This article is a response to an article published in the Tehelka Blog on November 23 entitled “Kill the wolf in Gaza? No, cage it!” It is important to note that the Author is a dear friend and esteemed colleague, and this article is written out of respect and admiration for his work. He remained in Gaza throughout the recent hostilities, committed to his work in spite of the tangible threat to his well being and his article was written in that context shortly thereafter.

After having read the Author’s analysis of the recent conflict in Gaza, I am writing out of concern for the fair promotion and application of international law. In particular, I take issue with his conclusion that “crimes have been committed against Gazans” by Israel – a finding he holds without having first conducted the most basic dictates of proper legal analysis. In equal measure, I draw attention to the glaring and serious omissions in the Author’s article. Although human rights organizations will often resort to sensationalist legalistic claims to incite outrage and attract attention (often in blatant disregard to the actual law), I am sure that the Author, being a lawyer, is sensitive to the strict legal methodology that determinations of war crimes require. Since the very legitimacy of the international justice regime as a whole depends on its strict and proper adherence, I will systematically address the individual claims made by the Author in his analysis, insisting that a responsible and accurate legal method be observed – lest the entire enterprise itself be abandoned in the face of widespread misuse of legal terminology.

Evidence of War Crimes

The Author begins his article with an observation that the International Criminal Court’s “shocking rejection” of the Government of Palestine’s jurisdictional offer represented an injustice. Although the reason the Palestinian submission was rejected was on jurisdictional grounds (meriting individual discussion elsewhere), I took greater issue with the Author’s determinative finding of “crimes committed against Gazans” in the scope of Israeli operations in Gaza – a determination he suggests is readily indicated by the extensive number of civilian casualties.

Given his background as an expert in the international Law Of Armed Conflict (LOAC), it is disappointing that the Author seems to consider the death toll in Operation Cast Lead as conclusive evidence of the commission of war crimes by the Israel Defense Forces (IDF). Indeed, the LOAC explicitly rejects the effects of an attack as primary evidence of the violation, instead utilizing an ex ante facto (before the fact) analysis instead, and reviewing every individual operation in part, rather than the entire conflict as a whole.

For example, in Operation Desert Storm, the US military targeted the Iraqi Al Firdos bunker, which was believed ex ante to be an Iraqi secret police base and military command & control center (and thus a legitimate military target). Unfortunately, what the US wasn’t aware of until after the attack was that the bunker was being used by the wives and children of Iraqi secret police as a shelter by night. Two hundred and four civilians lost their lives – but the international community refrained from perceiving the attack as a war crime, as what was determinative was what the US believed to be true.

Precedent aside, even a cursory review of Operation Cast Lead’s consequences as a whole (again, a practice rejected by the LOAC) seems to suggest evidence to the contrary. Although 1,735 Palestinians may have been killed, this number includes civilians who were directly participating in hostilities – a category of persons who are considered legitimate military targets. The Author himself concedes that about half of that figure were “innocent Gazan civilians” – implicitly rendering the other half potential militants. This would suggest a 1:1 ratio – a standard above and beyond any large-scale military operation that comes to mind.

Fast forward to the recent Operation (“Pillar of Defense”): in eight days, and throughout over 1,500 attacks by the IDF, the Palestinian death toll reached 105 (at the time of writing) – of which the Author suggests 70 civilian deaths (the IDF declares it had successfully targeted 30 high-ranking militants). This, moreover, in the densest environment on earth. What neither side has yet to mention is what proportion of the remaining 70-75 killed were directly participating in the hostilities – an action rendering them legitimate military targets.

Even absent that information, if we are to apply a shallow analysis based exclusively on the Operation’s consequences, Pillar of Defense performs admirably compared to the US’ Al Firdos bunker attack that claimed twice as many civilian lives in a single operation; estimates of civilian deaths in Operation Desert Storm as a whole range from 3,500 direct deaths, to 100,000 in indirect consequences. This, in a war covering the territory of two states, and between generally-uniformed fighters.

In truth, what is most disappointing in the Author’s legal analysis is his (presumably unintentional) failure to properly apply the LOAC. Establishing the commission of a war crime cannot be done without analyzing the information available to the military commander at the time of execution. This is the core of criminal law under the LOAC, and no lawyer can, in good faith, omit this standard. Without it, all law-abiding militaries would be paralyzed under unreasonable constraints; or all law-guiding provisions discarded as impractical. The LOAC is ultimately a compromise between military necessity and humanitarian dictates. In light of this, the Author performs a miraculous leap of legal methodology, inferring crimes from the effects of an attack, despite the absence of requisite information.

The Goldstone Report

The Author also gives reference to the UN Human Rights Council’s (HRC) Goldstone Report. This reference is, at the very least, conducted in bad faith. The Report is widely considered flawed, from mandate to execution (for example, although it determined that war crimes had been committed by Israel, its mandate instructed it to only report facts, without applying legal analysis). Although its authors are meant to be neutral, evidence of previous bias on the team was not hard to find: Ms. Chinkie, for example, had detracted Israel publicly before being nominated. The Report’s progenitor, the UN Human Rights Council, also has not had an uncontroversial record when it comes to Israel. This body’s predecessor (the Commission on Human Rights) was dismantled in 2006 by Koffi Anan, citing its anti-Israel bias as key in his decision. The Commission was also well known for being manned by the world’s most egregious human rights violators (including Libya, Sierra Leone, Saudi Arabia, Rwanda, Liberia and Somalia), who could evade censure by mutually turning a blind eye.

The newly established Council has not fared much better, however. By 2011, 70 percent of UNHRC Resolutions would focus on Israel (also the only country to have its very own country-specific agenda item). To date, the conflict in Syria (with a death-toll nearing 50,000) has received only passing mention – and even that, only long after hostilities had begun. By contrast, the recent hostilities in the Gaza Strip merited the attention of the HRC’s High Commissioner almost immediately. The Goldstone Report is well in line with its patron’s agenda, which has severely crippled its authority. Indeed, it is important to note that even the Report’s namesake and leader, Richard Goldstone, has detracted his support from the Report in light of prevailing evidence. LOAC lawyers thus routinely disregard the Goldstone Report, making the author’s reliance questionable.

The Author is also quick to suggest that the IDF violated the LOAC’s dictates regarding precautionary measures taken to minimize civilian harm, for example by use of an implicitly unreasonable advance warning that gave civilians only ten minutes to vacate the premises. Although I cannot testify as to the advance time given to civilians, it is important to keep in mind that the IDF only has an obligation to issue an advance warning insofar as it doesn’t jeopardize the success of their military operation. When the IDF decides to issue advance warnings – a practice it does using the widest array of modalities recorded by any modern army, including personal phone calls, text messages, and air-dropped leaflets – it also gives militants in the area the opportunity to leave, taking their munitions with them. The element of surprise is often crucial, and the warnings represent a compromise in that regard.

What the author and the Goldstone Report he cites both omit is probably the most significant contributing factor to the Palestinian death toll: Hamas’s violation of Article 58 of the First Additional Protocol to the Geneva Conventions. Article 58 is considered binding on all parties to any armed conflict. The clause demands that a defending party to the hostilities take precautions to minimize harm to civilians by their actions. Article 58(b), for example, dictates that a defending party ought to “avoid locating military objectives within or near densely populated areas”.

Storing rockets and other munitions in civilian buildings is a clear violation of this clause, to say nothing of Hamas’ explicit use of human shields in an attempt to immunize themselves from attack – itself an explicit violation of Article 51(7) (another binding clause), prohibiting the use of civilians “to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations.” The Goldstone Report, and various other NGOs such as the Palestinian Centre for Human Rights for that matter, also makes no mention of Hamas’ deliberate failure to distinguish itself from the civilian population, disguising themselves as civilians to blur the lines in an attempt to immunize themselves from attack, thereby endangering the civilian population as a whole.

The Author makes further legal error when he states that IDF’s targeting of civilian facilities, “especially press offices,” constitutes further damning evidence of crimes and injustice perpetrated by the IDF. As a matter of law, the LOAC holds that civilian buildings that are used in such a way as to contribute to the war effort become dual-use objects, and are legitimate targets of attack. The positioning of these buildings near purely civilian homes by Hamas is a violation of the LOAC, as discussed above; but it does not immunize these objects from attack, insofar as the foreseeable collateral damage does not exceed the anticipated military advantage expected from the attack.

The IDF has worked hard to minimize this collateral damage, confidently publishing videos of last-minute aborted attacks or utilization of high-accuracy, low-intensity munitions. The fact that press offices were targeted may seem to indicate an illegal attack at first glance – but it must be recalled that if these offices were used by Hamas in such a way as to contribute to the war effort, they are rendered vulnerable to attack.

The question would turn on an investigation of the IDF’s available intelligence prior to the attack. See for example the UN’s International Criminal Tribunal for the Former Yugoslavia‘s Report on the NATO bombing of a TV news station in Belgrade, which claimed the lives of over a dozen civilians. The station was believed to have been used by military forces, thus rendering it a dual-use object and legally a legitimate target for attack. The Prosecutor in charge of the investigation could find no evidence of deliberate targeting of civilians or unlawful military targets by NATO during the campaign. Accurately, the author laments that reparations are unlikely to be forthcoming following Pillar of Defense – a well-reasoned observation, as where Hamas can be found to have endangered civilian lives and property, responsibility for reparations would fall upon them, rather than Israel.

Omissions

All this aside, the Author makes no mention of the incessant indiscriminate rocket attacks against Israeli civilians – unless that is what he meant when he said the Gazans are metaphorically “pulling the tail” of the Israeli “Wolf” (metaphorically implying that Israel preys on Palestinian sheep). These rockets, which are often attributed a one kilometer margin of error, may be said to be inherently indiscriminate – and thus prohibited by the LOAC. If this is the case, Hamas can hardly be said to even be targeting the Israeli population, since accuracy is almost surely a moot point on this issue. This is in stark contrast to Israel’s targeted killing policy, which includes strict instructions to abandon the mission when civilians are likely to be harmed as a result.

Contrary to popular belief, targeted killings are not illegal under the LOAC as such – a point that was authoritatively affirmed by the UN Special Rapporteur on targeted killings in 2010. But even if it could be argued that these rockets were not inherently indiscriminate, then the violation instead becomes deliberately targeting the civilian population – a very serious war crime indeed, if it can be proven to be deliberate or reckless (as distinct from negligent).

To that end, whereas Israel denies it is targeting the civilian population, Hamas proudly declares this as its goal. If this is not convincing enough, then the recent bombing of a Tel Aviv public bus – injuring some 20 Israeli civilians – constitutes convincing evidence of deliberate targeting of civilians, not to mention terrorizing the civilian population (at the time of this writing, the suspected perpetrators are Hamas members and Hamas has approved of the attack ex post facto). The author deserves the benefit of the doubt, however, and I will refrain from attributing tacit confirmation of these illegal attacks to his statements. The difference between the author’s allegations and my own, are that I concede that the threshold for a violation may not be satisfied, despite even convincing preliminary indications.

The Author currently works for the Palestinian Centre for Human Rights, in Gaza. If we can accept the self-imposed Palestinian-focused mandate of their human rights agenda, then it may be the case that the attacks on Israeli civilians – modalities aside – exceed his directives as a researcher. If so, then the Centre might have been more aptly named the Centre for Palestinian Human Rights (thus excluding other categories of persons, such as Israelis). In this event, it is a curious fact that the public lynching and execution of six Palestinian civilians, alleged IDF collaborators, received such cursory coverage on the PCHR’s website (and no mention at all in the Author’s article).

For those of you who may have missed the incident (it was hardly mentioned in world media), Hamas arrested six alleged collaborators and brought them to a public intersection in Gaza city before shooting them on sight. Their bodies were left to be displayed on the street with signs announcing the allegations tied to their bodies. There were reports that the individuals were also tortured in advance. At least one of the executed was dragged by a motorcycle across the street – with some reports indicating this preceded his execution.

The appalling display, a truly incontrovertible human rights violation if ever there was one, was compounded by the PCHR’s obvious oversight and tacit acceptance of the behavior. The incident was altogether neglected on their website’s regularly-updated “In Focus” feed, although they did release a brief statement. After condemning the ‘government’ (without explicit reference to Hamas) and calling for action, the PCHR “welcome[d]” Facebook statements by Hamas Deputy Chairman Abu Marzouq rejecting the extrajudicial killings. Never mind that Abu Marzouq is listed as a terrorist under US law for his activities in financing terrorist activities [which have violated human rights], the PCHR went on to add insult to injury by closing the statement with the following:

Deviation from these standards [i.e. commitment to the rule of law] will push us towards a state of chaos, and will take the world’s attention away from the reality of crimes committed by Israeli forces against Palestinian civilians.

What is to be understood from this declaration? That the violation of such human rights was particularly egregious because it not only threatened to push Gaza towards a state of chaos, but also drowned out Israeli violations? Are we to understand that the two are on par with one another? How does that encourage respect for human rights – respect which is to be engendered by condemning human rights violations for human rights’ sake? If anything, the inverse may be achieved.

At the end of the day, the Author’s article represents a well-intentioned if disingenuous and one sided application of the LOAC. His analysis begins at the end (finding crimes to have been committed) without application of the legal methodology such claims merit. To be sure, one cannot rule out the possibility (or even likelihood) of violations of the LOAC committed by the IDF in the recent round of hostilities. And I hope that no such insinuation can be inferred from the present article.

It is extremely unlikely, for example, that the IDF’s killing of a Palestinian man last Friday (in the buffer zone) can have been committed reasonably in accordance with the LOAC. Although warning fire was issued, it may be alleged that the IDF could have sought out less harmful means (such as attempting arrest) instead. But I cannot in good faith claim that a violation can be determined on the basis of presently available evidence. Similarly, neither can conclusive determinations that other incidents by the IDF amount to war crimes be put forward. Allegations are one thing; but determinations of fact in this regard are irresponsible and can only be sustained in bad faith. The Author’s analysis thus leaves much wanting from a legal perspective. Nevertheless, I invite the Author to respond with a counter analysis utilizing the well-established legal framework of the LOAC of which he is an expert.