New initiative aims to redefine relentless onslaught against Israel.
By DAN IZENBERGshock attack 88 224(photo credit: Ariel Jerozolimski)
Last year, the European Journal of Public Health published an article arguing that had the United Nations, human rights organizations and the media used the term "genocide" rather than "ethnic cleansing" to describe events in Rwanda, Darfur and Bosnia, tens of thousands of lives might have been saved.
The article was written by Dr. Rony Blum and Elihu Richter of the Braun School of Public Health and Community Medicine at the Hebrew University of Jerusalem-Hadassah Ein Kerem; Prof. Gregory Stanton, president of Genocide Watch; and HU law student Shira Sagi.
According to their findings, precise and accurate terminology is of crucial, practical importance in dealing with and preventing, or at least intervening at an earlier stage to halt, genocide. "The term 'ethnic cleansing,'" they wrote, "corrupts observation, interpretation, ethical judgment and decision-making, thereby undermining the aim of public health. 'Ethnic cleansing' bleaches the atrocities of genocide, leading to inaction in preventing current and future genocides."
According to the figure published in the article, 800,000 people were killed in Rwanda, 200,000 in Bosnia and 400,000 had been killed in Darfur at the time the article was published.
Richter and a group of his public health colleagues in Israel believe the same principle applies to the terminology used to describe the campaign waged by Hamas and other Palestinian terrorist organizations in the Gaza Strip. Before presenting their views, it needs to be emphasized that Richter and the others, including Dr. Ted Tulchinsky, who also teaches public health at Hadassah, are neither right-wing political ideologues nor indifferent to Palestinian suffering. Richter and Tulchinsky have spent many years participating in joint Israeli-Palestinian medical projects and training programs and believe the commitment to public health on the part of both Israeli and Palestinian doctors and scientists provides fertile ground for the most positive kind of cooperation.
Over the past few years, Richter and Tulchinsky have concluded that the terror groups headed by Hamas are waging a campaign of "genocidal terror" against Israel and that their actions meet the criteria established by the UN in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
The convention defines genocide as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Richter maintains that if the UN, human rights organizations and the media were to define the rocket attacks on Sderot and other civilian communities as "genocidal terrorism" rather than "war crimes," as they do today, they would be presenting a much more accurate depiction of the threat with which Israel is contending.
In trying to explain the difference between "regular" and "genocidal" terrorism, Richter told The Jerusalem Post, "Note that Hamas and its Iranian sponsor, backer and funder are explicitly committed to the destruction of Israel. In contrast, take terrorists in Colombia. They target prominent individual Colombians, some for political reasons, others for ransom money. The same holds true for the Weathermen, who kidnapped Patty Hearst, or the Red Brigades. They were targeting specific political figures from their own countries without reference to national, ethnic or religious status. They were kidnappers, robbers and murderers."
RICHTER IS not a lawyer. He said he came to his conclusion on the basis of the same kind of epidemiological studies that are applied to natural disasters or epidemics. "The idea evolved out of the efforts of some of us to understand what was happening, based on an examination of who, when, where, which, how and what the data were telling us," he said.
For example, he examined the gender and age breakdown of Palestinian and Israeli fatalities during the second intifada and found that there was a disproportionate number of elderly, female and child victims on the Israeli side, compared to a disproportionate number of young male victims on the Palestinian side.
In developing the concept of genocidal terrorism, Richter also consulted with legal experts including Stanton, co-author of the ethnic cleansing article, who is currently professor of human rights at the University of Mary Washington in Fredericksburg, Virginia. "I think genocidal terror is exactly what al-Qaida, Hamas and Hizbullah are doing," he wrote. "I think the key nexus is that genocidal killing is intended to destroy a national, ethnic, racial or religious group. Terror is aimed at killing members of another group, making no distinction between civilians and combatants. That distinction is required by the Geneva Conventions and Optional Protocol I and II and Common Article 3 apply the conventions to non-state actors."
Richter also referred to Israel Charney, executive director of the Institute on the Holocaust and Genocide, Jerusalem. Charney, who has written several books on genocide, told Richter, "I am pessimistic about the growing violence in the world from the emerging 'transnational genocide terrorism.' I sadly anticipate and fear deeply that before long, there will be a use of weapons of mass destruction (WMD) by terrorists, including suicide bombers, with resulting horrendous widespread deaths, agony and breakdown of civilized life in widespread areas."
Perhaps the most prominent jurist in the world working on redefining international law to address the changes that have taken place in the nature of terrorism over the decades is Harvard University's Alan Dershowitz. In an interview with the Post published on March 14, Dershowitz said the clear distinction between civilian and combatant breaks down in a war against terrorists, and international law must acknowledge and deal with this. "The anachronistic theory that you can clearly tell the difference between civilian and combatant must be updated to deal with the new reality in which terrorists use civilian population for fighting purposes," he said.
Instead of the either/or duality of civilian versus combatant, Dershowitz proposes what he calls the "continuum of civilianality."
"You can rank people on a scale of one to 10, one being an infant baby, 10 being a grown man with a shoulder rocket about to fire. In between, there are those people who allow their homes to be used for rocket launches or storage, imams who encourage suicide bombing, people who make explosive belts," he explained.
In a recent article published in The Wall Street Journal, Dershowitz appeared to go even farther. He referred to a report in The New York Times that quoted Zahra Maladan, the editor of a Lebanese women's magazine, as warning her son at the funeral of arch-terrorist Imad Mughniyeh, "If you're not going to follow in the steps of the Islamic resistance martyrs, then I don't want you."
In this new kind of terrorism, Dershowitz continued, "there is a new image of mothers urging their children to die, and then celebrating the martyrdom of their suicidal sons and daughters by distributing sweets and singing wedding songs. As more women and children are recruited by their mothers and their religious leaders to become suicide bombers, more women and children will be shot at - some mistakenly. That, too, is part of the grand plan of our enemies. They want us to kill their civilians, whom they also consider martyrs, because when we accidentally kill a civilian, they win in the court of public opinion.We need new rules and strategies to deal effectively and fairly with these dangerous new realities. We cannot simply wait until the son of Zahra Maladan, and the sons and daughters of hundreds like her, decide to follow [their] mothers' demand."
In calling for a redefinition of international law, Dershowitz maintained that in today's world, the old notion of deterrence, achieved by massive superiority, plays less of a role than prevention and pre-emption. For example, he wrote, "You can't deter a person who wants to die or a nation prepared to sacrifice itself, as some in Iran have suggested they're prepared to do."
International law today does not state that it is illegal to kill a civilian in the process of striking at a military target. However, it invokes the principle of proportionality, which states that in deciding whether or not to attack a military target, the state must take into account whether the number of potential civilian casualties is proportional to the anticipated military gain. If the estimated casualties are "disproportionate," the strike is illegal. By introducing the concept of a "continuity of civilianality," it appears that Dershowitz seeks to change the numerical balance between civilians and combatants who would be potential victims of the strike in favor of the combatants.
IN A VIEW similar to Dershowitz's, Richter maintains that large segments of Palestinian society in Gaza are involved in terrorism. "If 40 percent of all families know someone who has been killed 'fighting the Israelis,' i.e. launching terror attacks or defending their perpetrators, and latest estimates are that some 20,000 Gazans are under arms in various military units, it would seem that we are dealing with population-wide involvement in such terror attacks and not a few 'extremists.'"
Asked whether his estimation of the "population-wide involvement" in terror gave Israel moral and legal license to strike at the entire population, Richter replied, "When the goal is genocidal and the threat is disruptive to the way of life of an entire population [i.e. the Israeli population], it seems that the proportionality of the threat [to Israel] and not only the actual losses [to the Israeli population] becomes critical in framing the scope of a response compatible with ethical norms. When those producing the threat are receiving support from sizable segments of the population, or taking refuge among the population, it would seem that the perpetrators of genocidal terror - and adult members of that population - bear responsibility for the losses to that population resulting from the use of force against them. The outburst of joy over the murder of eight students at the Mercaz Harav Yeshiva on March 6 bespeak of this support. At the same time, everything must be done to try to limit the damage."
In order to limit damage to innocent civilians, Richter suggested giving advanced warning before destroying areas used for launching rockets.
Several weeks ago, Richter protested to the Post following an article in the paper which quoted from an official of the World Health Organization's (WHO) Middle East region. The official had provided figures regarding the damage to Gaza hospitals caused by the severe fuel import restrictions imposed by Israel beginning in October 2007. Richter, Tulchinsky and other Israeli physicians have been actively involved with WHO over the years, but Richter complained that in the past year, there has been a growing "selective indifference on the part of the regional office to the problem of terror."
He and his colleagues were particularly incensed over a two-page interview with John Dugard, the outgoing Special Rapporteur for Human Rights in Palestine and Other Occupied Territories, which appeared in the September-October 2007 edition of Bridges, the WHO regional bi-monthly.
Dugard, to put it mildly, is the bête noire of many Israelis who are personally involved in, or closely follow, the Israeli-Palestinian dispute.
"The mandate of Special Rapporteur on Human Rights in Palestine, created in 1993 by the discredited and now defunct UN Commission on Human Rights, is to investigate only violations by Israel, a one-sided duty John Dugard has zealously embraced since his appointment to the post in 2001," Richter charged. "His reports stand out, even by UN standards, for their virulently anti-Israel prejudice. There are many UN figures who like to lambast Israel. But Mr. Dugard has the dubious distinction of being the only appointee of the UN who regularly rails against the UN-sponsored Quartet and its road map for the Middle East [for not demanding an end to Israel's alleged human right violations in Gaza]."
Richter and Tulchinsky were particularly incensed by what Tulchinsky described as "the bashing of Israel on medical referrals to Israel, which has been a big issue pushed by WHO and Dugard."
This would obviously be a particularly sensitive point for public health physicians. WHO wrote that of the total number of Palestinian patients from Gaza who requested permits to enter Israel in 2007 for hospital treatment (in Israel, the West Bank or Jordan), 18.48% were rejected, compared to 9.84% in 2006. In their response, Tulchinsky, Richter and Ronny Starkshall - another member of the Braun School - pointed out that the number of patients who had received permits jumped from 4,932 in 2006 to 7,176 in 2007, an increase of 45%. Regarding the disturbing figures that only 64.5% of Gazans had been granted permits in November 2007 and 64.3% in December 2007, shortly after Israel's pronouncement that Gaza was a "hostile territory," the three wrote, perhaps naively, that "the recent difficulties with approvals are being addressed at [the] Erez crossing and by the local WHO office in goodwill meetings with the Israel Defense Forces Coordinator's Office." This comment came as a result of a meeting between Maj.-Gen. Yosef Mishlev, Coordinator of Activities in the Territories and his staff, WHO officials and three Israeli doctors, including Tulchinsky.
As for the Dugard interview in Bridges and a controversial report that the special rapporteur presented to the UN General Assembly on January 21, Tulchinsky, Richter and Starkshall wrote that they "strongly object to the unbalanced and erroneous remarks of Prof. John Dugard. Dugard addresses Palestinian rights issues but fails to address the fundamental rights of Israelis to be free from terrorist rocket and suicide bomber attacks by the Hamas government and terror organizations aimed at population centers, notably Sderot, with the specific intention of killing and injuring civilians. Terror attacks directed against a civilian population fall within the definition of genocide by the UN Convention on Genocide."
Dugard's seventh and final report to the UN, released on January 21, was indeed controversial and went so far as to show "understanding" for the terrorist rocket attacks against Israeli civilian population centers.
In an exclusive interview, Dugard replied to questions by the Post on his comments made in the annual report. (See related article)
IN THE final analysis, Richter bases his arguments on the following axiom: "The right to life," he says, "trumps all other human rights."
"Funerals are forever, closed border crossings can be reopened. Their effects are reversible." As for the water and electricity shortages suffered by Gaza hospitals as a result of Israel's fuel and electricity sanctions, Richter said, "Hospitals should be sanctuaries, but not if used as sites for arms storage, hiding of armed terrorists, launching sites. But we have to be careful in ascertaining what is truly happening. Last time around, the power outages were staged and Hamas reportedly siphoned off electricity for its own uses. Regions under siege are entitled to receive water shipments. But in such cases, the strong steal from the weak."
It is important to note that Richter gives little, if any, credence to the claim that the Palestinians resort to violence because they have no other way of opposing the Israeli occupation of their land. As far as he is concerned, terrorism is caused by the hate language and incitement of its leaders.
"It is the children who are the most vulnerable to hate language and incitement," Richter wrote. "Perpetrators of genocide or genocidal terror use hate language to stigmatize and dehumanize the 'other,' without which they cannot recruit their followers. If the Kassams are the hardware of genocidal terror, the incitement of children and youths provides the software. The claim that the occupation is the cause of the terror, and by implication, the cause of the incitement to terror, is not sustainable. The incitement reappeared in Palestinian textbooks with the establishment of the PA and Israel's first withdrawals, and its ebb and tide bear no relationship to subsequent Israeli withdrawals."
According to Richter and Tulchinsky, the overwhelmingly disproportionate criticism of Israel by the UN, international human rights organizations and the media constitute "an upscale variant of classical anti-Semitism. This trend seems to apply different standards to the value of life of Israelis and Palestinians and attributes the problems of the latter exclusively to the barriers, curfews and checkpoints and not to failures of the Palestinian leadership in taking charge of its own society."
Tulchinsky told the Post that "The buzzword is that Israel is illegitimate in its methods. The message is that Israel is illegitimate."
HEBREW UNIVERSITY professor Yuval Shany, an expert in international law and academic director of the Minerva Center for Human Rights, said most violations of international criminal law fall into the category of war crimes or crimes against humanity. Determining that a crime constitutes genocide is, in general, more controversial. Furthermore, he said, "it is one thing to call to update international law by bringing it more in line with current realities, and another thing to call for violating the law as it currently exists."
On the other hand, Shany added that international law does not provide the complete answer to complex situations which must take contradictory factors into account. Furthermore, it leaves much leeway for interpretation. For example, what may be a proportional act in the eyes of one party may be disproportional to another. Unless an international court rules on the matter in accordance with the independent opinions of its judges, there can be no unequivocal answer to such a question.
But, continued Shany, for those (like Dershowitz) who maintain that international law is a barrier to democracies fighting fairly against tyrants, there are others, including many human rights activists, who maintain that it fails to sufficiently protect the rights of innocent civilians. Thus, neither side is satisfied with the provisions of international law, which may not necessarily be negative, since it can be indicative of its balanced nature.
In general, Shany regards international law as a restraining factor rather than a set of clear-cut legal provisions unequivocally detailing what may and may not be done in war. The most that can be said is that without it, many countries would likely treat enemy civilians more violently than they do.
While Shany did not comment on the entire range of the comments in Dugard's January 21 report, he told the Post that the UN official's analysis of the legal situation in Gaza was biased. Shany believes Israel's disengagement from Gaza brought an end to the occupation and that Israel no longer bears the responsibilities of a belligerent occupier as laid down in international humanitarian law. In other words, the Palestinians are no longer a protected population and Israel has no special responsibility for their well-being.
"Dugard's report is based on a tendentious analysis of the law," Shany said. "I disagree with his conclusions."
According to Shany, the relations between Gaza and Israel today are governed by the laws of war and, specifically, by the laws governing situations of siege. "When A breaks the law against B, B may punish A," he explained. The only limitation is that punitive measures cannot cause a humanitarian crisis such as starvation and the applied sanctions must be proportional to the original violation. Thus, B may not block humanitarian supplies from reaching A. Beyond that threshold, however, B may legally impose economic sanctions against A and they will not be regarded as violations of international law even though they constitute a form of collective punishment, provided that they meet the test of proportionality.
Indeed, Shany is of the opinion that the initial sanctions taken by Israel against the Gaza Strip after Hamas defeated Fatah and took exclusive control over the area in June 2007 were legal. However, he thinks Israel's recent fuel and electricity cutbacks might be illegal because of the humanitarian hardships they have caused the Palestinian population.
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