De Israelische Oorlogsmisdaden 87

The New York Times
April 3, 2009
- Op-Ed -

Israel on Trial

By GEORGE BISHARAT

San Francisco

CHILLING testimony by Israeli soldiers substantiates charges that
Israel's Gaza Strip assault entailed grave violations of international
law. The emergence of a predominantly right-wing, nationalist government
in Israel suggests that there may be more violations to come. Hamas's
indiscriminate rocket attacks on Israeli civilians also constituted war
crimes, but do not excuse Israel's transgressions. While Israel disputes
some of the soldiers' accounts, the evidence suggests that Israel
committed the following six offenses:

* Violating its duty to protect the civilian population of the Gaza
Strip. Despite Israel's 2005 "disengagement" from Gaza, the territory
remains occupied. Israel unleashed military firepower against a people
it is legally bound to protect.

* Imposing collective punishment in the form of a blockade, in violation
of Article 33 of the Fourth Geneva Convention. In June 2007, after Hamas
took power in the Gaza Strip, Israel imposed suffocating restrictions on
trade and movement. The blockade -- an act of war in customary
international law --
has helped plunge families into poverty, children into malnutrition, and
patients denied access to medical treatment into their graves. People in
Gaza thus faced Israel's winter onslaught in particularly weakened
conditions.

* Deliberately attacking civilian targets. The laws of war permit
attacking a civilian object only when it is making an effective
contribution to military action and a definite military advantage is
gained by its destruction. Yet an Israeli general, Dan Harel, said, "We
are hitting not only terrorists and launchers, but also the whole Hamas
government and all its wings." An Israeli military spokeswoman, Maj.
Avital Leibovich, avowed that "anything affiliated with Hamas is a
legitimate target."

Israeli fire destroyed or damaged mosques, hospitals, factories,
schools, a key sewage plant, institutions like the parliament, the main
ministries, the central prison and police stations, and thousands of
houses.

* Willfully killing civilians without military justification. When
civilian institutions are struck, civilians -- persons who are not
members of the armed forces of a warring party, and are not taking
direct part in hostilities
-- are killed.

International law authorizes killings of civilians if the objective of
the attack is military, and the means are proportional to the advantage
gained. Yet proportionality is irrelevant if the targets of attack were
not military to begin with. Gaza government employees -- traffic
policemen, court clerks, secretaries and others -- are not combatants
merely because Israel considers Hamas, the governing party, a terrorist
organization. Many countries do not regard violence against foreign
military occupation as terrorism.

Of 1,434 Palestinians killed in the Gaza invasion, 960 were civilians,
including 121 women and 288 children, according to a United Nations
special rapporteur, Richard Falk. Israeli military lawyers instructed
army commanders that Palestinians who remained in a targeted building
after having been warned to leave were "voluntary human shields," and
thus combatants. Israeli gunners "knocked on roofs" -- that is, fired
first at corners of buildings, before hitting more vulnerable points --
to "warn" Palestinian residents to flee.

With nearly all exits from the densely populated Gaza Strip blocked by
Israel, and chaos reigning within it, this was a particularly cruel
flouting of international law. Willful killings of civilians that are
not required by military necessity are grave breaches of the Geneva
Conventions, and are considered war crimes under the Nuremberg
principles.

* Deliberately employing disproportionate force. Last year, Gen. Gadi
Eisenkot, head of Israel's northern command, speaking on possible future
conflicts with neighbors, stated, "We will wield disproportionate power
against every village from which shots are fired on Israel, and cause
immense damage and destruction." Such a frank admission of illegal
intent can constitute evidence in a criminal prosecution.

* Illegal use of weapons, including white phosphorus. Israel was finally
forced to admit, after initial denials, that it employed white
phosphorous in the Gaza Strip, though Israel defended its use as legal.
White phosphorous may be legally used as an obscurant, not as a weapon,
as it burns deeply and is extremely difficult to extinguish.

Israeli political and military personnel who planned, ordered or
executed these possible offenses should face criminal prosecution. The
appointment of Richard Goldstone, the former war crimes prosecutor from
South Africa, to head a fact-finding team into possible war crimes by
both parties to the Gaza conflict is an important step in the right
direction. The stature of international law is diminished when a nation
violates it with impunity.

--
/George Bisharat is a professor at the University of California Hastings
College of the Law./
Zie: http://www.nytimes.com/2009/04/04/opinion/04bisharat.html?em