Is Israel committing war crimes in Gaza? Navi Pillay, the United Nations High Commissioner for Human Rights thinks it probably is. So do the International Committee of the Red Cross and British Foreign Secretary David Miliband.
I’m going to examine, as dispassionately as I can, how the fighting between Israel and Hamas — and its extremely high non-combatant casualty rate — fits into the ever-evolving field of international humanitarian law and the jurisprudence governing war crimes. It’s important to note that not all breaches of international humanitarian law are war crimes: shouting at a POW or refusing POWs food and water, for example, is illegal but is not a war crime. War crimes usually demand intent to cause death or injury among non-combatants, actually causing death or injury, or such gross negligence in carrying out military operations that civilian causalities are inevitable. These are all grey areas, open to interpretation, but still some basic lines may be defined.
Let’s start with Israel. International law requires that military operations meet standards of proportionality. Is the attack self-defense or an act of aggression? Is the scope and scale of the military campaign proportionate to the threat? Israel has the right under international law to take military action in self-defense against Hamas, but the proportionality of the scope and scale of its campaign remains debatable. The high civilian casualty figures — 920 Palestinians killed, including 292 children, according to Palestinian sources — only add to this unease. There is also the crucial question of intent. Is Israel seeking merely to end the rocket attacks, which is legally justifiable, or aiming to completely destroy Hamas as an organization and political force, which is not. However, even if Israel plans to destroy Hamas’ organization, this objective in itself is not a war crime.
Whether or not a war crime is committed is governed by the laws of war, which include proportionality. Other key questions include how is the fighting conducted? How much care is being taken to minimize civilian casualties? Is there access to the wounded? Are prohibited weapons being used? The basic principles were set out in the Geneva Conventions of 1949, which introduced rules about protection of civilians, and in the additional protocols of 1977, which further defines questions of military targeting. Israel has not ratified the 1977 protocols but its courts have recognized some of their key provisions as part of customary law.
Only enemy fighters can be intentionally targeted, that is, those engaged in hostilities. These can include uniformed soldiers, but civilians may also be targeted if they take a direct part in hostilities. Israel apparently seeks to expand this definition. Israeli Defense Forces (IDF) spokesman Captain Benjamin Rutland told the BBC: "Our definition is that anyone who is involved with terrorism within Hamas is a valid target. This ranges from the strictly military institutions and includes the political institutions that provide the logistical funding and human resources for the terrorist arm." This is a significant broadening of the definition and ironically, partly mirrors the justification of Palestinian terrorist groups that attacks on Israeli civilians are justified because all Israelis serve in the army, or will grow up to do so.
Three incidents in particular give cause for concern that Israel has breached international humanitarian law and/or committed potential war crimes. The first was the killing of numerous Hamas police officers at a passing out parade in Gaza city in the first wave of bombing. These policemen were part of Hamas’s political and civil infrastructure, certainly, but were not engaged in combat at the time and were not obviously involved in organizing or carrying out attacks against Israel, and that is the crucial point. If the police were regularly engaged in attacking Israel then arguably they could be a legitimate target, even while on parade. But most press reports say that the Hamas police were used for traffic control and internal security.
The second incident was the bombing of the Fakhura school, run by the UN, in Jabaliyah refugee camp. Civilians are increasingly seeking shelter in UN buildings, the GPS co-ordinates of which are given by the UN to the IDF. About 40 Palestinian civilians were killed when an Israeli mortar hit the school. The IDF claimed that Hamas militants fired from near the school. It responded with three mortars. Two hit their targets, the third missed by thirty meters and hit the school, causing terrible carnage. Israeli troops are allowed to fire back at Hamas, but are obliged to ensure that harm to nearby civilians is not disproportionate. If there is a high risk that the attack would cause disproportionate harm to nearby civilians they are obliged to hold their fire. Again, the degree of risk is a matter of interpretation. Accidentally hitting a nearby school while engaged in actual combat with the enemy in that vicinity would be unlikely to classed as a war crime as the law allows for some degree of confusion and error.
The third incident took place in Zeitoun, a district of Gaza city, where, according to survivors’ reports, Israeli soldiers ordered about 100 members of the Samouni clan into a single home one night. Early the next morning Israeli troops repeatedly shelled the house, killing and wounding dozens. Some managed to flee, carrying the wounded and the dying. However, according to the Red Cross, Israel only allowed its medics to enter the house on Wednesday, where they found a chilling scene: four weak and distraught toddlers, clinging to the bodies of their mothers. According to the Red Cross: "the Israeli military failed to meet its obligation under international humanitarian law to care for and evacuate the wounded." Israel said it was waiting for the Red Cross to present its evidence.
As for Hamas, firing rockets randomly at population centers such as Sderot and Ashkelon is a war crime, say legal experts. The missiles are an indiscriminate attack on civilian areas and are not aimed at military targets. Israeli officials claim that Hamas is using "human shields" and firing from behind children sheltering in schools. It may well be that Hamas deliberately fires from schools and hospitals so as to draw incoming Israeli fire and boost civilian casualties, so helping Hamas win the propaganda war. Amnesty International accuses both Israel and Hamas of using "human shields" in the Gaza conflict.
If Israel or Hamas have carried out war crimes in Gaza what criminal sanctions are available under international law to punish those responsible? In a word: none. In these terms, this discussion is entirely academic. Even if Israeli forces carried out a deliberate massacre of civilians, there is next to zero chance that any Israeli army officer, official or politician would appear in the dock at the International Criminal Court in The Hague, the permanent international legal authority that now deals with war crimes, crimes against humanity and genocide.
Currently, only those countries that are State Parties to the ICC’s 2002 Rome Statute fall under the ICC’s jurisdiction. These 108 countries (out of 192 UN member states) do not include Israel or the United States. It’s notable that despite the furious demands across the Arab and Muslim world for war crimes trials over Gaza, most Arab and Muslim countries, apart from Jordan, are also not party to the Rome Statute. Egypt, Syria, Lebanon, Saudi Arabia, Iraq, Morocco, Libya, Tunisia, Algeria, Iran, Indonesia and Malaysia are all not party to the Rome Statute.
If a country is committing war crimes or crimes against humanity and is not party to the Rome Statute, such as Sudan, there are other options. The Sudanese government has, since spring 2003, been committing genocide in the Darfur region. Hundreds of thousands have died and more than two million have been displaced. The UN Security Council has referred Sudan to the ICC with a view to bringing charges against the country’s leaders. The ICC judges are likely this month to decide whether or not to indict President Al-Bashir and others. However as the United States is a permanent member of the UN Security Council, with the power of veto, it is unimaginable that it would approve such a request in relation to Israel. The same applies to the second option: setting up a special UN war crimes tribunal, as happened with Rwanda, and the former Yugoslavia. The United States would use its Security Council veto to prevent any such tribunal for Israel.
Hamas, as a non-state actor, is not party to the Rome Statute, and nor is the Palestinian Authority, which enjoys unique status as a non-voting member of the UN General Assembly. With regard to Hamas, the Security Council could follow the Sudan option of referring its leaders to the ICC or setting up a special tribunal to try them for war crimes. However such tribunals usually have territorial jurisdiction and it would be politically impossible to only bring charges against one side of the conflict. (Indeed, when NATO bombed Kosovo in 1999 western leaders were alarmed to learn that they also fell under the jurisdiction of the UN War Crimes Tribunal for Yugoslavia for their actions in the former Yugoslav province.) One option could be the growing use of extra-territorial national arrest warrants for crimes committed outside the country. For example, in 2005 Israeli Major-General Doron Almog was tipped off that British police officers planned to arrest him when he landed at Heathrow airport. He was accused of ordering more than 50 Palestinian homes to be demolished in the Gaza strip. He stayed on board his El-AL plane and flew back to Israel.
But for now, as far as international criminal justice is concerned, Israeli commanders may continue to make operational judgement calls that cause the incidental deaths of civilians, and Hamas may fire their missiles into Israel, with impunity.
With thanks to Anthony Dworkin at http://www.crimesofwar.org