A Legal Framework for the Israel-Palestine Debate

Hoover fellows Amichai Magen and Boaz Ganor brought a unique perspective on the Israel-Palestine conflict to campus by treating the situation from a strictly legal perspective at an event at the Stanford Law School on January 29th.

Clarifying that the issue was a “painful, emotional and charged” topic, Magen began by explaining the historical and political context of the conflict. He gave the starting point of 1979 after the Camp David Accords, when Egypt refused to take control of Gaza, insisting that it fell under Israeli jurisdiction. Fast-forward to 2005 when Israel unilaterally ordered the withdrawal of all Israeli settlers from Gaza, an action that caused much strife for the Israelis living there. In January 2006, Hamas won Parliamentary elections, an action that according to Magen was imprudently hurried through by the Bush administration. Hamas proceeded to seize control from the Palestinian Authority.

Boaz Ganor then spoke about the mistakes on both sides which have extended the conflict, namely Israel’s unilateral withdrawal that did not reduce friction between the two sides, Yasser Arafat’s refusal for a compromise, and Arafat’s successor’s failure to change the buzzwords and the narrative of the Palestinian movement’s violent message—despite his true desire for peace.

Ganor continued saying that of the two terrorist organizations that have tried to make the switch to politics, only the IRA has renounced violence. The other is Hezbollah, which has not made such a renunciation and is a mentor to Hamas, the branch of the Islamic Brotherhood responsible for the attacks.

Magen proceeded to discuss the legal implications of the Israeli response to the rocket attacks. Rocket attacks from Gaza increased 500% since the Israeli withdrawal in 2005. More than 8000 rockets have been fired since 2001. “Is this a just war?” he asked. The Israelis have the right to self-defense under the UN charter, and when 5000 rockets pour down on the country, this right can be exercised.

Moreover, the Israeli response follows the “rule of distinction”, making every effort to discriminate against civilian targets. As two former Israeli army soldiers, Magen said that he and Boaz could attest to the respect for civilian life which was engrained in them. Magen said that he was proud for having served in an army that has performed marvelously in a complicated fighting environment.

With regards to Hamas, the legal concept that it has most blatantly violated is the rule against perfidy, the use of human shields. Magen emphasized that this in itself constitutes a war crime. He showed many photographic examples of rocket launching sites and roadside bombs planted in very close proximity to schools and mosques within Gaza.
Magen next explained the rule of proportionality, in which collateral damage is allowed but proportional force must be used. Ganor continued on this topic, and the charge leveled against Israel about its policy of collective punishment. He emphasized that Israel and Fatah (the Palestinian authority based in the West Bank) have disagreements on a territorial basis and therefore there theoretically could be an agreement. Hamas, however, has turned a national conflict into a religious one, denies Israel’s right to exist, and is bent on Israel’s destruction, said Ganor.

With regards to collective punishment, Ganor posed the question, had 1000 Israelis died in the rocket attacks would Israel be justified in its response? He made it clear that this could very well have happened had the precautions for public safety and measures to have civilians hide during rocket attacks not been taken.

The speakers gave convincing evidence and argued their positions eloquently, especially when it came to legal concepts of war. While their status as former IDF soldier, could not have remained completely removed from their views of the conflict, this did not take away from the facts that they presented. In showing a disturbing image of a Palestinian man carrying the lifeless body of a child, the speakers made it clear that “war is hell” and that this conflict has brought pain and hardship for both sides.

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