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<h1><b>Israel's War Crimes<br><br>
</b></h1><h3><b>Calls for investigation into Gaza
attacks</b></h3><font size=3>March 12, 2009 By <b>Richard Falk</b> <br>
Source: <a href="http://mondediplo.com/2009/03">Le Monde
</a><a href="http://mondediplo.com/2009/03">Diplomatique</a><br><br>
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.<br>
<br>
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".<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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".<br>
<br>
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.<br>
<br>
Disproportionate force?<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Claims of universal jurisdiction<br>
<br>
Perhaps the most plausible governmental path would be reliance on claims
of universal jurisdiction (1
<<a href="http://mondediplo.com/2009/03/03warcrimes#nb1">
http://mondediplo.com/2009/03/03warcrimes#nb1</a>> ) 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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
The legitimacy war<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Original text in English<br>
<br>
(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. <br><br>
<br>
Richard Falk is professor emeritus of international law at Princeton
University and in 2008 was appointed UN Special Rapporteur on Palestinian
human rights.<br><br>
<br><br>
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