HRW Report on White Phosphrous – what the IDF had to say

One of the interesting parts of the Human Rights Watch report on the IDF’s use of White Phosphorus, entitled “Rain of Fire: Israel’s Unlawful Use of White Phosphorus in Gaza”, is the discussion of what the IDF had to say about it.

The HRW report refutes the repeated Israeli claim that the International Committee of the Red Cross (ICRC) has exonerated the IDF from any wrongdoing with its use of White Phosphorus in Gaza.
Continue reading HRW Report on White Phosphrous – what the IDF had to say

HRW White Phosphorus Report – Recommendations

Here are Human Rights Watch’s Recommendations upon publication of its report on the use of White Phosphorus during Operation Cast Lead:

“To the Government of Israel
* Immediately appoint an independent commission of inquiry to investigate all credible allegations of serious violations of international humanitarian law by Israeli forces in Gaza between December 27 and January 18, including the use of white phosphorus.  The investigation’s findings should be made public and should include recommendations for disciplinary measures or criminal prosecutions, as appropriate.
* Order the IDF to cease any use of white phosphorus munitions in populated areas, in Gaza and elsewhere
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Human Rights Watch (HRW) lifts embargo on White Phosphorous report

Fred Abrahams, the senior emergencies researcher for Human Rights Watch (HRW), and one of the co-authors of the report on Israel’s use of White Phosphorus in Gaza during the recent 22-day military operation, Cast Lead, said this afternoon in Jerusalem that the embargo was being lifted this afternoon, due to numerous leaks, already published in the media.

In a press release accompanying the report, Abrahams said “In Gaza, the Israeli military didn’t just use white phosphorus in open areas as a screen for its troops … It fired white phosphorus repeatedly over densely populated areas, even when its troops weren’t in the area and safer smoke shells were available. As a result, civilians needlessly suffered and died … For the needless civilian deaths caused by white phosphorus, senior commanders should be held to account”
Continue reading Human Rights Watch (HRW) lifts embargo on White Phosphorous report

HRW expresses concerns about serious violations of international law which may amount to war crimes

Human Rights Watch (HRW) will launch on Thursday its report on the conduct of Israel’s 22-day Operation Cast Lead in Gaza. There is apparently going to be a press conference in Jerusalem, which I am trying to find out about…

Meanwhile, HRW has recently sent a letter to European Union Foreign Ministers, in which it callied on the EU to “address the pressing matter of serious violations of international humanitarian law committed by Israel and Hamas in the Gaza Strip and southern Israel … [and] to press for a comprehensive and impartial international inquiry into allegations of serious violations of international law and to insist on accountability for those responsible for these violations, which may amount to war crimes, by committing or ordering them or as a matter of command responsibility”.

The letter was signed by Lotte Leicht, EU Director for Human Rights Watch

She wrote that it will not be easy, but “the work has to start now in the form of an impartial, international commission of inquiry to determine key facts and to recommend mechanisms for holding violators accountable and providing compensation to victims. If the UN Security Council cannot agree to establish such a commission, the EU should encourage Secretary-General Ban Ki-moon to take the initiative … The primary other mechanism for an impartial international inquiry, the ICC, is currently less promising … However, the EU could press for the UN Security Council to establish a UN commission of inquiry into serious violations of the rules of war and to recommend next steps to ensure accountability and compensation for the victims, as happened in the case for Darfur”.

The letter added that “Failure to push for accountability in Gaza would undermine the credibility of both the EU as a global voice for international justice and international justice institutions themselves, which the EU has reinforced and supported”.

The concerns expressed in the letter were about both Israel and Hamas’

Israel actions cited were:
– The continuing closure of the Gaza Strip;
– Regrettably in January 2009, the IDF resumed the unlawful use of High Explosive Heavy Artillery in densely populated areas.
– The IDF’s extensive use of white phosphorus over many parts of the Gaza Strip, despite plentiful evidence of the munitions’ indiscriminate incendiary effect, was neither incidental nor accidental, but intentional. Even if intended as an obscurant to block troop movements rather than as a weapon, the IDF’s firing of air-burst white phosphorus shells from 155mm artillery into densely populated areas indicates the commission of war crimes.
– Human Rights Watch documented six cases in which Israeli soldiers opened small-arms fire on Palestinian civilians, killing a total of 10 people-among them five women and three children-and wounding at least eight civilians. In each of these cases, the victims were standing, walking or driving with other civilians who were trying to convey their civilian status by waving a white flag.
The IDF appears to have used an unjustifiably expansive definition of military targets during the operation. According to official Israeli statements, Israeli forces attacked a range of presumptively civilian facilities, from government offices to police stations, on the basis that they provided at least indirect support to Hamas’s military wing. This violates the crucial distinction between civilians and combatants that lies at the heart of the laws of war, and which requires that civilians take a direct part in the hostilities before they become legitimate military targets.
– The IDF repeatedly justified attacks in civilian areas by saying that it had adequately warned the civilian population in advance, either by dropping leaflets, making telephone calls or breaking into local radio and television broadcasts. International humanitarian law requires armed forces to provide “effective advance warnings” of an attack when circumstances permit. Human Rights Watch found that warnings given in Gaza by the IDF failed to meet that standard of effectiveness. The warnings were vague: often addressed to the “inhabitants of the area,” they did not provide sufficient information on what areas would be attacked or when civilians should take appropriate action. When dropped from airplanes, leaflets scattered over wide areas, leading some civilians to disregard them. In many cases, the warnings did not instruct civilians where to find safety after fleeing their homes. Some warnings told civilians to head to the centers of towns, and in some cases those centers, including Gaza City, later came under attack. Moreover, even after warnings have been given, international humanitarian law requires attacking forces to take all feasible precautions to avoid loss of civilian life and property; attacking forces may not assume that all persons remaining in an area after a warning has been issued are combatants.
– Human Rights Watch is still conducting research on the intentional destruction by Israeli ground forces of civilian property throughout Gaza … In several cases investigated so far, Human Rights Watch found that the pattern of destruction strongly suggests that Israeli ground forces demolished homes in a wholesale manner in the absence of military necessity, in violation of international humanitarian law.

Hamas actions cited were:
– Rocket Attacks on Israeli civilians by Hamas and by other Palestinian armed groups: Statements from Hamas officials indicate that they are directing their rockets at Israeli population centers. The use of such rockets against civilian areas violates the prohibition on deliberate and indiscriminate attacks. Those who willfully conduct such attacks are responsible for war crimes.
– Sparing civilians from hostilities and use of “human shields”: The laws of war do not ban urban combat or prohibit fighting from civilian areas, but parties to a conflict must take all necessary precautions to protect civilians against the dangers resulting from armed hostilities. They must to the extent feasible avoid locating military objectives, such weapons, ammunition and headquarters, within or near densely populated areas. Hamas forces at times deployed in populated civilian homes and used them to monitor or attack Israeli forces. Human Rights Watch documented cases in which Hamas fired rockets from very near populated homes or other civilian objects. Launching rockets from within densely populated areas–thus making civilians in the vicinity vulnerable to counterattacks – violates the requirement to take all feasible precautions to protect civilians from harm … [But]we did not document any cases in which Hamas fighters deliberately used civilians to protect themselves against an Israeli attack.
– Parallel with its conduct of military hostilities with Israel, and in part using that conflict as a rationale, Hamas violated the human rights of Gazan residents. After Israel began its military offensive on December 27, 2008, Hamas authorities in Gaza took extraordinary steps to control, intimidate, punish, and at times eliminate their internal political rivals and those suspected of collaboration with Israel. The attacks continued throughout Israel’s campaign, and have slowed but not stopped since major hostilities ceased on January 18, 2009.

Continue reading HRW expresses concerns about serious violations of international law which may amount to war crimes

U.S. State Department says Richard Falk's views are "biased"

The U.S. State Department spokesman told journalists on Monday that the current official U.S. position is that the views of the UN Human Rights Council’s Special Rapporteur on the situation in the occupied Palestinian territory, U.S. Professor Richard Falk, are “not fair”, and are in fact “biased”.

But, the State Department spokesman said, the U.S. believed that investigations into what happened in Gaza — into Israel’s conduct of the 22-day Operation Cast Lead — should go forward. But, they should be unbiased.

Here is a full transcript, as provided by the State Department:

“QUESTION: Does the United States support the call by the UN rapporteur Professor Falk before the UN Human Rights Council for an independent inquiry into possible war crimes in Gaza by both Israel and Hamas?

MR. WOOD: Look, we’ve expressed our concern many times about the special rapporteur’s views on dealing with that question, and we’ve found the rapporteur’s views to be anything but fair. We find them to be biased. We’ve made that very clear.

QUESTION: But my question is: Do you support the call that was also echoed by Archbishop Tutu and Amnesty International to call for an independent inquiry – committee of inquiry into possible war crimes?

MR. WOOD: Well, as I’ve said to you before, those types of investigations with regard to where there are charges being made, whether it being it’s one side or the other, there will be, I’m sure, people, organizations will be looking into these. And we need to let those go forward. I don’t have anything further beyond that.

QUESTION: In the framework of the Human Rights Council?

MR. WOOD: I’m just saying – I’ve already spoken to, I think, our view about the Human Rights Council, certainly to the UN special rapporteur’s role, and we viewed them as biased. And I don’t have anything further to add to that.

QUESTION: Wait, I just want to make sure I understand. You do – you support an investigation into war crimes?

MR. WOOD: No. I’ve said – you are trying to twist my words.

QUESTION: No, no, no, I’m not.

MR. WOOD: What I said —

QUESTION: I’m trying to make sure I understood what you just said.

MR. WOOD: What I said was —

QUESTION: You said there are going to be calls and inquiries.

MR. WOOD: I said there will be calls and —

QUESTION: And that they should go ahead.

MR. WOOD: No, no, no. What I —

QUESTION: I’m not trying to twist your words. I just want to make sure I understood what you said.

MR. WOOD: What I was trying – what I’m saying here is that you’re going to have these types of investigations and calls for, you know, there to be investigations, whether it be of one side or the other. And that’s likely to be something that will happen, and that’s not going to be anything that we’re going to be able to do – excuse me, to prevent. What we want to see, if there are going to be these types of investigations, they need to be non-biased. They need to take into account the situations on the ground, the realities on the ground, and go from there” …

Richard Falk interview with Jerusalem's Alternative Information Center

In an interview last week published by the Alternative Information Center in Jerusalem, Richard Falk, the UN Special Rapporteur on the Human Rights Situation in Gaza, summed up his view of whether or not war crimes, and crimes against humanity, had been committed by the IDF in its recent operation in Gaza.

Falk said: “I think that the attack on Gaza initiated on December 27th of last year was a violation of a fundamental norm of the UN Charter, which prohibits non-defensive uses of force. At the Nuremburg trials after World War II, that was treated as a crime against the peace, which was viewed as the most serious of all international crimes.
Following from the attack itself, which was not a justifiable use of force, is the whole question of whether the use of modern weapons in a setting where the civilian population is exposed to the ravages of war can ever be reconciled with the international law of war. I believe it cannot be. That conclusion is somewhat controversial, it hasn’t been formally tested in an international tribunal, but I think the inability to prevent civilian casualties has clearly been established by the results of the attacks on Gaza.
Beyond the actual physical death and injury endured by Palestinians, including many women and children, is the wider reality that being trapped in a war zone of that sort almost certainly imposes severe and maybe incurable mental damage to the entire population. So it is a matter of waging war against a whole civilian population. That is, it seems to me, the essence of the most serious violation of the law of war. And it was aggravated in this situation because the civilians in Gaza were not even given the option to become refugees. They were locked in the war zone and therefore deliberately trapped in this combat area, which was so densely populated and being attacked from the sea and the air and by land.
Finally is the issue of the tactics and weapons that were used. There is a lot of eye-witness evidence that prohibited targets were struck, including several UN buildings; that civilians were deliberately targeted in an act of vengeance, apparently; and that legally dubious weapons were used in contexts where civilians were exposed to them, such as phosphorous bombs and a weapon called DIME, which involves a very intense explosive power that makes surgical and medical treatment impossible. So there’s a whole bunch of issues that together create quite an inventory of violations of the law of war as well as violations of the UN Charter”.

This interview can be read in full here.

Richard Falk to UN Human Rights Council – IDF war on Gaza not justified by self-defense

The Geneva-Based UN Human Rights Council (HRC) is today discussing the report it requested on the IDF Operation Cast Lead in Gaza from U.S. Professor Richard Falk, the HRC’s Special Rapporteur on Human Rights in the occupied Palestinian territory.

In an “advanced unedited” copy of the report, dated 17 March 2008, Falk took issue with Israel’s contention that the 22-day IDF military operation against Gaza was in “self-defense”. This document can be read in full here .

Falk, in the report, questioned the legal justification for Israel’s use of force, given the circumstances (particularly, the nature of the Palestinian threat to Israel), and the diplomatic alternatives available. The IDF Operation may have been a crime against peace, Falk said.

To determine whether or not this was so, Falk said, there should now be an “expert inquiry” — and not just another further “investigation”. And, he wrote, “despite the apparent one-sidedness of the Gaza attack, allegations of war crimes on both sides of the conflict should be taken into account”.

Falk stated that “Ideally, Israel, as the sovereign State exercising control over the territory where the alleged offences took place, should be the locus of judicial assessment, whether by its normal criminal law procedures or through the establishment of a special ad hoc process – but … this is extremely unlikely to take place”.

In addition, he said, it is “disquieting” that the Government of Israel has declared its intention to shield members of its armed forces from any repercussions for their war-time conduct: “Such sentiments seem inconsistent with any expectation of serious official cooperation with a proposed investigation. It may be necessary, given this prospect, to place greater reliance on respected nongovernmental organizations compiling evidence and submitting reports, and on formal interviews with qualified observers and witnesses”.

Falk also wrote that “It is further recommended that the underlying claim of Israel that it was acting in self-defence be evaluated in relation to the contention that such an attack violated Article 2 paragraph 4 of the Charter of the United Nations and amounted to an act of aggression under the circumstances, and whether the reliance on disproportionate use of force or the inherently indiscriminate nature of the military campaign should be treated as a criminal violation of international customary and treaty law.”

He wrote that “It is a requirement of international customary law, as well as of the Charter of the United Nations, Article 2 paragraph 4 interpreted in the light of Article 1 paragraph 1 that recourse to force to resolve an international dispute should be a last resort after the exhaustion of diplomatic remedies and peaceful alternatives, even in circumstances where a valid claim of self-defence exists, absent a condition of urgency, assuming for the moment that an occupying power can ever claim a right of self-defense … In the context of protecting Israeli society from rockets fired from Gaza, the evidence overwhelmingly supports the conclusion that the ceasefire in place as of 19 June 2008 had
been an effective instrument for achieving this goal, as measured by the incidence of rockets fired and with regard to Israeli casualties sustained”.

And, he stated, “The continuing refusal of Israel to acknowledge Hamas as a political actor, based on the label of ‘terrorist organization’ has obstructed all attempts to implement human rights and address security concerns by way of diplomacy rather than through reliance on force. This refusal is important for reasons already mentioned, namely, that the population density in Gaza means that reliance on large-scale military operations to ensure Israeli security cannot be reconciled with the legal obligations under the Fourth Geneva Convention to protect to the extent possible the safety and well-being of the occupied Gazan population”.

Falk wrote that “If for the sake of argument, however, the claim of self-defence and defensive force is accepted, it would appear that the air, ground, and sea attacks by Israel were grossly and intentionally disproportionate when measured against either the threat posed or harm done, as well as with respect to the disconnect between the high level of violence relied upon and the specific security goals being pursued. This legal sentiment is authoritatively expressed in Article 51(5)(b) of the Protocol I of the Geneva Conventions, in which prohibited disproportionate attacks are defined as ‘an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’. Israel did little to disguise its deliberate policy of disproportionate use of force, thereby acknowledging a refusal to comply with this fundamental requirement of international customary law. The Prime Minister of Israel was quoted after the ceasefire by the press agency Reuters as saying: ‘The Government’s position was from the outset that if there is shooting at the residents of the south, there will be a harsh Israeli response that will be disproportionate’. To the extent that the Prime Minister’s comment reflects Israeli policy, it was a novel and blatant repudiation of one of the most fundamental aspects of international law governing the use of force“.

Falk noted that “There exists here a complex and unresolved issue as to whether an occupying power can claim ‘self-defence’ in relation to an occupied society, and whether its use of force, even if excessive, and of a border-crossing variety, can be regarded as ‘aggression’. Israel seems to be barred from relying on its status as occupier considering that it claims that the occupation has ended, but of course the inquiry report need not respect that interpretation of the legal” …

On the nature of Israel’s occupation of Gaza, Falk wrote elsewhere in the report that “With regard to Gaza there is a further concern with respect to the nature of the legal obligations of Israel towards the Gazan population. Israel officially contends that after the implementation of its disengagement plan in 2005 it is no longer an occupying power, and therefore is not responsible for observance of the obligations set forth in the Fourth Geneva Convention. That contention has been widely rejected by expert opinion, by the de facto realities of effective control, and by official pronouncements by for instance the United Nations High Commissioner for Human Rights and the Secretary-General (A/HRC/8/17), the General Assembly in its resolutions 63/96 and 63/98 and the Security Council in its resolution 1860. Since 2005, Israel has completely controlled all entry and exit routes by land and sea and asserted control over Gazan airspace and territorial waters. By imposing a blockade, in effect since the summer of 2007, it has profoundly affected the life and well-being of every single person living in Gaza. Therefore, regardless of the international status of the occupied Palestinian territory with respect to the use of force, the obligations of the Fourth Geneva Convention, as well as those of international human rights law and international criminal law, are fully applicable”.

Falk also wrote that “Not every violation of human rights or infraction of the Geneva conventions constitutes a war crime or a crime of State. Moreover, criminal intent, by way of mental attitude or through circumstantial evidence, must be established. In essence, ‘grave breaches’ of the Geneva Conventions as defined in article 147 of the Fourth Geneva Convention normally provide a legal foundation for allegations of war crimes. It is to be noted that the role of international criminal law is to identify and implement the fundamental obligations of international humanitarian law in wartime, but also to take account of severe violations of human rights arising from oppressive patterns of peacetime governance”.

Falk stated that the pre-existing Israeli military-administered blockade of Gaza is in massive violation of the Fourth Geneva Convention, suggesting the presence of war crimes and possibly crimes against humanity.

And, Falk wrote: “the most important legal issue raised by an investigation of the recent military operations concerns the basic Israeli claim to use modern weaponry on a large scale against an occupied population living under the confined conditions that existed in Gaza. This involves trying to establish whether, under the conditions that existed in Gaza, it is possible with sufficient consistency to distinguish between military targets and the surrounding civilian population. If it is not possible to do so, then launching the attacks is inherently unlawful, and would seem to constitute a war crime of the greatest magnitude under international law. On the basis of the preliminary evidence available, there is reason to reach this conclusion. Considering that the attacks were directed at densely populated areas, it was to some extent inevitable and certainly foreseeable that hospitals, religious and educational sites and United Nations facilities would be hit by Israeli military ordinance, and that extensive civilian casualties would result. As all borders were sealed, civilians could not escape from the orbit of harm. For authoritative and more specific conclusions on these points, it will be necessary to mount an investigation based on knowledge of Israeli weaponry, tactics and doctrine to assess the degree to which, in concrete cases, it would have been possible, given the battlefield conditions, to avoid non-military targets and to spare Palestinian civilians to a greater extent. Even without this investigation, on the basis of available reports and statistics, it is possible to draw the important preliminary conclusion that, given the number of Palestinian civilian casualties and degree of devastation of non-military targets in Gaza, the Israelis either refrained from drawing the distinction required by customary and treaty international law or were unable to do so under the prevailing combat conditions, making the attacks impossible to reconcile with international law”.

Falk said, in the report, that “There is no way to reconcile the general purposes and specific prescriptions of international humanitarian law with the scale and nature of the Israeli military attacks commenced on 27 December 2008. The Israeli attacks with F-16 fighter bombers, Apache helicopters, long-range artillery from the ground and sea were directed at an essentially defenceless society of 1.5 million persons. As recent reports submitted to the Council by the Special Rapporteur emphasized, the residents of Gaza were particularly vulnerable to physical and mental damage from such attacks as the society as a whole had been brought to the brink of collapse by 18 months of blockade that restricted the flow of food, fuel, and medical supplies to sub-subsistence levels and was responsible, according to health specialists, for a serious overall decline in the health of the population and of the health system. Any assessment under international law of the attacks of 27 December should take into account the weakened condition of the Gazan civilian population resulting from the sustained unlawfulness of the pre-existing Israeli blockade that violated articles 33 (prohibition on collective punishment) and 55 (duty to provide food and health care to the occupied population) of the Fourth Geneva Convention. Considering the obligation of the occupying Power to care for the well-being of the civilian occupied population, mounting a comprehensive attack on a society already weakened by unlawful occupation practices would appear to aggravate the breach of responsibility described in the above owing to the difficulties of maintaining the principle of distinction … It is not a matter of mistakes and fallibility, but rather a massive assault on a densely populated urbanized setting where the defining reality could not but subject the entire civilian population to an inhumane form of warfare that kills, maims and inflicts mental harm that is likely to have long-term effects, especially on children that make up more than 50 per cent of the Gazan population”.

And he wrote that not allowing civilians in Gaza to have an option to seek refuge by leaving the war zone during the operation was unlawful In addition, unlawful weapons and combat tactics may have been used.

Falk stated that “In an unprecedented belligerent policy, Israel refused to allow the entire civilian population of Gaza, with the exception of 200 foreign wives, to leave the war zone during the 22 days of attack that commenced on 27 December. As the United Nations High Commissioner for Refugees stated on 6 January 2009, Gaza is “the only conflict in the world in which people are not even allowed to flee.” All crossings from Israel were kept closed during the attacks, except for rare and minor exceptions. By so doing, children, women, sick and disabled persons were unable to avail themselves of the refugee option to flee from the locus of immediate harm resulting from the military operations of Israel. This condition was aggravated by the absence of places to hide from the ravages of war in Gaza, given its small size, dense population and absence of natural or man-made shelters.

“International humanitarian law has not specifically and explicitly at this time anticipated such an abuse of civilians, but the policy as implemented would suggest the importance of an impartial investigation to determine whether such practices of ‘refugee [maybe this should instead read refuge] denial’ constitute a crime against humanity as understood in international criminal law. The initial definition of crimes against humanity, developed in relation to the war crimes trials after the Second World War, is “murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population”. More authoritative is the definition contained in Article 7(1)(k) of the Rome Statute, according to which crimes against humanity includes “inhumane acts (…) intentionally causing great suffering, or serious injury to body or to mental or physical health.” Refugee [Refuge would probably be a better word here] denial under these circumstances of confined occupation is an instance of “inhumane acts”, during which the entire civilian population of Gaza was subjected to the extreme physical and psychological hazards of modern warfare within a very small overall territory. It should be kept in mind that this restriction on free movement, to escape from the war zone, was imposed on a population already severely weakened by the effects of the blockade.

“The small size of Gaza and its geographic character also operated to deny most of the population remaining within its borders of an opportunity to internally remove itself from the combat zones. In this sense, the entire Gaza Strip became a war zone, although the actual combat area on the ground was more limited. In effect, leaving Gaza was the only way to remove oneself to a position of safety. In this respect, the option to become an internally displaced person was, as a practical matter, unavailable to the civilian population, although some civilians sought relative safety in shelters that were made available on an emergency basis for a tiny fraction of the population, mainly through the efforts of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) and other United Nations and Non-Governmental Organizations’ efforts. In some situations the shelters were not always treated as sanctuaries by the Israeli armed forces. Six UNRWA emergency shelters were damaged during Operation Cast Lead.

“Furthermore, given such emergency conditions, it seemed feasible to establish temporary refugee camps either in southern Israel or in neighboring countries for the duration of the attacks. This course of action had allowed almost one million Kosovars (almost half the civilian population) to obtain temporary refuge in the neighbouring former Yugoslav Republic of Macedonia during the bombing by the North Atlantic Treaty Organization in 1999. It seems evident that, had Serbia denied the Kosovo population such a refugee option by controlling egress, it would have been accused of inhumane behaviour and criminality by the world community. It would seem that the law of war and international human rights law, for the sake of the protection of civilian innocence in wartime situations, needs to affirm the right of every non-combatant civilian to become a refugee, or at least to have the right to seek such a status, especially if the conditions for an internal “refugee” option are not present.

“Such an affirmation does not address the related question as to whether neighbouring countries have a legal duty to accommodate, to the extent feasible and at least temporarily, civilians seeking to escape from an ongoing war zone. It would seem at the very least that Israel as occupying Power and belligerent party had such a legal obligation. In a general way, such an obligation is set forth in articles 13 to 26 of the Fourth Geneva Convention. Especially relevant are article 15 which looks to the establishment of ‘neutralized zones’ to shelter the civilian population from ‘the effects of war’, article 16 which imposes a special duty to accord the sick and wounded, as well as expectant mothers, ‘particular attention and respect’, and article 24 which imposes a duty on the occupying Power to protect any children under 15 who are orphans or separated from their families, and obliges it to ‘facilitate the reception of such children in a neutral country for the duration of the conflict’…

“Confining the civilian population to the war zone also makes it more difficult, if not impossible, to sustain consistently the distinction between military and civilian targets, in combat situations. It also complicates an assessment of claims made by Israel that Hamas used civilians as human shields, and used civilian sites such as schools and mosques from which to engage in resistance. If civilians could not leave the war zone under such crowded conditions, some degree of intermingling would necessarily occur, especially in life and death situations”.

Falk stressed that “Israeli security and the realization of the Palestinian right of self-determination are fundamentally connected, and that the recognition of this aspect of the situation suggests the importance of an intensified diplomatic effort, respect by all parties of relevant international law rights, and implementation of the long deferred Israeli withdrawal from occupied Palestine as initially prescribed by the Security Council in its resolution 242 (1967). Until such steps are taken the Palestinian right of resistance within the limits of international humanitarian law and Israeli security policy will inevitably clash, giving rise to ever new cycles of violence”.

Falk said that “As long as Palestinian basic rights continue to be denied, the Palestinian right of resistance to occupation within the confines of international law and in accord with the Palestinian right of self-determination is bound to collide with the pursuit of security by Israel under conditions of prolonged occupation. In this respect, a durable end to violence on both sides requires an intensification of diplomacy with a sense of urgency, and far greater resolve by all parties to respect international law, particularly as it bears on the occupation as set forth in the Fourth Geneva Convention. Furthermore, it is important to acknowledge that the time has long passed for the implementation of Security Council resolution 242 (1967) requiring Israel to withdraw from Palestinian territories, for Israel to close unlawful settlements, desist from efforts to alter the demographics of East Jerusalem, respect the advisory opinion on the Wall of the International Court of Justice of 2004, and bring the occupation to a genuine end, either through negotiations or by unilateral action”.

Falk recommended that “It be recognized that the Palestinian right of resistance under international law within the limits of international humanitarian law continually collides with Israeli security concerns as occupying Power, requiring basic adjustments in the relationship of the parties premised on respect for the legal rights of the Palestinian people; and that sustainable peace in Gaza requires the permanent lifting of the blockade in the short term, and a diplomatic process that seeks peace in accordance with the requirements of international law in the long term”.

The Special Rapporteur also called for “action in response to the denial by Israel of entry to him on 14 December 2008”. See our earlier posts on 15 December here and on 19 December
here. In his conclusion, Falk recommended that “An advisory opinion on the obligations of a Member State to cooperate with special procedures of the Human Rights Council in relation to the application of Article 56 of the Charter of the United Nations and the relevant provisions of the Convention on the Privileges and Immunities of the United Nations be requested”

After the presentation of his report, and some discussion in the Human Rights Council, Falk will be giving a press conference in Geneva from 18:15 – 19:00 tonight.

Israeli lawyer Michael Sfard analyzes IDF war on Gaza

A legal analysis by Michael Sfard, legal counsel for Yesh Din (Volunteers for Human Rights), quoted here extensively with his permission, puts into context the revelations by Israeli soldiers published in the Israeli media in about their “permissive rules of engagement”.

This analysis also sets the stage for the United Nations Human Rights Council’s consideration, on Monday in Geneva, of reports about the hostilities during the war.

Sfard wrote, in his analysis, that the first and most important principle of International Humanitarian Law (IHL), its raison d’etre, is the principle of Distinction: “Combatants must always aim their weapons at military targets, at combatants and military objects only. Combatants are never allowed to aim their weapons at civilians or civilian objects. There is only one exception, and that is when civilians participate in hostilities and endanger the lives of others, and then the ordinary principle of self defense of combatants allows them to use force against civilians, for the duration of the civilians’ active involvement in the hostilities. That is the only exception and it is not relevant to our case of the Gaza War”.

The second principle of IHL, Sfard states, is the principle of Proportionality, which states that aiming weapons at, or targeting, legitimate targets (such as combatants or military objects), is not legal if if there is reason to believe that illegitimate targets (civilians or civilian objects) will be harmed by the attack, and that the foreseen harm to these illegitimate targets is greater than the advantage gained by the destruction of the legitimate target.

In the war in Gaza, Sfard wrote, “there are alarming indications that we [Israel] have violated both principles. The amount – or the gravity – of the violation and the number of offenses – war crimes – that we have committed, is indeed dependent on facts. It is important to mention that according to international law, not enabling an impartial, professional, independent investigation of allegations of violations of international humanitarian law is in itself a violation of international law. So, if there are factual questions, for example, whether if before the attack on the UNRWA school there was indeed fire shot from the school at the soldiers or if the attack targeted not the UNRWA school but a nearby location, then Israel must allow an impartial, professional, independent investigation to be held. And if Israel doesn’t do so this in itself is a violation of international law”.

In the war in Gaza, Sfard wrote, “there are alarming indications that we [Israel] have violated both principles. The amount – or the gravity – of the violation and the number of offenses – war crimes – that we have committed, is indeed dependent on facts. It is important to mention that according to international law, not enabling an impartial, professional, independent investigation of allegations of violations of international humanitarian law is in itself a violation of international law. So, if there are factual questions, for example, whether if before the attack on the UNRWA school there was indeed fire shot from the school at the soldiers or if the attack targeted not the UNRWA school but a nearby location, then Israel must allow an impartial, professional, independent investigation to be held. And if Israel doesn’t do so this in itself is a violation of international law” …

“Allegations have been made regarding the legality of the rules of engagement ordered to infantry units during Operation Cast Lead. Soldier testimonies published in the Israeli media alleged that the applicable rules of engagement defined ‘shoot-to-kill zones’. If that is true, that means that soldiers were ordered to shoot indiscriminately at combatants and civilians alike. That is the clearest violation of the principle of Distinction …

“The most simple allegation that can be made, and it seems that cannot be refuted, against the Israeli army in the Gaza War is that it implemented a declared policy of targeting civilian infrastructure and civilian objectives, which was termed by Israeli leaders as a policy of targeting ‘symbols of the Hamas regime’, or ‘symbols of government’. In the framework of this policy, we targeted governmental offices, such as the Ministry of Education and the Ministry of Transportation. We targeted the Palestinian Parliament, the Parliament House in Gaza, and police stations, the police main headquarters, and many others. These are civilian objects and are not a legitimate target …

“I have to stress that police, even if armed is not a combating force under international law, unless the police force is a part of the combating infrastructure. Policemen do not enjoy the rights of combatants according to international law; if they engage in battle, if they take part in hostilities, they can be tried, and they don’t enjoy Prisoner of War status if captured. At the same time, and as a consequence of that, they do enjoy the protections afforded to civilians and thus they are not a legitimate target …

“Of course if civilians were in these institutions during the attack then the offense is much graver and then we are dealing not only with destruction of civilian infrastructure and objects, but also with a possible crime of wanton killing of civilians

On Proportionality, Sfard wrote: “[P]roportionality in essence is a principle that is based on morality, and my morality is [or,may be] different than other men or women’s morality. But if I equate what happened in this recent conflict to what has happened in incidents in the past to see what Israel has said is Proportionate and what Israel has said is not Proportionate, this time we can see a huge drop in moral standards by Israel.

“Case in Point: Five and a half years ago, Israel assassinated Hamas extremist Salah Shehade killing fourteen civilians and wounding another hundred in that attack. Israel has never claimed that this attack was Proportionate. Israel claimed in writing, before the High Court of Justice, that had they known that civilians in such numbers were around Salah Shehade at the time, they would have not carried out the attack. Their defense was different then, they said they did not know: ‘we did not expect, we could not foresee the damage to civilians and civilian objects’.

“In this war we have many many many Salah Shehade assassinations. And this time Israel has not said it is sorry for the loss of life, and has not said ‘we did not know that civilians were there’. Actually it says something completely different. It says ‘we called them and we announced that we are going to bombard this house and we gave them a chance to leave’.

“Well, that means that Israeli decision makers knew that there were civilians in the house. The reason why they [the civilians] did not leave the house is immaterial, irrelevant to the question of whether the attack was legal or not. It might be that those people did not leave because some of them were old, some of them may be handicapped, maybe children did not leave for other reasons, and maybe they are fanatics who do not think that they should leave just because Israeli airplanes were going to shoot at them. It is not important. The fact of the matter is that the result in many attacks was grossly disproportionate according to the standards Israel claimed it held five years ago.

“It is also irrelevant whether the attack was meant to kill a combatant or a terrorist that was in the house, or whether the attack was meant to demolish ammunition that was hidden the house. It is not important, as long as the house was not used during the attack to shoot at soldiers. If someone shoots at you, you can shoot back, you can defend yourself, that’s clear. [But if not…]

“And now we are getting to the second point that I wanted to make about proportionally. And that is the point, the most complex one, what do you do when you are shot at from a civilian object? And that was the Israeli defense regarding the UNRWA school, and regarding Dr. Abu El Esh, and other incidents where they shot at protected areas. Again, the incidents have to be investigated and Israel must allow investigations, and if it doesn’t, that’s a violation in itself.

“But let’s assume Israel is telling the truth, and the attacks on these places were carried out as responses, retaliations, or self defense, because Israeli soldiers were shot at from these places, then we have to ask ourselves whether the counter attack was Proportionate. According to media reports, and these incidents must be fully investigated to resolve factual issues, what we have seen during this war was that every time snipers shot at Israelis, the Israeli army responded with bombs, either from the air or by tanks, which demolished the whole compound from where snipers allegedly shot at them. There is a specific example in the High Court of Justice’s decision on the legality of the assassinations policy case, where former Chief Justice of the High Court of Justice Aharon Barak states that it would be proportionate to shoot at a sniper that is shooting at you from a balcony, but it would be disproportionate to drop a bomb that would demolish the whole building and would bury underneath not only the sniper but also his neighbors…

In addition, Sfard wrote: “There is one principle in International Law of Armed Conflict which was certainly violated grossly in the recent Gaza War. I am referring to the duty of the fighting powers, definitely in circumstances of actual occupation and when engaging in offensive in a civilian area, to allow civilians to escape the battle zone.

[This is a point discussed in our earlier post, on 6 January, “No other country in the world”, here.]

The point is also perfectly corroborated with the just-released testimony of one of the soldiers, “Aviv”, who said: “they [the IDF commanders] used a huge amount of firepower and killed a huge number of people along the way, so that we wouldn’t get hurt and they wouldn’t fire on us. At first the specified action was to go into a house. We were supposed to go in with an armored personnel carrier called an Achzarit [literally, Cruel] to burst through the lower door, to start shooting inside and then … I call this murder … in effect, we were supposed to go up floor by floor, and any person we identified – we were supposed to shoot. I initially asked myself: Where is the logic in this? From above they said it was permissible, because anyone who remained in the sector and inside Gaza City was in effect condemned, a terrorist, because they hadn’t fled I didn’t really understand: On the one hand they don’t really have anywhere to flee to, but on the other hand they’re telling us they hadn’t fled so it’s their fault”… This was included in our previous post, here.

Back to Michael Sfard’s analysis. He also noted that: “Israel says, and probably rightly so, that the arena of battle was forced on us, that we didn’t chose where to fight, that the Hamas combatants were hiding in the streets of downtown Gaza. But what could a civilian who did not wish to be part of the fighting do in order to save herself and her family? Israel did not open a humanitarian corridor for those who wished to leave their houses and stay away from the fighting area until the hostilities were over. And that is possibly the worst violation of Israel’s responsibilities under International Humanitarian Law in the Gaza War, and one that created many levels of violations, because the IDF forced civilians to stay in a combat zones. The civilians could not get medical care or be treated, they could not get food and water supplies, and they were victims of direct attacks and enormous psychological stress.

“I am not a military expert – but I believe it would have given Israel a huge military advantage if tens of thousands of civilians would be allowed to leave the combating area and it seems, and this is based purely on a suspicion, but it seems that not allowing civilians out was part of the strategy in order to create the deterrent that Israeli leaders talk about constantly. And if that’s true, it is a grave violation of International Humanitarian Law“.

"Permissive rules of engagement" – cont'd

The weekend edition of Haaretz contains a fuller account of what Israeli soldiers and pilots say they actually did in Gaza during Operation Cast Lead.

Amos Harel wrote in a long article, entitled “Shooting and Crying“, giving greater details than previously published on statements made at a meeting attended by dozens of combat soldiers and officers who graduated from the Yitzhak Rabin pre-military preparatory program at Oranim Academic College in Kiryat Tivon.

This article puts into context the outrageous statement, below, from the Israeli Ministry of Foreign Affairs — which is still posted on the MFA’s website: “To Israel’s great sorrow, innocent civilians in Gaza have been harmed. However, the figures of civilian casualties have been greatly exaggerated. Most of these figures come from Hamas sources, amplifying the number of civilians killed by including as ‘children’ teenage Hamas fighters and as ‘women’, female terrorists. According to an Israeli investigation, of the 1,100-1,200 reported casualties, 250 were civilians. The rest are believed to be terrorists or have yet to be identified, but given that most of them are young men in their 20s, it is not unreasonable to assume that they are also members of Hamas or other terrorist organizations“. This disgraceful piece of propaganda can be read in full here.

Amos Harel article wrote:
“Following are extensive excerpts from the transcript of the meeting, as it appears in the program’s bulletin, Briza, which was published on Wednesday. The names of the soldiers have been changed to preserve their anonymity. The editors have also left out some of the details concerning the identity of the units that operated in a problematic way in Gaza … The program’s founder, Danny Zamir, still heads it today and also serves as deputy battalion commander in a reserve unit …

Danny Zamir [to the soldiers}: “I don’t intend for us to evaluate the achievements and the diplomatic-political significance of Operation Cast Lead this evening, nor need we deal with the systemic military aspect [of it]. However, discussion is necessary because this was, all told, an exceptional war action in terms of the history of the IDF, which has set new limits for the army’s ethical code and that of the State of Israel as a whole. This is an action that sowed massive destruction among civilians. It is not certain that it was possible do have done it differently, but ultimately we have emerged from this operation and are not facing real paralysis from the Qassams. It is very possible that we will repeat such an operation on a larger scale in the years to come, because the problem in the Gaza Strip is not simple and it is not at all certain that it has been solved. What we want this evening is to hear from the fighters”.

Aviv: “I am squad commander of a company that is still in training, from the Givati Brigade. We went into a neighborhood in the southern part of Gaza City. Altogether, this is a special experience. In the course of the training, you wait for the day you will go into Gaza, and in the end it isn’t really like they say it is … Toward the end of the operation there was a plan to go into a very densely populated area inside Gaza City itself. In the briefings they started to talk to us about orders for opening fire inside the city, because as you know they used a huge amount of firepower and killed a huge number of people along the way, so that we wouldn’t get hurt and they wouldn’t fire on us. At first the specified action was to go into a house. We were supposed to go in with an armored personnel carrier called an Achzarit [literally, Cruel] to burst through the lower door, to start shooting inside and then … I call this murder … in effect, we were supposed to go up floor by floor, and any person we identified – we were supposed to shoot. I initially asked myself: Where is the logic in this? From above they said it was permissible, because anyone who remained in the sector and inside Gaza City was in effect condemned, a terrorist, because they hadn’t fled…
Continue reading "Permissive rules of engagement" – cont'd

A culture that thinks this is ironically funny…

This photo is published today in Haaretz, accompanying a long article about special t-shirts commissioned by members of IDF units, and approved by their commanders.

One shot two kills - photo from Haaretz today

The caption reads: “A T-shirt printed at the request of an IDF soldier in the sniper unit reading ‘One shot, two kills’.”

The bulls-eye is over the abdomen of a pregnant female figure in a long dress with a headscarf and face veil.

This is sickening, and it is hard to find words for this.

Anyone who lives here, and who speaks to Israelis, know that this is nothing out of the ordinary. It is quite normal to express hatred of “Arabs”, and to speak swaggeringly, as a kind of ironic joke, about treating Palestinians badly (particularly those Palestinians who are in the West Bank or along the “seam line”).

This is a country where “Death to the Arabs” has become a famous slogan used by supporters of a particular Jerusalem-based football/soccer team — and whose owner ran (unsuccessfully) for the office of mayor of Jerusalem. Though slogan has been singled out for particular criticism by the United Nations treaty body that monitors countries’ compliance with obligations under the Convention against Racism — and Israel is a state party to this treaty — but as far as I know it is still being used at football/soccer games and matches

The article makes very, very difficult reading. It can be read in full here.

It is now becoming quite unbearable. These denials or excuses or counter-accusations are shameful … This situation exists. Everybody here knows about it. Many, many people here have experienced this personally. There is, now, a lot of work to do here, to make this stop. This is no way to live.
Continue reading A culture that thinks this is ironically funny…