International Humanitarian Law

U.S. diplomat: Palestinian Authority should investigate Hamas violations in Gaza war

A U.S. diplomat representing her country at a debate of the UN General Assembly’s Third Committee last week said, after hearing the presentation of Richard Falk, the UN Human Rights Council’s Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967, that “her delegation had serious reservations about the Special Rapporteur’s recommendation, including that anybody request an opinion from the International Court of Justice on Israel’s refusal to cooperate” …

This diplomat, who is not indentified in the UN press release summary of the Third Committee meeting, “noted that Israel had received at least 100 complaints of abuse in Gaza and had already investigated several of them. On other hand, Hamas was a terrorist group that had seized control of Gaza and had no institutions to deal with these violations. She requested that the Palestinian Authority carry out its own investigation into the violations of international law by Hamas”.

The Palestinian Authority would probably just love to do so …

The UN press release noted that, in a response, Falk said that all three of the Special Rapporteurs who spoke that day to the Third Committee “had faced the same problems of non-cooperation from the country they were tasked with assessing. He believed that it was the responsibility of the international community, as well as the General Assembly, to take this non-cooperation seriously and to address it in a non-political manner. Israel should receive the same focus that Myanmar and the Democratic People’s Republic of Korea did”.

Continue reading U.S. diplomat: Palestinian Authority should investigate Hamas violations in Gaza war

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”.

“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“.

Prof. Richard Falk on Gaza: "To lock people into a war zone .. evokes the worst kind of international memories of the Warsaw Ghetto …"

The UN Special Rapporteur on Human Rights in the occupied Palestinian territory said in a telephone interview arranged by the UN in Geneva that “the entire Gaza population, which had been trapped in a war zone with no possibility to leave as refugees, may be mentally scarred for life. If so, the definition of casualty could be extended to the entire civilian population”.

We discussed this situation in our earlier post, “No other country in the world…” here.

“To lock people into a war zone is something that evokes the worst kind of international memories of the Warsaw Ghetto”, Falk said in remarks that were reported today on Israel’s YNet website.
Continue reading Prof. Richard Falk on Gaza: "To lock people into a war zone .. evokes the worst kind of international memories of the Warsaw Ghetto …"

Israeli human rights groups ask: "Can a moral society live as if nothing is happening (in Gaza)"?

“The level of harm to the civilian population is unprecedented”, said an all-star line-up of Israeli human rights organizations at a group press conference in West Jerusalem at midday today.

They were speaking of the people in Gaza.

Since the start of the Israeli Defense Force’s Operation Cast Lead on 27 December, the human rights groups said, ‘military forces are making wanton use of lethal force which has to date caused the deaths of hundreds of uninvolved civilians and destroyed infrastructure and property on an enormous scale. In addition, Israel is also hitting civilian objects, having defined them as ‘legitimate military targets’ solely by virtue of their being ‘symbols of government’.”

And, caught in the middle, are “1.5 million civilians in extreme humanitarian distress”.

But to say, as the human rights groups did, in the same breath, and in a polite and even-handed way, that the IDF is providing “limited help” is both a gross exaggeration and a huge understatement. See our earlier post calling attention to this problem here.

The human rights groups also said that “a heavy suspicion has arisen of grave violations of international humanitarian law by military forces. After the end of the hostilities, the time will come for the investigation of this matter, and accountability will be demanded of those responsible for the violations”.

But right now, they said, there is a “clear and present danger” that must be faced.

Sari Bashi, the Executive Director of GISHA, said that it was important to note that “this crisis was pre-planned since the September 2007 Cabinet decision” that branded the Gaza Strip –one of the most densely-populated areas on earth — an “enemy entity” or a “hostile territory”. Gaza was systematically emptied of vital supplies, Bashi explained. But, while the policy is described as being directed against Hamas, it is really against civilians, she said.

The Israeli Ministry of Defense was tasked with implementing this Cabinet decision, and they did so by coldly and cruelly and carelessly conducting what can only be called an obscene laboratory experiment in seeing how much vital supplies could be cut before a “humanitarian crisis” would inevitably ensue. Supplies of fuel and gas were cut by 15% starting at the end of October 2007 — and Israel’s Supreme Court allowed even cuts to directly-supplied electricity (though these were quickly rescinded when the drastic effects were quickly observed). The military pledged it would avoid creating a “humanitarian crisis” — but how did the military define that? By January 2008, Gaza’s only power plant had completely run out of reserves, and was operating only on what it received day to day. The IDF shut down the transfer facility for days because of fighting in the area, and the power plant soon had no fuel left to operate, and it shut down on 21 January. It soon grew much more complicated — with Fatah-allied groups skirmishing with the IDF whenever the fuel situation became critical, causing more frequent interruptions in supply. Then there was a payment dispute. Then there were accusations of Hamas requisitioning part of the fuel supplied. And this is only one part of the overall picture.

The human rights groups said that “fighting is taking place throughout the Gaza Strip, whose border crossings are closed, so that residents have nowhere to flee … The health system has collapsed. Hospitals are unable to provide adequate treatment to the injured, nor can patients be evacuated to medical centers outside of the Gaza Strip. This state of affairs is causing the death of injured persons, or chronically ill patients, who could have been saved … Areas that were subject to intensive attacks are completely isolated … The army is preventing local and international rescue teams from accessing those places and is also refraining from helping them itself, even though it is required to do so by law. Many of the residents do not have access to electricity or running water, and in many populated areas sewage water is running in the streets”. They said that “This kind of fighting constitutes a blatant violation of the laws of warfare and raises the suspicion, which we ask be investigated, of the commission of war crimes. The responsibility of the State of Israel in this matter is clear and beyond doubt. The army’s complete control of the battle zones and the access roads to them does not allow Israel to transfer that responsibility to other “…

Medical rescue teams could not come to the aid of the injured, either because there was no “coordination” with the IDF, or — even if there was such coordination — the rescue teams were subject to attack anyway, even in clearly marked vehicles. And so far, some 7 medical rescue workers had been killed, and 17 wounded, while 15 medical facilities had been attacked.

“You don’t direct fire at targets where there are civilians”, Jessica Montell of B’Tselem told the press conference. She added later that “there is no way to compare or to have a competition of suffering. The situation is intolerable and must be stopped”.

“Even if Hamas people are hiding at a hospital, as long as fire has not come from that hospital, by international law there is no justification for military action, and a hospital does not become a legitimate target”.

Montell, the B’Tselem official, confirmed that her organization had received reports from eyewitnesses, which it transferred to the military, that a woman who walked out of her house yesterday in the village of Khuza’a, east of Khan Younis, waving a white flag, was shot. Injured, and lying the ground where she had fallen, the woman had continued to wave the white flag until she was shot in the head. An ambulance which tried to reach the woman was fired at. Later in the day, a group of 30 civilians waving white flags was also shot at, and at least three more people died. Montell said she could not confirm greater numbers, but said that “This is not the first time that we get such information about the IDF shooting people who leave their houses with white flags, or waving white sheets.”

The human rights groups called on the Prime Minister and the Defense establishment to act immediately to:
“1. Stop the disproportionate harm to civilians, and stop targeting civilian objects that do not serve any military purpose, even if they meet the definition of ‘symbols of government’.
2. Open a route for civilians to escape the battle zone, while guaranteeing their ability to return home at the end of the fighting.
3. Provide appropriate and immediate medical care to all of the injured and ill of the Gaza Strip, either by evacuating them to medical centers outside of the Gaza Strip or by reaching another solution inside the Gaza Strip.
4. Allow rescue and medical teams to reach battle-torn zones to evacuate the injured and bring supplies to those who remain there. Alternatively, the army must carry out those activities itself.
5. Secure the proper operation of the electricity, water and sewage systems so that they meet the needs of the population”.

There are also disturbing reports about detainees, according to Dalia Kerstein of Hamoked. “The Army has a lot of new arguments [including about the detainees being “illegal combattants”], and a number of people are unaccounted for. She said there There are reports that there are huge puts dug, where people are held in terrible conditions, with no food and no water, before being transferred to Sde Tal Mon, a military base in the south of Israel itself [outside Gaza].

Michael Sfard, the attorney for Yesh Din, said that the press conference had been convened not only from fear of the present humanitarian catastrophe, which is acute and which will become worse. But, he said, afterwards, this will have to be investigated — “and Israeli society will have to look into the mirror and ask, ‘how did we do what we did’?”

Asked by a journalist why the Israeli public is so supportive of this military operation, Sfard replied that “This question bothers us as well”. He said that he felt he was witnessing “a moral corruption destroying everything at a fantastic pace … What we would like to evoke here is not only the legal situation, but also the moral aspects. Can a society which is moral live as if nothing is happening?”