Professor Mark Osiel

Dear professor Osiel,

Being a Dutch journalist who just wrote a book about Israel and Palestine I would like to ask you as director International Criminal/Humanitarian Law, and Public International Law of the
T.M.C. Asser Institute some questions.

The Israeli daily paper Haaretz, among others, has reported recently about the atrocities Israeli soldiers have committed in Gaza, according to their own saying, and which seem to be the result of what prime-minster Olmert himself called the Israeli 'disproportionate response' as a way to punish the Palestinian population. See: http://www.haaretz.com/hasen/spages/1072475.html

We are dealing here with a severe problem of which the Palestinian population is the victim. As Haaretz reported: 'Sociologist Dr. Orna Sasson-Levy, of Bar-Ilan University, author of "Identities in Uniform: Masculinities and Femininities in the Israeli Military," said that the phenomenon is "part of a radicalization process the entire country is undergoing, and the soldiers are at its forefront. I think that ever since the second intifada there has been a continual shift to the right. The pullout from Gaza and its outcome - the calm that never arrived - led to a further shift rightward."This tendency is most strikingly evident among soldiers who encounter various situations in the territories on a daily basis. There is less meticulousness than in the past, and increasing callousness. There is a perception that the Palestinian is not a person, a human being entitled to basic rights, and therefore anything may be done to him."'

The British newspaper The Guardian published this week the following: 'Series: Gaza war crimes investigation

Will Israel be brought to book?The evidence of war crimes in Gaza is a challenge to universal justice: will western-backed perpetrators ever stand trial?

Seumas Milne

guardian.co.uk,

Monday 23 March 2009 17.15 GMT

Evidence of the scale of Israel's war crimes in its January onslaught on Gaza is becoming unanswerable. Clancy Chassay's three films investigating allegations against Israeli forces in the Gaza strip, released by the Guardian today, include important new accounts of the flagrant breaches of the laws of war that marked the three-week campaign – now estimated to have left at least 1,400 Palestinians, mostly civilians, and 13 Israelis dead.The films provide compelling testimony of Israel's use of Palestinian teenagers as human shields; the targeting of hospitals, clinics and medical workers, including with phosphorus bombs; and attacks on civilians, including women and children – sometimes waving white flags – from hunter-killer drones whose targeting systems are so powerful they can identify the colour of a person's clothes. Naturally, the Israeli occupation forces' spokesperson insists to Chassay that they make every effort to avoid killing civilians and denies using human shields or targeting medical workers – while at the same time explaining that medics in war zones "take the risk upon themselves". By banning journalists from entering Gaza during its punitive devastation of the strip, the Israeli government avoided independent investigations of the stream of war crimes accusations while the attack was going on. But now journalists and human rights organisations are back inside, doing the painstaking work, the question is whether Israel's government and military commanders will be held to account for what they unleashed on the Palestinians of Gaza – or whether, like their US and British sponsors in Iraq and Afghanistan, they can carry out war crimes with impunity. It's not as if Clancy's reports are unique or uncorroborated by other evidence.'

The Guardian continues: 'Last week, the Israeli newspaper Ha'aretz reported that a group of Israelis soldiers had admitted intentionally shooting dead an unarmed Palestinian mother and her two children, as well as an elderly Palestinian woman, in Gaza in January. As one explained: "The lives of Palestinians, let's say, is something very, very less important than the lives of our soldiers. So as far as they are concerned they can justify it that way".They also tally with testimony of other Israeli soldiers from the Givati Shaked battalion, which operated in the Gaza city suburb of Zeitoun, that they were told to "fire on anything that moves". The result was that one family, the Samunis, reported losing 29 members after soldiers forced them into a building that subsequently came under fire – seven bleeding to death while denied medical care for nearly three days. The Helw and Abu Zohar families said they saw members shot while emerging from their homes carrying white flags. "There was definitely a message being sent", one soldier who took part in the destruction of Zeitoun told the Times. Or take the case of Majdi Abed Rabbo – a Palestinian linked to Fatah and no friend of Hamas – who described to the Independent how he was repeatedly used as a human shield by Israeli soldiers confronting armed Hamas fighters in a burned-out building in Jabalya in the Gaza strip. The fact of Israeli forces' use of human shields is hard to gainsay, not least since there are unambiguous photographs of several cases from the West Bank in 2007, as shown in Chassay's film.Last week Human Rights Watch wrote to European Union foreign ministers calling for an international inquiry into war crimes in Gaza. In the case of Israel, the organisation cited the siege of Gaza as a form of collective punishment; the use of artillery and white phosphorus in densely populated civilian areas, including schools; the shooting of civilians holding white flags; attacks on civilian targets; and "wanton destruction of civilian property".Israel and others also accuse Hamas of war crimes. But while both Human Rights Watch and Amnesty International have echoed that charge, particularly in relation to the indiscriminate rocketing of towns such as Sderot, an exhaustive investigation by Human Rights Watch has found no evidence, for example, of Hamas using human shields in the clearly defined legal sense of coercion to protect fighters in combat. And as Richard Falk, the UN Special Rapporteur on Palestinian Human Rights, argued recently, any attempt to view the two sides as "equally responsible" is an absurdity: one is a lightly-armed militia, effectively operating underground in occupied territory – the other the most powerful army in the region, able to pinpoint and pulverise targets with some of the most sophisticated weaponry in the world.There is of course no chance that the UN security council will authorise the kind of International Criminal Court war crimes indictment now faced by Sudan's leaders over Darfur. Any such move would certainly be vetoed by the US and its allies. And Israel's own courts have had no trouble in the past batting away serious legal challenges to its army's atrocities in the occupied territories. But the use of universal jurisdiction in countries such as Spain or even Britain is making Israeli commanders increasingly jumpy about travelling abroad.With such powerful evidence of violations of the rules of war now emerging from the rubble of Gaza, the test must be this: is the developing system of international accountability for war crimes only going to apply to the west's enemies – or can the western powers and their closest allies also be brought to book?'

Professor Osiel, you wrote the book Obeying Orders in which you pose the following question: 'A soldier obeys illegal orders, thinking them lawful. When should we excuse his misconduct as based in reasonable error? How can courts convincingly convict the soldier's superior officer when, after Nuremberg, criminal orders are expressed through winks and nods, hints and insinuations? Can our notions of the soldier's "due obedience," designed for the Roman legionnaire, be brought into closer harmony with current understandings of military conflict in the contemporary world? Mark J. Osiel answers these questions in light of new learning about atrocity and combat cohesion, as well as changes in warfare and the nature of military conflict. Sources of atrocity are far more varied than current law assumes, and such variations display consistent patterns. The law now generally requires that soldiers resolve all doubts about the legality of a superior's order in favor of obedience. It excuses compliance with an illegal order unless the illegality - as with flagrant atrocities - would be immediately obvious to anyone. But these criteria are often in conflict and at odds with the law's underlying principles and policies. Combat and peace operations now depend more on tactical imagination, self-discipline, and loyalty to immediate comrades than on immediate, unreflective adherence to the letter of superiors' orders, backed by threat of formal punishment. The objective of military law is to encourage deliberative judgment. This can be done, Osiel suggests, in ways that enhance the accountability of our military forces, in both peace operations and more traditional conflicts, while maintaining their effectiveness. Osiel seeks to "civilianize" military law while building on soldiers' own internal ideals of professional virtuousness. He returns to the ancient ideal of martial honor, reinterpreting it in light of new conditions, arguing that it should be implemented through realistic training in which legal counsel plays an enlarged role rather than by threat of legal prosecution. Obeying Orders thus offers a compelling answer to the question that has most haunted the moral imagination of the late twentieth century: the roots - and restraint - of mass atrocity in war.'

Now, my question is simpel. Should the Israeli soldiers, their commanders and the politicians who are responsible for these war crimes be brought to justice, just like in the case of the former Yugoslavia? And if this doesn't happen, would this not create a situation in which respect for international law diminishes? I ask you this also because you spoke in Israel about 'Soldier Testimony After Mass Atrocity,' during the Conference organized by Human Rights Watch, Middle East Dept., Hebrew University, Jerusalem on Feb. 28, 2004.'

Hope to receive your replies soon,
Sincerely
Stan van Houcke
Journalist/Author
Amsterdam.