If there is one thing that Israelis and Palestinians agree to these days, it is on the need to keep civilians out of the decades-old conflict. Unfortunately, neither Hamas nor Israel has done that.
Israel has clearly and unapologetically punished Palestinian civilians, especially those in Gaza, killing, maiming and holding them hostage. Hamas did not care whether the rockets it launched into Israeli settlements would hit or traumatise Israeli civilians. Both are wrong and both must stop.
International conventions drafted after the last two ugly world wars focused on keeping civilians out of the violence of the military. Much has been written about the applicability of this or that international humanitarian law, but none of those arguments can logically condone holding civilians hostage or attacking them, even with amateur rockets.
The latest disproportionate Israeli assault on Gaza showed a very weak attempt at avoiding civilian deaths and injuries or the destruction of infrastructure. Similarly, Hamas rockets showed lack of concern for Israeli civilians.
Collective punishment is clearly coded as a violation of the Fourth Geneva Convention, which is the international legal document outlying how an occupying power deals with the population under its occupation. Israel's claim that it is not an occupying power has been legally defeated at the International Court of Justice in The Hague. The 2004 decision against the Israeli wall recognised as occupied the Palestinian lands west of the Jordan River. Furthermore Israel's claims that its occupation of Gaza ended in its redeployment in September 2005 was also knocked down by the UN Security Council Resolution 1860, which stated that "the Gaza Strip constitutes an integral part of the territory occupied in 1967 and will be a part of the Palestinian state."
Israel's collective punishment of Palestinians predates by nearly a decade the latest round of violence. Mitchell had called on Israel in 2001 "to end the closure" of the Palestinian territories. This closure has meant to prevent the movement of people and good between Gaza and the West Bank and within the occupied Palestinian territories.
Former secretary of state Condoleezza Rice appeared to end this Israeli policy when she pulled an all-nighter on October 15, 2005, forcing Israelis and Palestinians to sign a border agreement guaranteeing movement of people and goods from, between and within Palestinian lands. But few provisions of the Rice-brokered agreement were carried out. The main Gaza crossings have remained constricted or shut, leaving Palestinian farmers unable to export crops and deepening the sense of confinement. This was yet another agreement that failed to materialise.
"The crossings agreement has joined the great pile of sand in which the Mitchell, Tenet, Zinni and the roadmap plans have been buried," Israeli journalist Aluf Benn wrote in July 2006 in the daily newspaper Haaretz, referring to earlier US initiatives.
Israel has had no problem blaming the refusal to honour the border agreement on the Hamas actions. This Israeli closure was followed by an even stricter blockade of the entire population of the strip, yet another example of holding a civilian population hostage for political considerations. Even in the West Bank, and despite tens of face-to-face meetings between top Israeli and Palestinian officials, the Israeli closure continued.
Jurist Victor Kattan of the Centre for International Studies and Diplomacy, School of Oriental and African Studies, University of London, says that the Israeli blockade is an act of aggression.
The Gaza Strip had been subject to a blockade prior to Israel's attack on December 27 for almost 18 months. In the Nicaragua case, the International Court of Justice recognised the Definition of Aggression as a source of international law. According to 3 (a) of the Definition of Aggression 'any military occupation, however temporary, resulting from such invasion or attack' is an act of aggression. 'It is not necessary for the occupied territory to belong to another state'.
Mitchell will do well to begin with a serious attempt to spare civilians. This would be a natural point of departure, considering the inaugural speech of President Obama who declared that "America is a friend of each nation and every man, woman and child who seeks a future of peace and dignity."
While some might doubt the motivation of their leaders, Palestinian and Israeli men, women and children do seek peace and dignity. The confidence-building clauses that existed in the 2001 Mitchell report must be reinstated with vigor. As negotiations for a secure Israel and a democratic Palestinian state devoid of illegal settlements begin, the Obama administration must ensure that civilians on both sides are, once and for all, spared the violence of the Israeli military and the blockade of the movement of goods and people. It is also fair to expect Hamas and other Palestinian resistance fighters to end rocket attacks on Israeli civilians.