Part I: What law applies?
Interviewer’s Note: On December 27, 2008, Israel launched a devastating 22 day and night bombardment of the Gaza strip. The assault left, amidst an estimated 600,000 tons of concrete rubble, some 1,740 dead (this figure includes more than 350 ‘forgotten’ stillbirths and trauma-caused abortions in Gaza during the 22 days of terror), a figure that increases as the severely injured continue to die. A majority of the victims were civilians, including nearly 900 (again including the stillborn) children, approximately 5,500 severely wounded, and more than one third of the 1.5 million population was displaced while more than 14,000 homes were completely destroyed. Approximately 92,000 Palestinians are still homeless with more than 16,000 living as many as 20 to a small tent without latrines, as supplies remain blocked at the borders.
Single-limb fractures and the walking wounded are not included in the above figures, according to renowned British surgeon Dr. Swee Ang, currently conducting an on-the-ground medical investigation in Gaza. Dr. Swee and her medical colleagues estimate that of the severely injured, 1,600 will suffer permanent disabilities. These include amputations, spinal cord injuries, head injuries, and large burns with crippling contractures.
Also bombed were 68 government buildings and 31 NGO complexes, buildings all of which were completely or partially destroyed. Property damage and loss of livelihood has been estimated at close to 2 billion dollars.
On February 4, 2009, the Government of France strongly protested Israel’s refusal to allow in donated filtration equipment for drinking water, given that much of Gaza’s population have not had clean drinking water for weeks. As the massive human and material destruction continues to be documented by journalists, investigators and relief workers, the international pressure for accountability increases.
Faced with nearly unprecedented international outrage and condemnation, due to massive civilian casualties, the government of Israel continues to claim that its actions constituted self defense and that its attack on Gaza fully comply with the requirements of International law. To defend its actions, which it insists were “totally legal under international law” Israel has organized a bevy of international lawyers and ‘experts’ to support its claims, including Alan Derchowitz, Justus Reid Weiner, Avi Bell as well as others working from, or in cooperation with, Israeli government funded outlets such as the Jerusalem Center for Public Affairs or the Israeli Defense, Foreign Affairs and Information Ministries.
International Lawyers without Borders and Hokok, the International Coalition against Impunity, asked American international lawyer and researcher, Dr. Franklin Lamb, of the Sabra-Shatila Foundation, currently based in Beirut, to comment on Israeli claims. In the following interview Lamb offers his brief analysis of the conduct of Israel and Hamas, against a backdrop of continuing on-the-ground investigations in Gaza. Dr. Lamb was interviewed at UNESCO Palace in Beirut. A transcript follows.
International Lawyers without Borders (ILWOB): Good morning Dr. Lamb. Before we begin could you clarify one matter for us? You drafted the December 10, 2008 Hokok filing against Israel at the International Criminal Court in The Hague. What is the status of that Case and what is going on at the ICC? One hears conflicting reports.
Franklin Lamb: Thank you and it’s my pleasure to join you. Yes, you are quite correct in thinking some Court staff has sent conflicting signals recently. But that is ok because all of us, the whole international community, are learning about this new court and its very important potential. It is a much needed and long overdue judicial institution seeking to limit State impunity for humanitarian crimes while broaden universal jurisdiction so that no one is above the law.
The HOKOK submission was made under Article 15 of the Rome Statute which allows Non Governmental Organizations and individuals to bring to the Office of the Prosecution of the International Criminal Court (ICC) information of war crimes and crimes against humanity. It also permits these groups to petition for an investigation which could lead to the Court initiating a case, issuing arrest warrants and conducting a trial. It is encouraging to note that according to the Office of the Prosecutor at the ICC dozens of Submissions and Communications have been submitted to the Court with respect to Gaza. I believe this is an important recognition by individuals and organizations around the World that justice must be pursued for the Palestinians slaughtered in Gaza.
Current developments with the December 2008 filing include this week’s submission from the HOKOK and Sabra-Shatila Foundation’s just completed compilation of some 800 documents relating to Israeli violations of International Humanitarian Law in Gaza. The case Appendix includes evidence not just since December 27, 2008, but going back 18 months since Israeli began its blockade and siege of Gaza. We view the recent violence as a continuation of the assault of Gaza which began shortly after Hamas won the 2006 elections.
With respect to the recent 22-day and night bombardment of Gaza we, along with journalists, NGO’s and independent researchers, continue to gather and document evidence of serial war crimes allegedly committed by Israeli troops and the Israeli command structure including some fifteen political leaders.
We have submitted detailed evidence, including European laboratory analyses, that Israel has used white phosphorus in densely populated civilian areas. This accusation, which comes from many sources, has been widely supported by NGO’S and journalists on the ground. The media and NGO role is critical with respect to documentation of the actual events on the ground as it was in Lebanon, 2006. The fact that the media was barred from performing its role in Gaza has aided Israeli efforts to hide war crimes.
Who can bring a case to the International Criminal Court?
The first barrier to be cleared before the ICC Office of the Prosecutor launches an official investigation is the matter of the Courts Jurisdiction. When we petitioned the ICC we were cautioned by the ICC chief prosecutor Mr Moreno-Ocampo, that his office was unsure how far it would be able to take the case on the path through Investigation to Trial because the ICC perhaps had no res (subject matter) or impersonum (personal) jurisdiction over Israel, a non-signatory to the Rome Statute which established the court.
States that are party to the treaty recognizing the jurisdiction of the Court can refer cases of crimes committed by their citizens or on their territory and it is clear that the International Criminal Court can investigate if asked by the U.N. Security Council as in the case of Darfur. We calculated that our American administration would veto such a Security Council request as a gift to Israel. Israel has never recognized ICC jurisdiction, withdrawing its signature to the Rome Statute in 2003, and because only states can recognize the court, it was unclear if the Palestinians can do so.
Our jurisdictional reply to the ICC is that yes, they will have jurisdiction because Palestine, through its government, the Palestinian Authority would shortly formally accept the jurisdiction of the International Criminal Court as 108 countries have done. Indeed, this occurred on Jan. 21 when Ali Khashan, the Palestinian Authority’s justice minister submitted a Declaration of Acceptance of Jurisdiction letter to the Court stating that his government recognized the court’s jurisdiction for the purpose of investigating and prosecuting acts committed in the territory of Palestine since 1 July 2002.
Lawyers for Israel have objected, but tellingly, Israel is preparing for potential legal action, barring the media from publishing pictures of officers’ faces and their names for fear of investigations. Last week, Israel’s Cabinet promised legal and financial support for any officers facing trial, despite the difficulty of prosecuting Israelis.
One avenue would be for Israel to agree to investigate its commanders and prosecute any crimes discovered. That would remove any case from the orbit of the international court. So far that appears unlikely, given Israel’s repeated denials of war crimes in Gaza but on the other hand they may indeed use this approach as a hoped for shield to the ICC taking the case.
Israeli governmental lawyers are concerned that a Palestinian state that ratified the Rome treaty would then be able to refer alleged Israeli war crimes to the court without the current legal wrangling. The case could also lead to snowballing international recognition of a Palestinian state by countries eager to see Israel prosecuted.
A coalition of Israeli human rights groups has urged the country’s attorney-general to open an independent investigation into allegations of war crimes by troops, advising their government that to do so could head off international court cases. These groups, including the anti-settlement organization B’Tselem, has advised the Israeli authorities that the list of Israeli war crimes is very long and Israel is much better off conducting its own trials. B’Tselem showed Israeli authorities evidence of dozens of cases of Israeli forces firing into civilian areas, denying medical aid to the wounded and preventing Palestinian ambulances from reaching them and they have documented more than 20 cases of Israeli soldiers firing at women and children carrying white flags or with their arms raised.
We and others are arguing the International Criminal Court can take jurisdiction because the government of Palestine, the Palestinian Authority is the de facto state in the area where the crimes were committed and Hamas is the local branch, as it were, of that Sovereign. It is also instructive to bear in mind that the overwhelming number of members of the United Nations recognizes the state of Palestine with 97 granting full diplomatic recognition and 13 countries granting something less.
Consequently we advised the ICC that the de facto and de jure government of Palestine is the Palestinian National Authority for purposes of the Rome Statute. There is some precedent for the Palestinian jurisdictional initiative with the case of the Ivory Coast, the first non-state party to accept the ICC’s jurisdiction over alleged war crimes on its territory. In 2005 it lodged a declaration with the court accepting the ICC’s jurisdiction over crimes committed there since September 2002. We think Palestine can do the same thing.
We also believe that Israel is esstopped from denying the sovereignty of Palestine for this purpose given that they have consistently claimed since its ‘withdrawal’ from Gaza in 2005, that they have no international legal responsibility for Gaza or any of its residents.
The jurisdictional issue has ramifications for the Palestinian case for statehood. If the court rejects the case, it may deepen the legal black abyss that Palestinians find themselves in while they remain ‘stateless’. The Palestinian Justice Ministry argues that the Palestinian Authority possesses the fundamentals of a state and has met all conditions required to be considered as a sovereign State. This compelling argument underlines some of Israel’s worst fears about a Palestinian state on its borders. A Palestinian state that ratified the Rome treaty would then be able to refer alleged Israeli war crimes to the court without the current legal wrangling. The case could also lead to near universal international recognition of a Palestinian state by countries eager to see Israel held to account for its crimes.
ILWOB: Thank you. With respect to applying International Law in the Gaza conflict, exactly what international law applies to the Hamas-Israel war in Gaza?
FL: The armed conflict between Hamas and Israel is governed by international treaty law as well as the rules of international customary law, the latter being that body of law which is so widely applied by States that is rises to the level of universally binding norms.
The treaty law is Common Article 3 of the Geneva Conventions of 1949, to which Israel is a party. Article 3 sets forth minimum standards for all parties to a conflict between a state party such as Israel and a non-state party such as Hamas. The customary rules are based on established state practice, which has the imprimatur of the United Nations, and is binding on all parties to an armed conflict, whether they are state actors such as Israel or non-state actors such as Hamas, or in the case of the July 2006 war in Lebanon, Hezbollah.
All feasible precautions must be taken
International humanitarian law, as it is sometimes called, is designed specifically to protect civilians and other noncombatants from the hazards of armed conflict. The key customary rules require that parties that engage in hostilities must at all times distinguish between combatants and noncombatants. Civilians may never be the object of attacks; rather warring parties are required to take all feasible precautions to minimize harm to civilians and civilian objects. All parties must absolutely refrain from attacks that would disproportionately harm the civilian population or that fail to discriminate between combatants and civilians.
Common Article 3 of the Geneva Convention provides a number of fundamental protections for noncombatants in Gaza, which include those who are no longer taking part in hostilities, such as captured combatants, and those who have surrendered or are unable to fight because of wounds for example.
It is prohibited for Israel or Hamas to use any type of violence against such persons including outrages against their personal dignity and degrading or humiliating treatment.
Contrary to what the Israeli Ministry of Foreign Affairs have argued, the Commentary of the International Committee of the Red Cross notes that the determination of the existence of an armed conflict between states in which the Conventions apply does not depend on a formal declaration of war or recognition of a state of hostilities. Rather, the factual existence of armed conflict between two states party automatically brings the Conventions into operation. Thus virtually any hostilities between Israel and Palestinians would fall within the full Geneva Conventions. In any case, the standards of customary international law applicable to Israel and Hamas are similar in international and non-international conflicts.
ILWOB: Was Hamas’ capture of Israeli soldier Gilat in 2006 lawful?
FL: Yes it was. The targeting and capture of enemy soldiers is allowed under international humanitarian law and Gilat capture, like that of the two Israeli soldiers on July 12, 2006 in Lebanon near Aita Shaub was a legitimate military mission. To label these captures as ‘kidnappings’ as some in the main stream media have done, is a misuse of a term normally related to the unlawful abduction of children or sometimes even girlfriends. However, the subsequent use of captives who are no longer involved in the conflict, for example to work prisoner exchanges, constitutes hostage-taking and is forbidden under international law, by both Common Article 3 and customary international law, and this action becomes a war crime. We have seen this practice expanded widely since 1967 by Israel who in effect currently holds close to 10,000 Palestinians from various parts of Palestine and some still from Lebanon, Syria, Jordan and other Arab countries, with the de facto status being hostage and the Israeli advertised de jure status claiming they are legitimate prisoners.
ILWOB: Is Israel entitled to use military force against the population of Gaza in order to pressure Hamas to release a captured Israeli soldier?
FL: Absolutely not, contrary to the claims of the Military Law unit of the Israeli army, lawful attacks are only those where the targets by their nature, location, purpose or use make an effective contribution to military action, and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers “a definite military advantage.” Israeli attacks directed at civilian morale in Gaza do not meet this test, since they are not contributing to military action and are thus war crimes.
Israeli lawyers are arguing that military attacks on Gazan civilian morale could exert pressure on Hamas to pursue a particular course of action but under international humanitarian law that is illegal. It is simply terrorism, i.e. the deliberate attacking of civilians. Moreover, international law explicitly prohibits attacks of which the primary purpose is to intimidate or instill terror in the civilian population whether the Israeli practice of retorsion or perfidy.
ILWOB: Is Israel’s intent, declared to US envoy George Mitchell to keep Gaza sealed until captured Israel soldier Gilad Shalit is returned, permitted by international humanitarian law?
FL: No. Israel has been closing Gaza Strip border crossings ever since Hamas won the 2006 parliamentary elections. It furthered tightened the blockade on Gaza after Hamas took control of the enclave in 2007.
Because Israeli forces maintain a continuing presence and exercise control, Israel is effectively the occupying power under the Fourth Geneva Convention of 1949. This convention sets out obligations of the occupying power regarding the protection of the civilian population from the consequences of war and from mistreatment by the occupying power. The occupying power must ensure particular protection for the humanitarian needs of the population, such as the functioning of civilian hospitals and the provision of food, medical supplies and other humanitarian assistance.
Sealing, blockading, and holding Gaza hostage until a captured Israeli soldier is returned constitutes a war crime.
ILWOB: What is the international legal status of Hamas in relation to the conflict?
FL: Hamas is an organized political group based in Gaza, representing many of Gaza’s inhabitants. As you know it won the 2006 election which according to former President Jimmy Carter, whose Carter Center, monitored the campaign and balloting, was entirely fair and democratic. Hamas, again like Hezbollah, has a military and a civilian organization. Moreover, it actually constitutes the government by virtual of the 2006 election.
Accordingly, and as a party to the conflict with Israel, Hamas is bound to conduct hostilities in compliance with both international customary law and Common Article 3, which applies to conflicts that are not interstate but between a state and a non-state actor. As is explicitly stated in Common Article 3, and made clear by the commentaries of the International Committee of the Red Cross, the application of the provisions of Common Article 3, as well as international customary law, to Hamas does not affect its legal status.
ILWOB: What about Israel’s right of self-defense which it claims it is lawfully exercising through Article 52 of the UN Charter?
FL: I think you are referring to Article 51 of Chapter 7 of the UN Charter. Article 51 provides for the right of countries to engage in military action in self-defense, including collective self-defense (i.e. under an alliance).
The Israeli government claims an inherent right to self-defense referenced by Article 51 of the UN Charter and it is true that Article 51 carves out an exception to the general UN Charter prohibition against the use of force by one Member State against another.
However, lawyers working for Israel tend to misapply Article 51 which states that:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.
Israel was obliged to take its problem with Hamas to the UN.
Moreover, hard liners in the Israeli government and their lawyers argue that Gaza is not an independent sovereign and therefore is owed no duty at all including immunity from armed attack from other states under the law of jus ad bellum. However, given that this primitive notion is ridiculed by the international legal community and is repugnant to most UN Member States, Israel has relied on the Article 51 right of self defense and its international lobby has pushed this argument effectively with the widely broadcast mantra “Israel has a right to defend itself”.
The problem with this Israeli argument is that the Article 51 right is qualified by the same rules of proportionality, target distinctions and discriminations discussed above so it does not excuse Israel’s frenzy of killing and destruction. In point of fact, many consider that the launching of rockets into Israel by Hamas, like the Warsaw ghetto uprising of 1943, constitutes a legitimate response to impending extermination and are a desperate bid for survival.
Disproportionate ‘self defense’
In any event, investigators are finding that there was a disproportionate response. Areas were attacked that have no military gain whatsoever–an area like the Islamic University or the U.N. school or the U.N. agency or numerous NGO offices.
These constitute disproportionate attacks, which are a very clear violation and constitute war crimes. The Israeli attacks are disproportionate on two levels: disproportionate in terms of the amount of response that we see from the Hamas rocket fire and disproportionate in terms of the number of causalities. But disproportionate actually also refers to the actual nature of the attack itself. These attacks are done with seemingly little military gain and often times when there is clear evidence that the stated target is a civilian site. An apartment building, for example; a mosque where there are children, a school yard and then the evidence that some civilians were simply lined up and shot—or killed when they were carrying white flags, dropping white phosphorus on civilians in densely populated neighborhoods. These, if proven, are war crimes and not UN Charter Article 51 self defense.
ILWOB: Genocide. An emotional term increasingly applied to Israel’s strategy against the Palestinians. Is what Israel is doing in Gaza Genocide?
FL: What Israel has been doing in Gaza and Palestine comes very close to genocide according to the provisions of the Genocide Convention (1948), reiterated in the Rome Charter of the International Criminal Court (2002), which includes: (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.
Article 2 of the genocide Convention stipulates that any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.
An important aspect of genocide is that one has to talk about intent. So we must examine if a given government entity has an intent to completely eradicate a population. The litmus test is intent. If one considers the past six decades of racist statements and declarations coming from Israeli leaders, Zionist ideologues, members of the Knesset, the Grand Rabbi of Israel and the anti-Arab and Islamophobic brochures distributed to Israeli soldiers attacking Gaza by Religious leaders, and some IDF Commanders, the intent becomes fairly clear.
I personally agree with Professors Richard Falk, Francis Boyle, Noam Chomski, James Petras, and a growing number of others who have seriously examined the Question of Palestine and have concluded that a case is to be made for bringing Israel to account under the 1948 Genocide Convention.
ILWOB: Which targets could Israel and Hamas legally attack under international law?
FL: Two fundamental tenets of international law, directly applicable to targeting by both sides Gaza, are “civilian immunity” and the principle of “distinction.” Israel and Hamas have the duty to distinguish at all times between combatants and never to target the latter. To target civilians amounts to a war crime.
It is also forbidden for Israel or Hamas to direct attacks against “civilian objects,” such as homes and apartments, places of worship, hospitals, schools or cultural monuments, unless they are being used for military purposes and make an “effective” contribution to military action and whose destruction, capture or neutralization offers a “definite military advantage.” If there is doubt about the nature of a “civilian object” it must be presumed to be civilian. Those attacking “civilian objects” have a heavy burden of proof regarding establishing a “definite military advantage”. Even when a target is serving a military purpose, precautions must always be taken to protect civilians.
ILWOB: Did Israel and Hamas violate these laws?
FL: Yes, and in a very disparate fashion. The mere fact that an object has civilian uses does not necessarily render it immune from attack. It, too can be targeted if it makes an “effective” contribution to the enemy’s military activities and its destruction, capture or neutralization offers a “definite military advantage” to the attacking side in the prevailing circumstances at the time of attack. However, such “dual use” objects might also be protected by the principle of proportionality.
One example from the July 2006 war comes to mind. Israel accused Hezbollah of targeting civilians during its retaliatory firing of rockets into northern Israel and there may be some truth to this but it has still not been fully proved given that on-the-ground investigations by Human Rights watch and researcher like Jonathon Cook reveal that Hezbollah had in several locations what turned out to be accurate intelligence showing that Israeli military bases or installations were purposely placed near civilian neighborhoods and were used as ‘human shields’. Hamas has a similar burden depending on its ‘self-defense’ or ‘retaliation’ defense. More study is required on this issue and one illegal act does not excuse another illegal act but early surveys from on-the-ground investigations show that Israel violated these rules something like 11,000 Israeli “civilian object” violations for each rocket Hamas fired whether or not in “self-defense” during the 22 days of around the clock bombardment.
Part II Findings of Fact, Conclusions of Law: What remedy?
ILWOB: Is the firing of rockets by Hamas into Israel lawful under international law?
FL: No. As a Palestinian Resistance force to Israel’s illegal occupation Hamas does have the right and responsibility to oppose it. In addition, as the legal sovereign power in Gaza and as a party to the armed conflict, Hamas has a legal duty to protect the life, health and safety of its civilians as well as the noncombatants of those placing its people under siege and blockade, essentially the same ‘self defense’ argument Israel makes.
Hamas argues that it has a right of self defense and that firing rockets into south Israel is legitimate because they are firing soldiers not civilians and this is the area from which the Israeli tanks, planes and troops come from.
The targeting of military installations and other military objectives inside Israel is permitted as retaliation for Israeli attacks on the people of Gaza but not on civilians and Hamas must take all feasible precautions to avoid civilian harm. Launching indiscriminate attacks, or attacking military objects with indiscriminate weapons or if the anticipated harm to civilians and other noncombatants will be disproportionate to the expected military advantage this action constitutes a war crime. Hamas commanders must choose the means of attack that can be directed at military targets and will minimize incidental harm to civilians.
For example, if the weapons used are so inaccurate that they cannot be directed at Israeli military targets without imposing a substantial risk of civilian harm, then they cannot legally be deployed.
The use of such inaccurate weapons such as Qassim homemade rockets, white phosphorus artillery shells or cluster bombs as in Lebanon in 2006, is a blatant violation of international humanitarian law because their use in civilian areas violates the prohibition on indiscriminate attacks. International law prohibits such bombardment near or in any area containing a concentration of civilians, even if there are believed to be military objectives in the area.
Deliberately attacking civilians is in all circumstances prohibited and it constitutes a war crime, even if in retaliation for Israeli attacks, however unjust this may seem in the heat of battle. The presumption is that the targets were civilian and therefore criminal attacks. The burden is on Hamas and Israel to convince the fact trier that their targets were military targets.
ILWOB: In Gaza, was Israel entitled to target Gazan infrastructure such as roads, bridges and power stations?
FL: No, with very limited exceptions. Airports, roads, streets, and bridges may be dual-use targets if actually used for military purposes. However, even then, the International customary and treaty law require the parties to the conflict to weigh carefully the impact on civilians against the military advantage served. They must consider all ways of minimizing the impact on civilians and they cannot legally undertake attacks if the civilian harm outweighs the definite military advantage. Additionally, one has to consider whether the destruction of particular roads, streets or bridges impede military transport in light of readily alternative routes and whether the infrastructure attacked is making an “effective” contribution to Hamas’ military action and its destruction offers a “definite military advantage”.
If its destruction is aimed more at inconveniencing the civilian population and even preventing it from fleeing the fighting and seeking safety, as many have claimed during the Gaza war, including some Israeli military commanders, it’s a war crime.
With respect to electrical facilities supplying the civilian population of Gaza, they are almost never legitimate military targets. Professor Alan Derchowitz and the Israeli Ministry of Foreign Affairs are currently arguing, as they did in 2006, that electricity is a dual-use target, given that both civilians and Hamas fighters use electricity. However the harm to civilians in Gaza was enormous, affecting refrigeration, sanitation, hospitals and other necessities of modern life and in a densely urban society, electricity is arguably “indispensable to the survival of the civilian population,” meaning that it can be attacked only in extremely narrow circumstances. Final judgment must await more detailed on-the-ground investigation, but Israel faces a very high burden to justify any of its thousands of infrastructure attacks on Gaza during its 22 days of bombing.
ILWOB: Was Israel entitled to bomb the home of Hamas leaders such as the Interior Minister, Nizar Rayan along with 10 of his children, four wives and two neighbors?
FL: No. International law allows only the targeting of military commanders actually in the course of armed conflict, provided that such attacks otherwise comply with the laws that protect civilians. Normally, political leaders, as civilians, would not be legitimate targets of attack. The only exception to this rule is if their role, as commander of troops, or their direct participation in military hostilities renders them effectively combatants. To date there is no evidence that this was the case with Gaza Interior Minister Rayan. Israel has a heavy burden of proving otherwise.
We should bear in mind that the International Committee of the Red Cross (ICRC) defines, direct participation in hostilities as acts of war which by their nature and purpose are likely to cause actual harm to the personnel and equipment of enemy armed forces, and includes acts of defense. Consequently, Hamas political leaders could only be targeted individually, not his family, if Israel could show that he was effectively commanding Hamas forces. This has not been shown to date.
In principle, it is permitted to target the location where a combatant resides or works. However, as with any attack on an otherwise legitimate military target, the attacking force must refrain from attack if it would disproportionately harm the civilian population or be launched in a way that fails to discriminate between combatants and civilians. Israel failed to do this in the ____ case.
ILWOB: Can Israel attack neighborhoods that house Hamas leaders or offices? And what are Hamas’ obligations regarding the use of civilian areas for military activities?
FL: Where the targeting of a combatant takes place in an urban area such as Gaza, one of the eight most densely populated areas on earth, the belligerent parties are under a strict legal duty to protect the civilian population, as the bombing of urban areas significantly increases the risks to the civilian population.
As of the December 27, 2008 commencement of Israel’s attack, the defending party in Gaza was Hamas. Israel thus had a legal duty to take all necessary precautions to protect civilians in Gaza against the dangers resulting from its bombardments.
This means that while Hamas must avoid locating military objectives, such weapons, ammunition and headquarters, within densely populated areas, Israel must avoid risks to civilians. It does not meet this obligation by claiming that it considers Hamas responsible for having located legitimate military targets within or near populated areas, or that Hamas may be using the civilian population as a shield.
The law is clear on this. Let us assume that Hamas placed weapons inside the basement of a civilian building, a clear violation. Israel is absolutely required to refrain from launching any attack that may be expected to cause excessive civilian loss when compared to the objective calculation of concrete and direct military advantage anticipated. In other words, a violation by Hamas does not give Israel the right to bomb civilians countless times in Gaza because of a suspected or even proved violation by Hamas. The reason is that the intentional launch of an attack in an area without regard to the civilian consequences or in the knowledge that the harm to civilians would be disproportionately high compared to any definite military benefit to be achieved would be a serious violation of international humanitarian law and a war crime.
Even the presence of a Hamas fighters, commanders or military facility in a populated area never justifies attacking the area, but rather only the specific target can be individually targeted. It is a prohibited indiscriminate attack, and a war crime, to treat an entire area as a military target instead of attacking the particular military facilities or personnel within that area.
ILWOB: Did Israel and or Hamas use Human shields in Gaza?
FL: The evidence to date is overwhelming that Israel used human shields despite its consistent denials. It is less clear so far about Hamas and we await the results of on the ground investigations, and hopefully a United Nations Security Council investigation, which your organizations and other have called for.
More than 60 years of Israeli practice, going back to the ‘Iron Wall’ doctrine first enunciated by Ze’ev Jabotinsky in the 1920s which has heavily influenced Israeli policy since 1948, shows that the Israeli military frequently shoots or rockets civilians whether or not they happen to be near military areas.
Israel is accused by many of frequently taking human shields in Gaza during the recent invasion. To date more than 90 cases have been documented by Amnesty International, Human Rights Watch, journalists and NGO’s currently working inside Gaza. According to a credible report by Donald Macintyre and Amnesty International, on January 5, 2009, at Jabalya Gaza, the second day of their ground offense, 40 old Majdi Abed Rabbo was forced by Israeli troops to protect themselves and to risk his life as a go-between in the hunt for three Hamas fighters. Abed Rabbo reported to Amnesty International that he was handcuffed for two days and abused by a unit of Israeli troops. The Israeli unit assigned him many tasks such as opening car doors, entering buildings ahead of Israeli troops as cover for them, first, being hit with rifle butts if he resisted their orders, forcing him to search houses and rooms and to enter a house where injured Hamas fighters were suspected in order to convey messages from the Israeli troops. Abed Rabbo witnessed other civilians being used as human shields and, as he reported, being forced to enter houses and take surveillance photos.
Astonishing numbers of verified accounts, more than 30 as of last week, gathered by the Public Committee Against Torture in Israel (PCATI) and Hamoked, the Center for the Defense of the Individual are emerging from Gaza. The gathered evidence indicates that many detainees – minors as well as adults – were held for many hours – sometimes for days – in pits dug in the ground, exposed to bitter cold and harsh weather, handcuffed and blindfolded. According to Majdi Mohammed Ayid al-Atar, 43 of Northern Gaza, one of the individuals used by Israeli troops as human shields, the pits were without shelter, toilets or adequate food and water, with approximately 70 of his neighbors handcuffed and blindfolded and put in a ten foot deep ditch. Some detainees have testified that they had been held near tanks and in combat areas. While Israel says it will investigate scores of these claims, it faces a heavy burden of proof with respect to its use of human shields, as groups such as the Association for Civil Rights in Israel, Physicians for Human Rights, B’Tselem, Yesh Din and Adalah continue to document cases of Israeli forces using human shields.
Each use of a human shield is a war crime. The crime of “shielding” has been defined as intentionally using the presence of civilians to render certain points, areas, or military forces immune from military attack. Taking over a family’s house and not permitting the family to leave for safety so as to deter the enemy from attacking is a simple example of human shields. Evidence from victims, NGO’s, and hospital and rescue services strongly suggests that Israel made widespread use of this illegal practice in Gaza. While it may be unlawful, as noted above, to place forces, weapons and ammunition within or near densely populated areas, it is only shielding when there is a specific intent to use the civilians to deter an attack.
ILWOB: Was it lawful for Israel to attack Hamas radio and television stations?
FL: No. Military attacks on broadcast facilities used for military communications are legitimate under international humanitarian law. But such attacks on civilian television or radio stations are prohibited if they are designed primarily to undermine civilian morale or to psychologically harass the civilian population. Civilian television and radio stations are legitimate targets only if they are used in a way that makes an “effective contribution to military action” and their destruction at the time offers “a definite military advantage.” Specifically, Hamas-operated civilian broadcast facilities could become military targets if, for example, they are used to send military messages or otherwise concretely to advance Hamas’ armed campaign against Israel. However, civilian broadcasting facilities are not legitimate military targets simply because they broadcast pro-Hamas or anti-Israel propaganda. Neither contributes directly to military operations, it is unlawful to attack them merely because they may shape civilian opinion.
Israel’s remedy is to counter Hamas broadcasts with competing broadcast of its own, i.e. broadcasts for broadcasts, propaganda for propaganda, not bombing.
Israel, during the ongoing period of international investigations, can offer any evidence it has that Gaza stations became legitimate military objectives because of their use to transmit military communications. If it has any proof, the principle of proportionality in attack must still be respected. This means that Israeli military planners and commanders should verify at all times that the risks to the civilian population in undertaking any such attack do not outweigh the anticipated military benefit.
ILWOB: Lawyers defending Israel, specifically lawyers Justus Weiner and Avi Bell, of the Israeli government funded Jerusalem Center, as well as Alan Dershowitz of Harvard Law School are arguing that warnings given to Palestinians in Gaza in advance of Israeli attacks comply with international humanitarian law. What is your view?
FL: These claims are spurious. The IDF, through leaflets dropped by aircraft, and recorded messages to telephones, did in some cases call of Gazan civilians to evacuate their homes and neighborhoods.
International humanitarian law requires that warring parties give effective advance warning of attacks that may affect the civilian population if circumstances permit. What constitutes an effective warning depends on the circumstances such as the timing of the warning and the ability of the civilians to leave the area. In some cases the IDF are reported to have dropped leaflets in Gaza giving residents only two hours warning before a threatened attack. In other reports that gave 30 minutes or 5 minutes or “now!”
The required warning is made largely useless in cases as in Gaza, where bomb damage to roads and bridges, as well as air attacks on civilian vehicles, effectively prevented the ability of civilians to flee an expected attack. Virtually every Palestinian, inside or outside the Gaza refugee camps set up following their ethnic cleansing in the 6 months before and after Israel was created in May of 1948, believes from experience that they themselves are targets of Israel during hostilities.
In Gaza, evidence to date suggests that Israeli warnings we calculated to cause forced displacement, threatening civilians with deliberate harm if they did not heed them. Israel failed in its duty also because even after warnings have been given, its attacking forces were required to still take all feasible precautions to avoid loss of civilian life and property. This includes canceling an attack when it becomes apparent that the target is civilian or that the civilian loss would be disproportionate to the expected military gain. Israel appeared to use its warnings as acts or threats of violence the primary purpose of which is to spread terror among the civilian population that is their statement calling for the evacuation of areas that are not genuine warnings, but are primarily intended to cause panic among residents or compel them to leave their homes for reasons other than their safety The Geneva Convention prohibits this practice and violating the prohibition is a war crime.
ILWOB: The same group of lawyers working with the government of Israel has published articles arguing that Israel’s land and sea blockade of Gaza is legal. What is your view?
FL: They have it backwards. Both are illegal. Under the provisions of the International Law of the Sea and the Laws of Armed Conflict, Israel has illegally targeted Gaza’s only international border crossings, imposed a naval blockade for the past 18 months, attacked ports, and bombed road escape routes out of the country. Blockades as a tool of war are sometimes legitimate under international humanitarian law; however, their imposition is subject to the principle of military necessity and proportionality.
As Hamas has no navy or shipping fleet, the Israeli blockade, which was set up long before the current attack, appears to have as its primary purpose the intimidation, harassment or starvation of Gaza’s civilian population. Several humanitarian aid boat crews have been threatened with death if they failed to desist in their mission to Gaza. In December one was actually attacked and severely damaged. These actions are forbidden by international humanitarian law, which prohibits armed forces from deliberately causing the civilian population to suffer hunger by depriving it of its sources of food or supplies.
As you mentioned, Israeli recruited lawyers, without offering any proof, have attempted to justify the blockade of Gaza, on the grounds that it restricts the re-supply of the military. Moreover, this purpose must be weighed against the costs to the civilian population. Those costs can also shift over time, as shortages of necessities intensify. Even if a blockade were assumed lawful at the outset, it could become unlawful if mounting civilian costs became too high and outweighed the direct military advantage. In those circumstances – for example, if food or medical supplies ran low – Israel would be obliged to permit free passage of material that is essential for civilians and to protect humanitarian personnel delivering those supplies. Numerous testimonies to from eye witnesses including aid workers, journalists, medical staff and local officials suggest that this was not the case.
ILWOB: If the targets are legitimate military objects, was Israel’s use of weapons like DIME, white phosphorus, and cluster bombs legal in Gaza?
FL: Under international law, none of these weapons can be used in or near civilian areas because the blast effects of these weapons cannot be directed at military targets without imposing a substantial risk of civilian harm and the weapons cannot distinguish between military targets and civilians. Many cases of Israel’s misuse of these weapons are being documented by an increasing number of on-the-ground investigations.
ILWOB: Israeli lawyers, again, specifically Justus Weiner, Avi Bell, and Alan Dershowitz have all argued that Israel has not engaged in “collective punishment” in Gaza. What is meant by collective punishment of the civilian population in Gaza and what is your view?
FL: International law prohibits the punishment of any person for an offense other than one that he or she has personally committed. Collective punishment is a term used in international law to describe any form of punitive sanctions and harassment, not limited to judicial penalties, but including sanctions of any sort, administrative, by police action or otherwise, that are imposed on targeted groups of persons for actions that they themselves did not personally commit. The imposition of collective punishment is a war crime. Whether an Israeli attack or measure in Gaza amounted to collective punishment depends on the target of the measure and its punitive impact, but of particular relevance is the intent behind a particular measure. If the intention was to punish, purely or primarily as a result of an act committed by third parties, then the attack is collective punishment.
It is true that many have accused Israel of collective punishment in Gaza including UN Under-Secretary-General for Humanitarian Affairs John Holmes, Amnesty International, Professor Richard Falk, Jeremy Hobbs, Director of Oxfam International, and many others.
I have here a statement by Richard Falk on January 12, 2009 in which he correctly states the law in my view:
And still Israel maintains its Gaza siege in its full fury, allowing only barely enough food and fuel to enter to stave off mass famine and disease. Such a policy of collective punishment.. Such a policy of collective punishment, initiated by Israel to punish Gazans for political developments within the Gaza Strip, constitutes a continuing flagrant and massive violation of international humanitarian law as laid down in Article 33 of the Fourth Geneva Convention.
ILWOB: What were Israel’s and Hamas’ obligations to agencies seeking to provide humanitarian assistance?
FL: Israel’s military operations in Gaza displaced hundreds of thousands of Palestinians and cut off many others from access to food, medical care and basic necessities. Humanitarian agencies had great difficulty reaching the populations in need because of the ongoing Israeli bombing campaigns, including air attacks targeting border passages, roadways, streets, UN buildings, schools and vehicles. For 22 days and nights Israel failed to secure safe passage for humanitarian convoys for basic necessities or for wounded persons or to evacuate civilians from areas of active conflict.
Under international humanitarian law, parties to a conflict must allow and facilitate the rapid and unimpeded passage of impartially distributed humanitarian aid to the population in need. The belligerent parties must consent to allowing relief operations to take place, and may not refuse such consent on arbitrary grounds. They can take steps to control the content and delivery of humanitarian aid, such as to ensure that consignments do not include weapons. However, deliberately impeding relief supplies is prohibited, and doing so as part of an effort to starve or pressure civilians is a war crime.
Additionally, international humanitarian law requires that belligerent parties ensure the freedom of movement of humanitarian relief personnel essential to the exercise of their functions. This can be restricted only temporarily for reasons of imperative military necessity. As on-the-ground investigations continue, much evidence is emerging that Israel interfered with humanitarian relief personnel, constituting war crimes.
Now that some journalists and NGO relief agencies are being allowed in, Amnesty International has documented the Israeli attack on19 medical workers within 20 days, or about one a day killed. They documented the shelling of ambulances that were clearly marked as such or NGO rescue vehicles that were marked, such as Save the Children. One woman testified about how she raised a Save the Children logo flag, and it was still attacked. Each such incident in a punishable war crime and that accountability runs up the chain of command of the Israeli military.
ILWOB: Finally Dr. Lamb, what can individuals do to help enforce the requirements of international law in order to help ensure the safety of the Palestinians trapped in Gaza.
FL: There are so many actions that individuals and human rights and grass root organizations can take that are calculated to support and uphold the Principles, Standards and Rules of International Humanitarian Law with respect to Palestine/Israel and specifically, Israel’s war against Gaza.
For many years going back to the 1970′s Israeli aggressions against Lebanon and Palestine have caused an increasing percentage of the international public to assert that “Israel has gone too far, something must be done”. The attacks from 1978 (Operation Litani), the July 1981 Bombardment of the Fakhani area of Beirut, the 1982 invasion and occupation of Beirut (Peace for Galilee) and the Sabra-Shatila Massacre, 1993 (Reverse Direction), 1996 (Grapes of Wrath) the West Bank including Jenin in 2002 (Operation Defensive Shield), and the July 2006 War on Lebanon, among others.
The carnage of Gaza 2009 has seen more individuals and organizations calling for measures to hold Israel accountable for its actions than ever before.
Individuals and organizations can encourage and support measures such as boycotts and divestitures within their countries and among their local governments as well as join the international efforts such as demanding international investigations like those currently being undertaken by the United Nations (concerning the shelling of a UN school in Jabaliya that killed 43 and wounded scores of others as well as other alleged Israeli attacks on civilians) and the International Atomic Energy Agency (investigating the use of depilated uranium) in Israel actions.
Among them I would suggest the following:
With respect to the more than 300 submissions to International Criminal Court regarding Israeli crimes in Gaza, individuals and organizations can submit evidence to the Office of the Prosecution under Article 15 of the Rome Statute and support the call for other tribunals to investigate and judge war crimes committed in Gaza perpetrated from all quarters. The Court staff is very helpful and Submissions can be emailed to: firstname.lastname@example.org or faxed to: +31 70 515 8555.
Local petitions, taking their governments to task for selling arms to Israel, demonstrations, briefings, teach-ins, op-ed pieces, letters to the editors of journals and newspapers, and talking about the issues involved will all help. This pattern of rejecting the norms of civilized conduct must not be allowed to continue and we as individuals are the ones, who can, by our persistence, bring it to an end as history rejects the injustice of the occupation of Palestine.
Individuals and organization can express solidarity with this week’s launch by the Turkish state prosecutor of an investigation into claims of Israeli crimes against humanity and genocide. The complaint is against those who the Turkish Petitioners claim they can prove were in some way responsible for giving orders for the attack on Gaza including 19 Israeli officials and makes use of Article 13 of the Turkish Penal Code, which allows Turkish courts to try those charged with committing genocide and torture, even if the crime was perpetrated in another country.
Similar initiatives are under way in France and more than 25 European Union countries. Each should be supported. Domestic laws in many countries allow for claims against international crimes and they should be researched and employed by citizens
Lobby for the suspension of Israel from the entire United Nations System, including the General Assembly and all U.N. subsidiary organs and bodies. What the U.N. General Assembly has done to genocidal Yugoslavia and to the criminal apartheid regime in South Africa is fully applicable to Israel. The legal basis for the de facto suspension of Israel at the U.N. was explained recently by Professor Francis Boyle and I would like to quote him:
As a condition for its admission to the United Nations Organization, Israel formally agreed to accept General Assembly Resolution 181 (II) (1947) (partition/Jerusalem trusteeship) and General Assembly Resolution 194 (III) (1948) (Palestinian right of return), inter alia. Nevertheless, the government of Israel has expressly repudiated both Resolution 181 (II) and Resolution 194 (III). Therefore, Israel has violated its conditions for admission to U.N. membership and thus must be suspended on a de facto basis from any participation throughout the entire United Nations System.
Second, any further negotiations with Israel must be conducted on the basis of Resolution 181 (II) and its borders; Resolution 194 (III); subsequent General Assembly resolutions and Security Council resolutions; the Third and Fourth Geneva Conventions of 1949; the 1907 Hague Regulations; and other relevant principles of public international law.
Individuals and organizations should encourage the Palestine National Authority, the Provisional Government of the State of Palestine to sue Israel before the International Court of Justice in The Hague for inflicting acts of genocide against the Palestinian People in violation of the 1948 Genocide Convention;
The international community must work on the local level to have the U.N. General Assembly impose economic, diplomatic, and travel sanctions upon Israel pursuant to the terms of the 1950 Uniting for Peace Resolution.
Individuals and organizations should support Professor Francis Boyle’s call for an International Criminal Tribunal for Israel (ICTI). This can be established by the UN General Assembly as a “subsidiary organ” under article 22 of the UN Charter. Article 22 of the UN Charter states the UN General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions. With this legal mechanism, the GA could convene legal, military and human rights experts to investigate the entire range of war crimes allegations made during the Gaza war, by Israel and Hama. The purpose of the ICTI would be to investigate and Prosecute suspected Israeli war criminals for offences against the Palestinian people including the recent aggression against Gaza.