Israel on Trial

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 of law at Hastings College of the Law in San Francisco, and writes frequently on law and politics in the Middle East. Read other articles by George, or visit George's website.

18 comments on this article so far ...

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  1. jon s said on April 11th, 2009 at 12:19am #

    It seems to me that it’s time for a more balanced approach to the Israeli-Palestinian issue. Sure, Israel deserves it’s share of criticism for some of its policies and actions, but those of us on the Left should also comdemn the Hamas : for their deliberate attacks on Israeli civilians; for their use of their own population as human shields and using schools, mosques, UN facilities and residential areas to launch attacks; for the summary executions of Fatah activists; for their inhuman treatment of captured Israeli soldier Gilad Shalit.. We could also mention the Taliban-style theocracy they are imposing: not the kind of society we would support.

  2. bozh said on April 11th, 2009 at 9:13am #

    jon,
    i do not think it is possible for any fighter against tanks or helicopter gunships to save selves by using mothers, sisters, or other civilians as protection.
    the missile wld kill the figter and the shield; after all, these missiles penetrate even walls and bring dwn buildings.
    and fighters are hiding in the buildings with noncombatants in them, a fighter is by far more endangered than being in tunnels, trenches, and fox holes.

    a fighter using a civilians to fire at a tank or another soldier from a machine gun, wld be much impeded having to worry about his captive, using the gun, and enemy soldier.

    only 10 israeli soldiers had been killed. in other words, gazans had little opportunity to shoot at soldiers. and as note encumbered with heavy gun and watchful on his possible enemy in front of him, fewer or no IOF soldiers wld have been killed.

    i do not know if russians have used shields to defend stalingrad. it seems not as the population was evacuated.
    gazan pop was not evacuated because egypt and israel have not allowed the pop to flee for safety.

    thus, IOF boast about dropping leaflets and warn gazans of imminent attack is one of the most callous sophistry ever uttered.

    about being in a mosque or any building, a fighter is a sitting duck and yet can’t fire thru the walls at a tank, jet. And if he shoots thru the window of a building or mosqe and dangling a hostage by one hand in front of him and a heavy weapon in the other, how effective is he?

    jon, please describe just one case of a resitance fighter using one person as human shield! tnx

  3. jon s said on April 11th, 2009 at 9:33am #

    See these:
    http://www.youtube.com/watch?v=g0wJXf2nt4Y
    http://www.youtube.com/watch?v=J08GqXMr3YE

  4. Laser said on April 16th, 2009 at 2:43am #

    The charges made above have, in the meantime, been investigated and found to be false.

    They were based on hearsay and had no foundation.

    On the other hand, the maker of the film, “The Third Jihad,” is a devout Muslim, who is devoutly against terror.

    In this remarkable and chilling film, he explains what the West faces, and how dangerous things really are – and why, as an American Muslim against terror, he stands alone.

    Everyone should see this film. It is in English with French subtitles.

    http://snipr.com/g08st

  5. Laser said on April 16th, 2009 at 2:49am #

    To refer, as bozh does, to a cowardly Hamas terrorist as a “resistance fighter” just stretches the imagination beyond reasonable limits.

    The Hamas and their associated terror groups set up their rocket launchers and mortars in the midst of residential areas, in mosques and schools, just daring the Israelis to attack them and cause civilian casualties.

    In the eyes if the Islkamist terror groups, it is a victory for them if Arabs are killed, and it is similarly a victory if they kill Jews.

    Sort of a win-win situation for Islamist terrorists, who don’t much care about inflicting civilian casualties on either side.

  6. dove said on April 16th, 2009 at 5:26am #

    Laser, your comments are utter BS. The word Jihad simply means to struggle to achieve something worthwhile and good, it is what all decent and good people do. Any modern nonsense with the Jihad label is an Israeli/Saudi Wahhabi product and has nothing to do with Islam. For example, the Director of the Academic Friends of Israel in England, Ronnie Fraser, devotes much of his barnet college work time printing out reams of fake Jihad propaganda and getting paid by jewish sponsors to spout the rubbish he does.

  7. bozh said on April 16th, 2009 at 7:08am #

    laser,
    you may be torturing self with, what to me is, your wishful thinking; and over mere labeling.
    some of the sephardim and ashk’m have joined partizani of ex-juga, greece, albania; possibly also partisans/resistance of italy, norway, france, russia.

    german army had been ordered to slay on spot all captured partisans; germans called them even worse than “terrorists” ; for such was hitler’s hatred for them for resisting his plans/hopes.

    and my home town was 95% partisan, losing 1T youths out of the city’s pop of 16T.
    you may be starting your evaluating of world jewry/christian- pal conflict with following assertions:
    1) israel is too tiny. Arabs have so much land; so why don’t they go there?
    2)palestina was not a country
    3)palestinians moved into palestine during UK mandate
    4)pals cldn’t make the desert bloom
    5)ashk’m are jews; thus have for 3T yrs continous existence in ex-canaan
    6) arab countries have started every war; etcetc.

    however, i know of no historian who had not by now accurately/adequately refuted such wishfulness.

    israel has many problems; but the biggest obstacle to world jewry-christian soyuz’ aims, is US; to lesser degree also europe.

    not arabs; they have been bought; thus ‘zionists’ do not play the arab harp any longer; only the hamas’!
    and they are no threat to exsistence of israel nor does their resistance even delay Israel’s expansion let alone stop it.
    it is really onehandclapping.
    tnx

  8. Laser said on April 16th, 2009 at 10:49am #

    Bozh, if only you could have written your last post in English, it might have made some sense.

    The one thing that was clear is that you despise Christians no less than you despise Jews.

    Actually, the Arabs who worked at Gush Katif farms learned how to make the desert bloom, and at the same time were able to support their families.

    Unfortunately, when the Jews left Gaza and their farms and irrigation systems were intact, to enable the Gazans to continue to farm. So the clever Hamas terrorists dismantled these pipes and turned them onto rocket launchers.

    And bozh is proud of his fellow Arabs for their brilliant actions!

    And now the Gazans, instead of working, have gone back on the dole and expect the UN and Israel to support them for the rest of their lives.

    .

  9. Laser said on April 16th, 2009 at 10:55am #

    Dove, you may be able to fool yourself, but you have not fooled me.

    The maker of the film, “The Third Jihad,” is a devout Muslim, who is devoutly against terror. He knows Arabic at least as well as you do, and he understands how the term is used by Islamist terrorists today.

    In that remarkable and chilling film, he explains what the West faces, and how dangerous things really are – and why, as an American Muslim against terror, he stands alone.

    Dove, if you view that film, you just might begin to understand the threat to the West posed by radical Islam! Break your heart and try to understand that film.

  10. Laser said on April 16th, 2009 at 10:56am #

    One other thing Dove (I LOVE that name), perhaps you also did not know that selling land to Jews in Judea and Samaria (the Palestinian Authority’s “West Bank”) is punishable by death.

    It is also illegal for Jews to own property in Jordan and in Saudi Arabia. Or perhaps you can add to this list of the Arab countries that prohibit Jews from owning land. This is of course in contrast to Israel, in which Arabs own land all over the country.

    .

  11. Laser said on April 16th, 2009 at 11:03am #

    Dove, you should keep up with what your radical Islamists are saying, so that you will understand a bit of what happened.

    Here is what YOUR people said regarding the loss of Hamas lives:

    “Important announcement regarding information and pictures of the shaheeds of the resistance Dear Brothers!
    “In accordance with the policy of the factions of the jihad resistance in Gaza …we inform you that it is completely forbidden to issue information about the numbers, names or pictures or any [other] detail about the shaheeds and wounded of the resistance. The order is in force until the end of the Zionist aggression which is clear to us and our nation, with the consent of Allah, may he be exalted. Any [report] which violates these rules will be deleted and a warning will be sent to whoever is responsible for the posting. Let us all be soldiers of the resistance, and if we cannot assist it, at least let us not assist the enemy [fighting] against it.”

    You really should know what your brothers are declaring before you go and make a fool of yourself.

  12. Laser said on April 16th, 2009 at 11:06am #

    During Operation Cast Lead, Hamas adopted the policy of concealing its own casualties to prevent morale from flagging and to reinforce the (false) impression that Israel was deliberately directing its military operations against Gazan civilians. Surfers on PALDF, Hamas’s main Internet forum, were informed that it was strictly forbidden to post the names, pictures or any identifying details about “resistance” [i.e., terrorist] operatives killed or wounded until the end of the “Israeli aggression” in the Gaza Strip.

    In some instances, reports were received of unofficial (and sometimes secret) and improvised burials during the fighting.

    The policy of hiding the real number of terrorist operative casualties and issuing false reports about the number of civilians killed has continued after Operation Cast Lead.

    That was manifested by the creation of a false propaganda presentation of the mass killing of civilians in the Gaza Strip (the “holocaust” claimed by pro-Hamas propaganda) and the reduction or hiding of the blow dealt to Hamas’s military infrastructure and its terrorist operatives.

    All of these tacticswere aimed at serving the “victory narrative” that Hamas has been carefully constructing since the end of Operation Cast Lead.

    .

  13. bozh said on April 16th, 2009 at 1:01pm #

    laser,
    english is not my second or third language. But it seems that only selftorturing ‘jews’ are at sea when they read my english.

    i am wellmixed up; i have gypsy or rom, roman, ‘jewish’, and slav blood in my veins. tnx

  14. mary said on April 16th, 2009 at 2:35pm #

    I think the needle’s stuck on Laser’s LP record.

  15. Laser said on April 16th, 2009 at 11:14pm #

    They continue to demand that the outside world support them while they do not work. Israel supplied them with money, food, fuel and electricity daring Operation Cast Lead. This is unheard of in the annals of warfare, that one party will supply its enemy to enable them to carry on fighting.

    Mary, if you want to talk to the issue, please do. If you want to show how cute you are, please leave that for your bedroom.

  16. Laser said on April 16th, 2009 at 11:25pm #

    Bozh,

    I see that English is not a language that you us every well. You really did not have to point that out.

    So I assume that you do not know that a proper noun (Jews) must be capitalized. That the word Jews need not be put in quotation marks. And that “selftorturing Jews” refers to no one here or anywhere, for that matter.

    You really ought to get yourself an editor before you try to express yourself in English. That is, if you want to appear coherent.

    Perhaps you did not read my previous comments to you. I noted that the one thing that was clear is that you despise Christians no less than you despise Jews.

    And I pointed out that those Arabs who worked in agriculture at Gush Katif — and supported themselves and their families very nicely — learned how to make the desert bloom, and at the same time were part of a society that could have become self-supporting.

    You should have known that when the Jews left Gaza, they left their farms and irrigation systems were intact, to enable the Gazans to continue to farm.

    Instead of promoting their own people and making them self-sufficient, the clever Hamas terrorists who rule Gaza dismantled these pipes and turned them into rocket launchers.

    They never fail to shoot themselves in the foot. It is more important for these sick Islamists to kill Jews than it is for them to provide a livelihood for their own people.

    And bozh is proud of his fellow Arabs for their brilliant actions!

    And now the Gazans, instead of working, have gone back on the dole and expect the UN and Israel to support them for the rest of their lives.

  17. Laser said on April 17th, 2009 at 2:34am #

    Mary,
    I think you chose to ignore the content of my message in order to show us how cute you are.

    That will not change the facts one bit. The Hamas provoked an attack on Gaza by targeting Israeli citizens with rockets and mortars for seven years, until Israel could no longer hold back. The collateral damage was amazingly small. Hamas falsified their numbers to gain international sympathy for them after they had been attacking innocent civilians in Israel for the sole purpose of causing casualties.

    They continue to demand that the outside world support them while they do not work. Israel supplied them with money, food, fuel and electricity daring Operation Cast Lead. This is unheard of in the annals of warfare, that one party will supply its enemy to enable them to carry on fighting.

    Mary, if you want to talk to the issue, please do. If you want to show how cute you are, please leave that for your bedroom.

  18. Laser said on April 17th, 2009 at 3:38am #

    Let us put things in context for our Christian readers.

    The terrorist “government” of Gaza marked the Christmas season by passing a Shari’ a criminal code for the Palestinian Authority. Among other things, it legalizes crucifixion.

    Hamas’s endorsement of nailing enemies of Islam to crosses came at the same time it renewed its jihad. Here, too, Hamas wanted to make sure that Christians didn’t feel neglected as its fighters launched missiles at Jewish day care centers and schools. So on Christmas day, Hamas lobbed a mortar shell at the Erez crossing point into Israel just as a group of Gazan Christians were standing on line waiting to travel to Bethlehem for Christmas.

    That led directly to the long-awaited Israeli response. It is hoped that this will finally bring to an end the Muslim terror attacks from Gaza on the civilians of southern Israel. If not, the next step will surely come.