Lacking in Credibility

The war of words over Gaza has begun in earnest. In the wake of the revelations by some of the veterans of the Gaza war, the burning question is “Did Israel commit war crimes in Gaza?”

Of course it did. No armed conflict in history has been fought without war crimes being committed, by all parties. War is an ugly business, not given to being run by a rulebook. And these days, with conflicts increasingly being characterized by poorly armed militias battling regular armies in populated urban areas, it’s getting a lot uglier.

But that’s the wrong question. The right one is that raised by the testimony given by those Israel Defense Forces soldiers: were the breaches of both international law and Israeli military regulations and norms the result of individual soldiers going beyond their bounds, or were they due to an atmosphere created by, or because of directives handed down from the middle and upper echelons of the Israeli military?

This question is not likely to be answered any time soon. Israel is contenting itself with pronouncements that it has “the most moral army in the world” rather than responsibly examining whether that still holds true. Meanwhile, pundits are eagerly savaging the officer who runs the Yitzhak Rabin pre-military preparatory course at Oranim Academic College in Tivon, Danny Zamir.

Far from being the “notorious ultra-leftist” he is being painted as, Major Zamir is a 20-year veteran of the IDF, a deputy commander of an elite reserve battalion, and his academy, which he’s run for over a decade, has trained many IDF officers. He did serve a month’s detention in 1990 for refusing to guard a settler procession, so he obviously has some tendencies in anti-settlement directions. But to paint this man as anything other than a dedicated soldier is simply absurd and counter-factual.

The Need For Credibility

Of course, Israel stated that it intended to investigate the allegations raised at Oranim. The problem is the nature of the investigation and the identity of the investigators.

The inquiry was carried out by the IDF. This is problematic; it should be obvious that one cannot legitimately investigate oneself. Even if the investigation was indeed sincere and thorough, it still won’t be seen as unbiased. Only an external investigation can provide that credibility. The IDF can and should be involved in the investigation, but it must be led by credible civilian experts.

The public, both in Israel and around the world, needs to know whether the Israeli armed forces as a whole took proper care to avoid killing or injuring civilians, and to minimize damage to both civilian people and property.

Serious Allegations, Insufficient Responses

The discrepancies between the numbers of civilian casualties reported by Palestinian human rights groups in Gaza and those calculated by the IDF are to be expected. But they also reflect differing views of who is a civilian. For instance, some 250 Palestinian police were killed. Israel considers them combatants; Palestinians and human rights groups do not. Under international law, civil police are not legitimate targets, but Israel says they were also part of Hamas’ militia. If it’s true that the police were engaged in military activities, they lose their protection as civilians. But evidence to support this claim has not yet been presented.

The points Israel has raised in its defense aren’t convincing. They repeatedly say that they dropped leaflets, and even placed phone calls directly warning civilians to abandon certain areas. The trouble is that, in Gaza, there was nowhere to go. The absolute seal on the borders of Gaza, a densely populated but small area, left people nowhere to flee, a fact Israel must have been aware of. That makes the steps the Israel Defense Forces took look more like cover for Israel than an expression of genuine concern for Palestinian civilians.

The issue of white phosphorous illustrates the problem. Human Rights Watch issued a stunning report on Israel’s use of phosphorous. In contrast to the recent report by Amnesty International, which was long on rhetoric and disturbingly short on evidence, HRW’s report makes a strong case that Israel used phosphorous weapons improperly. Israel insists it used the weapon “in accordance with international law.” But, since this weapon is only permissible in open areas when used to illuminate a battlefield, and expressly forbidden in populated civilian areas, Israel’s statement is factually impossible.

More likely, Israel’s meaning is that it was not trying to use white phosphorous as an incendiary weapon to harm people, but rather for its intended purpose of illumination. That the terrain forbade the use for this purpose is likely seen by Israel as the inevitable consequence of fighting Hamas while they took shelter in civilian areas.

This question illustrates the key points we must get at in Gaza: Did Israel take the proper care to avoid harm to civilians as defined, not by Israel, but by international humanitarian law? And to what extent did Hamas’ use of civilians and civilian infrastructure compromise Israel’s ability to comply with the law? Both these questions must be answered credibly, and one cannot be answered unless the other is given equal weight.

An Atmosphere That Leads to War Crimes

Asa Kasher, a professor at Tel Aviv University, drafted the IDF ethical code of conduct. Recently, in Ha’aretz, Kasher said “If it’s between the soldier and the terrorist’s neighbor, the priority is the soldier.”

Many may agree with that concept. But it flies in the face of the laws of war, and the international norms that Israel has repeatedly vowed to uphold. The testimony of the Gaza veterans indicates that the lives of soldiers were prioritized well ahead of sparing civilians as much as possible.

Mere days after the beginning of Operation Cast Lead, Deputy IDF Chief of Staff Brigadier-General Dan Harel made it clear that Israel was not limiting itself to military targets, but was targeting the civilian infrastructure of Gaza, as it was part of the Hamas government. The fact is that Hamas controls the systems that civilians need for day to day life, and those parts that are not military in nature cannot be targeted.

Therein lies the rub, and the need for a full and impartial investigation. Israel doesn’t deny that it hit many civilian targets in the war. Israel has claimed that Hamas made extensive use of civilians and civilian sites for military purposes, and there is significant evidence to support this claim. When an army deliberately targets a civilian site, the burden of proof is on it to demonstrate that the site was, in fact, being used for military purposes, or the army at least had very good reason to believe so. Israel has offered no such proof beyond its good word.

Israel Itself Needs A Credible Investigation

In 2002, Israel was accused of killing hundreds, even thousands of civilians in the Jenin refugee camp. Impartial investigations, acknowledged as such by Israel and carried out by the UN, showed the total number of Palestinians killed was 52, of which perhaps half were civilians. The report did not, by any stretch, exonerate Israel. It spoke of serious crimes and violations, but these were far less than what Israel had been accused of. In 2009, something similar is the most likely outcome of a sincere investigation. It is in Israel’s interest to pursue this.

Israel’s current responses to accusations of war crimes in Gaza are convincing no one outside of those who dismissed the allegations out of hand in the first place. This is to be expected when the investigations are conducted, in essence, by the accused and the results exonerate Israel completely. Many, this writer included, would very much like to see Israel exonerated of as many accusations as it can be. But this can only happen if the truth can be established by a credible body, and if we are all prepared to deal with whatever that truth may turn out to be.