Israel's War Crimes

For the
first time since the establishment of Israel in 1948 the government is
facing serious allegations of war crimes from respected public figures
throughout the world. Even the secretary general of the United Nations,
Ban Ki-moon, normally so cautious about offending sovereign states -
especially those aligned with its most influential member, the United
States - has joined the call for an investigation and potential
accountability. To grasp the significance of these developments it is
necessary to explain what made the 22 days of attacks in Gaza stand
shockingly apart from the many prior recourses to force by Israel to
uphold its security and strategic interests.

In my view, what made the Gaza attacks launched on 27 December
different from the main wars fought by Israel over the years was that
the weapons and tactics used devastated an essentially defenceless
civilian population. The one-sidedness of the encounter was so stark,
as signalled by the relative casualties on both sides (more than 100 to
1; 1300-plus Palestinians killed compared with 13 Israelis, and several
of these by friendly fire), that most commentators refrained from
attaching the label "war".

The Israelis and their friends talk of "retaliation" and "the right
of Israel to defend itself". Critics described the attacks as a
"massacre" or relied on the language of war crimes and crimes against
humanity. In the past Israeli uses of force were often widely
condemned, especially by Arab governments, including charges that the
UN Charter was being violated, but there was an implicit
acknowledgement that Israel was using force in a war mode. War crimes
charges (to the extent they were made) came only from radical
governments and the extreme left.

The early Israeli wars were fought against Arab neighbours which
were quite literally challenging Israel's right to exist as a sovereign
state. The outbreaks of force were of an inter-governmental nature; and
even when Israel exhibited its military superiority in the June 1967
six day war, it was treated within the framework of normal world
politics, and though it may have been unlawful, it was not criminal.

But from the 1982 Lebanon war this started to change. The main
target then was the presence of the Palestine Liberation Organisation
(PLO) in southern Lebanon. But the war is now mainly remembered for its
ending, with the slaughter of hundreds of unarmed Palestinian civilians
in the refugee camps of Sabra and Shatila. Although this atrocity was
the work of a Lebanese Christian militia, Israeli acquiescence, control
and complicity were clearly part of the picture. Still, this was an
incident which, though alarming, was not the whole of the military
operation, which Israel justified as necessary due to the Lebanese
government's inability to prevent its territory from being used to
threaten Israeli security.

The legacy of the 1982 war was Israeli occupation of southern
Lebanon and the formation of Hizbullah in reaction, mounting an armed
resistance that finally led to a shamefaced Israeli withdrawal in 1998.
This set the stage for the 2006 Lebanon war in which the announced
adversary was Hizbullah, and the combat zone inevitably merged portions
of the Lebanese civilian population with the military campaign
undertaken to destroy Hizbullah. Such a use of hi-tech Israeli force
against Hizbullah raised the issue of fighting against a hostile
society with no equivalent means of defending itself rather than
against an enemy state. It also raised questions about whether reliance
on a military option was even relevant to Israel's political goals, as
Hizbullah emerged from the war stronger, and the only real result was
to damage the reputation of the IDF as a fighting force and to leave
southern Lebanon devastated.

The Gaza operation brought these concerns to the fore as it
dramatised this shift away from fighting states to struggles against
armed resistance movements, and with a related shift from the language
of "war" to "criminality". In one important respect, Israel managed to
skew perceptions and discourse by getting the media and diplomats to
focus the basic international criminal law question on whether or not
Israeli use of force was "disproportionate".

This way of describing Israeli recourse to force ignores the
foundational issue: were the attacks in any legal sense "defensive" in
character in the first place? An inquiry into the surrounding
circumstances shows an absence of any kind of defensive necessity: a
temporary ceasefire between Israel and Hamas that had been in effect
since 19 July 2008 had succeeded in reducing cross-border violence
virtually to zero; Hamas consistently offered to extend the ceasefire,
even to a longer period of ten years; the breakdown of the ceasefire is
not primarily the result of Hamas rocket fire, but came about mainly as
a result of an Israeli air attack on 4 November that killed six Hamas
fighters in Gaza.

Disproportionate force?

In other words, there were no grounds for claiming the right of
self-defence as Israel was not the object of a Hamas attack, and
diplomatic alternatives to force existed and seemed credible, and their
good-faith reliance was legally obligatory. On this basis the focus of
legal debate should not be upon whether Israeli force was
disproportionate. Of course it was. The focus should be on whether the
Israeli attacks were a prohibited, non-defensive use of force under the
UN charter, amounting to an act of aggression, and as such constituting
a crime against peace. At Nuremberg after the second world war,
surviving Nazi leaders were charged with this crime, which was
described in the judgment as "the supreme crime" encompassing the
others.

The Gaza form of encounter almost by necessity blurs the line
between war and crime, and when it occurs in a confined, densely
populated area such as Gaza, necessarily intermingles the resistance
fighters with the civilian population. It also induces the resistance
effort to rely on criminal targeting of civilians as it has no military
capacity directly to oppose state violence. In this respect, the
Israeli attacks on Gaza and the Hamas resistance crossed the line
between lawful combat and war crimes.

These two sides should not be viewed as equally responsible for the
recent events. Israel initiated the Gaza campaign without adequate
legal foundation or just cause, and was responsible for causing the
overwhelming proportion of devastation and the entirety of civilian
suffering. Israeli reliance on a military approach to defeat or punish
Gaza was intrinsically "criminal", and as such demonstrative of both
violations of the law of war and the commission of crimes against
humanity.

There is another element that strengthens the allegation of
aggression. The population of Gaza had been subjected to a punitive
blockade for 18 months when Israel launched its attacks. This blockade
was widely, and correctly, viewed as collective punishment in a form
that violated Articles 33 and 55 of the Fourth Geneva Convention
governing the conduct of an occupying power in relation to the civilian
population living under occupation. This policy was itself condemned as
a crime against humanity, as well as a grave breach of international
humanitarian law.

It also had resulted in serious nutritional deficiencies and
widespread mental disorders on the part of the entire Gaza population,
leaving it particularly vulnerable to the sort of "shock and awe"
attack mounted by Israel from land, air and sea. This vulnerability was
reinforced by Israel's unwillingness to allow Gaza civilians to seek
safety while the tiny Strip was under such intense combat pressure. Two
hundred non-Palestinian wives were allowed to leave, which underscored
the criminality of locking children, women, the sick, elderly and
disabled into the war zone, and showed its ethnically discriminatory
character. This appears to be the first time in wartime conditions that
a civilian population was denied the possibility of becoming refugees.

In addition to these big picture issues, there are a variety of
alleged war crimes associated with Israeli battlefield practices. These
charges, based on evidence collected by human rights groups, include
IDF firing at a variety of civilian targets, instances where Israeli
military personnel denied medical aid to wounded Palestinians, and
others where ambulances were prevented from reaching their
destinations. There are also documented claims of 20 occasions on which
Israeli soldiers were seen firing at women and children carrying white
flags. And there are various allegations associated with the use of
phosphorus bombs in residential areas of Gaza, as well as legal
complaints about the use of a new cruel weapon, known as DIME, that
explodes with such force that it rips body parts to pieces.

These war crimes concerns can only be resolved by factual
clarifications as to whether a basis exists for possible prosecution of
the perpetrators, and commanders and political leaders to the extent
that criminal tactics and weaponry were authorised as matters of
Israeli policy. In this vein too are the Israeli claims relating to
rockets fired at civilian targets and to Hamas militants using "human
shields" and deliberately attacking from non-military targets.

Even without further investigation, it is not too soon to raise
questions about individual accountability for war crimes. The most
serious allegations relate to the pre-existing blockade, the intrinsic
criminality and non-defensiveness of the attack itself; and the
official policies (eg confinement of civilian population in the war
zone) have been acknowledged. The charges against Hamas require further
investigation and legal assessment before it is appropriate to discuss
possible arrangements for imposing accountability.

A question immediately arises as to whether talk of Israeli war
crimes is nothing more than talk. Are there any prospects that the
allegations will be followed up with effective procedures to establish
accountability? There are a variety of potentially usable mechanisms to
impose accountability, but will any of these be available in practice?
This issue has been already raised by the Israeli government at the
highest levels in the form of official commitments to shield Israeli
soldiers from facing war crimes charges.

The most obvious path to address the broader questions of criminal
accountability would be to invoke the jurisdiction of the International
Criminal Court established in 2002. Although the prosecutor has been
asked to investigate the possibility of such a proceeding, it is highly
unlikely to lead anywhere since Israel is not a member and, by most
assessments, Palestine is not yet a state or party to the statute of
the ICC. Belatedly, and somewhat surprisingly, the Palestinian
Authority sought, after the 19 January ceasefire, to adhere to the Rome
Treaty establishing the ICC. But even if its membership is accepted,
which is unlikely, the date of adherence would probably rule out legal
action based on prior events such as the Gaza military operation. And
it is certain that Israel would not cooperate with the ICC with respect
to evidence, witnesses or defendants, and this would make it very
difficult to proceed even if the other hurdles could be overcome.

The next most obvious possibility would be to follow the path chosen
in the 1990s by the UN Security Council, establishing ad hoc
international criminal tribunals, as was done to address the crimes
associated with the break-up of former Yugoslavia and with the Rwanda
massacres of 1994. This path seems blocked in relation to Israel as the
US, and likely other European permanent members, would veto any such
proposal. In theory, the General Assembly could exercise parallel
authority, as human rights are within its purview and it is authorised
by Article 22 of the UN charter to "establish such subsidiary organs as
it deems necessary for the performance of its function". In 1950 it
acted on this basis to establish the UN Administrative Tribunal,
mandated to resolve employment disputes with UN staff members.

The geopolitical realities that exist within the UN make this an
unlikely course of action (although it is under investigation). At
present there does not seem to be sufficient inter-governmental
political will to embark on such a controversial path, but civil
society pressure may yet make this a plausible option, especially if
Israel persists in maintaining its criminally unlawful blockade of
Gaza, resisting widespread calls, including by President Obama, to open
the crossings from Israel. Even in the unlikely event that it is
established, such a tribunal could not function effectively without a
high degree of cooperation with the government of the country whose
leaders and soldiers are being accused. Unlike former Yugoslavia and
Rwanda, Israel's political leadership would certainly do its best to
obstruct the activities of any international body charged with
prosecuting Israeli war crimes.

Claims of universal jurisdiction

Perhaps the most plausible governmental path would be reliance on claims of universal jurisdiction (1)
associated with the authority of national courts to prosecute certain
categories of war crimes, depending on national legislation. Such
legislation exists in varying forms in more than 12 countries,
including Spain, Belgium, France, Germany, Britain and the US. Spain
has already indicted several leading Israeli military officers,
although there is political pressure on the Spanish government to alter
its criminal law to disallow such an undertaking in the absence of
those accused.

This path to criminal accountability was taken in 1998 when a
Spanish high court indicted the former Chilean dictator, Augusto
Pinochet, and he was later detained in Britain where the legal duty to
extradite was finally upheld on rather narrow grounds by a majority of
the Law Lords, the highest court in the country. Pinochet was not
extradited however, but returned to Chile on grounds of unfitness to
stand trial, and died in Chile while criminal proceedings against him
were under way.

Whether universal jurisdiction provides a practical means of
responding to the war crimes charges arising out of the Gaza experience
is doubtful. National procedures are likely to be swayed by political
pressures, as were German courts, which a year ago declined to proceed
against Donald Rumsfeld on torture charges despite a strong evidentiary
basis and the near certainty that he would not be prosecuted in the US,
which as his home state had the legally acknowledged prior
jurisdictional claim. Also, universal jurisdictional proceedings are
quite random, depending on either the cooperation of other governments
by way of extradition or the happenchance of finding a potential
defendant within the territory of the prosecuting state.

It is possible that a high profile proceeding could occur, and this
would give great attention to the war crimes issue, and so universal
jurisdiction is probably the most promising approach to Israeli
accountability despite formidable obstacles. Even if no conviction
results (and none exists for comparable allegations), the mere threat
of detention and possible prosecution is likely to inhibit the travel
plans of individuals likely to be detained on war crime charges; and
has some political relevance with respect to the international
reputation of a government.

There is, of course, the theoretical possibility that prosecutions,
at least for battlefield practices such as shooting surrendering
civilians, would be undertaken in Israeli criminal courts. Respected
Israeli human rights organisations, including B'Tselem, are gathering
evidence for such legal actions and advance the argument that an
Israeli initiative has the national benefit of undermining the
international calls for legal action.

This Israeli initiative, even if nothing follows in the way of legal
action, as seems almost certain due to political constraints, has
significance. It will lend credence to the controversial international
contentions that criminal indictment and prosecution of Israeli
political and military leaders and war crimes perpetrators should
take place in some legal venue. If politics blocks legal action in
Israel, then the implementation of international criminal law depends
on taking whatever action is possible in either an international
tribunal or foreign national courts, and if this proves impossible,
then by convening a non-governmental civil society tribunal with
symbolic legal authority.

What seems reasonably clear is that despite the clamour for war
crimes investigations and accountability, the political will is lacking
to proceed against Israel at the inter-governmental level, whether
within the UN or outside. The realities of geopolitics are built around
double standards when it comes to war crimes. It is one thing to
proceed against Saddam Hussein or Slobodan Milosevic, but quite another
to go against George W Bush or Ehud Olmert. Ever since the Nuremberg
trials after the second world war, there exists impunity for those who
act on behalf of powerful, undefeated states and nothing is likely to
challenge this fact of international life in the near future, thus
tarnishing the status of international law as a vehicle for global
justice that is consistent in its enforcement efforts. When it comes to
international criminal law, there continues to exist impunity for the
strong and victorious, and potential accountability for the weak or
defeated.

It does seem likely that civil society initiatives will lead to the
establishment of one or more tribunals operating without the benefit of
governmental authorisation. Such tribunals became prominent in the
Vietnam war when Bertrand Russell took the lead in establishing the
Russell Tribunal. Since then the Permanent Peoples Tribunal based in
Rome has organised more than 20 sessions on a variety of international
topics that neither the UN nor governments will touch.

In 2005 the World Tribunal on Iraq, held in Istanbul, heard evidence
from 54 witnesses, and its jury, presided over by the Indian novelist
Arundhati Roy, issued a Declaration of Conscience that condemned the US
and Britain for the invasion and occupation of Iraq, and named names of
leaders in both countries who should be held criminally accountable.

The tribunal compiled an impressive documentary record as to
criminal charges, and received considerable media attention, at least
in the Middle East. Such an undertaking is attacked or ignored by the
media because it is one-sided, and lacking in legal weight, but in the
absence of formal action on accountability, such informal initiatives
fill a legal vacuum, at least symbolically, and give legitimacy to
non-violent anti-war undertakings.

The legitimacy war

In the end, the haunting question is whether the war crimes concerns
raised by Israel's behaviour in Gaza matters, and if so, how. I believe
it matters greatly in what might be called "the second war" - the
legitimacy war that often ends up shaping the political outcome more
than battlefield results. The US won every battle in the Vietnam war
and lost the war; the same with France in Indochina and Algeria, and
the Soviet Union in Afghanistan. The Shah of Iran collapsed, as did the
apartheid regime in South Africa, because of defeats in the legitimacy
war.

It is my view that this surfacing of criminal charges against Israel
during and after its attacks on Gaza resulted in major gains on the
legitimacy front for the Palestinians. The widespread popular
perceptions of Israeli criminality, especially the sense of waging war
against a defenceless population with modern weaponry, has prompted
people around the world to propose boycotts, divestments and sanctions.
This mobilisation exerts pressure on governments and corporations to
desist from relations with Israel, and is reminiscent of the worldwide
anti-apartheid campaign that did so much to alter the political
landscape in South Africa. Winning the legitimacy war is no guarantee
that Palestinian self-determination will be achieved in the coming
years. But it does change the political equation in ways that are not
fully discernable at this time.

The global setup provides a legal framework capable of imposing
international criminal law, but it will not be implemented unless the
political will is present. Israel is likely to be insulated from formal
judicial initiatives addressing war crimes charges, but will face the
fallout arising from the credibility that these charges possess for
world public opinion. This fallout is reshaping the underlying
Israel/Palestine struggle, and giving far greater salience to the
legitimacy war (fought on a global political battlefield) than was
previously the case.