[News] Israel's War Crimes - Calls for investigation into Gaza attacks

[Anti-Imperialist News]

Israel's War Crimes



Calls for investigation into Gaza attacks

March 12, 2009 By Richard Falk
Source: <http://mondediplo.com/2009/03>Le Monde 
<http://mondediplo.com/2009/03>Diplomatique

For the first time since the establishment of Israel in 1948 the 
government is facing serious allegations of war crimes from respected 
public figures throughout the world. Even the secretary general of 
the United Nations, Ban Ki-moon, normally so cautious about offending 
sovereign states - especially those aligned with its most influential 
member, the United States - has joined the call for an investigation 
and potential accountability. To grasp the significance of these 
developments it is necessary to explain what made the 22 days of 
attacks in Gaza stand shockingly apart from the many prior recourses 
to force by Israel to uphold its security and strategic interests.

In my view, what made the Gaza attacks launched on 27 December 
different from the main wars fought by Israel over the years was that 
the weapons and tactics used devastated an essentially defenceless 
civilian population. The one-sidedness of the encounter was so stark, 
as signalled by the relative casualties on both sides (more than 100 
to 1; 1300-plus Palestinians killed compared with 13 Israelis, and 
several of these by friendly fire), that most commentators refrained 
from attaching the label "war".

The Israelis and their friends talk of "retaliation" and "the right 
of Israel to defend itself". Critics described the attacks as a 
"massacre" or relied on the language of war crimes and crimes against 
humanity. In the past Israeli uses of force were often widely 
condemned, especially by Arab governments, including charges that the 
UN Charter was being violated, but there was an implicit 
acknowledgement that Israel was using force in a war mode. War crimes 
charges (to the extent they were made) came only from radical 
governments and the extreme left.

The early Israeli wars were fought against Arab neighbours which were 
quite literally challenging Israel's right to exist as a sovereign 
state. The outbreaks of force were of an inter-governmental nature; 
and even when Israel exhibited its military superiority in the June 
1967 six day war, it was treated within the framework of normal world 
politics, and though it may have been unlawful, it was not criminal.

But from the 1982 Lebanon war this started to change. The main target 
then was the presence of the Palestine Liberation Organisation (PLO) 
in southern Lebanon. But the war is now mainly remembered for its 
ending, with the slaughter of hundreds of unarmed Palestinian 
civilians in the refugee camps of Sabra and Shatila. Although this 
atrocity was the work of a Lebanese Christian militia, Israeli 
acquiescence, control and complicity were clearly part of the 
picture. Still, this was an incident which, though alarming, was not 
the whole of the military operation, which Israel justified as 
necessary due to the Lebanese government's inability to prevent its 
territory from being used to threaten Israeli security.

The legacy of the 1982 war was Israeli occupation of southern Lebanon 
and the formation of Hizbullah in reaction, mounting an armed 
resistance that finally led to a shamefaced Israeli withdrawal in 
1998. This set the stage for the 2006 Lebanon war in which the 
announced adversary was Hizbullah, and the combat zone inevitably 
merged portions of the Lebanese civilian population with the military 
campaign undertaken to destroy Hizbullah. Such a use of hi-tech 
Israeli force against Hizbullah raised the issue of fighting against 
a hostile society with no equivalent means of defending itself rather 
than against an enemy state. It also raised questions about whether 
reliance on a military option was even relevant to Israel's political 
goals, as Hizbullah emerged from the war stronger, and the only real 
result was to damage the reputation of the IDF as a fighting force 
and to leave southern Lebanon devastated.

The Gaza operation brought these concerns to the fore as it 
dramatised this shift away from fighting states to struggles against 
armed resistance movements, and with a related shift from the 
language of "war" to "criminality". In one important respect, Israel 
managed to skew perceptions and discourse by getting the media and 
diplomats to focus the basic international criminal law question on 
whether or not Israeli use of force was "disproportionate".

This way of describing Israeli recourse to force ignores the 
foundational issue: were the attacks in any legal sense "defensive" 
in character in the first place? An inquiry into the surrounding 
circumstances shows an absence of any kind of defensive necessity: a 
temporary ceasefire between Israel and Hamas that had been in effect 
since 19 July 2008 had succeeded in reducing cross-border violence 
virtually to zero; Hamas consistently offered to extend the 
ceasefire, even to a longer period of ten years; the breakdown of the 
ceasefire is not primarily the result of Hamas rocket fire, but came 
about mainly as a result of an Israeli air attack on 4 November that 
killed six Hamas fighters in Gaza.

Disproportionate force?

In other words, there were no grounds for claiming the right of 
self-defence as Israel was not the object of a Hamas attack, and 
diplomatic alternatives to force existed and seemed credible, and 
their good-faith reliance was legally obligatory. On this basis the 
focus of legal debate should not be upon whether Israeli force was 
disproportionate. Of course it was. The focus should be on whether 
the Israeli attacks were a prohibited, non-defensive use of force 
under the UN charter, amounting to an act of aggression, and as such 
constituting a crime against peace. At Nuremberg after the second 
world war, surviving Nazi leaders were charged with this crime, which 
was described in the judgment as "the supreme crime" encompassing the others.

The Gaza form of encounter almost by necessity blurs the line between 
war and crime, and when it occurs in a confined, densely populated 
area such as Gaza, necessarily intermingles the resistance fighters 
with the civilian population. It also induces the resistance effort 
to rely on criminal targeting of civilians as it has no military 
capacity directly to oppose state violence. In this respect, the 
Israeli attacks on Gaza and the Hamas resistance crossed the line 
between lawful combat and war crimes.

These two sides should not be viewed as equally responsible for the 
recent events. Israel initiated the Gaza campaign without adequate 
legal foundation or just cause, and was responsible for causing the 
overwhelming proportion of devastation and the entirety of civilian 
suffering. Israeli reliance on a military approach to defeat or 
punish Gaza was intrinsically "criminal", and as such demonstrative 
of both violations of the law of war and the commission of crimes 
against humanity.

There is another element that strengthens the allegation of 
aggression. The population of Gaza had been subjected to a punitive 
blockade for 18 months when Israel launched its attacks. This 
blockade was widely, and correctly, viewed as collective punishment 
in a form that violated Articles 33 and 55 of the Fourth Geneva 
Convention governing the conduct of an occupying power in relation to 
the civilian population living under occupation. This policy was 
itself condemned as a crime against humanity, as well as a grave 
breach of international humanitarian law.

It also had resulted in serious nutritional deficiencies and 
widespread mental disorders on the part of the entire Gaza 
population, leaving it particularly vulnerable to the sort of "shock 
and awe" attack mounted by Israel from land, air and sea. This 
vulnerability was reinforced by Israel's unwillingness to allow Gaza 
civilians to seek safety while the tiny Strip was under such intense 
combat pressure. Two hundred non-Palestinian wives were allowed to 
leave, which underscored the criminality of locking children, women, 
the sick, elderly and disabled into the war zone, and showed its 
ethnically discriminatory character. This appears to be the first 
time in wartime conditions that a civilian population was denied the 
possibility of becoming refugees.

In addition to these big picture issues, there are a variety of 
alleged war crimes associated with Israeli battlefield practices. 
These charges, based on evidence collected by human rights groups, 
include IDF firing at a variety of civilian targets, instances where 
Israeli military personnel denied medical aid to wounded 
Palestinians, and others where ambulances were prevented from 
reaching their destinations. There are also documented claims of 20 
occasions on which Israeli soldiers were seen firing at women and 
children carrying white flags. And there are various allegations 
associated with the use of phosphorus bombs in residential areas of 
Gaza, as well as legal complaints about the use of a new cruel 
weapon, known as DIME, that explodes with such force that it rips 
body parts to pieces.

These war crimes concerns can only be resolved by factual 
clarifications as to whether a basis exists for possible prosecution 
of the perpetrators, and commanders and political leaders to the 
extent that criminal tactics and weaponry were authorised as matters 
of Israeli policy. In this vein too are the Israeli claims relating 
to rockets fired at civilian targets and to Hamas militants using 
"human shields" and deliberately attacking from non-military targets.

Even without further investigation, it is not too soon to raise 
questions about individual accountability for war crimes. The most 
serious allegations relate to the pre-existing blockade, the 
intrinsic criminality and non-defensiveness of the attack itself; and 
the official policies (eg confinement of civilian population in the 
war zone) have been acknowledged. The charges against Hamas require 
further investigation and legal assessment before it is appropriate 
to discuss possible arrangements for imposing accountability.

A question immediately arises as to whether talk of Israeli war 
crimes is nothing more than talk. Are there any prospects that the 
allegations will be followed up with effective procedures to 
establish accountability? There are a variety of potentially usable 
mechanisms to impose accountability, but will any of these be 
available in practice? This issue has been already raised by the 
Israeli government at the highest levels in the form of official 
commitments to shield Israeli soldiers from facing war crimes charges.

The most obvious path to address the broader questions of criminal 
accountability would be to invoke the jurisdiction of the 
International Criminal Court established in 2002. Although the 
prosecutor has been asked to investigate the possibility of such a 
proceeding, it is highly unlikely to lead anywhere since Israel is 
not a member and, by most assessments, Palestine is not yet a state 
or party to the statute of the ICC. Belatedly, and somewhat 
surprisingly, the Palestinian Authority sought, after the 19 January 
ceasefire, to adhere to the Rome Treaty establishing the ICC. But 
even if its membership is accepted, which is unlikely, the date of 
adherence would probably rule out legal action based on prior events 
such as the Gaza military operation. And it is certain that Israel 
would not cooperate with the ICC with respect to evidence, witnesses 
or defendants, and this would make it very difficult to proceed even 
if the other hurdles could be overcome.

The next most obvious possibility would be to follow the path chosen 
in the 1990s by the UN Security Council, establishing ad hoc 
international criminal tribunals, as was done to address the crimes 
associated with the break-up of former Yugoslavia and with the Rwanda 
massacres of 1994. This path seems blocked in relation to Israel as 
the US, and likely other European permanent members, would veto any 
such proposal. In theory, the General Assembly could exercise 
parallel authority, as human rights are within its purview and it is 
authorised by Article 22 of the UN charter to "establish such 
subsidiary organs as it deems necessary for the performance of its 
function". In 1950 it acted on this basis to establish the UN 
Administrative Tribunal, mandated to resolve employment disputes with 
UN staff members.

The geopolitical realities that exist within the UN make this an 
unlikely course of action (although it is under investigation). At 
present there does not seem to be sufficient inter-governmental 
political will to embark on such a controversial path, but civil 
society pressure may yet make this a plausible option, especially if 
Israel persists in maintaining its criminally unlawful blockade of 
Gaza, resisting widespread calls, including by President Obama, to 
open the crossings from Israel. Even in the unlikely event that it is 
established, such a tribunal could not function effectively without a 
high degree of cooperation with the government of the country whose 
leaders and soldiers are being accused. Unlike former Yugoslavia and 
Rwanda, Israel's political leadership would certainly do its best to 
obstruct the activities of any international body charged with 
prosecuting Israeli war crimes.

Claims of universal jurisdiction

Perhaps the most plausible governmental path would be reliance on 
claims of universal jurisdiction (1 
<<http://mondediplo.com/2009/03/03warcrimes#nb1>http://mondediplo.com/2009/03/03warcrimes#nb1> 
) associated with the authority of national courts to prosecute 
certain categories of war crimes, depending on national legislation. 
Such legislation exists in varying forms in more than 12 countries, 
including Spain, Belgium, France, Germany, Britain and the US. Spain 
has already indicted several leading Israeli military officers, 
although there is political pressure on the Spanish government to 
alter its criminal law to disallow such an undertaking in the absence 
of those accused.

This path to criminal accountability was taken in 1998 when a Spanish 
high court indicted the former Chilean dictator, Augusto Pinochet, 
and he was later detained in Britain where the legal duty to 
extradite was finally upheld on rather narrow grounds by a majority 
of the Law Lords, the highest court in the country. Pinochet was not 
extradited however, but returned to Chile on grounds of unfitness to 
stand trial, and died in Chile while criminal proceedings against him 
were under way.

Whether universal jurisdiction provides a practical means of 
responding to the war crimes charges arising out of the Gaza 
experience is doubtful. National procedures are likely to be swayed 
by political pressures, as were German courts, which a year ago 
declined to proceed against Donald Rumsfeld on torture charges 
despite a strong evidentiary basis and the near certainty that he 
would not be prosecuted in the US, which as his home state had the 
legally acknowledged prior jurisdictional claim. Also, universal 
jurisdictional proceedings are quite random, depending on either the 
cooperation of other governments by way of extradition or the 
happenchance of finding a potential defendant within the territory of 
the prosecuting state.

It is possible that a high profile proceeding could occur, and this 
would give great attention to the war crimes issue, and so universal 
jurisdiction is probably the most promising approach to Israeli 
accountability despite formidable obstacles. Even if no conviction 
results (and none exists for comparable allegations), the mere threat 
of detention and possible prosecution is likely to inhibit the travel 
plans of individuals likely to be detained on war crime charges; and 
has some political relevance with respect to the international 
reputation of a government.

There is, of course, the theoretical possibility that prosecutions, 
at least for battlefield practices such as shooting surrendering 
civilians, would be undertaken in Israeli criminal courts. Respected 
Israeli human rights organisations, including B'Tselem, are gathering 
evidence for such legal actions and advance the argument that an 
Israeli initiative has the national benefit of undermining the 
international calls for legal action.

This Israeli initiative, even if nothing follows in the way of legal 
action, as seems almost certain due to political constraints, has 
significance. It will lend credence to the controversial 
international contentions that criminal indictment and prosecution of 
Israeli political and military leaders and war crimes perpetrators 
should take place in some legal venue. If politics blocks legal 
action in Israel, then the implementation of international criminal 
law depends on taking whatever action is possible in either an 
international tribunal or foreign national courts, and if this proves 
impossible, then by convening a non-governmental civil society 
tribunal with symbolic legal authority.

What seems reasonably clear is that despite the clamour for war 
crimes investigations and accountability, the political will is 
lacking to proceed against Israel at the inter-governmental level, 
whether within the UN or outside. The realities of geopolitics are 
built around double standards when it comes to war crimes. It is one 
thing to proceed against Saddam Hussein or Slobodan Milosevic, but 
quite another to go against George W Bush or Ehud Olmert. Ever since 
the Nuremberg trials after the second world war, there exists 
impunity for those who act on behalf of powerful, undefeated states 
and nothing is likely to challenge this fact of international life in 
the near future, thus tarnishing the status of international law as a 
vehicle for global justice that is consistent in its enforcement 
efforts. When it comes to international criminal law, there continues 
to exist impunity for the strong and victorious, and potential 
accountability for the weak or defeated.

It does seem likely that civil society initiatives will lead to the 
establishment of one or more tribunals operating without the benefit 
of governmental authorisation. Such tribunals became prominent in the 
Vietnam war when Bertrand Russell took the lead in establishing the 
Russell Tribunal. Since then the Permanent Peoples Tribunal based in 
Rome has organised more than 20 sessions on a variety of 
international topics that neither the UN nor governments will touch.

In 2005 the World Tribunal on Iraq, held in Istanbul, heard evidence 
from 54 witnesses, and its jury, presided over by the Indian novelist 
Arundhati Roy, issued a Declaration of Conscience that condemned the 
US and Britain for the invasion and occupation of Iraq, and named 
names of leaders in both countries who should be held criminally accountable.

The tribunal compiled an impressive documentary record as to criminal 
charges, and received considerable media attention, at least in the 
Middle East. Such an undertaking is attacked or ignored by the media 
because it is one-sided, and lacking in legal weight, but in the 
absence of formal action on accountability, such informal initiatives 
fill a legal vacuum, at least symbolically, and give legitimacy to 
non-violent anti-war undertakings.

The legitimacy war

In the end, the haunting question is whether the war crimes concerns 
raised by Israel's behaviour in Gaza matters, and if so, how. I 
believe it matters greatly in what might be called "the second war" - 
the legitimacy war that often ends up shaping the political outcome 
more than battlefield results. The US won every battle in the Vietnam 
war and lost the war; the same with France in Indochina and Algeria, 
and the Soviet Union in Afghanistan. The Shah of Iran collapsed, as 
did the apartheid regime in South Africa, because of defeats in the 
legitimacy war.

It is my view that this surfacing of criminal charges against Israel 
during and after its attacks on Gaza resulted in major gains on the 
legitimacy front for the Palestinians. The widespread popular 
perceptions of Israeli criminality, especially the sense of waging 
war against a defenceless population with modern weaponry, has 
prompted people around the world to propose boycotts, divestments and 
sanctions. This mobilisation exerts pressure on governments and 
corporations to desist from relations with Israel, and is reminiscent 
of the worldwide anti-apartheid campaign that did so much to alter 
the political landscape in South Africa. Winning the legitimacy war 
is no guarantee that Palestinian self-determination will be achieved 
in the coming years. But it does change the political equation in 
ways that are not fully discernable at this time.

The global setup provides a legal framework capable of imposing 
international criminal law, but it will not be implemented unless the 
political will is present. Israel is likely to be insulated from 
formal judicial initiatives addressing war crimes charges, but will 
face the fallout arising from the credibility that these charges 
possess for world public opinion. This fallout is reshaping the 
underlying Israel/Palestine struggle, and giving far greater salience 
to the legitimacy war (fought on a global political battlefield) than 
was previously the case.

Original text in English

  (1) The idea of universal jurisdiction has its roots in the 
approach taken to piracy in prior centuries, allowing any country to 
capture and prosecute wherever a pirate vessel was found and 
regardless of the nationality of those charged with the crime.


Richard Falk is professor emeritus of international law at Princeton 
University and in 2008 was appointed UN Special Rapporteur on 
Palestinian human rights.




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