It's Debatable: Should Israel comply with order to stop military operations in Rafah?

In this week's "It's Debatable" segment, Rick Rosen and Charles Moster debate if Israel should comply with the Order of the International Court of Justice to stop military operations in Rafah. Rosen retired as a professor from the Texas Tech University School of Law and is a retired U.S. Army colonel. Moster is founder of the Moster Law Firm based in Lubbock with seven offices including Austin, Dallas, and Houston. 

Rosen – 1

On May 24, the International Court of Justice (ICJ) ordered Israel to immediately halt its military operations in Rafah asserting Israel could violate the Genocide Convention. In its observations and analyses regarding Israel’s treatment of Gaza’s civilian population, the ICJ seems to have forgotten that Israel is fighting a war against Hamas. The ICJ never once mentions Hamas’ behavior during the conflict. Consequently, its decision is fundamentally flawed and should be ignored.

First, Israel is fighting a war of self-defense. Hamas violated a ceasefire on October 7, 2023, by invading Israel and killing 1200 people. Its terrorists raped women, mutilated babies, and took 252 hostages. Hamas also fired thousands of rockets at civilian communities. Hamas vowed to commit such heinous acts again and again.

Second, there is absolutely no evidence that Israel intended to commit genocide or that genocide is occurring. Israel has the right under international law to prevent Hamas from its stated goal of exterminating its Jews—ironically, an intent to commit genocide. Moreover, the civilian death toll, albeit tragic, is virtually equivalent to the number Hamas combatants killed, an extraordinarily low ratio in urban combat, belying any intent to commit genocide.

Third, the ICJ flatly ignores Hamas’ conduct during the conflict. Hamas uses civilians to shield its operations, establishing fighting positions, ammunition storage facilities, and weapons production in and below civilian residences, mosques, schools, and hospitals. Under article 51.7 of Protocol I of the Geneva Conventions of 1948 “[t]he presence … of the civilian population … shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor or impede military operations.” Simply put, Hamas combatants and its military infrastructure are legitimate military objectives despite the presence of civilians.

Israel may not, however, ignore civilians. For example, under article 57.2.(a)(ii) of Protocol I, it must “take all feasible precautions … with a view to avoiding, and in

any event to minimizing, incidental loss of civilian life ….” Thus, Israel warns civilians of impending attacks and encourages them to move from areas of impending military operations. The ICJ focuses on Israel’s discharge of this international law obligation without mentioning why it is required. Most importantly, if Hamas conducted it operations in accordance with international law, such warnings and removal of civilians would unnecessary. Why the ICJ fails to mention this is a mystery.

Fourth, Hamas is not concerned about the safety of Gaza’s civilians; indeed, it depends upon their deaths to meet its political objective of forcing a ceasefire and living to fight another day. The ICJ is evidently trying to provide Hamas such a lifeline. As one commentator put it, the ICJ is Hamas’ “last line of defense.”

Moster - 1

A tragedy of unprecedented proportion is occurring (as I write) in Rafah and throughout Gaza. The UN's food agency warned in May that Palestinians in the north are under "full blown famine that is spreading south". More than 1 million people, half of Gaza's population, are expected to face death and starvation by mid-July. Another UN report warns of a civilian struggle to find enough food amid scarce market supplies and rising prices. More than 7000 children under the age of five have already been diagnosed with malnutrition.

Behind the legalities are a few fundamental questions: Do you respond to the commission of evil with even greater acts of vengeance and how does that square with international law and the ruling of the ICJ that Israel stop its military actions in Rafah? Contrary to Rick's assertions, there is no legal justification for this suffering and calamity.

As a Jewish American who lost sixty members of my family in the Holocaust, I get it. However, if the Holocaust taught us anything we must abhor inhumane acts which inflict cruelty and murder on those who are innocent and the most vulnerable.

The malignant and barbarous acts of Hamas can never be forgotten nor absolved. These monsters killed, raped, and tortured innocent Israelis including women and children attending a musical festival dedicated to peace. Such constitutes the most egregious behavior imaginable and per se violations of international law. However, these bestial acts do not provide carte blanche for Israel to lay waste to the defenseless people of Gaza and particularly Rafah where there are massive concentrations of civilians caught in the crossfire. Yes, Israel has a right to defend itself from invasion and act in self-defense as Rick asserts, but it cannot respond with acts of even greater malignancy.

Rick lays out general principles of international law but does not address the specifics.

Article 55 and 56 of the 4th Geneva Convention mandate that "the occupying force has the duty of ensuring the food and medical supplies of the population." By cutting off almost all areas of access into Rafah and the rest of Gaza, the current Israeli government is causing massive starvation and malnutrition. It is the defenseless women and children caught in the crossfire who are the victims, not the bloody Hamas murderers. Such action by Israel regardless of the underlying cause cannot be morally justified and violates international law.

The ICJ was correct in its determination and the carnage underway in Rafah must cease.

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I disagree with Charles’ defense of the ICJ’s order that Israel cease its military operations in Rafah.

First, Israel is at war with Hamas—a war Hamas started on Oct. 7, 2023. It is not acting out of vengeance but confronting an existential threat. Hamas has vowed to repeat the atrocities of Oct. 7 again and again until Israel is eliminated and its Jews are dead. As Bill Maher cogently noted, “[W]ars end with negotiation…. [But it] is hard to negotiate when the other side’s bargaining position is you all die and disappear.”

Second, like the ICJ, Charles wholly ignores the operational environment in which the IDF operates. Hamas embeds itself in Gaza’s civilian population and its members fight in civilian clothing, thereby greatly increasing the risk of harm to civilians. Under international law, Hamas may not immunize its military facilities and operations by placing them within the civilian population, but Hamas’ strategy is to maximize civilian casualties and to use proxies like South Africa and the ICJ as tools to prevent Israel from thwarting its genocidal aspirations.

Third, the civilian casualty figures on which the ICJ relied are inaccurate. Hamas intentionally exaggerates the number of civilians killed. The numbers also do not account for dead combatants or those killed by Hamas or its rockets—10-20% of which fall short into populated areas. Hamas also counts persons under 20 as children; those who are 17, 18, and 19 may very well be combatants—not civilians—and therefore legitimate military targets. Finally, the ratio between Gazan civilians and Hamas combatants killed is virtually equal, an unprecedented achievement given that the average a civilian-to-combatant ratio in other conflicts is 9-to1; that is, is nine civilians are killed for every one combatant killed. Consequently, Charles assertion that Israel is “laying waste to the defenseless people of Gaza” is flatly false.

Fourth, Israel does not currently occupy all of Gaza, particularly Rafah. Under the Defense Department’s Law of War Manual, a “mere invasion” does not constitute a military occupation. In any event, Israel has allowed thousands of truckloads of food into Gaza. Like the ICJ, Charles ignores Hamas’ behavior: it has stolen much of the aid and attacks aid crossings. Hamas knows that Israel will be blamed for the lack of aid getting to civilians.

Fifth, only by dismantling Hamas’ military capability can Israel avoid future atrocities such as occurred on Oct. 7. It is perplexing that—in purportedly enforcing the Genocide Convention—the ICJ is protecting the one party to the conflict that has in fact demonstrated genocidal intent and acts.

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I agree with Rick that Hamas started this horrific slaughter and has illegally embedded its civilian population for strategic gain. Their acts have been an abomination and the very incarnation of evil. That said, the critical distinction which is lost in Rick’s rejoinder and the national debate is that the captive population of Rafah and Gaza are not responsible for the inhumane acts perpetrated by Hamas and are literally caught in the crossfire.

As an American and the only descendant of my family line which survived the Holocaust, I cannot turn my back on the pain and suffering of innocent people – particularly defenseless women and children. As a matter of international law and basic humanity, the murderous acts of Hamas which precipitated the Israeli response cannot be used as justification to eliminate an entire group of innocent people. If we learned anything from the Holocaust, it is that lesson.

The issue of greatest concern and reason for compliance of the ICJ Order is that Israel has cut off almost all points of access for food, water, and medicine to flow into Rafah and throughout Gaza. The situation is so grave that it necessitated the U.S. to construct an enormous floating pier to allow for the delivery of supplies visible from space and at a cost which would likely eradicate homelessness in our country.

Assuming everything that Rick stated is correct (and it is), it does not allow Israel to violate Articles 55 and 56 of the 4th Geneva Convention to prevent the delivery of life sustaining supplies to a defenseless civilian population. That Israel cannot do as a member of civilized nations. The fact that Hamas are per se barbarians and uncivilized does not exculpate Israel and its Prime Minister from acting otherwise.

Truly, this debatable issue goes beyond the seemingly esoteric legalities of international law. Unless Israel stops its military operations in Rafah and effectuates immediate access of supplies, thousands will tragically die. Israel will have blood on its hands and all of us who fail to stand up for what is right.

This article originally appeared on Lubbock Avalanche-Journal: It's Debatable on order to stop Israeli military operations in Rafah