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ISRAEL, GAZA AND INTERNATIONAL LAW

by Jean-Jacques Surbeck

Executive Summary

In an op-ed in the San Diego Union Tribune (SDUT), Jonathan Graubart accused Israel of besieging Gaza, and implied that it is a violation of International Humanitarian Law. [See below.] Graubert is an associate professor of political science at San Diego State University, specializing in international relations and international law.
My credentials: I am an attorney specializing in International Humanitarian Law. I belonged to the legal team of the International Committee of the Red Cross which worked hard at updating the old 1949 Geneva Conventions with two new treaties called Additional Protocols.
There is nothing in these instruments that outlaws a siege in response to constant attacks by a pathologically aggressive and genocidal neighbor.
Graubart repeats the latest canard that Israel "must show that its actions are proportionate". How so? By lobbing a rocket at random over Gaza for every rocket fired by Hamas over Israel? Would that make the unilateral critics of Israel happy? The Palestinian casualties would have been horrendous, and Israel refused to stoop that low. It held its fire and endured the constant barrage for eight long years.
Overall, Graubart uses International Humanitarian Law only to bolster his prejudice and hold Israel accountable for unintended casualties inflicted within the Palestinian population of Gaza, while saying next to nothing to demand the same of Hamas for its fully intentional attacks.
International Law is not a candy store where you pick and choose what suits you. As in any civil society, the same rules apply to everybody. Hamas is no exception. Consequently, it would have helped to point out that Hamas has in fact committed what the Geneva Conventions refer politely to as "grave breaches", which means war crimes, on at least three counts: Lobbing rockets over civilian areas without any ability nor intention to distinguish between military and civilian targets, hiding its forces behind its own civilian population, and hiding arsenals, command and control centers and troops in patently civilian buildings.
In each case, the absolute immunity that civilian installations and civilian populations are entitled to under international law was automatically waived the second these installations or populations were used for military purposes.
Humanitarian Law is crystal clear on this point. Israel is therefore entirely in its right to destroy mosques filled to the rim with weaponry or houses hiding Hamas command centers, to name only two categories of otherwise illegal targets turned into lawful military objectives by Hamas' actions.
The resulting casualties are Hamas' sole responsibility, and the critics should give blame where blame is due, not accuse Israel for merely defending itself.

Op-Ed by Jonathan Graubert
SDUT,
January 8, 2009

As confirmed by the United Nations, the people in the Gaza Strip face a "critical emergency." Over 12 days, the Israeli offensive has killed roughly 660 Palestinians (at least one-quarter noncombatants, including many women and children) in comparison with Hamas killing three Israeli civilians and three Israeli soldiers (with four more soldiers killed in friendly fire). More ominously, a population of 1.5 million people is trapped in a small land mass subject to a devastating militarily onslaught and severe shortages of food and medical needs.

Predictably, the dominant response among American politicians (Republicans and Democrats) and the media has been to blame Hamas as a "terrorist" actor that has attacked Israel. Israelis are seen as kin to Americans, innocent victims forced to "retaliate" against "Muslim extremists." Such solidarity, however seductive, hinders a more reflective and just analysis.

It is imperative to seek generalizeable standards for evaluating the conflict. The best source is international humanitarian law spelled out in the Geneva Conventions and in long-standing customary law.

Consider first Israel's siege of the Gaza Strip, which has greatly restricted the flow of people and of goods, including food, fuel and medical supplies. To justify this, Israel must prove an overwhelming security necessity. Israel's indefinite blockade, which long predates the recent hostilities and continued in violation of the cease-fire agreement with Hamas, fails this demanding standard. Indeed, Israel has prevented most international observers from entering Gaza, including a U.N. special rapporteur for human rights (who was subjected to a humiliating strip search).

Next is Hamas' lobbing of rockets into Israel, which dramatically increased after the six-month cease-fire agreement expired last month. Hamas justifies its actions as a response to Israel's siege and prior shelling in November. Because these crude attacks make no distinction between military and civilian targets, they are illegal even if one concludes that a military response is permissible.

Lastly, we have Israel's intense bombings and ground invasion. Even assuming that an armed reprisal to crude rocket attacks is acceptable, Israel must show that its actions are proportionate, directed at military targets, and not inflicting excessive harm to civilians. Regrettably, Israeli actions and statements indicate the opposite. To begin, the proportion of Palestinian deaths to Israeli deaths is roughly a hundred to one. Moreover, Israeli officials have proclaimed their goal to be not simply to stop rocket attacks but to destroy the infrastructure of the Hamas-led government and undermine popular support of Hamas. Hence, Israel has attacked police cadets, a television station, a school in a U.N. refugee camp, and a number of government offices that even Israel does not claim to be involved in militarily matters. Such actions amount to illegal collective punishment of the broader population.

In sum, a humanitarian-legal analysis does not spare Hamas but incorporates censure of Israel, whose legal violations have produced far more deadly consequences. Defenders of Israel's military actions sometimes counter that Israel cannot afford to abide by international humanitarian law when it is endangered by a ruthless enemy. Americans have heard similar arguments from defenders of the Bush doctrine.

Given the disturbing moral implications, this argument demands a high burden of proof. Namely, has Israel's aggressive militarism over the years made it more secure or simply engendered hate and fanatical resolve among the occupied Palestinian population? Moreover, could not defenders of Hamas make a more compelling argument for discarding military-civilian distinctions? After all, Hamas is hardly in a position to wage a conventional war with Israel's powerful military.

Granted, international humanitarian law is so often discarded in practice by those in power. Israel, for example, need not fear global sanction for illegal actions because the United States will block any U.N. Security Council action. Why, then, even discuss international law? The answer lies in the value of international law, especially moral-based humanitarian standards, to provide impartial benchmarks. Such benchmarks enable us as citizens to make informed demands of our political representatives.

For Americans, this means insisting that the United States support an immediate U.N.-supervised cease-fire that commits all parties to discontinue their legal violations, including Israel's crippling blockade. If the United States were to stop automatically protecting Israel and become a genuinely honest broker, it would likely inspire a more accommodating Israeli response.

I have no illusions that such a change will come readily. Despite President-elect Barack Obama's talk of "change," neither he nor the Democratic Party at large has offered a new vision for U.S. Middle East policy or seen fit to invoke international law. Yet I have more confidence that a majority of the American population would support a change to a more law-abiding policy toward the Middle East and the rest of the world. For this to happen, we must insist upon sustained self-scrutiny about the behavior of the Unite States and its closest allies. A legally informed analysis provides an essential foundation.

Graubart is an associate professor of political science at San Diego State University, specializing in international relations and international law. He recently published "Legalizing Transnational Activism: The Struggle to Gain Social Change from NAFTA's Citizen-Petition Mechanisms" (Penn State Press). He will be part of a panel, "Making Sense of the Gaza-Israeli Conflict: A Teach-In," from 2 to 4 p.m. Jan. 15 at San Diego State.

http://www3.signonsandiego.com/stories/2009/jan/08/ lz1e8graubart221939-israel-gaza-and-international-/?zIndex=33598

In "Israel, Gaza and International Law" published Jan 8, 2009 in the San Diego Union Tribune, Jonathan Graubart starts by accusing Israel of besieging Gaza, and implies that it is a violation of International Humanitarian Law. I know a thing or two about International Humanitarian Law: I belonged to the legal team of the International Committee of the Red Cross which worked hard at updating the old 1949 Geneva Conventions with two new treaties called Additional Protocols. There is nothing in these instruments that outlaws a siege in response to constant attacks by a pathologically aggressive and genocidal neighbor.

Next, Graubart repeats emphatically the latest canard that Israel "must show that its actions are proportionate". How so? By lobbing a rocket at random over Gaza for every rocket fired by Hamas over Israel? Would that make the unilateral critics of Israel happy? The Palestinian casualties would have been horrendous, and Israel refused to stoop that low. It held its fire and endured the constant barrage for eight long years. This is astounding. Imagine living with a wasp nest just over the door leading to your patio and being savagely attacked every time you tried to come out. What would anyone have done? Wait for eight years? I don't think so.

Overwhelming power would have been used immediately to destroy the hive, putting an end to the attacks. Israel is at long last destroying the hive that made the lives of its citizens a living hell. No one on earth would have waited that long to take action. To use another image, when a deranged man holds a hostage, the police doesn't send one policeman to take care of the problem. It sends a SWAT team with overwhelming firepower whose job it is to overpower the gunman while minimizing casualties.

Overall, Graubart uses International Law, and International Humanitarian Law in particular, only to bolster his prejudice and hold Israel accountable for unintended casualties inflicted within the Palestinian population of Gaza, while saying next to nothing to demand the same of Hamas for its fully intentional attacks. International Law is not a candy store where you pick and choose what suits you. As in any civil society, the same rules apply to everybody. Hamas is no exception.

Consequently, it would have helped to point out that Hamas has in fact committed what the Geneva Conventions refer politely to as "grave breaches", which means war crimes, on at least three counts.

Lobbing rockets over civilian areas without any ability (nor intention) to distinguish between military and civilian targets, which Graubart acknowledges meekly as "illegal", are far worse than merely illegal. They violate the most cardinal rule of Humanitarian Law, which is the absolute obligation of all belligerents to distinguish at all times between military and civilian objects and people, to the best of their abilities. Consequently, every one of the 8,000+ rockets fired intentionally by Hamas at random at Israel qualifies as a separate war crime.
Hiding its forces behind its own civilian population, a favorite and despicable practice of Hamas and Hezbollah, is another major war crime. Thus, every time they fire at Israeli forces from behind civilians or civilian installations, the party responsible for the death and destruction caused by return fire is Hamas, not Israel. In any crime, determining the intention of the perpetrator is paramount. Israel never intends to hurt civilians on purpose, and when it happens it agonizes over it. By contrast, Hamas always aims to attract enemy fire over its own people to score public relations points in the gullible court of world public opinion.
Hiding arsenals, command and control centers and troops in patently civilian buildings is yet another category of major war crimes that Hamas must be held accountable for.

Hamas apologists also need to be educated about the important fact that International Humanitarian Law specifies clearly that the absolute immunity that civilian installations and civilian populations are entitled to under international law is automatically waived the second these installations or populations are used for military purposes.

Israel is therefore entirely in its right to blow up mosques filled to the rim with weaponry or houses hiding Hamas command centers, to name only two categories of otherwise illegal targets turned into lawful military objectives by Hamas' actions. The resulting casualties are Hamas' responsibility, and the critics should give blame where blame is due, not accuse Israel, the usual scapegoat.

Finally, Mr. Graubart would have had more credibility if we had heard his complaints about violations of Humanitarian Law at any time in the last eight years that Hamas lobbed its rockets over Israel. I don't recall seeing him protesting then.

As a matter of fact, I don't recall anyone protesting, from the United Nations Security Council on down to wannabe pundits in our papers. Why the double standard?

Why do they wake up only when Israel decides at long last that enough is enough and strikes back? Not to mention the fact that the prevailing obsession with the Palestinians obscures the far worse situation endured by the victims of a real genocide in Darfur, and a murderous and forgotten civil war in the Congo that claims thousands of lives every week (!!!). There are scores of other places on the planet that would deserve a lot more attention but don't because the media and Israel critics prefer to harp on their favorite target.

The Palestinians need to wake up from their self-induced bad dream and admit that a) they cannot win militarily over Israel, b) they have everything to gain from making peace and developing their country, and everything to lose by perpetuating the conflict. Will someone please tell them? I'm not counting on Mr. Graubart.

Jean-Jacques Surbeck is a Swiss-American peace activist and lecturer living in Encinitas. An attorney specializing in International Humanitarian Law, he worked in the legal division of the International Committee of the Red Cross from 1974 to 1978. He is co-founder with Rita Heller of Training and Education About the Middle East (T.E.A.M.), a non-profit group offering classes and lectures to the San Diego public to give a balanced view of the Middle East conflict. He can be reached at info@sandiegoteam.org .

Thanks are due Gabrielle Goldwater for sending this to Think-Israel.

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