Defending Israeli War Crimes

In response to a series of reports by human rights organizations and international legal scholars documenting serious large-scale violations of international humanitarian law by Israeli armed forces in its recent war on the Gaza Strip, 10 U.S. state attorneys general sent a letter to Secretary of State Hillary Clinton defending the Israeli action. It is virtually unprecedented for state attorneys general — whose mandates focus on enforcement of state law — to weigh in on questions regarding the laws of war, particularly in a conflict on the far side of the world. More significantly, their statement runs directly counter to a broad consensus of international legal opinion that recognizes that Israel, as well as Hamas, engaged in war crimes.

The wording of the letter closely parallels arguments by Bush administration officials in support for Israel's devastating offensive during their final days in office. Having been signed nearly 11 weeks after the end of the fighting and made public only late last month, it may have been part of an effort to undermine tentative efforts by the Obama administration to take a more balanced approach to the Israeli-Palestinian conflict.

A statement by state attorneys general putting forth a legal rationale for the large-scale killings of civilians is particularly distressing as concerns about civilian casualties from U.S. air and missile strikes in Afghanistan and Pakistan has grown.

The attorneys general signing on to the letter included Republicans Rob McKenna of Washington, Mike Cox of Michigan, John Suthers of Colorado, Bill McCollum of Florida, Jon Bruning of Nebraska, and Mark Shurtleff of Utah. Signatories also included such prominent Democrats as Richard Cordray of Ohio, Patrick Lynch of Rhode Island, Jack Conway of Kentucky, and Buddy Caldwell of Louisiana.

Facile Legal Reasoning

The legal rationale put forward in the March 30 letter is extraordinarily facile. For example, they claim that the war waged on the civilian infrastructure of the Gaza Strip was taken in furtherance of Israel's "right to self-defense under Article 51 of the UN Charter." In reality, however, while Article 51 does allow countries the right to resist an armed attack, it doesn't grant any nation the right to engage in such a disproportionate response.

Israeli Defense Minister Ehud Barak admitted that the Israeli invasion had been planned for months, back when a six-month cease fire was still in effect. Even when Hamas resumed firing rockets into Israel in December, following a deadly Israeli raid into Gaza the previous month, there were few casualties. Indeed, not a single Israeli had been killed by Hamas rocket attacks for more than half a year prior to Israel launching its war on December 27. During the subsequent three weeks of fighting, Palestinians killed 10 Israelis, three of whom were civilians, while Israeli forces killed more than 1,400 Palestinians, the vast majority of whom were civilians. 

Incredibly, these attorneys general insist that these mass killings by Israeli forces were "justified and, in our view, met the international legal standards."

The attorneys general also ignored the fact that Article 33 of the UN Charter explicitly prohibits nations going to war unless they "first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice."  However, Israel — with strong bipartisan U.S. support — had refused to even meet with Hamas to negotiate a long-term ceasefire, which Hamas had offered prior to the breakdown of the six-month lull in return for a lift in the Israeli siege of the enclave.

The letter correctly accuses Hamas, which had lobbed rockets into civilian-populated areas in southwestern Israel, of violating Article 48 of Protocol I to the Geneva Convention of 1948, which states: "Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives."

However, the attorneys general refused to acknowledge that Israel had also violated that same provision on a far grander scale. While virtually every human rights organization, intergovernmental organization, and international legal authority that researched this recent conflict recognizes both Hamas and Israel were guilty of war crimes, these attorneys general still insist that Hamas alone was to blame and that Israel's actions were perfectly legal.

Ignoring the Facts

Human Rights Watch (HRW) — which has been highly critical of Hamas attacks on civilian areas of Israel as well as repression by the Islamist group of Palestinian opponents within the Gaza Strip — reported during the fighting that in using heavy shelling against heavily-populated civilian areas, "Israel is committing indiscriminate attacks in violation of the laws of war." In a comprehensive report published in March, HRW noted that "Israel's repeated firing of white phosphorus shells over densely populated areas of Gaza during its recent military campaign was indiscriminate and is evidence of war crimes."

Similarly, while Amnesty International also "found evidence of war crimes and other serious violations of international law by all parties to the conflict" and attacks by both sides against civilian areas in which no fighters were present, the attorneys general insisted that the Palestinian side alone was guilty of such illegal actions.

An independent United Nations inquiry documented six major Israeli attacks against UN buildings, including schools in which children were killed, noting that actions by Israeli forces "involved varying degrees of negligence or recklessness with regard to United Nations premises and to the safety of United Nations staff and other civilians within those premises, with consequent deaths, injuries and extensive physical damage and loss of property." The report concluded that "no military activity was carried out from within the United Nations premises in any of the incidents."

Without presenting any evidence to the contrary, the attorneys general categorically rejected such findings, insisting that Israel was engaged only in "a limited and directed action against the source of Hamas's military acts."

The International Committee of the Red Cross (ICRC) focused on other war crimes, noting how the "Israeli military failed to meet its obligation under international humanitarian law to care for and evacuate the wounded," citing instances in which Israeli forces prevented Red Cross or other medics safe access to assist seriously wounded civilians. The Israeli chapter of Physicians for Human Rights reported with "certainty" that Israel violated international humanitarian law by attacking medics, damaging medical buildings, engaging in indiscriminate attacks on civilians, and delaying medical treatment for the injured. The ICRC declared Israel's "delay in allowing rescue services access unacceptable." In addition, Israel rejected pleas by international humanitarian agencies by closing border crossings days at a time, denying access to food, medical supplies, fuel, and water sanitation equipment. Despite this, the attorneys general instead praised Israel for "allowing the entrance of humanitarian aid into Gaza."

A report by a delegation of prominent U.S. attorneys which visited Gaza Strip soon after the fighting reported that "that Israeli forces deliberately targeted civilians during the Gaza offensive." The Israeli press has reported testimony of Israeli soldiers who killed Palestinian civilians under highly permissive rules of engagement that allowed soldiers to kill any Palestinian in certain areas regardless of whether they were armed, and were ordered to intentionally destroy civilian property. An investigation by the British newspaper The Guardian revealed a series of Israeli missile attacks against clearly distinguishable civilian targets.

United Nations Special Rapporteur for Human Rights in the Occupied Territories Richard Falk, noting Israel's "unlawful uses of force on a large scale" against Gazan society as a whole, referred to the operation as a "flagrant violation of international humanitarian law, as set forth in the Geneva Conventions." Falk, an American Jew and emeritus professor at Princeton University who is arguably the country's preeminent international legal scholar, also noted the illegality of Hamas rocket attacks into Israel, but stressed that Israeli airstrikes "were aimed at civilian areas in one of the most crowded stretches of land in the world."

Ignoring such evidence, the attorneys general insisted that Israel was directing its artillery, bombings and missile attacks only towards "the source of Hamas's military attacks" and the Israeli government should therefore not be held responsible for any military action which harmed Palestinian civilians because they did so "unintentionally."

Defending Mass Killings of Civilians

These attorneys general try to absolve Israel of any responsibility of the hundreds of civilian deaths by accusing Hamas of "using these civilians as human shields." They provide no evidence for this charge, however, save for a quote from the notoriously right-wing editorial page of the Wall Street Journal.

Independent human rights groups have accused Hamas of less-severe violations of international humanitarian law, such as not taking all necessary steps it should to prevent civilian casualties when it positioned fighters and armaments too close to concentrations of civilians. However, this isn't the same thing as deliberately using civilians as shields. Furthermore, the nature of urban warfare, particularly in a territory as densely populated as the Gaza Strip, makes the proximity of retreating fighters and their equipment to civilians unavoidable in many cases.

Even if Hamas were using human shields in the legal definition of the term, it still does not absolve Israel from its obligation to avoid civilian casualties. Amnesty International has noted that the Geneva Conventions make it clear that even if one side is shielding itself behind civilians, such a violation "shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians."

To argue otherwise, as do these attorneys general, is a dangerous legal position for the chief law enforcement official of a state to take, such as ordering their state police to kill innocent people in a hostage situation. By this logic, if a botched bank robbery led the would-be robbers to hold bank employees and customers at gunpoint, these attorneys general could then order state patrolmen to kill the gunmen and hostages alike, defending their action on the grounds that the bad guys were using "human shields."

Denying Political Reality

It's not just this flawed legal reasoning that underscores how this initiative by these attorneys general was based not upon a legitimate interpretation of law but for narrow ideological purposes. They reveal their political prejudices in their insistence in the letter to Clinton in claiming that "Israel withdrew from Gaza in 2005" but that the Palestinians failed to establish "a flourishing independent state." In reality, despite the removal of illegal Israeli settlements and the withdrawal of occupation forces from that crowded urban enclave, Israel has maintained sole control over Gaza Strip's airspace and territorial waters, thereby prohibiting movement of people and goods by land and sea, as well as largely controlling the Gaza Strip's border with Egypt. Effectively preventing any exports or imports, except for occasional humanitarian aid, the economy has collapsed and, even prior to the war, the territory was experiencing a serious humanitarian crisis. Since Israel's "withdrawal," the Israeli government has also controlled the Gaza Strip's electricity, water and telecommunications and has periodically engaged in air strikes and armed incursions into the enclave, murdering and kidnapping suspected militants. No people could reasonably be expected to establish "a flourishing independent state" under such circumstances. Furthermore, in maintaining their siege on the enclave, Israel legally remains the occupying power.

The attorneys general go on to accuse Hamas of taking advantage of Israel's "withdrawal" to "cause a civil war with the Palestinian Authority, leading to a coup d'etat in 2007." However, while Hamas is indeed guilty of innumerable political intrigues and inexcusable violence towards its Palestinian opponents, this is a gross misrepresentation of recent history.

Rather than making war against the Palestinian Authority, Hamas was part of the Palestinian Authority. Indeed, they controlled the legislative branch of government as well as the post of prime minister and most other ministries as a result of winning the plurality of the vote in parliamentary elections in January 2006. The following year, Saudi officials negotiated a power-sharing agreement between Hamas and Fatah, which still controlled the presidency. U.S. officials, however, unsuccessfully encouraged President Mahmoud Abbas to renounce the agreement, dismiss the entire government and abolish parliament.

The Bush administration then began secretly arming Fatah groups to enable them to fight Hamas and pushing Fatah to stage a coup. This is what led Hamas to launch a countercoup by overrunning Fatah offices and taking full control of the Gaza Strip in June 2007. Alvaro de Soto, former UN special coordinator for the Middle East peace process, stated in his confidential final report leaked to the press a few weeks before the Hamas takeover that "the Americans clearly encouraged a confrontation between Fatah and Hamas" and "worked to isolate and damage Hamas and build up Fatah with recognition and weaponry." De Soto also recalled how in the midst of Egyptian efforts to arrange a cease-fire following a flare-up in factional fighting earlier that year, a U.S. official told him that "I like this violence…[I]t means that other Palestinians are resisting Hamas."

Though all this has been well-documented and is widely known in both Israel and Palestine, this bipartisan group of attorneys general has instead sought to defend the Bush administration's provocative and illegal intervention by putting the entire blame on Hamas.

This letter to the Secretary of State was put together by a right-wing group calling itself the American-Israel Friendship League (AIFL), which boasts that the organization has sent 42 states attorney general to Israel in the past 21 years.  It refers to the letter as "a strong rejoinder to those who have castigated Israel over its role in Gaza and used it in an attempt to delegitimize the Jewish State."

Dangerous Precedent

The Bush administration strongly supported Israel's war on the Gaza Strip as an extension of its "war on terror." It was in the name of this "war on terror" that President George W. Bush shamelessly politicized the U.S. Justice Department to justify spying on nonviolent dissidents at home and the torture of suspects abroad. Now we have a bipartisan group of state attorneys general who have shown themselves similarly willing to politicize their offices by putting forward twisted and perverse interpretations of the law in the name of fighting terrorism. Unless these rogue attorneys general are challenged by elected officials and ordinary citizens in their respective states for their signing on to such a reckless statement, it could mark a dangerous precedent regarding respect for human rights and the rule of law.

Comments

[JerryLevy]

Hate filled gadflies are targeting Israel for criticism about civilian deaths but these same people have no comment about the years of missiles being lobbed into Israel by the Gazans, no comment about the Israeli victims of suicide terror but they are furious over the security barrier put up to defend against the Palestinians targeting innocents, and they now are unconcerned that Hamas as a standard practice of war put their arms depots, fighters, and missile launchers in Schools, Community Centers, "Mosques," and Hospitals. Human Rights watch estimates Hamas killed 35-50 Palestinians under the "cover of the Gaza War." Selective outrage, much hypocracy.

[msfsi]

Levy, you are the ultimate example of selective hypocrisy... you've been recycling and embelishing the same report by HRW for the last two months, while utterly ignoring the vast majority of crimes against palestinians being reported by HRW, Amnesty International, B'tselem, Rabbi's for human rights, Gisha, and Physicians for Human Rights etc.. that have been on going for decades.

[greatscot]

First & foremost, under international law an occupied nation has an absolute right to resist occupation with whatever force it can muster. Check out the French, Belgian, Dutch, Jugoslav and Soviet resistance during WWII. The Palestinians have an absolute right to oppose their Jewish occupiers. They are not terrorists, they are instead, fighting to liberate their occupied territory. If a nation such as Israel does not wish to be attacked, it should not occupy the land of another.

[Stephen Zunes - Huffpost Blogger]

What hate-filled gadflies are you talking about? If you are going to make such accusations, name some names.
I, for one, have spoken out frequently against Hamas terrorism, Hamas repression of Palestinian opponents, Hamas rocket attacks into Israel, etc. So why are you making such accusations in response to an article I've written which fully acknowledges Hamas war crimes, etc.?
Your goal seems to be simply to discredit anyone who dares challenge Israeli policies. No government is above criticism, even if it happens to be a U.S. ally.

[soral]

"In reality, however, while Article 51 does allow countries the right to resist an armed attack, it doesn't grant any nation the right to engage in such a disproportionate response."

Unfortunately, the UN charter also does not delineate exactly what represents a disproportionate or a proportionate response. So, there is no verifiable way to state one way or the other whether this law has been followed or not, beyond subjective measures and summary opinions.

Here is my take. The thousands of rockets fired from Gaza certainly had the potential, and were fired with the intention, of killing thousands of civilians. They did not kill many because Israel invested hundreds of millions of dollars into building concrete shelters and a warning system for public use. Gaza had not, and its population density is far higher. What is then the proportionate response Israel should have used? Is there one? I don't refute the notion that the IDF, and Hamas, of course, committed war crimes. But this charge does not sit well with me.

[Justtellthetruth]

You are kidding, right?

I think the rockets killed 8 people, because they are as primitive as it gets and have no guidance system. Israel killed 1500 people, about 400 of which were childern. The Gazans have no bomb shelters because they live in a prison that Israel completely controls the borders of. They are unimaginably poor, and the vast majority of the people killed were civilians. '

Just think, if 400 (almsot 1/3 of all causualties, )children were killed (and obviously were innocent,) then what are the chances that EVERYONE else killed was a bad guy? almost nil. They killed a HUGE number of civilians, and they did because they bombed and attacked densely populated civilian centers in a fit of collecive punsihment. it was a replay of the summer war in Lebanon, which killed HUGE numbers of civilians, needlessly laid waste to lebanons infrastructure, and as opposed to weakening Hezbollah, made them heros who have nearly toppled the once US friendly government.

[soral]

"I think the rockets killed 8 people, because they are as primitive as it gets and have no guidance system."

They may have been unguided rockets, but they were clearly fired in the hopes of killing all Israelis, including civilians, and they were all clearly capable of doing so. And there were between 6,000 - 9,000 of them, over several years, depending on who's counting.

"The Gazans have no bomb shelters because they live in a prison that Israel completely controls the borders of."

They had no bomb shelters, but they had a multitude of rockets and small arms. I don't mean to blame the victims, but the Hamas government should have poured more resources into providing bomb shelters for their people, rather than into making rockets which are purely offensive in nature. Far fewer civilians would have died in the fighting, had that been the case.

"Just think, if 400 (almsot 1/3 of all causualties, )children were killed (and obviously were innocent,) then what are the chances that EVERYONE else killed was a bad guy?"

The problem I describe in my post is that the UN has never said what is and is not a proportionate response, and so this charge is unverifiable by law. So you can make the argument you make here, and the IDF can say those numbers are off, because after all, they were there too. And that's the end of the issue because there are no practical criteria to determine proportionality.

[soral]

"The Israeli press has reported testimony of Israeli soldiers who killed Palestinian civilians under highly permissive rules of engagement that allowed soldiers to kill any Palestinian in certain areas regardless of whether they were armed, and were ordered to intentionally destroy civilian property."

These stories were reported, and they may be true. However, some of the same soldiers, and many others, have claimed the reports were false, as in this Times piece:

http://www.nytimes.com/2009/03/28/world/middleeast/28israel.html?_r=2&hp

When citing reports that have not been objectively verified, please provide relevant contradictory reports, if you find them available.

[soral]

“Israeli Defense Minister Ehud Barak admitted that the Israeli invasion had been planned for months, back when a six-month cease fire was still in effect.”

Almost all large-scale operations taken by all militaries are planned for months, as contingencies. Saying that such a thing is an admission appears to color Barak as guilty, but for a defense minister to announce that he had planned an operation – even one where egregious mistakes were made – is no admission of guilt in itself, nor is it unusual.

[soral]

Those quote marks should have been dashes:
- even one where egregious mistakes were made -

[alexa07]

How can this be? American law professionals using their official status to sanction war upon a beseiged, blockaded civilian population? Might it have something to do with putting smiles on the faces of Israel's pro-occupation, pro-settlement lobbies in Washington? Shameful. No wonder the American govt is in such a sorry state. President Obama, are you attending?

[GreatNews27]

War crimes are a cottage industry here in the USA. Just think how many Americans would be put out of work if we stopped employing them as torturers. The economy would suffer and we just can't have that. Besides, it's not a crime if an American or Israli does it. Seriously, just ask Condi.

[Macready]

Excellent article . . thank you so much . . . as the these so-called US attorneys . . . they should not be re-elected . . . it sounds like they are too ideolgically suspect to practise law

[zaz33]

Macready -

I suspect this letter will not be well publicized so these "public servants" wont be exposed.

What a great article - one of the best for sure.

[arvay]

This kind of manipulation of servile and cowardly American officials by AIPAC is an insult to our country's dignity and independence. Genuine patriotism should be offended by this kind of fawning subservience to a foreign power.

[BubbaC33]

You are making an accusation against these folks without any evidence connecting any of them to AIPAC. Maybe these folks have a better understanding of the law than you and perhaps they have made this judgement based on an examination of the IDF incursion into Gaza rather than making a blanket attack on Israel, as some on this site are prone to do.

[coultersnemesis]

did you not read this article? did you not read that it is not in the US State attorneys; jurisdiction to comment on questions of US international policy or international law? What qualifications do these 10 attorneys have that permit them to speak out on complex international law and war questions? None. I guess you are too busy at t ack ing others and cannot be bothered to read the article before pouncing.

[SiberianRat]

AMEN!!

[gageeandbaba]

I am beginning to wonder who the loyalty is to, the United States, or Israel.

[charlietuna11]

if your beginning to wonder, you haven't been paying attention...

[coultersnemesis]

it is only the beginning. when our politicians begin selling out our own people's safety interests to foreign powers for their own personal gain, our collective descent to third-world banana republic status will be complete.

[Freenation]

"10 U.S. state attorneys general'

These states should make sure to never elect these hypo.crites back again...clearly they are not on the sid of justice...shame on all of them....

[BubbaC33]

What legal experience do you have to make such a judgement? Where did you go to law school? What experience do you have with combat to make any determination about the actions taken by the IDF in response to rocket attacks by Hamas?

[coultersnemesis]

the point is that US STATE attorneys do not have the authority to comment as public officials, on behalf of the US people, on question of foreign policy and international law. that infringes on Executive jurisdiction and international institutional and US domestic judicial jurisdiction.

Why are you so hostile and quick to attack anyone who disagrees with the policy of your government? You are quick to attack posters for having a personal agenda, yet your own views are compromised, as you have served in the Israeli military yourself.