This letter has been included into our Voices From Asia series, as we consider it a significant addition to the ongoing discussion surrounding the ongoing conflict in the Middle East. The content of the letter is mirrored in an article co-authored by Malik Dahlan with Professor Marc Weller, which was featured in the New Law Journal on October 27, 2023, pp. 6-8.
这封信已经被纳入我们的“亚洲之声”系列，因为我们认为它是对围绕中东持续冲突的讨论的重要补充。这封信的内容在由Malik Dahlan与Marc Weller教授合著的一篇文章中有所体现，该文章发表在2023年10月27日的《新法律杂志》第6至8页。
mip’nei tikkun ha-olam, President Herzog
President of Israel
Dear Mr. Herzog,
16th October 2023
2023 年 10 月 16 日
War may well be another means of politics, as Carl von Clausewitz famously found. But like Machiavelli, who had similar thoughts, Clausewitz is not an appealing character in the history of political philosophy. His views on the primacy of the national interest over ethics have remained as controversial as they were when he first set pen to paper. Indeed, some may regard the denial of war as an option of policy as enshrined in the Charter of the United Nations as the principal achievement of civilization since that time.
战争很可能是政治的另一种手段，正如卡尔·冯·克劳塞维茨（Carl von Clausewitz）著名地发现的。但像马基雅维利一样，他持有类似的观点，克劳塞维茨在政治哲学史上并不是一个吸引人的人物。他对国家利益凌驾于伦理的看法一直像他第一次动笔时一样具有争议。事实上，一些人可能认为联合国宪章中确立的政策选项中排除战争的观点，是自那时以来文明的主要成就。
Of course, a defensive war remains legitimate, provided the strict conditions of self-defence enunciated in the UN Charter are met. An on-going or imminent armed attack may be answered with the use of force necessary to defeat or forestall it, provided that use of force is proportionate and respects humanitarian law in all its aspects.
Since 9/11 it is clear that self-defence can be applied to non-state actors, in that case the al-Qaida terrorist movement and perhaps also the Taliban government hosting the movement in Afghanistan. Clearly, the attack on Israeli civilians by Hamas is no less dramatic and severe for Israel than the attack on the twin towers was for the US.
In the Advisory Opinion rendered by the International Court of Justice on the illegality of the Wall constructed by Israel along the border with Palestinian territories, the Court suggested that self-defence cannot be invoked in relation to threats or attacks from the occupied territories, as these are already under an element of control exercised by Israel. Yet, since the Israeli withdrawal from Gaza and the West Bank, few lawyers can seriously doubt that Israel is entitled to respond in self-defence to armed attacks mounted from those areas.
Hamas cannot argue that it enjoys a positive right to wage war, as anti-colonial, national liberation movements argued in the 1970s. In fact, international law has to some extent accepted the special status of genuine movements of that kind. However, no national liberation movement is entitled to wage an armed campaign against civilians.
Indeed, recognition of a right to struggle against foreign oppression was constructed in a way that was meant to enhance humanity in such armed campaigns. The status of a national liberation movement implies the right to be treated as an international combatant in the confrontation with the colonial power refusing to activate the right to self-determination. That means that the law of international armed conflict applies, which contains far more detailed provisions and limitations on the conduct of those fighting in the conflict than the more modestly established law on internal armed conflicts.
In any event, Hamas is not recognized as the national liberation movement of the Palestinian people.
Even if it was, there would be no right to use force while international attempts to achieve a settlement of the Palestinian issue may still be resumed, and while the West Bank and Gaza have obtained an element of self-government, although not full self-determination for the people of Palestine.
Even if there was a right to wage an armed struggle, that right would be constrained by the requirement of compliance with international humanitarian law. Clearly, Hamas does not meet this requirement by any stretch of the imagination.
Of course, Hamas has not launched its assault on Israeli and other civilians in order to exhibit its status in international law. Rather, the opposite is the case. Hamas might argue that the case of Palestine has remained unaddressed three quarters of a century. Israel continues to reach into Gaza and the West Bank at will, killing alleged militants or destroying homes and infrastructure in retaliation for suspected acts of violence perpetrated by Palestinians. The occupied territories remain economically isolated and dependent on Israel in terms of food, energy and even water, and access by individuals is strictly regulated by Israel.
Meanwhile, international efforts to bring about a final status settlement have not borne fruit over many decades. The Oslo Accords are seen by many as moribund. Israel’s lurch to the right seems to rule out a two-state solution, as does the fact that one half of the occupied territories, Gaza, has now been run by Hamas for a considerable period—a group dedicated to the destruction of Israel and evidently not interested in a search for peace.
If the international system does not offer a solution for the Palestinians, Hamas seems to calculate, then action outside of the system, and outside of the rules of the system, remains the only option. If playing by the rules does not bring about results, then there is no point to complying with the rules. Hence, the spectacular and horrifying display of unrestrained and unlawful violence in the coordinated attack early this month.
Israel has drawn its lesson from this episode. Prime Minister Benjamin Netanyahu has announced that Israel is now at war with Hamas. There will be no more tit-for-tat responses to violence from Hamas, such as the endless series of rocket attacks mounted from Gaza and elsewhere. This war will, Netanyahu asserts, fundamentally change the face of the Middle East.
Israel’s Western allies have rushed to affirm the right to self-defence, adding now with a somewhat softer voice that humanitarian law should of course be respected. In the meantime, US Secretary of State gives the appearance of seeking to clear the field for the massive war of retaliation that is expected by persuading actors in the region (and outside) not to intervene in a way which would transform this into a global crisis. The presence of two aircraft carrier task groups in the Mediterranean is undoubtedly meant to reinforce this message.
At the same time, the West is emphasizing that democracies must live by a higher standard than others. Hence, Israel should respect humanitarian law, even if Hamas evidently does not.
This argument is rather a dangerous one. It seems to imply that Israel has the option to comply or not to comply, in the face of the atrocity committed by Hamas. But the application of humanitarian law by one side is not dependent on compliance by the other side. If the enemy executes prisoners of war, it is not lawful for the opposing side to execute captured combatants in response. If the enemy attacks civilian targets, it is not lawful to launch wholesale attacks against civilian concentrations in return.
Civilians must not be attacked, starved or deprived of medical support in retaliation to terrorist attacks. Germany’s policy of collective punishment of places of resistance to occupation during World War II was rightly pursued in the reckoning administered by the criminal tribunals that followed.
Israel now argues that it is moving civilians out of harms way in Northern Gaza. This would allow it to concentrate its fight on Hamas in that area, minimizing the risk to civilians. Otherwise, it would be impossible to engage an enemy that does not hesitate to hide amongst the civilian infrastructure.
True, urban warfare of this kind does pose difficult challenges. It is dangerous and costly for the attacking force. Yet, it is not legitimate to transfer the cost of waging such a war from ones own combatants to a civilian population caught in the middle. The forced displacement of a million civilians within a matter of one or two days cannot possibly be justified as a humanitarian measure intended for the benefit of that population. Rather, the responsibility to minimize casualties among the civilians must remain with those waging the armed campaign, rather than the helpless civilians.
If the plan for that campaign includes the wholesale destruction of the entire civilian infrastructure in Northern Gaza, to ‘flush out the terrorists’ by leaving them isolated in a wasteland of rubble, this would simply be an inadmissible form of warfare.
Moreover, even if the North of Gaza could be declared free of Hamas in this way, how would Israel address the South? Presumably Hamas would retreat there. Would two million civilians then be carefully filtered and screened for terrorists and be herded into the destroyed North, while what remains of Gaza is subjected to similar treatment?
Perhaps worse for the displaced Palestinians, there is the fear that Prime Minister Netanyahu’s promised reordering of the Middle East means that they will be permanently moved out of Gaza. The pressure on Egypt to open its borders and accommodate them in tents in the naked desert of the Sinai might point in that direction. This may be intended to externalize the ‘Palestinian problem’ again, as has already occurred in relation to the Palestinians condemned to a life in dreadful refugee camps in Jordan and Lebanon, literally for generations.
But such a purported solution would not be a solution. It would politically isolate Israel and make her allies regret having offered such strong support on this occasion. The tender flower of rapprochement with Arab states, in particular Saudi Arabia, would be entirely destroyed. And as the past 70 plus years have shown, pushing the Palestinians out into neighbouring states does not extinguish their zeal for achieving their own state, by peaceful or by other means.
At present, Israel is in a position of significant strength, on the verge of unleashing its vast military potential. However, as the principal victim of such a massive display of power will be a defenceless civilian population in danger of destruction or displacement, this strength and sympathy will dissipate rapidly and turn into opposition and international opprobrium, despite the efforts of the US and other allies.
It is sadly unlikely that Israel as a nation in mourning, and its ideologically committed leadership, can muster the grand and incredible courage to use this moment of great moral and military strength in order to achieve a real reordering of the Middle East. Instead of administering yet another humiliating defeat over the people of Palestine, and with them the Arab world, which just breeds the next round of even greater violence, this may be the moment when a true settlement could be achieved.
In contrast to previous instances, this chance is quite unique, given the acceptance of the fact, finally, by much of the Arab world that Israel is a legitimate state in the region and merits diplomatic recognition. Israel’s conduct over the next few days and weeks will determine whether that position can be maintained. The states in the region will face tremendous public pressure to act in solidarity with the people of Palestine if they are indeed subjected to the treatment that is widely expected. The conflict may well spread, involving Lebanon, Jordan and potentially Iran. Indeed, all Arab treaties with Israel will be rendered null and void under Islamic Legitimate Public Policy.
Clausewitz’ dictum that war is the continuation of politics by another means has not remained unopposed, or at least unqualified. Since the dawn of time, all political philosophers and wise men and women have argued that war, if sometimes necessary, can only be legitimate if it is waged in order to achieve peace at the end of it. Whatever policy Israel now choses to pursue, admittedly at a moment of great provocation, its government cannot escape that responsibility: It needs to be able to explain how its actions will contribute to lasting peace, rather than destroying any prospect for it.
Tikkun Olam Mr President- Yours faithfully,
Tikkun Olam总统先生- 顺祝商祺，
Malik bin Rabea Āl Dahlan
Al-Hassani Al-Hashemi Al-Qurashi Al-Makki
Prof. Dr. Malik Al Dahlan, is a Saudi International Mediator, emeritus professor of international law and public policy at Queen Mary University of London, and author of The Hijaz: The First Islamic State by Oxford University Press
The translation was carried out by Patrycja Pendrakowska. If you have any feedback or questions regarding the translation, please feel free to get in touch with her.
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