A Just War: International Law Rhetoric

How misleading rhetoric about the laws of war harms soldiers and promotes antisemitism

A Return Visit from an Excellent Speaker

Last Thursday, we were very pleased to host a presentation at our synagogue, given by Dr. Brian L. Cox, a combat veteran, former military prosecutor and judge advocate, and an adjunct Professor of Law at Cornell University. He is an expert on international Law and the Law of Armed Combat. This is the second time that Dr. Cox came to speak at our synagogue. We wrote about his first visit in an article published in December of 2023, shortly after the beginning of the war. You can read it by following the link below.

International Law Rhetoric and Antisemitism in Canada

Dr. Cox described two movements which aim to change the way international law operates. The first of these is a movement to misapply the laws of war with intention of using them as instruments to advance humanitarian goals. He said that this movement, to reinterpret the laws of war as humanitarian law, began in the 1960’s at the International Red Cross (ICRC).

Image: Flag of the International Committee of the Red Cross (ICRC) from their web site

Since his previous visit, Dr. Cox has enrolled in the Masters of Journalism program at Carleton University. He has been researching how misunderstandings and misrepresentations of international law are translated into misguided government policy and are driving an upsurge of antisemitism in Canada.

There is a disconnect between the way the public and scholars in academia understand the laws governing armed combat, on the one hand, and the way soldiers learn and apply the law on the other. His interest in this arose, when he realized that soldiers’ actions were being examined and condemned as illegal, (by NGOs, reporters and academics, as well as politicians), based on a different understanding of the law that the one the soldiers knew and followed. This misunderstanding has had a harmful impact on soldiers, both American and Canadian, as well as the soldiers of the IDF.

When misconceptions about the law are disseminated widely, governments start acting according to the precepts of the rhetorical version of the law rather than the law as it actually exists. This rhetorical version of the law can shape political messaging and policy.

Some History

This disconnect, between the laws of war as practiced and the laws of war as understood by the world outside the military, has arisen because activists and academics have tried to use international law to promote their own ends, even though the law was not written for those ends and is not suited to the purposes for which it is being abused.

Dr. Cox explained that international humanitarian NGOs and other groups have wrongly seen the laws of war as being designed primarily to protect civilians. They have rebranded the laws of war, as part of international humanitarian law (IHL). The actual intent of the laws of war is to prevent wanton destruction and cruelty. They are not intended or suitable for achieving the humanitarian objectives that have been mistakenly attached to them, and attempts to use them for that purpose are misconceived and counterproductive. These efforts make life impossible for soldiers pursuing legitimate military missions, because the interpretation promoted by humanitarians turns every soldier into a war criminal.

For humanitarians, the laws of war are used to judge military actions by their effects. But in reality the laws depend crucially on intent. Humanitarians look at the effects of an attack and decide that the attack was unlawful. But the laws as written and practiced by soldiers in the field don’t provide a determination of whether something is lawful until intent is considered.

An Example

When Israel fought Hamas in the Al Aqsa hospital last fall, the reporting in the aftermath of the battle focused on damage to the hospital and the fact that hospitals are protected under the laws of war.

However the law says that soldiers shouldn’t attack hospitals (or anything else) unless they have a reasonable belief that there is a military advantage to be gained by doing so. By leaving out the caveat, the humanitarian version of the laws of war completely changes the way that people judge the behaviour of soldiers.

Throughout the battle, the IDF reported that they were fighting in the hospital because Hamas fighters had gathered there. They regularly released information on the number of terrorists that they had killed and captured in the hospital and further announced measures they were taking to minimize harm to non-combatants who were present in the hospital, particularly medical workers and patients.

If reporters, politicians, and the public understood that soldiers trying to win a war can be expected to attack a hospital that is being used for military purposes, these Israeli explanations of what they were doing should have greatly mitigated any concern that Israel was acting unlawfully. Because reporters don’t understand this, they regularly interviewed people who claimed Israel was acting unlawfully and seldom challenged such claims. Israel’s version of events was reported, but the significance of what they were telling the world was almost never brought into discussions of the legality of Israel’s actions.

Impact on Soldiers

The movement to change the way the laws of war are understood for humanitarian reasons has bad impacts on soldiers in all western armies which are trained to fight wars lawfully. Canadian and American soldiers fighting in Afghanistan were frequently accused of war crimes by humanitarian NGO’s. These accusations were reported by the western news media and western politicians reacted to those accusations. Sometimes they drove western leaders to apologize for actions that were not criminal, which hurt the morale of the soldiers who went daily into combat and made it less likely that they would do what was necessary to win the war they were fighting.

Antizionism and Lawfare

In addition to the humanitarian misconception of the laws of war which creates problems for all soldiers, there is a second movement afoot, specifically tied to Israel. This movement aims to distort the law to criminalize actions carried out by Israel. This is driven by people with specific antizionist intent. These people aim to make Israel into a pariah state by convincing the world that Israel is an international outlaw.

This movement ignores misconduct by Israel’s enemies and focuses only on alleged misconduct by Israel. One example: Under the laws of war, Hamas has no right to engage in combat. Even attacks on soldiers by Hamas are illegal. The fact that Israel is dealing with a lawless enemy is ignored by these people, who focus only on redefining legitimate behaviour by Israel as illegal.

Antizionist approaches to international law aim to implement the policy of the Arab League. They claim there is a legal right of return to Israeli territory for all people designated as Palestinian refugees. This is a goal that is incompatible with the continued existence of the State of Israel. The antizionist stream of international law distortion includes the claim that Israel is committing genocide in Gaza. According to Dr Cox there is no evidence that this is true.

The antizionist approach to international law was laid out in a 2012 book by Frances Boyle, called “Legal Intifada”. In the book, Boyle argued that Palestinians can’t defeat Israel militarily because Israel is backed by the United States. He argued that instead Palestinians should use International Law to defeat Israel. Due to the built-in anti-Israel majority in international bodies, this is an arena where the Palestinians have the advantage.

The approach advocated by Boyle is the course that has been followed since then. In order to bring International Law to bear as a weapon for Palestine, it was required that Palestine ratify the Rome statute which would give the International Criminal Court (ICC) jurisdiction. The problem with this is that only states can ratify the Rome statute and Palestine is not a State.

To advance this, the UN General Assembly (UNGA) recognized Palestine as a state. But the UNGA doesn’t have the power to make international law, and Palestine doesn’t actually meet the definition of a state under international law. In spite of this the ICC pre-trial chamber took it upon itself to recognize Palestine as a state. In doing this, the ICC was breaking it own rules. At this point the ICC ceased to be a legal body and became a political body.

International Court of Justice (ICJ) and the law of Occupation

Up until the mid 1990’s, it was generally understood that the Fourth Geneva Convention, which defines the law of occupation, did not apply to the territories captured by Israel from Jordan and Egypt in the six day war. This is because those territories had never legally belonged to Jordan and Egypt in the first place. When Israel was attacked by Egypt and Jordan in June of 1967, and Israel retaliated by capturing Gaza from Egypt and Judaea and Samaria from Jordan, they gained control of territories that had been part of the Palestine mandate until May 15, 1948. These territories were disputed between Israel on one side, and Egypt and Jordan on the other. Therefore the transfer of control from Egypt and Jordan to Israel did not constitute an occupation within the meaning of the fourth Geneva convention.

An ICRC official in the 1990’s published an opinion stating that since Article 603 doesn’t say when occupation ends, it must be the case that it never ends. Human Rights Watch then used this opinion in a report which declared that therefore Gaza was an occupied territory. Since then, this opinion has been disseminated and repeated thousands of times, and it is now considered an obvious fact that the Palestinian Territories are occupied. This remains an opinion based on one person’s interpretation of the law.

The “fact” that the Palestinian territories are considered occupied in law, was then used to declare Israel’s separation wall illegal in the early 2000’s. Today everyone believes not only that Israel is the occupying power in the disputed territories of Gaza and Judaea and Samaria, but that that occupation is “illegal”. This too, is an opinion without foundation in the law which Israel is continually accused of violating.

Thus we see that the entire narrative that Israel is an occupier is built on a legal house of cards, driven by politics and not law.

---

It’s been an eventful week as the Israeli Prime Minister visits Washington where his host, President Trump, mused about providing a better life for Gazans by moving them elsewhere, as well as ruminating about America taking control of Gaza. President Trump’s comments have caused a furor in the Arab world and beyond. We hope that, like the threat of tariffs against Canada, the floating of a proposal to do something outrageous will prompt people in the Arab world to offer other ideas that will lead achieve the two goals of a viable future for Gaza, and, just as important, an end to Hamas rule there and an end to the threat of violence against Israel emerging from Gaza.

While the truce held in Gaza and Lebanon, we mourned the deaths of two Israelis who fell fighting terrorists in Samaria. Today we learned with sadness of the death of two more soldiers in an accident in Gaza.

Here in Canada we were saddened to learn of the death Michael Mostyn who has served for many years at the head of Bnai Brith Canada. May the memory of Michael Mostyn be for a blessing to all who loved him and to the Canadian Jewish community he served so well.

This week, Israel’s eyes were on the eight people returned on Shabbat. These included three Israelis, the first men to come home under the current ceasefire, and five Thai nationals freed outside the framework of the ceasefire agreement. One of those freed was Yarden Bibas, the husband of Shiri and the father of Kfir and Ariel, all of whom were taken captive on October 7, 2023. Hamas has stated that the other three members of the Bibas family are dead, but Yarden and the Israeli authorities have no information to confirm this. Keith Siegal and Ofer Calderon were the other hostages released on Saturday.

Image: Keith Siegal, flanked by Hamas terrorists, being released from captivity last Saturday ——-Source: Times of Israel

We look forward to the release of more hostages this coming Saturday as the Gaza truce comes to the end of its third week.

---

A big thank you to our readers and supporters for all you do to help grow this publication. Our goal is to offer an honest and thoughtful discussion of important issues involving Israel and the Canadian Jewish community. If you are a paid subscriber you can leave a comment.

If you are not yet a paid subscriber, please consider upgrading now to support our work.

If you would rather make a one time contribution you can buy me a coffee.

To all of you, thanks for reading Canadian Zionist Forum.