David E. Weisberg

Obama’s lessons for Israel

The forty-fourth president of the United States, Barack Obama, wants to provide Israel with the benefit of his thoughts regarding any Israeli response to the monstrous terror attacks of October 7th. So he’s published a piece entitled “Thoughts on Israel and Gaza.” Let’s examine those thoughts.

He begins, of course, with a fulsome condemnation of the “horrific attack” launched by Hamas, which was committed with “unspeakable brutality,” and he goes on to affirm Israel’s “right to defend its citizens against such wanton violence.” He also commends Pres. Biden’s call for the US to support Israel “in going after Hamas.”  But, after voicing these somewhat predictable sentiments, Obama’s thoughts become less clear.

He says that Israel’s military response to Hamas must abide by international law; this is of course correct. But he then asserts that relevant international laws “seek to avoid, to every extent possible, the death or suffering of civilian populations.” The “to every extent possible” in that assertion is incorrect. What is true is that the laws of war seek to avoid, to every reasonable extent possible, harm to civilians. This is a very important difference that Obama apparently does not appreciate.

If Israel were required to avoid harm to civilians “to every extent possible,” then Israel could take no military action against Hamas at all, because Hamas deliberately places its fighters and its infrastructure within or (in the case of its tunnels) underneath areas where civilians live. This is a winning strategy for Hamas: Israel must either refrain from attack in order to avoid killing civilians, or, if Israel does attack, there will be dead civilians whose corpses Hamas will display to “prove” that Israel commits war crimes.

The truth is that, where combatants like Hamas deliberately use civilians as shields, the primary, indisputable war crime is precisely that tactic of using civilians as shields. If Israel attacks a military target, such as an underground Hamas command center, and in the course of that attack civilians are unintentionally killed or injured, Israel has not committed any crime at all, provided that the attack did not use force that was disproportionate compared to the importance of the military target.

The only thing Obama says about civilian shields is this: “Hamas’ military operations are deeply embedded within Gaza—and its leadership seems to intentionally hide among civilians, thereby endangering the very people they claim to represent.” What he does not say, and perhaps what he does not know, is that it is against the laws of war—that is, it is a war crime—for combatants to hide among civilians, and any resulting civilian deaths are the fault of the combatant who hides, not the enemy who takes reasonable steps to eliminate the hidden combatant.

After fumbling his analysis of possible civilian casualties, Obama continues with this: “[A]ny Israeli military strategy that ignores the human cost could ultimately backfire. Already, thousands of Palestinians have been killed in the bombing of Gaza, many of them children. Hundreds of thousands have been forced from their homes. … therefore … those of us supporting Israel … [should] encourage a strategy that can incapacitate Hamas while minimizing further civilian casualties.”

First of all, it is the Hamas-controlled health authorities that bandy about numbers of people killed; why should anyone believe those numbers? (We all remember when those same health authorities claimed that Israel had deliberately fired a missile at a hospital; the truth was that a terrorist missile misfired and exploded in the hospital’s parking lot.) Secondly, how many of those killed in Gaza were Hamas terrorists, all of whom are legitimate military targets? Hamas never says. Thirdly, are 17- or 18-year-old Hamas terrorists numbered among the dead “children”?  Again, Hamas never says. And Obama never even acknowledges that these questions are entirely appropriate.

It is even more remarkable that, in one breath, Obama urges Israel not to ignore “the human cost” of war while complaining that “hundreds of thousands [of Gazans] have been forced from their homes.” He apparently does not understand that Israel warned those hundreds of thousands of civilians to leave Gaza City precisely because they could decrease their mortal danger by moving south. Israel advised them to move in an attempt to minimize the loss of civilian lives, and Obama complains about the resulting displacement! This is a very un-careful, unthoughtful analysis of the facts on the ground.

Obama urges Israel to avoid any actions that will “erode global support for Israel, play into the hands of Israel’s enemies, and undermine long term efforts to achieve peace and stability in the region.” In this context, it must be remembered that, in the last few weeks of his presidency, Obama decided that, contrary to a decades-long US policy of vetoing one-sided resolutions that unfairly singled-out Israel for blame, the US would not veto UN Security Council Resolution 2334. That resolution blamed Israeli settlement activity as “a major obstacle” to resolving the Israeli/Palestinian conflict, without any mention of terror attacks committed by Palestinians as any kind of obstacle; it also asserted that East Jerusalem is occupied Palestinian territory.

So, in December of 2016, then-President Obama permitted the Security Council to adopt Resolution 2334, and in October of 2023 he is advising Israel as to how it should respond to Hamas atrocities. As somebody once said, consider the source.

About the Author
David E. Weisberg is a semi-retired attorney and a member of the N.Y. Bar; he also has a Ph.D. in Philosophy from The University of Michigan (1971). He now lives in Cary, NC. His scholarly papers on U.S. constitutional law can be read on the Social Science Research Network at:
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