By Mark Goldfeder

Last week Comedy Central’s The Daily Show host Trevor Noah did an ill-advised segment on the Israeli-Palestinian conflict. After explaining that he was not trying to place blame, he went on to blame Israel simply because there are more dead Palestinians than dead Israelis.

He also echoed the insane argument of Congresswoman Ilhan Omar, that somehow the fight is not fair because Israel has a better missile defense system.

Noah’s approach was not surprising given his history of borderline antisemitic tweets, but it is still worth responding to his argument because there is undoubtedly a strong impulse to want to count bodies and assign fault. That kind of thinking, however, is logically flawed and incredibly dangerous. Especially when someone as popular as Noah gives it voice.

US-designated terrorist organizations Hamas and Palestinian Islamic Jihad are sending thousands of rockets screaming into densely populated Israeli cities. The express, unwavering goal of these terrorists is to kill every Jewish man, woman and child. Israel’s defense system knocks down most of the missiles, but some get through and kill or injure innocents. If Israel had not invested in research and development to protect its people and instead focused on digging terror tunnels like Hamas, there would be hundreds more dead Israelis. Would that make Noah feel better?

Israel is not at fault for being able to defend herself and has every right to respond to aggression. Hamas should not be rewarded or excused by the media for its poor aim and misplaced priorities.

Proportionality in wartime is a prospective legal analysis that falls under Article 8(2)(b(4) of the Rome Statute, not the opinion of an armchair quarterback a day later, even if that quarterback has a talk show. International law recognizes that civilian casualties are a horrible but inevitable part of conflict, and forbids attacks in which the anticipated civilian casualties will be excessive in light of the anticipated military advantage gained.

Note that it does not say in comparison to how many of your people the other side managed to kill. The reason for this is clear: When you judge the appropriateness of an attack based solely on the number of people who died you do not end up protecting civilians, instead you incentivize.

Human shields

That is precisely why Hamas operatives continuously surround themselves with civilians, just to let them die. That is why they store weapons in schools, and in hospitals, and why they shoot them from civilian structures in populated areas.

Under the kind of effects-based, non-legal analysis by influential media folk like Trevor Noah, Hamas’s use of human shields to build up the number of casualties is actually rewarded. To paraphrase a quote often attributed to prime minister Golda Meir, if they only loved their children as much as they hated ours this war would be over.

Unlike Hamas and PIJ, Israel has only aimed at military targets, and even Hamas seems to begrudgingly admit that. While innocent people have tragically been killed, Israel has done everything it can to limit casualties, including warning civilians in advance to leave the targeted areas. In fact, as Noah ironically notes, Israel has the ability to completely destroy the other side, but they have shown great restraint in not doing so.

It is also unfair to fault Israel for its technological advantage. Noah punctuated his remarks by asking, “If you are in a fight where the other person cannot beat you, how hard should you retaliate when they try to hurt you?”

That ridiculous question assumes that the deaths and maiming of innocent Israelis killed by terrorists can be dismissed because Hamas was just “trying to hurt” Israel. Death and injuries do hurt, and constant rocket barrages make it impossible for Israelis to live a normal life. Should the US not have responded to 9/11 because the Taliban could not really beat us?

His question also ignores the fact that the other side is intent on winning. Hamas is openly hell-bent on destroying Israel, is using relatively sophisticated weaponry, and believes that it can do it. Israel has every right to take Hamas at its word and does not have to let it keep trying.

Here is the simple unavoidable truth as summarized by Prime Minister Benjamin Netanyahu: “If the Arabs put down their weapons today, there would be no more violence. If the Jews put down their weapons today, there would be no more Israel.”

The answer to Noah’s question is quite clear then: Israel should hit back just hard enough so that the other side stops targeting its civilians and is deterred from targeting them again. If Noah disapproves of Israel’s methods because too many innocent Palestinians are being incidentally killed as Israel works to take out the strategic military outposts used by terrorists to kill their people, perhaps he should call out Hamas for its destructive behavior, instead of giving it a pass for its ineptitude and rewarding its self-inflated blood counts.

Rabbi Dr. Mark Goldfeder, Esq. has served as the founding Editor of the Cambridge University Press Series on Law and Judaism, a Trustee of the Center for Israel Education, and as an adviser to the Permanent Mission of Israel to the United Nations. Read full bio here.