THE BLOG
03/20/2009 05:12 am ET Updated May 25, 2011

Investigating War Crimes on our Fact Finding Mission to Gaza

In early February Anthony Cordesman, of the Center for Strategic and International Studies, released a study concluding that Israel did not violate the laws of war during its 22-day offensive against Gaza. Upon returning from a National Lawyers Guild fact-finding mission in Gaza, I believe it is of the utmost importance to speak to Cordesman's resounding dismissal of international law and his turning of a blind eye to Israel's military tactics in "Operation Cast Lead."

In his 88-paged study, Cordesman writes: "...Israel did not violate the laws of war. It did deliberately use decisive force to enhance regional deterrence and demonstrate that it had restored its military edge. These, however, are legitimate military objectives in spite of their very real humanitarian costs." These baffling conclusions reveal a deeply flawed methodology.

Cordesman based his findings solely on Israeli military accounts: briefings in Israel before and after the military offensive as well as daily reporting issued by the Israeli Defense Spokesman. One need not have a law enforcement background to understand why assessing a crime scene requires surveying the scene itself as well as interviewing witnesses. Moreover, Israel's media blackout of Gaza during the offensive heightens the imperative of rigorous scrutiny. Therefore it is odd, to say the least, that Cordesman has unquestioningly accepted the Army's account and proselytized it as "truth."

During our stay in Gaza, the eight-member NLG delegation met with survivors of the Israeli offensive, medical doctors, medical personnel and United Nations officials. We documented accounts describing the direct targeting of civilians and civilian infrastructure; the deliberate blockade of medical aid and personnel; and the use of white phosphorous in densely populated civilian areas. Our delegation did not speak with representatives of the Israeli Army. While our failure to do so may have weakened our investigation we nevertheless adhered to a high standard of evidential thoroughness. Unlike Cordesman, we recognized that there imay indeed have been another perspective. As a result, we did not conclude that Israel committed war crimes but rather that our findings strongly indicate violations of laws of war warranting further scrutiny and investigation.

Cordesman makes his skepticism of international humanitarian law clear in his report when he writes, "The debate over proportionality is becoming another extension of war by other means. States and non-state actors continue to use force in their own interest, and almost any rationale can be used to claim that this is done in legitimate self-defense. The opponents of war-or any given side--can claim that virtually any act of violence is excessive." In attempting to discredit the legitimacy of the principle of proportionality, and the ratio of well over 1300 Palestinians killed to 13 Israelis, Cordesman fails to consider that violations of the laws of war are evident in the details of warfare and not simply its aggregate outcome. As interviews in areas like Zeitouna made abundantly clear, the Israeli military did not simply fail to observe principles of distinction and proportionality, but in fact deliberately targeted civilians.

In Zeitouna, a neighborhood in the outskirts of Gaza City, I sat with the remaining members of the al-Sammouni family amidst the rows of rubble that had been their homes, their streets, and their town. Ibrahim al-Sammouni described how on 4 January the Israeli army murdered his wife, Leila; his ten month old grandson, Mu'tassim; and four of his sons, Mohammed, Isma'il, Ishaaq, and Nassar.

The ordeal unfolded on the night of January 3rd as Israeli planes and tanks began shelling the neighborhood and residents rushed to their homes for shelter. Zeitouna's residents awoke the next morning to the sight of hundreds of Israeli soldiers in their neighborhood. The soldiers rushed Ibrahim's home, forcibly expelling its sixteen inhabitants into the neighboring house. The soldiers later forced the huddled families into yet another home where they joined nearly 110 residents of the Zeitouna neighborhood. The residents anxiously awaited their fate under house arrest and the denial of food, water, and such basic necessities as baby powder. After a long and sleepless night, Zeitouna's residents heard the Israeli Army's first shelling of the overcrowded house at approximately 7 am. Moments later the Israeli Army propelled another shell at what had become the neighborhood's collective shelter; killing dozens of people directly on impact, including Ibrahim's wife and four sons. A second round of shelling destroyed a wall of the home through which the survivors fled. As these civilians ran out of the burning home and towards the main street--Israeli soldiers fired live ammunition at them. The Israeli soldiers shot Mu'tassim, cradled by his mother, in his chest killing him instantly (see picture attached).

Those who were injured but could not flee remained among the dead for four days before the Israeli Army permitted medical personnel to enter Zeitouna. After the Red Cross and Red Crescent removed the injured civilians, including emaciated children, Israeli forces struck the home with an aerial missile collapsing it over the lifeless bodies. They remained there for seventeen more days before Israeli forces permitted the Red Cross and Crescent to remove them for burial. The medical personnel were forced to remove the rotting corpses on donkey carts that they pulled themselves because Israeli forces prohibited them from driving their ambulances into the neighborhood. When we visited Zeitouna we saw three lone homes where thirty formerly stood. We were told that Israel used those homes as military outposts and demolished the rest.

Unfortunately this story was not unique. Residents of southern Gaza bore testimony to civilians being shot in their heads, abdomens, and chests. The Israeli army forcibly gathered large groups of civilians in homes and schools; the Israeli Army would then shell these makeshift collective shelters and shoot at the people fleeing the crumbling buildings. I doubt that that the Israeli Defense Spokesmen recounted such testimonies to Cordesman or that he shared images like the one of Mu'tassam's punctured chest. Undettered by the possibility that his information may be deficient or that there is indeed significance to assessing the scene of the offensive and gathering testimonies from witnessess, Cordesman irresponsibly concluded that Israel did not violate laws of war.

While our delegation did not conclude the contrary to be true, our evidence strongly suggests that such violations were committed. In light of the situation's gravity, characterized by the humanitarian costs that Cordesman laments, an investigation is the least that we can ask for. Short of such an investigation, no party can claim the 'unequivocal' presence or absence of war crimes. Failure to conduct such an investigation and openly discuss its findings raises profound questions on what is being concealed and the potential impact of revelation. Nearly six decades after the Nuremberg Trials and more than a century after the establishment of the laws of war, we now face the sad reality that conducting an investigation into possible violations is itself a victory rather than a matter of course.