A 'targeted assassination' of international law
Tuesday, August 5, 2014 at 12:08AM http://www.haaretz.com/opinion/.premium-1.608744
by Micahel Sfard 4 August 2014 Haaretz
We Israelis can blame allegations of war crimes on global anti-Semitism, or we can take a tough look on the way we have waged armed conflict over the past decade.
Israelis are surprised. Did I say surprised? Downright shocked. Even before the dust from the fighting has settled, even before this “most just of all wars” has ended, even as the most moral army in the world is still mired in Gaza – there is already talk of war crimes and an international investigation.
We, who didn’t carpet-bomb even though we could have, who dropped fliers and made phone calls and knocked on the roof; we, who agreed to the humanitarian cease-fire that Hamas violated; we, who took more precautions than any other nation would have done – we are once again being accused of war crimes. Once again, the same old song is being sung: decisions about opening an international investigation, talk of the International Criminal Court, fear of arrests in Europe. And we don’t understand why we deserve all this.
It is possible to console ourselves by accepting the explanation that the television journalists keep repeating to us: that the world is anti-Semitic and two-faced and supports Hamas. But this would constitute a regrettable evasion of the tough questions. It would constitute an effort to flee the pointed discussion Israeli society ought to be holding about the way we have waged armed conflicts with our enemies over the last decade.
Since the Second Lebanon War of 2006, the Israel Defense Forces has adopted an extremely problematic combat doctrine for conflicts that take place in urban areas with dense civilian populations, and in which the enemy is seen as an illegitimate terrorist entity (Hezbollah in Lebanon and Hamas in Gaza). This combat doctrine is supported by a legal theory developed by the IDF’s international legal division, which interprets the laws of war in a manner that is shockingly different from their accepted interpretation by experts in the field worldwide. Its direct result is massive civilian casualties and the destruction of civilian neighborhoods.
This combat doctrine consists of two elements, each of which is a declaration of war against the fundamental principles of the laws of armed combat. The first element redefines what constitutes a legitimate target for attack, such that it now includes not only classic military targets (bases, combatants, weapons stockpiles and so forth), but also facilities and objects whose connection to the enemy organization is nonmilitary in nature. Under this innovative definition, the IDF’s target bank has expanded to include “symbols of the Hamas government” (offices, policemen, the parliament building), which were targeted during Operation Cast Lead in early 2009, and houses belonging to Hamas commanders and operatives, which have been targeted during the current Operation Protective Edge. Dozens and perhaps hundreds of civilians have been killed in assaults on such structures.
The second element is even more far-reaching: It holds that when fighting in urban areas, we are entitled to treat the entire area as a legitimate target and bombard it via air strikes or artillery shelling – as long as we first warn all the residents of our intention to do so and give them time to leave. The IDF first used this method in Beirut’s Dahiya neighborhood during the Second Lebanon War. Before bombing, the army dropped fliers telling the residents to leave. Then the bombs were dropped, and most of Dahiya’s houses were destroyed.
This doctrine was applied, to varying degrees, in Operations Cast Lead and Protective Edge as well, primarily in Gaza City’s Shujaiyeh neighborhood. It does not take into consideration the question of whether the prior warning given the population is effective – i.e., whether the population can in fact leave, whether solutions have been found for the elderly, the ill and the children. Nor is it accompanied by the creation of a safe corridor through which people can flee to someplace that won’t be fired on, and where civilians have what they need to survive.
The terrifying result of this combat doctrine, in both Cast Lead and Protective Edge, was piles of bodies of women, children and men who weren’t involved in the fighting. During Protective Edge, the IDF itself, via its spokespeople, claimed that Hamas was preventing the population, both by force and by threats, from fleeing the areas slated to be bombed. Yet even this fact didn’t abort the bombings.
The IDF’s lawyers, who provide legal support for this combat doctrine, are conducting a "targeted assassination" of the principles of international law: the principle of distinction, which requires differentiation between military targets (which are legitimate) and civilian targets (which aren’t); the principle of proportionality, which forbids attacking even a legitimate target if the anticipated harm to civilians is excessive in comparison to the military benefit from the target’s destruction; and the need to take effective, rather than merely symbolic, precautions.
Even so, none of this would lead to international investigations if there were at least an Israeli mechanism for conducting inquiries that met international standards, as international law gives priority to investigations and trials by the state in question. But, as the reports of countless Israeli human rights organizations have shown, the IDF’s in-house system of investigations and prosecutions has been a failure: Parts of it are neither independent nor professional; it's horrendously slow; and it’s incapable of dealing with questions related to policies set and decisions made by senior officers.
The Turkel Commission – appointed by the previous government to examine whether Israel complies with international requirements for investigating suspicions relating to possible violations of the laws of war – adopted the recommendations of Israeli human rights organizations and, about a year and a half ago, issued 18 recommendations for major changes in the IDF’s investigative policies. But these recommendations were buried by means of the well-known method of setting up an “implementation committee.”
In this situation, the army’s past and present legal advisors are not only legalizing an immoral form of combat; they are pushing Israel into international investigations and perhaps even indictments.
So there’s no reason to be surprised. Preventing harm to civilians has always been the purpose and the raison d’etre of the laws of war. Therefore, Hamas’ firing of missiles at civilians is undoubtedly a war crime. But for the same reason, the bombing of Hamas operatives’ private homes (“so that when they emerge from their bunkers, they’ll see what a price they have paid”), and the use of artillery and aerial strikes aimed at densely populated civilian areas raises suspicions that the laws of war were violated. And these suspicions must be investigated.
The writer is the legal advisor of the Yesh Din organization.
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Why do Palestinians in Gaza support Hamas?
Unlike other Islamic groups that lack local anchorage and are based on obsolete ideologies, Hamas has evolved into a political movement deeply rooted in Gaza.
By Dr. Lorenzo Kamel | Aug. 5, 2014 | 12:51 AM
The carnage witnessed in these last few days in the Gaza Strip carries with it a major lesson: instead of turning Palestinians against Hamas, the Gaza blockade makes them more dependent on the group. But while most of the commentary is focusing on the Palestinians’ responsibilities for the election of Hamas in 2006 (it’s worth noting that over 53 percent of the population in the Gaza Strip is now under 18 years of age and thus didn’t vote), on Egypt’s role, or on analyzing who started this new round of violence, very few are concentrating on the historical roots of this tragedy.
The population in the Gaza Strip is mainly composed by families of Palestinian refugees. Many of them were expelled in 1948 from Najd, Al-Jura and al-Majdal, present-day Or HaNer, Sderot and Ashkelon (a city of Canaanite origins, that included until 1948 al-Majdal). These villages were razed to the ground by the IDF to prevent the return of their inhabitants. The latters were transferred by bus to the camps and the cities that form the present-day Gaza Strip.
In the years to follow several cases occurred in which refugees, or “infiltrators”, crossed the armistice lines to collect possessions and pick up unharvested crops, or to raid Israeli settlements adjacent to the Strip. In that phase, a number of Israeli fatalities occurred and, in Benny Morris’s words, “Israel’s defensive anti-infiltration measures resulted in the death of several thousand mostly unarmed Arabs during 1949-56”.
Despite the anger and the fears connected to its tragic past, the population in the Gaza Strip remained largely apolitical and very hesitant toward the Palestinian Muslim Brotherhood, the precursor of Hamas.
The first local branch of the Muslim Brotherhood, already at the time composed by different factions, was established in Jerusalem in 1946. Its first representatives, however, arrived from Egypt in 1936 with the aim of encouraging the Palestinians in their struggle against the British strategy for the region and Jewish immigration.
In the 1950s and 1960s the Brotherhood weakened due to the harsh repression carried out by Egyptian President Gamal Nasser. After the War of 1967, the Palestinian Liberation Organization (PLO) shifted increasingly toward violence and terrorism: A strategy that Hamas’s precursors did not embrace.
They chose instead to focus on social and cultural activities - benefiting for this from the tolerance of the Israeli authorities, which regarded them as a counterbalance to the main enemy, the PLO – in an environment that was increasingly turning toward religion. Between 1967 and 1987, the year in which Hamas was founded two decades after the beginning of the Israeli occupation, the number of mosques in Gaza tripled from 200 to 600.
Hamas was created in 1987 during the outbreak of the First Intifada. Its founder, the al-Jura-born Sheikh Ahmed Yassin, established its movement out of the largely dormant Brotherhood’s Gaza branch and with the aim to assume a driving role in the revolt of 1987. The organization carried out its first attack against Israel in 1989, killing two soldiers. Sheikh Yassin was sentenced for this to life in prison and 400 Hamas activists were deported to the Israeli-occupied South Lebanon, where Hezbollah and Hamas established their ties.
The Izz ad-Din al-Qassam Brigades, Hamas’s military branch, were established in 1991. Two years later they started to carry out terrorist attacks in the West Bank, and from April 1994, two months after the massacre perpetrated by Baruch Goldstein in a Hebron mosque, they began their suicide bombings inside Israel. Anti-semitic statements by several Hamas members and clerics, similar to those included in the Hamas Charter of 1988, since then became increasingly common.
In March 2004 Sheikh Yassin was killed by an Israeli missile strike. Hamas survived and began to participate in the electoral process, gaining increasing support among the local population, mainly thanks to its social activities and the effects of the Israeli occupation.
Following Hamas’s victory in the 2006 Palestinian legislative elections, Ismail Haniyeh, the newly-elected Prime Minister, sent a dispatch to U.S. President George W. Bush asking to be recognized and offering a long-term truce with Israel and the establishment of a border on the lines of 1967. His message, as a similar one sent to the Israeli authorities, remained unanswered. A similar destiny was reserved in the same months to the Arab Peace Initiative.
As in the case of the Likud Charter of 1999 (whose main principles, including the rejection of a Palestinian state, have never been retracted), also Hamas was still far from being ready to recognize the State of Israel, but was willing to adopt a pragmatic approach.
Prime Minister Ehud Olmert decision to respond to Hamas’ takeover of Gaza with a blockade played into the hands of the organization’s military wing. Furthermore, the failure of Hamas’ political wing to remove the Israeli closure undermined any attempt to explore pragmatic solutions. “The differences between the party’s platform and the Islamic Charter [of Hamas]”, in Menachem Klein’s words, “do not represent an attempt at deception or the empty and unconsidered use of words. They are a product of a change and modification of lines of thought as a part of the process by which Hamas has become a political movement”.
Hamas’s pragmatic evolution could be seen also in the phase following the implementation of the Egypt-brokered cease-fire of 2012, that was supposed to end or significantly ease the closure of Gaza and to guarantee Israel’s security needs; during the three months after the agreement, only one attack (two mortar shells) occurred. In the same period, Gaza suffered regular incursions and the local population, as recorded by the Israeli NGO Gisha, was once again prevented from conducting a normal existence.
The point of dredging up this complex history is not to deny Hamas responsibility for its actions: Its rockets threatening Israeli cities are immoral and counterproductive. Furthermore, several Hamas’s leaders and sympathizers have often focused on opposing Israel on principle, rather than in ameliorating the conditions of the Palestinian people. Finally, Hamas has frequently misdirected the Palestinian cause from one where Palestinians demand their legitimate right to a state, or at least to full rights (full citizenship), to an inter-Palestinian quarrel between Hamas and Fatah, or a Gaza-Egypt dispute over the Rafah crossing.
But Hamas’ responsibilities cannot be detached from its context and from the role played by Israel in the entire process. Contrary to the Islamic State (formerly ISIS) and other similar groups, devoid of deep anchorages in the local societies and based on obsolete ideologies, Palestinian factions are firmly rooted in the history of their land: They are the product of some wrong decisions, but also, if not especially, of a century of suffering, oppression, and a long-standing quest for self-determination. Any solution that will not address each of these issues is doomed to fail.
Dr. Lorenzo Kamel is a research fellow (2013/14 and 2014/15) at Harvard University’s Center for Middle Eastern Studies.
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