May 29, 2009
response to a series of reports by human rights organizations and
international legal scholars documenting serious large-scale violations
of international humanitarian law by Israeli armed forces in its recent
war on the Gaza Strip, 10 U.S. state attorneys general sent a letter
to Secretary of State Hillary Clinton defending the Israeli action. It
is virtually unprecedented for state attorneys general - whose mandates
focus on enforcement of state law - to weigh in on questions regarding
the laws of war, particularly in a conflict on the far side of the
world. More significantly, their statement runs directly counter to a
broad consensus of international legal opinion that recognizes that
Israel, as well as Hamas, engaged in war crimes.
The wording of the letter closely parallels arguments by Bush
administration officials in support for Israel's devastating offensive
during their final days in office. Having been signed nearly 11 weeks
after the end of the fighting and made public only late last month, it
may have been part of an effort to undermine tentative efforts by the
Obama administration to take a more balanced approach to the
A statement by state attorneys general putting forth a legal rationale
for the large-scale killings of civilians is particularly distressing
as concerns about civilian casualties from U.S. air and missile strikes
in Afghanistan and Pakistan has grown.
The attorneys general signing on to the letter included Republicans
Rob McKenna of Washington, Mike Cox of Michigan, John Suthers of
Colorado, Bill McCollum of Florida, Jon Bruning of Nebraska, and Mark
Shurtleff of Utah. Signatories also included such prominent Democrats
as Richard Cordray of Ohio, Patrick Lynch of Rhode Island, Jack Conway
of Kentucky, and Buddy Caldwell of Louisiana.
Facile Legal Reasoning
The legal rationale put forward in the March 30 letter is
extraordinarily facile. For example, they claim that the war waged on
the civilian infrastructure of the Gaza Strip was taken in furtherance
of Israel's "right to self-defense under Article 51 of the UN Charter."
In reality, however, while Article 51 does allow countries the right to
resist an armed attack, it doesn't grant any nation the right to engage
in such a disproportionate response.
Israeli Defense Minister Ehud Barak admitted that the Israeli
invasion had been planned for months, back when a six-month cease fire
was still in effect. Even when Hamas resumed firing rockets into Israel
in December, following a deadly Israeli raid into Gaza the previous
month, there were few casualties. Indeed, not a single Israeli had been
killed by Hamas rocket attacks for more than half a year prior to
Israel launching its war on December 27. During the subsequent three
weeks of fighting, Palestinians killed 10 Israelis, three of whom were
civilians, while Israeli forces killed more than 1,400 Palestinians,
the vast majority of whom were civilians.
Incredibly, these attorneys general insist that these mass killings
by Israeli forces were "justified and, in our view, met the
international legal standards."
The attorneys general also ignored the fact that Article 33 of the
UN Charter explicitly prohibits nations going to war unless they "first
of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements, or other peaceful means of their own
choice." However, Israel - with strong bipartisan U.S. support - had
refused to even meet with Hamas to negotiate a long-term ceasefire,
which Hamas had offered prior to the breakdown of the six-month lull in
return for a lift in the Israeli siege of the enclave.
The letter correctly accuses Hamas, which had lobbed rockets into
civilian-populated areas in southwestern Israel, of violating Article
48 of Protocol I to the Geneva Convention of 1948, which states:
"Parties to the conflict shall at all times distinguish between the
civilian population and combatants and between civilian objects and
military objectives and accordingly shall direct their operations only
against military objectives."
However, the attorneys general refused to acknowledge that Israel
had also violated that same provision on a far grander scale. While
virtually every human rights organization, intergovernmental
organization, and international legal authority that researched this
recent conflict recognizes both Hamas and Israel were guilty of war
crimes, these attorneys general still insist that Hamas alone was to
blame and that Israel's actions were perfectly legal.
Ignoring the Facts
Human Rights Watch (HRW) - which has been highly critical of Hamas
attacks on civilian areas of Israel as well as repression by the
Islamist group of Palestinian opponents within the Gaza Strip - reported
during the fighting that in using heavy shelling against
heavily-populated civilian areas, "Israel is committing indiscriminate
attacks in violation of the laws of war." In a comprehensive report
published in March, HRW noted that "Israel's repeated firing of white
phosphorus shells over densely populated areas of Gaza during its
recent military campaign was indiscriminate and is evidence of war
Similarly, while Amnesty International
also "found evidence of war crimes and other serious violations of
international law by all parties to the conflict" and attacks by both
sides against civilian areas in which no fighters were present, the
attorneys general insisted that the Palestinian side alone was guilty
of such illegal actions.
An independent United Nations inquiry documented
six major Israeli attacks against UN buildings, including schools in
which children were killed, noting that actions by Israeli forces
"involved varying degrees of negligence or recklessness with regard to
United Nations premises and to the safety of United Nations staff and
other civilians within those premises, with consequent deaths, injuries
and extensive physical damage and loss of property." The report
concluded that "no military activity was carried out from within the
United Nations premises in any of the incidents."
Without presenting any evidence to the contrary, the attorneys
general categorically rejected such findings, insisting that Israel was
engaged only in "a limited and directed action against the source of
Hamas's military acts."
The International Committee of the Red Cross (ICRC) focused on other war crimes, noting how
the "Israeli military failed to meet its obligation under international
humanitarian law to care for and evacuate the wounded," citing
instances in which Israeli forces prevented Red Cross or other medics
safe access to assist seriously wounded civilians. The Israeli chapter
of Physicians for Human Rights reported
with "certainty" that Israel violated international humanitarian law by
attacking medics, damaging medical buildings, engaging in
indiscriminate attacks on civilians, and delaying medical treatment for
the injured. The ICRC declared Israel's "delay in allowing rescue
services access unacceptable." In addition, Israel rejected pleas by
international humanitarian agencies by closing border crossings days at
a time, denying access to food, medical supplies, fuel, and water
sanitation equipment. Despite this, the attorneys general instead
praised Israel for "allowing the entrance of humanitarian aid into
A report by a delegation of prominent U.S. attorneys which visited Gaza Strip soon after the fighting reported that "that Israeli forces deliberately targeted civilians during the Gaza offensive." The Israeli press
has reported testimony of Israeli soldiers who killed Palestinian
civilians under highly permissive rules of engagement that allowed
soldiers to kill any Palestinian in certain areas regardless of whether
they were armed, and were ordered to intentionally destroy civilian
property. An investigation by the British newspaper The Guardian revealed a series of Israeli missile attacks against clearly distinguishable civilian targets.
United Nations Special Rapporteur for Human Rights in the Occupied
Territories Richard Falk, noting Israel's "unlawful uses of force on a
large scale" against Gazan society as a whole, referred
to the operation as a "flagrant violation of international humanitarian
law, as set forth in the Geneva Conventions." Falk, an American Jew and
emeritus professor at Princeton University who is arguably the
country's preeminent international legal scholar, also noted
the illegality of Hamas rocket attacks into Israel, but stressed that
Israeli airstrikes "were aimed at civilian areas in one of the most
crowded stretches of land in the world."
Ignoring such evidence, the attorneys general insisted that Israel
was directing its artillery, bombings and missile attacks only towards
"the source of Hamas's military attacks" and the Israeli government
should therefore not be held responsible for any military action which
harmed Palestinian civilians because they did so "unintentionally."
Defending Mass Killings of Civilians
These attorneys general try to absolve Israel of any responsibility
of the hundreds of civilian deaths by accusing Hamas of "using these
civilians as human shields." They provide no evidence for this charge,
however, save for a quote from the notoriously right-wing editorial
page of the Wall Street Journal.
Independent human rights groups have accused Hamas of less-severe
violations of international humanitarian law, such as not taking all
necessary steps it should to prevent civilian casualties when it
positioned fighters and armaments too close to concentrations of
civilians. However, this isn't the same thing as deliberately using
civilians as shields. Furthermore, the nature of urban warfare,
particularly in a territory as densely populated as the Gaza Strip,
makes the proximity of retreating fighters and their equipment to
civilians unavoidable in many cases.
Even if Hamas were using human shields in the legal definition of
the term, it still does not absolve Israel from its obligation to avoid
civilian casualties. Amnesty International has noted
that the Geneva Conventions make it clear that even if one side is
shielding itself behind civilians, such a violation "shall not release
the Parties to the conflict from their legal obligations with respect
to the civilian population and civilians."
To argue otherwise, as do these attorneys general, is a dangerous
legal position for the chief law enforcement official of a state to
take, such as ordering their state police to kill innocent people in a
hostage situation. By this logic, if a botched bank robbery led the
would-be robbers to hold bank employees and customers at gunpoint,
these attorneys general could then order state patrolmen to kill the
gunmen and hostages alike, defending their action on the grounds that
the bad guys were using "human shields."
Denying Political Reality
It's not just this flawed legal reasoning that underscores how this
initiative by these attorneys general was based not upon a legitimate
interpretation of law but for narrow ideological purposes. They reveal
their political prejudices in their insistence in the letter to Clinton
in claiming that "Israel withdrew from Gaza in 2005" but that the
Palestinians failed to establish "a flourishing independent state." In
reality, despite the removal of illegal Israeli settlements and the
withdrawal of occupation forces from that crowded urban enclave, Israel
has maintained sole control over Gaza Strip's airspace and territorial
waters, thereby prohibiting movement of people and goods by land and
sea, as well as largely controlling the Gaza Strip's border with Egypt.
Effectively preventing any exports or imports, except for occasional
humanitarian aid, the economy has collapsed and, even prior to the war,
the territory was experiencing a serious humanitarian crisis. Since
Israel's "withdrawal," the Israeli government has also controlled the
Gaza Strip's electricity, water and telecommunications and has
periodically engaged in air strikes and armed incursions into the
enclave, murdering and kidnapping suspected militants. No people could
reasonably be expected to establish "a flourishing independent state"
under such circumstances. Furthermore, in maintaining their siege on
the enclave, Israel legally remains the occupying power.
The attorneys general go on to accuse Hamas of taking advantage of
Israel's "withdrawal" to "cause a civil war with the Palestinian
Authority, leading to a coup d'etat in 2007." However, while Hamas is
indeed guilty of innumerable political intrigues and inexcusable
violence towards its Palestinian opponents, this is a gross
misrepresentation of recent history:
Rather than making war against the Palestinian Authority, Hamas was
part of the Palestinian Authority. Indeed, they controlled the
legislative branch of government as well as the post of prime minister
and most other ministries as a result of winning the plurality of the
vote in parliamentary elections in January 2006. The following year,
Saudi officials negotiated a power-sharing agreement between Hamas and
Fatah, which still controlled the presidency. U.S. officials, however,
unsuccessfully encouraged President Mahmoud Abbas to renounce the
agreement, dismiss the entire government and abolish parliament.
The Bush administration then began secretly arming Fatah groups to enable them to fight Hamas and pushing Fatah to stage a coup.
This is what led Hamas to launch a countercoup by overrunning Fatah
offices and taking full control of the Gaza Strip in June 2007. Alvaro
de Soto, former UN special coordinator for the Middle East peace
in his confidential final report leaked to the press a few weeks before
the Hamas takeover that "the Americans clearly encouraged a
confrontation between Fatah and Hamas" and "worked to isolate and
damage Hamas and build up Fatah with recognition and weaponry." De Soto
also recalled how in the midst of Egyptian efforts to arrange a
cease-fire following a flare-up in factional fighting earlier that
year, a U.S. official told him that "I like this violence...[I]t means
that other Palestinians are resisting Hamas."
Though all this has been well-documented and is widely known in both
Israel and Palestine, this bipartisan group of attorneys general has
instead sought to defend the Bush administration's provocative and
illegal intervention by putting the entire blame on Hamas.
This letter to the Secretary of State was put together by a
right-wing group calling itself the American-Israel Friendship League
(AIFL), which boasts
that the organization has sent 42 states attorney general to Israel in
the past 21 years. It refers to the letter as "a strong rejoinder to
those who have castigated Israel over its role in Gaza and used it in
an attempt to delegitimize the Jewish State."
The Bush administration strongly supported Israel's war on the Gaza
Strip as an extension of its "war on terror." It was in the name of
this "war on terror" that President George W. Bush shamelessly
politicized the U.S. Justice Department to justify spying on nonviolent
dissidents at home and the torture of suspects abroad. Now we have a
bipartisan group of state attorneys general who have shown themselves
similarly willing to politicize their offices by putting forward
twisted and perverse interpretations of the law in the name of fighting
terrorism. Unless these rogue attorneys general are challenged by
elected officials and ordinary citizens in their respective states for
their signing on to such a reckless statement, it could mark a
dangerous precedent regarding respect for human rights and the rule of
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