The Post-war Legal Battle

Israel claims that Gaza's civilian casualties in the IDF offensive were due to the Hamas military machine being totally embedded in the civilian infrastructure

22gaza224 (photo credit: AP)
(photo credit: AP)
Cover story in Issue 22, February 16, 2009 of The Jerusalem Report. To subscribe to The Jerusalem Report click here. The images on television screens across the world were harsh: the tiny bodies of children wrapped in green Hamas shrouds; a Palestinian doctor who had worked in Israel, distraught at the deaths of his three daughters and a niece; pandemonium as shrieking ambulances raced to hospitals; women in traditional garb sifting through the rubble of their bombed-out homes; the jagged concrete of mangled high-rise buildings; huge clouds of smoke billowing over the battle zone. Across the bottom of the screens or in voice-overs, viewers were informed of the constantly rising death toll in Gaza: 220 on the first day, reaching a total of 1,285 and thousands more wounded by the time Israel's 22-day war against Hamas was over. Besides the general assumption of the Israel Defense Force's responsibility for what was presented as an unnecessarily high human toll and unnecessarily widespread devastation, there were some specific criticisms of Israeli soldiers' conduct in the fighting: that in some instances they had prevented evacuation of the wounded, fired indiscriminately at civilians, used white phosphorous shells that cause deep burns against human targets, all of which are violations not only of the ethics, but also of the laws of warfare. Israel argues that its forces did all they could to avoid causing civilian casualties; that the army made a quarter of a million phone calls, sent text messages and dropped leaflets warning civilians to leave areas about to be attacked; that some missions were aborted because civilians might be hit; that when civilians were hit it was often because Hamas militiamen prevented them from moving out of the line of fire, and that it was always unintentional. As for the white phosphorous, the IDF says it is used by armies all over the world in legal munitions for flares and smokescreens, but that it is investigating the firing by a reserve brigade of about 20 phosphorous shells in the Bet Lehiya area of northern Gaza where civilians may unintentionally have been hit. The IDF also says that preliminary investigations of incidents in which Israeli troops fired at a United Nations compound, an UNWRA school, the al Kuds hospital and a tall building housing foreign media all followed the same pattern: IDF troops came under fire from inside or adjacent to the locations, and fired back. Beyond the specifics, some critics of Israel charge that its overwhelming military response was not proportional to Hamas rocket fire, which during the war caused only three Israeli civilian deaths. Others go further, accusing Israel of war crimes. Israeli officials dismiss these charges out of hand as part of an ongoing campaign of anti-Israel "lawfare," in which attempts are made to criminalize anything Israel does, especially when it uses force to defend itself. They maintain that with its civilians fired on so persistently by Hamas and powerful regional enemies like Iran lying in wait for any sign of weakness, Israel had to find an effective response. And, they say, given the way Hamas deliberately used civilians as human shields, there is nothing Israel could have done to make the results less tragic. As the dust settles, the question of whether Israel actually broke the rules of war and whether any of its soldiers will face judicial proceedings is one of the major issues that have come to the fore. Others are whether the abiding impact of Israel's Gaza operation be enough to secure its war aims of deterring Hamas rocket fire and preventing the smuggling of new weapons into Gaza, and who will control the large-scale rehabilitation of Gaza, expected to cost at least $2 billion. The Israeli government rejects all the war crimes allegations and a week after the cease-fire, it announced that it would give full legal backing to soldiers who might face such charges abroad. "The men and officers who were sent on missions in Gaza must know that they are safe from various tribunals," Prime Minister Ehud Olmert declared, describing attempts to move against Israel in the international legal arena as "moral acrobatics." If any foreign government or organization does try to prosecute, experts say this is unlikely to be done through the International Criminal Court at The Hague: Israel is not a member state and and the alleged crimes were not committed in the territory of a member state. Therefore, any proceeding in the ICC would have to be mandated by the U.N. Security Council, and the chances of that happening tend to zero. That leaves the possibility of prosecution through what is called "universal jurisdiction," in the national courts of countries like Britain, Belgium and Spain, which allow prosecution for war crimes committed anywhere in the world. In the post-war legal battle, Israel and its supporters are already taking the offensive. Irwin Cotler, a Canadian member of parliament and a former justice minister, law professor at Montreal's McGill University and head of the Canadian Jewish Congress, says Israel should argue that Hamas is guilty of at least six violations of international law: Deliberately targeting civilians; launching attacks from inside civilian areas like houses, schools, mosques and hospitals; abusing international symbols, like using ambulances to transport fighters (the perfidy principle); bringing children into armed conflict; inciting to genocide; and, through its systematic eight-year long attack on civilians, perpetrating a crime against humanity. "This is an important case to make," he says, "because it shifts onus of responsibility for the human tragedy in Gaza onto Hamas." Israeli legal experts add another major Hamas violation: not allowing Red Cross or any other international player access to Israeli soldier Gilad Shalit for the more than two-and-a-half years he has been in Hamas captivity. In any judicial process it faces, Israel will have to show that its forces met two criteria, which according to international law experts, armies must observe in a civilian war zone: discrimination -- directing fire only at military targets -- and proportionality. There is a common misconception that the latter means responding to enemy attacks with more or less equivalent force. In fact, the demand is quite different: that when attacking a military target, civilian casualties and damage should not be "clearly excessive in relation to the concrete and direct overall military advantage anticipated." [Article 2(b)(iv) of the Rome statute of the International Criminal Court]. In other words, that when taking a military objective, an army must take care to inflict as little civilian damage as possible. There is no demand for equivalence in weaponry or in casualty ratios between the warring parties. In other words, neither Israel's use planes against rockets, or its having suffered far fewer casualties than the other side make it guilty of disproportionality. "The laws of war take into account that when attacking military targets civilians may be hurt, but insist that the attacking force take steps to ensure that civilian casualties will not be disproportionate to the military advantage achieved," explains Robbie Sabel, an expert on international law at the Hebrew University and a former legal adviser to the foreign ministry. For example, the attacking force could warn civilians to leave the battle zone, and it must use weapons capable of pinpointing the military targets. Israel, says Sabel, did both. Neither did the IDF's attacks on civilian buildings, like mosques, schools and people's homes constitute war crimes, because the buildings in question were being used for military purposes. "In that case a civilian structure loses its civilian status. For example, if a mosque is used as an observation point or to store ammunition, it loses its protection as a mosque," Sabel tells The Report. He maintains that in Gaza the IDF did its best to adhere strictly to the laws of modern warfare, with legal advisers in battle command centers to ensure real time compliance. "It may sound cruel, but if after 22 days of bombing, shelling and ground fighting Israel has killed less than 1,000 civilians, it was clearly not disproportionate," he declares. This raises the question of how other western armies have fared in densely populated battle zones. For example, on D-Day, when the allies stormed the Normandy coast on June 6 1944, 3,000 French civilians were killed by allied bombs and shells in a single day. But that was war in a different time and on a different scale. A campaign very similar, in fact almost identical to the Gaza war in the urban military problems it posed was the U.S. Operation Phantom Fury in the Iraqi city of Fallujah in November and December 2004. About 5,000 insurgents under Abu Musab al-Zarqawi were embedded in the city of 300,000. An estimated 200,000 civilians heeded American warnings and fled before the fighting began. On November 7, the Americans launched a major air strike, followed by nine days of fierce ground fighting and another 37 of mopping up. Of the 200 mosques in the city, 66 used to cache arms were destroyed; about 30,000 buildings were demolished or significantly damaged; the estimated civilian death toll was 6,000. In Gaza, with a population of 1.5 million (5 times that of Fallujah) and about 20,000 armed militiamen, 20 mosques were destroyed, 25,000 buildings demolished or damaged, and the estimated civilian death toll was 894 by the Palestinian count or 500-600 according to the Israelis, although they had nowhere to flee to, and some were hit in what had been designated as safe havens. Indeed, the IDF's efforts to keep civilian casualties to a minimum despite the risks and complexities of urban warfare have been hailed by some foreign experts as setting new standards for other armies. "I don't think there's ever been a time in the history of warfare when an army has made more efforts to reduce civilian casualties and deaths of innocent people than the IDF is doing today in Gaza," Col. Richard Kemp, a former commander of British forces in Afghanistan, told the BBC while operation "Cast Lead" was in full flow. Still, the IDF acknowledges that it used heavy fire to protect its soldiers moving forward and that it made mistakes. The fact that four of the nine Israeli soldiers killed in Gaza were hit by friendly fire attests to the difficulty of accurately distinguishing between fighters and civilians in a fast moving urban battle situation. So what was the IDF's modus operandi? How did it manage to move through the narrow streets and alleyways, the booby-trapped houses and tunnels, with so few casualties of its own? Maj.-Gen. (Res) Doron Almog, a former commander of the southern front responsible for Gaza, puts it down to a combination of high-grade intelligence and a battle plan that took Hamas by surprise at every stage: strategic surprise at the ferocity and duration of the operation; tactical surprise at the timing of the initial air-strike and at the way the IDF found counters to all aspects of a Hamas defense strategy based on human shields, booby-trapped buildings and secret tunnels, and at the modus operandi of the forces on the ground. "After one swift pincer movement, Hamas fighters suddenly found themselves surrounded everywhere," Almog, now chairman of Aleh Negev, a live-in facility in the south for the mentally disabled, tells The Report. "The IDF soldiers then moved forward behind camera-carrying unmanned aircraft, which located Hamas forces and directed accurate fire from the air and heavy artillery barrages at them. So that even before they engaged in close combat, the Hamas lost dozens of fighters. Many of the dead were company and battalion field commanders. They weren't at the head of their troops, but were deliberately picked out and hit. Through these tactical, targeted assassinations, the chain of command was severely disrupted. If the army hadn't operated in this way, we would have sustained dozens of casualties." There were other tactical surprises, too - for example, the way the IDF was able to drop a mysterious electronic screen over Gaza. Israelis in the immediate vicinity found they were unable to open their cars by remote control; Hamas militiamen were unable to detonate booby-trapped buildings and other remotely controlled explosive devices. Had the IDF used less firepower, Almog says, it would have cost it more casualties and greatly undermined the operation's deterrent impact. "Everyone in the region was watching us: Hizballah, Syria and Iran. I think the show of force was very important in creating deterrence, not only vis a vis Hamas, but in the region as a whole," he says. As they went forward, Israeli troops with cameras fixed to their helmets recorded the web of booby-trapped buildings and tunnels, the way Hamas used civilians as human shields and weapons stored in and being fired from civilian locations. The data will obviously be used by the IDF in analyzing the operation; but it could also be made available if ever legal proceedings are instituted against Israeli soldiers. Israel's chief argument in justifying and explaining the Palestinian civilian casualties is that the Hamas military machine was totally embedded in the civilian infrastructure. In an interview with The Jerusalem Report, Social Affairs Minister Isaac Herzog, a member of the war cabinet, points out that even Qassam missiles were fired from people's homes. "They fired from the roofs of houses, from schools, from shops. The mosques were full of weapons, ammunition, explosives and missiles. After it was hit, the Jabalya mosque kept on exploding for several minutes, explosion after explosion. It was probably one of the biggest arms bunkers in the Middle East, with large numbers of missiles imported from Tehran," says Herzog. Could Israel have fought the war in Gaza any differently? Military historian Martin van Creveld, who has written about the inherent difficulty modern states have in fighting low intensity asymmetrical guerrilla wars, says there are only two ways of going about it effectively: Occupying the territory for a long time and systematically weakening the enemy, or going in hard and dealing a quick but overwhelming blow. In Gaza, the IDF chose the second option, and therefore, van Creveld argues, it was absolutely right in military terms to use massive firepower. "You must hit hard, move in and out quickly and take the enemy by surprise. And above all, you must not apologize. Because if you do, you demoralize your own side even before you start," he declares. Van Creveld argues that despite all the criticism, the 2006 Lebanon war was a success, because Hizballah has kept the peace ever since. "In other words, we managed to break Hizballah's will to fight, and I think there is a reasonable chance of achieving the same objective with Hamas in Gaza, where the IDF performance was better and the price lower," he says. Not all top Israeli military analysts are as impressed by the IDF's performance. Avi Kober, an expert on military affairs at Bar Ilan University's BESA Institute for Strategic Studies, points out that the results were achieved against a weak enemy, with a state-like infrastructure providing easy targets and without a strategic hinterland like the Hizballah has both in Lebanon and through its close ties with neighboring Syria. Kober also argues that the IDF and the Israeli political establishment are still in "post-heroic mode," fearful of casualties, and therefore hesitant about fully committing the IDF. Still, he agrees that, in the case of Gaza, the decision to go for a short, sharp deterrent operation was correct. Moreover, he argues that striking a heavy blow is not necessarily mmoral. "Sometimes this can even save lives in the long run, because if you strike a heavy blow, you reduce the chances of the war going on for a long time or of a second round," he tells The Report. On the issue of whether the aims of the campaign were achieved or not, Kober is reasonably confident that Hamas will be deterred from quickly renewing its missile assaults on Israeli civilian targets, but he is less sure about the closure of weapons' routes through Sinai into Gaza. "The Egyptians don't really want to do the job," he asserts. Almog disagrees. He says the Egyptians are projecting much greater seriousness about blocking traffic through the cross-border tunnels. "It needs to be backed up with a lot of technology. I put up a two kilometer metal barrier when I was southern command head. With American expertise, now they could put up a cement barrier along the entire 14 kilometer Egyptian-Gaza border, 50 meters below ground and 30 meters above, with sensors and a water moat to make smuggling through the tunnels virtually impossible," he says. Herzog says the specifics of how the smuggling will be stopped are now under review, with the Americans and Europeans not only ready to provide technology in Sinai, but to intercept Iranian vessels carrying arms for Hamas on the high seas. If effective, the new measures could stifle the Hamas government: Herzog claims the tunnels were used not only to smuggle in weapons, but also much needed cash - $1 billion, mostly from Iran, since Hamas's violent seizure of power in June 2007. Still, Herzog rejects criticism - mainly from the right-wing opposition - that by agreeing to the cease-fire when it did, the government missed a golden opportunity to topple the Hamas regime. Going on with the operation would have meant staying in Gaza for at least a year, risking soldiers' lives and having to provide for 1.5 million Gazans, he says. The reoccupation would have had the international community and the moderate governments in the region up in arms. And after it all, Hamas would still have been around. "When you take on operations like this you need to know your limitations," he insists. Herzog is the Israeli minister in charge of efforts to ameliorate the humanitarian suffering and ultimately to help rehabilitate Gaza. In the first week after the war, an international convoy of planes brought in large supplies of food and medicine which Israel transported into Gaza; 150 trucks a day were going in through the Kerem Shalom crossing point, the conveyor belt for wheat at Karni was reactivated, Israel repaired its side of the electricity grid and was helping with water purification and sewerage disposal. "Israel is sending in as much as the Palestinians can absorb, and there is no shortage of food or medicine," Herzog says. The international relief effort for Gaza is being directed by Sir John Holmes, the U.N. Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator. His brief is to assess the immediate needs of the people of Gaza and, on the basis of his report, to convene a conference calling for assistance from U.N. member states. One of the urgent items will be temporary shelter in the form of tents or prefabricated homes for the about 20,000 Gazans the war has left homeless. Further down the road, there will be a big donor conference to deal with the longer term reconstruction of Gaza. The main problem facing Israel and the international community in the rehabilitation effort is how to prevent Hamas from hijacking relief supplies and, more importantly, the entire rebuilding operation. For example, Israel approved the dispatch of equipment for water purification, but pipes it sent in quickly disappeared, apparently lifted by militiamen for the manufacture of new Qassam rockets. Israel is working behind the scenes for major reconstruction to be carried out through Palestinian President Mahmud Abbas's Palestinian Authority. The hope is that this will rehabilitate the PA's standing in Gaza, transform living standards and create conditions for a two state Israel-Palestine solution. "The whole world and we too are looking closely at developments to make sure that the Palestinian Authority benefits from rebuilding Gaza, not Hamas," Herzog says. He talks about "a grand international strategy" to bring the PA back into Gaza as rulers instead of Hamas, the first stage of which should be having the PA administer the border crossing points between Gaza and Israel, and between Gaza and Egypt. Clearly, any full-fledged return of the PA to Gaza would be predicated on a national unity deal between Hamas and Abbas's secular Fatah movement. Officially, this is still something Israel opposes. But Herzog hints at the possibility of a fresh approach, given Hamas's much weakened state. "We will not interfere in internal Palestinian affairs," he declares. A week after the war, the government instructed Justice Minister Daniel Friedman to prepare Israel's legal argument in the event of any it its nationals being brought to court. The fundamental question, though, goes beyond the legal. Basically, it is a case of competing narratives: Israel which sees itself fighting for its survival against powerful regional enemies, and critics who see it as a nation corrupted by the arrogance of power. The question the fighting in Gaza raises, not so much for the courts, but for the judgment of history is who, ultimately, is responsible for the slaughter of the innocents - Israel or Hamas. • Cover story in Issue 22, February 16, 2009 of The Jerusalem Report. To subscribe to The Jerusalem Report click here.