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Israel on Trial ( 0) Printer friendly page Print This
By George Bisharat, New York Times Op-ed
New York Times
Saturday, Apr 4, 2009

CHILLING testimony by Israeli soldiers substantiates charges that Israel’s Gaza Strip  assault entailed grave violations of international law. The emergence of a  predominantly right-wing, nationalist government in Israel suggests that there may be  more violations to come. Hamas’s indiscriminate rocket attacks on Israeli civilians also constituted war crimes, but do not excuse Israel’s transgressions.
While Israel disputes some of the soldiers’ accounts, the evidence suggests that Israel committed the following six offenses:

• Violating its duty to protect the civilian population of the Gaza Strip. Despite  Israel’s 2005 “disengagement” from Gaza, the territory remains occupied. Israel  unleashed military firepower against a people it is legally bound to protect.

• Imposing collective punishment in the form of a blockade, in violation of Article  33 of the Fourth Geneva Convention. In June 2007, after Hamas took power in the Gaza  Strip, Israel imposed suffocating restrictions on trade and movement. The blockade —  an act of war in customary international law — has helped plunge families into  poverty, children into malnutrition, and patients denied access to medical treatment  into their graves. People in Gaza thus faced Israel’s winter onslaught in  particularly weakened conditions.

• Deliberately attacking civilian targets. The laws of war permit attacking a  civilian object only when it is making an effective contribution to military action  and a definite military advantage is gained by its destruction. Yet an Israeli  general, Dan Harel, said, “We are hitting not only terrorists and launchers, but also  the whole Hamas government and all its wings.” An Israeli military spokeswoman, Maj.  Avital Leibovich, avowed that “anything affiliated with Hamas is a legitimate  target.”

Israeli fire destroyed or damaged mosques, hospitals, factories, schools, a key  sewage plant, institutions like the parliament, the main ministries, the central  prison and police stations, and thousands of houses.

• Willfully killing civilians without military justification. When civilian  institutions are struck, civilians — persons who are not members of the armed forces  of a warring party, and are not taking direct part in hostilities — are killed.

International law authorizes killings of civilians if the objective of the attack is  military, and the means are proportional to the advantage gained. Yet proportionality  is irrelevant if the targets of attack were not military to begin with. Gaza  government employees — traffic policemen, court clerks, secretaries and others — are  not combatants merely because Israel considers Hamas, the governing party, a  terrorist organization. Many countries do not regard violence against foreign  military occupation as terrorism.

Of 1,434 Palestinians killed in the Gaza invasion, 960 were civilians, including 121  women and 288 children, according to a United Nations special rapporteur, Richard  Falk. Israeli military lawyers instructed army commanders that Palestinians who  remained in a targeted building after having been warned to leave were “voluntary  human shields,” and thus combatants. Israeli gunners “knocked on roofs” — that is,  fired first at corners of buildings, before hitting more vulnerable points — to  “warn” Palestinian residents to flee.

With nearly all exits from the densely populated Gaza Strip blocked by Israel, and  chaos reigning within it, this was a particularly cruel flaunting of international  law. Willful killings of civilians that are not required by military necessity are  grave breaches of the Geneva Conventions, and are considered war crimes under the  Nuremberg principles.

• Deliberately employing disproportionate force. Last year, Gen. Gadi Eisenkot, head  of Israel’s northern command, speaking on possible future conflicts with neighbors,  stated, “We will wield disproportionate power against every village from which shots  are fired on Israel, and cause immense damage and destruction.” Such a frank  admission of illegal intent can constitute evidence in a criminal prosecution.

• Illegal use of weapons, including white phosphorus. Israel was finally forced to  admit, after initial denials, that it employed white phosphorous in the Gaza Strip,  though Israel defended its use as legal. White phosphorous may be legally used as an  obscurant, not as a weapon, as it burns deeply and is extremely difficult to  extinguish.

Israeli political and military personnel who planned, ordered or executed these  possible offenses should face criminal prosecution. The appointment of Richard  Goldstone, the former war crimes prosecutor from South Africa, to head a fact-finding  team into possible war crimes by both parties to the Gaza conflict is an important  step in the right direction. The stature of international law is diminished when a  nation violates it with impunity.

George Bisharat is a professor at the University of California Hastings College of  the Law.

New York Times
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