Israel’s military actions in Gaza cannot be justified by the self-defense argument. (Hatem Omar/MaanImages)
Israel’s military offensive in Gaza is being perpetrated with enormous disregard for civilian life in violation of fundamental principles of international humanitarian law (IHL). The appallingly high number of civilian deaths and injuries and widespread damage to civilian buildings reflects unlawfully excessive, indiscriminate and disproportionate use of force by Israel.
Two weeks into the Israeli offensive, many international lawyers are raising their voices to condemn Israeli actions from every perspective, challenging Israeli claims to be acting in lawful self-defense. That is, even before examining the unlawful way Israel has deployed its military might, lawyers assessing the self-defense arguments of Israel have found as many holes as in the Gazan ground: Israeli actions were not taken as a last resort, as a necessary response to attacks. Before using force in self-defense a state must need to do so in response to an armed attack, having found no other realistic method of redress or resistance.
In other words, force is only lawful if peaceful attempts to repel the armed attacks either have not worked or would clearly be ineffective. The justification posited by Israel that their objectives of “stopping the rockets being launched from Gaza” and striking Hamas a “severe blow” necessitate the use of overwhelming military force is without legal substance. No force may have been necessary had Israel agreed on 19 December 2008 to open all Gaza’s crossings and lift its unlawful siege.
Hamas scrupulously observed the agreed ceasefire until 4 November when Israel launched an unprovoked attack inside the Gaza Strip, killing six persons. Hence the easiest way for Israel to prevent rocket fire would have been to continue to abide by, and then renew the truce it violated on 4 November.
But the threat posed by rockets fired into Israel can never justify the military actions actually taken since 27 December: figures released by the human rights organization Al Haq on 8 January 2009 indicate that 80 percent of the 671 Palestinian deaths documented until then were civilian (547) including 155 children. The morning of 9 January, Al Jazeera reports raise the Palestinian death toll in Gaza to 769, including more than 200 children. More than 3,121 people have also been wounded. How has this come about?
Despite Israeli claims of complying with the laws of war, the outrageous Israeli attack on Gaza is in line with a rather different approach to war. Under the “Dahiyah Doctrine” (named after an area of Beirut bombed by Israel in 2006), unveiled early October 2008 by Major General Eisenkot, former Israeli military secretary under then prime minister Ehud Barak, the army “… will wield disproportionate power against every village from which shots are fired on Israel, and cause immense damage and destruction. From our perspective these are military bases. This is not a suggestion. This is a plan that has already been authorized.” In a report for Tel Aviv University’s Institute for National Security, Colonel (Res.) Gabriel Siboni backed Eisenkot’s statements. The answer to what Israel describes as rocket and missile threats from Syria, Lebanon and the Gaza Strip, he believes, is “disproportionate strike at the heart of the enemy’s weak spot, in which efforts to hurt launch capability are secondary.”
It is obvious that the Dahiyah Doctrine, founded on using disproportionate force to respond to rocket and missile attacks, violates IHL. It is no surprise, therefore, to find that Israel does not abide by basic definitions of “combatant” and “civilian” or distinguish between a military objective and a civilian population. One of the first of Israel’s attacks on Gaza on 27 December was on a graduation ceremony of police officers employed by the Hamas government. Police stations are civilian buildings, and police officers and law enforcement officials are classified under international law as civilians. Targeting them while they were not engaged in military action is unlawful. Israel has produced no evidence at all that the trainee police officers were preparing to fire rockets during or after their graduation ceremony, and thus they were civilians and appear to be the victims of a premeditated war crime.
Israel consistently labels civilian buildings as “legitimate military targets” that no other government on earth would successfully describe as such. Police stations, mosques, university buildings, medical storage buildings, government institutions, chicken farms and schools cannot become military targets simply by being called Hamas infrastructure.
Already on the first day of the carefully planned Israeli military operation in Gaza, UN Special Rapporteur for Human Rights in the occupied territories, Richard Falk, released a statement pointing out the severe and massive violations of IHL as defined in the Geneva Conventions, mentioning collective punishment, targeting civilians and a disproportionate military response. He noted, “Certainly the rocket attacks against civilian targets in Israel are unlawful. But that illegality does not give rise to any Israeli right, neither as the Occupying Power nor as a sovereign state, to violate international law and commit war crimes or crimes against humanity in its response.” Falk reminded all member states of the United Nations that the UN is bound to its obligation to protect any civilian population facing massive violations of international humanitarian law.
Evidence is also emerging of the use of illegal weapons, with reports and pictures showing “tell-tale [phosphorous] shells … spreading tentacles of thick white smoke to cover the troops’ advance.” An Israeli security expert explained: “These explosions are fantastic looking, and produce a great deal of smoke that blinds the enemy so that our forces can move in.” Phosphorus burning through the air causes severe injuries to anyone caught underneath. Israel admitted using white phosphorus during its 2006 attack on Lebanon.
The Geneva Treaty of 1980 prohibits the use of white phosphorus as a weapon of war in civilian areas, but there is no blanket ban under international law on its use as a smokescreen or for illumination. However, Charles Heyman, a military expert and former major in the British army, was quoted by The Times on 5 January 2009 as saying: “If white phosphorus was deliberately fired at a crowd of people someone would end up in The Hague. White phosphorus is also a terror weapon. The descending blobs of phosphorus will burn when in contact with skin.”
As director of operations in Gaza for the UN agency for Palestine refugees (UNRWA), John Ging told the BBC on 6 January, the situation in Gaza is horrific, because a huge military operation is being carried out in a densely populated area. The population is terrified, there is no place to be safe in Gaza. One million have no electricity, 750,000 no water and everyone is short of food. Trucks with food arrive piecemeal at UNRWA distribution centers, seriously obstructed by the Israeli military operation. Parents have to leave their homes to collect food at centers, taking the risk of being caught in the line of fire. A recent attack on a UN convoy bringing supplies from the crossing point of Gaza caused casualties. All convoys to the main crossing point used for bringing humanitarian supplies into Gaza were suspended after the incident.
Ging also reminded the international community of its responsibility to protect the civilian population. And if it fails to do so, it should be held accountable. All states have an independent obligation to protect any civilian population facing massive violations of IHL. The members of the UN Security Council, who are all also party to the Geneva Conventions, have failed in that duty by not passing a resolution under Chapter VII of the UN Charter as early as 27 December, requiring Israel to cease all military operations in and around Gaza. Each day since then without a UN Security Council resolution and with the willful killings and mass destruction rising inexorably, has strengthened the case against US and UK officials of criminal complicity in Israeli war crimes, given that these veto-holding states were not prepared to call a halt to the violence.
The UN Security Council did not wait for Iraq to be ready for a resolution in August 1990 when Iraq acted with equally clear disregard for international law by invading Kuwait. What has the UN Security Council been waiting for since 27 December? No Israeli agreement to a resolution or terms of ceasefire was or is required for a resolution to be passed that has the legal effect of requiring Israel as a UN member state to cease the violence. It took the UN Security Council almost 14 days to pass a resolution that “stresses the urgency of and calls for [i.e. not ‘demands’] an immediate, durable and fully respected ceasefire, leading to the full withdrawal of Israeli forces from Gaza.” The US backed its ally and abstained. A series of explosions has rocked the Gaza Strip despite the UN Security Council passing a resolution calling for an “immediate ceasefire” there. Any attack after the call for an immediate ceasefire can be considered a violation of international law.
Striking populated areas with the kind of force used by Israel, even if some of the targets were in principle legitimate military targets, can never be in compliance with an ordinary understanding of the laws of war. Israel’s acts are therefore war crimes and crimes against humanity. Lawyers from Lawyers for Palestinian Human Rights in the UK and other countries are committed to bringing the perpetrators of these suspected war crimes and crimes against humanity to justice, as well as third parties that have been aiding and abetting war crimes.
Adri Nieuwhof is a consultant and human rights advocate based in Switzerland, and Daniel Machover is an attorney and co-founder of Lawyers for Palestinian Human Rights based in Great Britain.