which itself, has been described by the Director of UNRWA Affairs in Gaza, as “a silent killer of people.”20

Though the lawsuit nominally is a response to Israel’s counterattack in the Gaza Strip after October 7, 2023, the South African argument is that the creation of Israel in 1948 and the outcome of the Arab-Israeli War, 1948-49, were internationally wrongful acts. It ignored the settled law affirming Israel’s place in the international community. The South African assertion, which a substantial number of commentators and governments support openly or in private, owes much to the 2004 ICJ Advisory Opinion and forms part of the battlefield, political, and social media realities with which Israel must contend.

The battlefield always poses tactical challenges for belligerents. In this regard, Israel is no different. Defense ministries with experience with urban warfare, such as the U.S. Department of Defense, may sympathize with Israel’s difficult military choices in the Gaza Strip, where Hamas intentionally provoked counterattacks in urban areas. In the Gaza Strip, Hamas uses, as a matter of military tactics, civilians, and public properties and institutions as human shields. The Hamas goal, and that of Hizbullah and other anti-Israel groups, is to turn Israel’s strengths against it, rather like jiu-jitsu. Hamas stretches Israeli missile defenses with thousands of rocket attacks, hurls Kamikaze raids against any large group of Israelis it can target, and invites Israel to come and get Hamas fighters in their urban hideouts. That is the essence of asymmetric warfare. Hamas, for example, centered its military capabilities in urban centers, maximizing civilian cover and imposing on Israel enormous moral and political costs. Hamas’s strategy is to win as a matter of international public opinion, no matter the cost in terms of its own forces and the civilians it claims to champion.

In every battle, Israel’s critics accuse Israel of “genocide,” “disproportionate use of force,” “collective punishment,” and “war crimes.” Israel has had more difficulty fighting information warfare than armed conflicts. Among other things, Israel’s enemies ignore the connection between withdrawal from territory, ending states of belligerency, and peace in UN Security Council Resolution 242 (1967) and subsequent resolutions. They also ignore the reason why, in 1967, the UN Security Council did not force Israel to withdraw from the Sinai Peninsula, the Golan Heights, the Gaza Strip, and the West Bank without peace as it had in 1957.

In 1967, the Council’s approach reflected the dashed hopes of 1957. In 1957, at the insistence of the United States using the UN Uniting for Peace mechanism, Israel withdrew its forces from the Sinai Peninsula without conditions. The belief existed that Egypt would not again blockade the Straits of Tiran between the Gulf of Aqaba and Israel’s southernmost port, Eilat, and the Red Sea. President Eisenhower promised to break the blockade if it ever were reinstated.21 President Nasser reneged on that deal in 1967. According to U.S. President Lyndon Johnson, “Nasser slit our throat from ear to ear.” Nearly 57 years later, full implementation of Resolution 242 remains to be accomplished. To Israel’s critics and enemies, recalling the Resolution 242 framework as the legal basis for Israel’s holding territory until peace is achieved is mere “legalism.” That is part of the information war Israel fights daily.

Israel’s situation involves multiple other oddities. All states in the region, for example, assume that Israel possesses nuclear weapons but will use them only in extremis, if then. Assuming that Israel possesses nuclear weapons, such possession has not deterred its enemies from engaging in high-, medium-, and low-intensity armed conflict. In addition, Israel’s conventional military strength is such that no states seem willing to fight Israel except with proxies.

Conclusion

Israel’s strategic challenge thus is simple to state: because Israel’s enemies want to destroy the State of Israel, survival has always been Israel’s strategy. In all its battles, the State of Israel has known that to lose is to die: Israel’s enemies do not want to see its borders changed; they want to see the State of Israel disappear. Since at least 1967, the United States has been Israel’s chief ally. On October 10, 2023, President Biden spoke to the world and said: “And let there be no doubt: The United States has Israel’s back. We will make sure the Jewish and democratic State of Israel can defend itself today, tomorrow, as we always have.  It’s as simple as that.”22  The U.S.-Israeli partnership is essential to Israeli security. It is essential to U.S. security as well because Israel is a faithful, democratic, ally with an innovative economy and military, a democratic island of stability in an unstable, strategically important region. Because of the U.S. role in the creation and recognition of Israel and because the United States and its allies in World War II could not end or foil the German extermination of Europe’s Jews, the American people recognize a moral as well as strategic interest in Israel’s survival. In any event, each Israeli government must manage the relationship with the United States so that periodic frictions do not rupture the tie to Washington. Aligned with the United States, Israel can stand up to enormous diplomatic and political pressure and intense lawfare. Without the United States providing military, economic, and political support, Israel has little, if any, room to maneuver and few, if any, diplomatic options. On March 25, 2024, the United States drove this point home by abstaining on a UN Security Council demand for a cease-fire during Ramadan.23 In context, the meaning of the U.S. action is reasonably clear. The text of the resolution was not the point. Rather, it was an occasion for the U.S. government to express frustration. The United States is frustrated by the failure of negotiations with Hamas for a cease-fire and hostage release. That failure cannot be pinned on Israel (or entirely on Israel, although Hamas and its supporters try to do so). At the same time, the United States is impatient with the pace of delivery of humanitarian assistance to those in need in Gaza and the lack of Israeli clarity on a post-conflict vision. The United States might be more tolerant of that lack of clarity in view of attacks on Israel from Lebanon, the West Bank, Gaza, and Yemen if there were a different Prime Minister, although that is not something to be assumed. From Ben-Gurion to Netanyahu, U.S. presidents, with few exceptions, have found reason to be frustrated by Israeli Prime Ministers who took positions with which they disagreed. Prime Minister Netanyahu’s lack of support among Democratic politicians and the beginning of what promises to be an extremely ugly U.S. presidential campaign enhances the difficulty of managing the U.S.-Israeli relationship and keeping relations within acceptable bounds.

Israel’s war with Hamas is paradigmatic of Israel’s strategic situation. Its most determined enemies ignore law and morality in their pursuit of Israel’s destruction; no matter how Israel fights back, no matter how it tries to follow the international law governing armed conflict,24 Israel is at a political and possibly legal disadvantage. Israel trains its troops to follow the laws of war and stations lawyers in headquarters to advise commanders on the choice of targets and the law. Israel believes that its actions adhere to the requirements of proportionality in the decision to use force—that quantum of force reasonably calculated to bring to an end the legal right to use force in the first place—and in military operations—that quantum of force reasonably calculated to achieve a lawful, battlefield, military objective with minimum collateral damage to non-combatants. Israel should know and prepare in advance for the fact that critics of almost every Israeli use of force since 1967 have decried it as disproportionate. With regard to the IDF move into Jenin in 2002, even an otherwise friendly UN Ambassador muttered that Israel was using “Gestapo tactics.” After-action assessments proved this characterization to be false. Nevertheless, that and similar accusations are routine. They are repeated with great fervor and frequency in the war Hamas launched in October 2023. Israel must prepare in advance to deal with them.

Today, Israel’s critics discount the fact that Hamas, for example, embedded its fighters, its weapons, and its command-and-control centers in and beneath civilian areas. Hamas uses protected civilian structures such as hospitals, schools, and religious edifices for war. Such actions violate the most fundamental rule of distinction in battle: do not mix combatants and non-combatants, military and civilian installations and structures, and military and civilian functions. When Hamas turned the Gaza Strip into an urban battlefield, it stripped civilian structures of their protections. Israel, of course, is blamed for the destructive consequences. What Israel is supposed to have done in response to the attacks of October 7, 2023, is never articulated or fleshed out in criticisms. That is but one of the fundamental realities with which Israel must live.

The foregoing leads to a number of recommendations about how Israel can consider its strategy of survival. Israel must be prepared all the time to deal with the routine, repetitive criticisms of its military actions before they become public and to tailor military operations to the degree possible to answer these points.  Israel’s after-the-fact efforts in this regard during the course of the Gaza campaign were helpful but did not persuade those who believe that the Israeli government, particularly the Netanyahu government, lies, and that Israel, as South Africa argued, has been committing genocide and engaging in apartheid since 1948.  It is not self-evident that people of this perspective can be persuaded to think anew, but it is important that Israel make the effort.

It is essential that Israel’s national security decisions take account of this context. Sometimes, they obviously do, as when Israel refrained from responding to Iraqi Scud missile attacks in 1991. Israel needs to line up all the social media and public diplomacy tools it can to fight the battle of information before the shooting starts. In the war with Hamas, this recommendation means that, if possible, Israel should assemble the evidence of Hamas’s acts and use of human shields and display it with question-and-answer briefings at UN Headquarters in New York and Geneva, where they can be broadcast worldwide. The United Nations allows a government to speak to the other 192 member states assembled in one place. Israel should create and avail itself of such opportunities. Israel is not strong enough to ignore international opinion. For too long, Israel has underestimated the importance of the United Nations as a forum for explaining its case to the world.

These points do not address the profound heart of Israel’s option of difficulties. In September 1968, Moshe Dayan discussed the possibility of peace with Arab states in an address to the Israel Army Staff and Command College.25 He took as his theme the reflections during the inter-war period of Arthur Ruppin, a Zionist and a founder of Tel Aviv, who had moved to Palestine before World War I. When Ruppin arrived in Palestine, he initially conceived of a political entity with equal rights for all its citizens while allowing their national identities to persist. Palestinian realities during the period of the League of Nations Mandate for Palestine, particularly the great Arab revolt against the Mandate and the Jews, 1936-39, brought him to a different conception: not necessarily a purely Jewish state but a state capable of defending itself against its enemies and accepting the fact that it would have enemies determined to eradicate it as far into the future as could be seen. Ruppin, who died on January 1, 1943, saw no contradiction between Jewish immigration and Arab rights but had to conclude that the creation of Israel likely would not be accepted by the indigenous Arabs and, therefore, continual conflict would be the consequence. Nearly 100 years later, Israel has to accept that at least some part of the Arab and Islamic world still does not reconcile itself to the creation of a Jewish state in Palestine. We may hope that looking back, the Gaza War of 2023-24 will appear to be a milestone toward such reconciliation. We can only hope. We must also hope that Iran changes its position and its support for those who seek the destruction of Israel. However, such a change can likely only come with a change of government in Teheran and Qom. Until then, Israel’s survival depends at bottom on the IDF and on alliance with the United States. The actions suggested might improve Israel’s position; they cannot substitute for the IDF and the alliance.

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Notes

  1. “[I]n war something must be allowed to chance and fortune, seeing it is in its nature hazardous, and an option of difficulties.” Wolfe to Rickson, Nov. 5, 1757, Beckles Willson, The Life and Letters of James Wolfe (London: William Heineman, 1909), p. 339↩︎

  2. Peter Paret, “Introduction,” in Peter Paret, ed., Makers of Modern Strategy (Princeton: Princeton University Press, 1986), 1.↩︎

  3. Williamson Murray, “Thoughts on Grand Strategy,” in Williamson Murray, Richard Hart Sinnreich, & James Lacey, eds., The Shaping of Grand Strategy: Policy, Diplomacy, and War (Cambridge: Cambridge University Press, 2011), 1 (quoting Thucydides, History of the Peloponnesian War (Rex Warner Trans., Penguin Classics, 1954, 1972), 402).↩︎

  4. Williamson Murray & Mark Grimsley, “Introduction: On Strategy,” in Williamson Murray, MacGregor Knox, & Alvin Bernstein, The Makers of Strategy: Rulers, States, and War (Cambridge: Cambridge University Press, 1994), 1.↩︎

  5. https://www.middleeasteye.net/news/hamas-2017-document-full↩︎

  6. If regular armed forces target civilians, they commit a war crime. If Hamas and other such groups target civilians or soldiers they commit a crime. Such groups do not enjoy combatant status and the combatant’s privilege.↩︎

  7. John Bolton, “Oct. 7 was the Opening Attack in Iran’s ‘Ring of Fire’ War against Israel,” The Hill, Jan. 14, 2024. https://thehill.com/opinion/international/4407277-oct-7-was-the-opening-attack-in-irans-ring-of-fire-war-against-israel/ ↩︎

  8. See Robert Satloff, “From War to Peace in the Middle East? Observations from a Regional Tour,” Washington Institute for Near East Policy, Feb. 23, 2024. https://www.washingtoninstitute.org/policy-analysis/war-peace-middle-east-observations-regional-tour↩︎

  9. See, e.g., Richard Haass, “The War That Israel Could Have Fought,” The Wall Street Journal, Mar. 16-17, 2024, C1.↩︎

  10. W.W. Rostow, Concept and Controversy: Sixty Years of Taking Ideas to Market (Austin: University of Texas Press, 2003), 302.↩︎

  11. This paper is not the place to revisit the history of the creation of Israel. A number of commentators today believe Israel committed genocide against Palestinians in the 1948 war. They omit reference to Arab government statements about driving the Jews into the sea. In any event, it is fair to note that the Palestinian refugee problem had a variety of causes. What is not disputed, or should not be, is that, in 1947, the UN General Assembly recommended to the Security Council that the League of Nations Mandate for Palestine be partitioned, with one new Arab state and a Jewish state, and a special regime for Jerusalem. The Jewish organizations accepted the partition plan. Arab governments did not. When Israel declared itself to be a state, five Arab armies attacked (Egypt, Jordan, Syria, Iraq, and Lebanon. There also were contingents from Saudi Arabia.) The war ended with Armistice Agreements setting Israel’s boundaries as they were prior to the June 1967 war. For a good summary of the different Israeli and Arab historical perceptions and narratives, see Dennis Ross, The Missing Peace: The Inside Story of the Fight for Middle East Peace (New York: Farrar, Straus & Giroux, 2004), ch. 1.↩︎

  12. UN Doc. S/Res. 242 (1967), Nov. 22, 1967.↩︎

  13. See, e.g., Aaron David Miller, “Lost in the Woods: A Camp David Perspective,” Carnegie Endowment for International Peace, Commentary, July 13, 202; Avi Isacharoff, “Revealed: Olmert’s 2008 Peace Offer to Palestinians,” The Jerusalem Post, May 24, 2013.↩︎

  14. S/RES/1397 (2002), Mar. 12, 2002. In telling evidence of the limits of Security Council consensus, the Council could not agree to insert “peacefully” after “live.”↩︎

  15. Among those is the notion that there exists, as a matter of international law a “right of return,” for Palestinian refugees who left, under whatever circumstances, what is now Israel in 1948-49 or their descendants. Whatever the cause of a refugee flow, there is no such right of return for refugees in international unless established by treaty. In 1948, the UN General Assembly adopted Resolution 194(III), UN doc. UNGA Res. 194(III), Dec. 11, 1948, file:///E:/Int’l%20Law%20Readings/UNGA%20Res%20194%20(III).pdf. Paragraph 11 reads as follows: “Resolves that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.” Note that the paragraph speaks of “refugees without further explanation nd thus could be read to apply to all refugees—Arab and Jewish. In any event, by its terms, it is not binding but a recommendation with respect to dealing with refugees who might wish to return to their homes and those who might wish compensation for property losses. This resolution does not constitute an international law right of return. The Israeli Law of Return is domestic legislation. All states are entitled to prescribe with respect to immigration. UN General Assembly resolutions generally do not make or state or restate international law. Shahd Hammouri ignores these facts in “Forgotten Detail: The Right of Return was a Condition for the Establishment of the State of Israel,” Opinio Juris, Mar. 11, 2024. https//opiniojuris.org/2024/03/11/a-forgotten-detail-the-right-of-return-was-a-condition-of-the-establishment-of-the-state-of-israel/.↩︎

  16. G.A. Res. 10/14, U.N. Doc. A/RES/ES-10/14 (Dec. 12, 2003). UN Charter Art. 96 (authorization to request advisory opinions).↩︎

  17. Article 80 of the UN Charter continued unaffected provisions of League of Nations Mandate agreements until they were superseded by new trusteeship agreements. This provision meant that the provisions of the League of Nations Mandate for Palestine remained in force under the UN Charter. Subsequent events—the 1949 Armistice Agreements, peace agreements between Israel and Egypt and Israel and Jordan, relevant Security Council Resolutions such as Resolution 242 (1967), agreements between Israel and the Palestine Authority—changed the legal landscape but did not repeal the affirmation of Jewish self-determination enshrined in the League of Nations Mandate for Palestine. See Nicholas Rostow, “Wall of Reason: Alan Dershowitz v. The International Court of Justice,” 71 Alb. L. Rev. 953 (2008). The ICJ is not like a domestic American or European or Israeli court. It is even more political than even the most political of domestic courts. ICJ judges are elected by, and responsive to, the U.N. General Assembly and Security Council. Its judgments, especially in cases such as the one brought by South Africa or the request for an advisory opinion on Israel’s occupation, must be understood in this context. In addition, those who have served in foreign ministries know that some judges consult with, and take direction from, their governments prior to reaching decisions. They also know that lawyers appearing before the ICJ engage in ex parte communication with judges. Yet ICJ decisions and opinions are among the most influential statements of what international law is. They may not be dismissed as irrelevant. “[T]he effect of the [ICJ] opinion is a matter of appreciation,” wrote the ICJ in its advisory opinion on nuclear weapons. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] I.C.J. Rep., at 237 para. 17. That statement is true for all ICJ opinions and decisions. ICJ rulings form part of the international context of which states must take account. Governments may disagree with an ICJ opinion or decision. ICJ decisions and opinions nonetheless remain and are taught in law schools and written about in commentaries as if unquestionably authoritative.↩︎

  18. The public forum made the Ambassador’s admission notable. After the Court issued its advisory opinion in 2004, the Egyptian judge, who had at least three years more of his term of office, resigned, probably thinking he had done his job.↩︎

  19. UNGA A/RES/77/247, Jan. 9, 2023, para. 18 (a). The vote was 87-26-53, a majority of 8 if one counts nayes and abstentions together. The slim majority should give the ICJ pause but likely will not as historically it has insisted that it does not look to the composition of a vote.↩︎

  20. Opening statement of Ambassador Vuzimuzi Madonsela, Jan. 11, 2024, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), CR 2024/1, p. 17. Punctuation and quotation marks in original. https://www.icj-cij.org/sites/default/files/case-related/192/192-20240111-ora-01-00-bi.pdf↩︎

  21. Toward the end of October 1956, Israel attacked Egypt as part of a British-French-Israeli response to the nationalization in the summer by Egypt of the Suez Canal. The British saw the nationalization as a replay of the 1936 Remilitarization of the Rhineland with President Nasser of Egypt in the role of Hitler. The French wanted to overthrow Nasser and stop Egyptian assistance to the Algerians fighting for independence from France. Israel wanted to stop Egyptian support for guerrilla/terrorist attacks inside Israel. Eisenhower, ignorant of the plan, running for reelection, and confronting the almost simultaneous Soviet invasion of Hungary, was livid. At the same time, he distinguished between Israel’s and Britain’s and France’s situations. He therefore pushed Israel to withdraw from Sinai without conditions but simultaneously promised that, if Egypt blockaded the Straits of Tiran in the future, the United States would break the blockade. See Washington Institute for Near East Policy, UN Security Council Resolution 242: The Building Block of Peacemaking (Washington, D.C.: Washington Institute for Near East Policy, 1993), 14 (chapter by Eugene V. Rostow).↩︎

  22. President Biden, Remarks, October 10, 2023. https://www.whitehouse.gov/briefing-room/speeches-remarks/2023/10/10/↩︎

  23. S/RES/2278 (2024), Mar. 25, 2024.↩︎

  24. Also known as “jus in bello,” “the laws of war,” “international humanitarian law,” “the law of armed conflict,” or “the law of international armed conflict.” Terms like “international humanitarian law” introduce unnecessary confusion about the boundary between international human rights law and the laws of war. See W. Michael Reisman & Chris Antoniou, eds., The Laws of War (New York: Vintage Books, 1994), xxi-xxii.↩︎

  25. Walter Laqueur, The Israel-Arab Reader: A Documentary History of the Middle East Conflict (Harmondsworth: Penguin Books, 1969), 526-38.↩︎