UN-Truth

Excerpts from a report of the Richard Falk, Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967, transmitted through the United Nations Secretary-General (document A/64/328):

“On the Gaza crisis, although the ceasefire established by the parties on 18 January 2009 has generally held, the overall situation is that Gaza has continued to deteriorate in a manner that discloses patterns of grave breaches of the Fourth Geneva Convention and violations of international human rights law which have implications under international criminal law. Due to the persistence of the blockade of the Gaza Strip, insufficient basic necessities are reaching the population; health conditions have further worsened putting all Gazans at risk; building materials needed for the repair and reconstruction of homes and buildings destroyed by the Israeli Defense Forces during the 22-day Gaza War have been disallowed entry.  The United Nations System is challenged on an emergency basis to take some tangible action to render protection to the civilian population of Gaza.

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“Most emphasis in discussions of the blockade have been on import restrictions, but the prohibition placed upon exports also has had an undeniable crippling effect on the economy and well-being of the Gazan population, leading to the complete collapse of industrial and agricultural exports that had provided some material security for significant portions of the population and some hope for the
future development of the Gaza Strip. It would be inadequate to return to the status quo prior to Operation Cast Lead.  Only a complete termination of the blockade that allows imports and exports at May 2007 levels would be acceptable.   One perverse side-effect of the continuing blockade is to encourage Gazan reliance on tunnels into Egypt to obtain essential supplies, giving rise to black market activities and to severe safety hazards.
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“The harmful impact of strict controls of mobility on family and social relations has been noted as part of the overall Gazan reality that ICRC graphically summarizes by the phrase applicable to the entire population of the Strip as ‘trapped in despair’.  A further dimension of this entrapment is the disallowance of hundreds of young people to seek education abroad,  including some cruel and dispiriting incidents involving Palestinians who have gained fellowship assistance from leading universities only to be refused exit permits by Israel in its role as occupying power.

“It needs to be noted once again, and repeated frequently, that the blockade as such is flagrantly and vindictively unlawful given the clear obligation of article 33 of the Fourth Geneva Convention to avoid collective punishment without exception.   As such it constitutes a war crime of great magnitude.

[On Israel's Operation Cast Lead against Hamas in Gaza, Falk says that developments suggest that] “once the facts are established and recommendations received, attention will shift to the more difficult question of devising an appropriate mechanism for assessing accountability for war crimes. For political reasons, it is unlikely that such a mechanism will be established under United Nations auspices although the legal capacity to do so is definitely present, as it was illustrated by the establishment of ad hoc criminal tribunals for former Yugoslavia and Rwanda in the 1990s.  The General Assembly also possesses the constitutional authority under Article 22 of the Charter of the United Nations to establish subsidiary organs as it deems necessary for the performance of its functions, and although it has never established a criminal tribunal, there is every reason to suppose that it possesses the authority to do so. Further, for jurisdictional, as well as political reasons, it is almost certain that the International Criminal Court is not available: Israel is not a party and would undoubtedly refuse all forms of cooperation. Palestine did not attempt to become party until after Operation Cast Lead and is not widely thought to have at present the legal credentials to qualify and be accepted as a ‘State’.  It is likely that the only available form of accountability will result from civil society initiatives associated with the imposition of sporting and cultural boycotts and divestment moves involving trade and investment.  Once again it is anticipated that governments and the United Nations will not follow through at the implementation stage with respect to international legal obligations”.

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Richard Falk on testimonies gathered by the Israeli organization, Breaking the Silence, concerning Operation Cast Lead (pages 11-14)

“[Breaking the Silence is an organization of veteran Israeli soldiers that collects testimonies of soldiers who served in the occupied territories during the Second Intifadah. Breaking the Silence: Operation Cast Lead is available from www.breakingthesilenceorg.il.]

“Breaking the Silence: Operation Cast Lead is a publication containing the responses of combat soldiers who took part in the military operation. It has received considerable media attention because it confirms from within the Israeli Defense Forces several disturbing allegations: consistent Forces reliance on unacceptably loose rules of engagement that meant that international humanitarian law guidelines as to limits on military force in relation to civilians and civilian targets became virtually inoperative and were not part of briefings given prior to or during combat; widespread destruction of target that could not be justified from a military or security perspective; use of phosphorus in densely populated zones; interference with Gazan civilian movement to places of relative safety in Gaza by the fragmentation of the Strip trapping many within the worst combat sectors; racist pressures brought to bear on soldiers by what was described as the ‘military rabbinate’, dehumanizing Arabs and Palestinians, and treating the conflict as a holy war against a demonic enemy.

“It should be noted that the testimonies of these Israeli Defense Forces soldiers assumed greater credibility because they were not at all anti-Israeli or anti-Zionist in tone, and many of the soldiers accepted the underlying rationale of Operation Cast Lead as a necessary defensive reaction to Hamas rockets. Also there were some qualifications placed on the condemnation of disregard of the Forces for civilians: there was acknowledgement that Forces warnings were issued, that warning shots were sometimes fired to identify whether individuals were suspicious or to deter Gazans from coming closer to where soldiers were deployed, and that sporadic efforts were made by some Forces commanders to avoid doing as much civilian damage as could have been inflicted. Overall, an impression emerges from the testimonies that many of the tactics relied upon were less designed to kill and injure Palestinian civilians than to protect Israeli soldiers from injury, death, or capture. However, much of this increased the risks of harm inflicted to innocent Palestinians.

“A typical sentiment in the testimony was the following order given by a field commander to Defense Forces troops: ‘Not a hair will fall off a soldier of mine, and I am not willing to allow a soldier of mine to risk himself by hesitating.  If you are not sure — shoot’.  Or more generally: ‘There was a clear feeling, and this was repeated whenever others spoke to us, that no humanitarian consideration played any role in the army at present.  The goal was to carry out an operation with the least possible casualties for the army, without its even asking itself what the price would be for the other side’.

“The testimonies were anonymous, and it has been impossible up to this point to contact any of the soldiers for further clarification. At the same time, there is no indication that such testimonies lacked authenticity.  Most commentary on Breaking
the Silence stressed the Forces breakdown of respect for the Geneva Conventions and limits on war fighting embedded in the laws of war. Some observers also placed value on the report as a more trustworthy narrative than the official Israeli Defense
Forces and Israeli response to war crimes allegations, which have consisted of blanket denials coupled with some acknowledgement that a few individual soldiers may have strayed from professional military standards of conduct under battlefield stress. The main Israeli response claimed that the Israeli Defense Forces as a whole took exceptional risks to accord moral and legal protection to the civilian population of Gaza over the course of Operation Cast Lead and acted in a proper professional manner under difficult combat conditions.

“Even more important than this alternative picture of Israeli Defense Forces behaviour in relation to Operation Cast Lead and international humanitarian law was the whole question as to whether the use of modern military technology in the densely populated setting of the Gaza Strip could ever have conformed to the requirements of that law. One of the soldiers expresses this concern in the following language: ‘In urban warfare, anyone is your enemy. No innocents. It was simply urban warfare in every way’.  Or ‘No accountability in such a zone whatever we do is fine … ‘sons of light’ against ‘sons of darkness’ ‘ and ‘ … the assumption is that everyone is a terrorist, and then it’s legitimate to do anything we please‘.   In this spirit, for instance, it was practice to treat any Gazan seen at a great distance with a cell phone as a terrorist. What comes across is that the context of combat in Operation Cast Lead on the ground was such that war crimes were indistinguishable from the logic of the military operation.

“It is true that Hamas militants were capable of disguising themselves as civilians, that anyone could be a threat, and that it is normal for a military undertaking to minimize casualties to itself.  The soldiers’ testimonies indicate that the process of doing this produces grossly disproportionate harm by way of casualties to innocent civilians and devastation of the urban environment.  In other
words, the argument is less about the departure from international humanitarian law guidelines in the military operation than questions about the inherent disconnect between that law and urban warfare on such a scale, especially under conditions where the civilian population is denied the option of exit or shelter.  Although, to be sure, there were specific departures, as in the case of using white phosphorus shells and bombs and tank flachette shells in areas with dense civilian populations.  Such practices amount to indiscriminate attacks and would seem flagrant violations of article 35(2) of Protocol I additional to the Geneva Conventions of 12 August 1949 relating to the protection of victims of international conflicts: ‘It is prohibited to employ weapons, projectiles and materials and methods of warfare of a nature t0 cause superfluous injury or unnecessary suffering’.

“At the very least, there is a burden of persuasion on those who have recourse to such a use of military power. According to Israel, such an operation was necessary to remove a major security threat.  Here, one is struck by the relative absence on the part of Israeli commanders of any effort directed at removing the threat of future rocket attacks. As has been argued in a previous report, and mentioned above, diplomacy offered Israel a promising path to address the important security interest associated with diminishing or even eliminating rocket fired into southern Israel from across the Gaza border.  The most that was told to the soldiers by their commanders was that Operation Cast Lead was somehow a response to the rockets or, more specifically, that ‘we’re going in to create
appropriate conditions for the negotiation to bring Gilad Shalit home’.  It is the judgment of the Special Rapporteur that Operation Cast Lead discloses that urban warfare, fought on the ground, from air or sea, cannot maintain the legal standards of constraints associated with international humanitarian law, more specifically with the special requirements of the Fourth Geneva Convention and Protocol I associated with the protection of civilian, particularly in circumstances of prolonged occupation. In this respect, the Israeli claim of adherence to the restraints of international law is unconvincing, as demonstrated by the evidence of combat practices and de facto rules of engagement; equally unconvincing are contentions that Israeli soldiers in the field should be the main concern of investigation and potential accountability.  Instead, the focus should be upon high military commanders and political leaders who devised such an operation, as well as on the limits on military power in the first place.

“One of the most celebrated legal guidelines on war fighting is contained in article 22 of the annex to the 1899 Hague Convention II on the Laws and Customs of War on Land: ‘The right of belligerents to adopt means of injuring the enemy is not unlimited’.  Article 35(1) of Protocol I expresses the same general sentiment:  ‘In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited’.  Urban warfare of the sort carried out in Gaza during Operation Cast Lead seems to exceed those limits; however vague they may seem to be as formulated in 1899, the time may have come in 2009 to give them
concrete application to the circumstances of modern urban warfare.  In other words, it is of great importance to focus on the war itself rather than to limit inquiry to the alleged unlawful practices and tactics”.