Recently, a group of Israeli soldiers testified about war crimes committed against Palestinians by the Israeli military during its invasion of Gaza in December and January. The IDF claims to have “investigated” these eyewitness accounts and found them to be without merit.
Today, George Bisharat has an op-ed in the New York Times laying out the case for why the military and political authorities in the Israeli government who planned and carried out these violations of international law should be held to account.
What are the war crimes the IDF is reported to have committed?
While Israel disputes some of the soldiers’ accounts, the evidence suggests that Israel committed the following six offenses:
• Violating its duty to protect the civilian population of the Gaza Strip. Despite Israel’s 2005 “disengagement” from Gaza, the territory remains occupied. Israel unleashed military firepower against a people it is legally bound to protect.
• Imposing collective punishment in the form of a blockade, in violation of Article 33 of the Fourth Geneva Convention. …
• Deliberately attacking civilian targets. The laws of war permit attacking a civilian object only when it is making an effective contribution to military action and a definite military advantage is gained by its destruction. Yet an Israeli general, Dan Harel, said, “We are hitting not only terrorists and launchers, but also the whole Hamas government and all its wings.” […]
[…]
• Willfully killing civilians without military justification. …
International law authorizes killings of civilians if the objective of the attack is military, and the means are proportional to the advantage gained. Yet proportionality is irrelevant if the targets of attack were not military to begin with. …
Of 1,434 Palestinians killed in the Gaza invasion, 960 were civilians, including 121 women and 288 children, according to a United Nations special rapporteur, Richard Falk. Israeli military lawyers instructed army commanders that Palestinians who remained in a targeted building after having been warned to leave were “voluntary human shields,” and thus combatants. …
With nearly all exits from the densely populated Gaza Strip blocked by Israel, and chaos reigning within it, this was a particularly cruel flaunting of international law. …
• Deliberately employing disproportionate force. Last year, Gen. Gadi Eisenkot, head of Israel’s northern command, speaking on possible future conflicts with neighbors, stated, “We will wield disproportionate power against every village from which shots are fired on Israel, and cause immense damage and destruction.” Such a frank admission of illegal intent can constitute evidence in a criminal prosecution.
• Illegal use of weapons, including white phosphorus. Israel was finally forced to admit, after initial denials, that it employed white phosphorous in the Gaza Strip, though Israel defended its use as legal. White phosphorous may be legally used as an obscurant, not as a weapon, as it burns deeply and is extremely difficult to extinguish.
No power on earth will ever get Israel’s blindest, most uncritical supporters to admit that such acts constitute war crimes. They don’t deny the acts themselves, mind you — they just always have reasons why they are justified, and not war crimes.
Here is Noah Pollak at Commentary:
The New York Times publishes an op-ed today by George Bisharat, the U.S. academic whose professional mission is the indictment of Israel for war crimes, no matter how implausible. His piece starts with a lie that the Times itself had an important hand in promoting:
Chilling testimony by Israeli soldiers substantiates charges that Israel’s Gaza Strip assault entailed grave violations of international law.
Except that there never was any “chilling testimony” — there were rumors circulated by an anti-IDF activist, which were breathlessly republished by Haaretz and its American counterpart, the Times. …
Except that it’s not implausible at all. These things did happen, and Pollak does not deny that they did. He merely argues that they weren’t war crimes. And I don’t really know what he means by that reference to “rumors circulated by an anti-IDF activist.” Here are the first two paragraphs (emphasis is mine) from that Haaretz article Pollak mentions (the same one I linked to earlier):
During Operation Cast Lead, Israeli forces killed Palestinian civilians under permissive rules of engagement and intentionally destroyed their property, say soldiers who fought in the offensive.
The soldiers are graduates of the Yitzhak Rabin pre-military preparatory course at Oranim Academic College in Tivon. Some of their statements made on Feb. 13 will appear Thursday and Friday in Haaretz. Dozens of graduates of the course who took part in the discussion fought in the Gaza operation.
Pollak does not say where he got the idea that there were only “rumors circulated by an anti-IDF activist.” He provides no cite, reference, or source of any kind for this assertion.
Pollak next argues that Israel is not under any obligation to protect Palestinian civilians in Gaza because Israel is not occupying Gaza. Well, of course, Israel did not protect Palestinian civilians in Gaza even when it did formally occupy Gaza, and does not protect Palestinian civilians in the West Bank now, even though it does still occupy the West Bank.
Pollak quotes Dore Gold on why Gaza is not occupied territory:
As Dore Gold wrote in an analysis after the Gaza disengagement,
what creates an “occupation” is the existence of a military government which “exercises the functions of government.” This is a confirmation of the older 1907 Hague Regulations Respecting the Laws and Customs of War on Land, which state, “Territory is considered occupied when it is actually placed under the authority of the hostile army.” The Hague Regulations also stipulate: “The occupation extends only to the territory where such authority has been established and can be exercised.” What follows is that if no Israeli military government is exercising its authority or any of “the functions of government” in the Gaza Strip, then there is no occupation.
But the Gaza Strip is, in fact, under the authority of the Israeli military, and that military is exercising its authority as well as the functions of government there. All the border points that Palestinians would use to enter or leave Gaza are sealed and blocked off by the Israeli military as part of the ongoing embargo. Gazans are trapped inside. There is no way for them to get out. In most countries, the authority that establishes and controls immigration and emigration policy is the government. Is it different in Gaza?
Moreover, the Israeli military controls every aspect of daily life in Gaza: exports and imports of food, agricultural products, machine parts, water, medicine — everything. If that’s not exercising the functions of government, what is? And that’s not even to consider the point that the blockade is illegal in and of itself. It’s also an internationally recognized act of war.
Pollak accuses Bisharat of “dishonesty” for saying that Israel deliberately attacked civilian infrastructure:
… Throughout Cast Lead, Hamas used all of the “civilian objects” cited by Bisharat as military installations. Rockets were fired from schools, mosques were used as weapons depots, and the Islamic University of Gaza was used as an explosives production facility and rocket storehouse. Why does Hamas use conspicuously civilian infrastructure for terrorist purposes? One reason is to make the job of Hamas’ western apologists and useful idiots so much easier.
Gaza is one of the tiniest yet most densely populated land areas in the world. There are no “military installations” other than the ones the IDF sets up. Civilian neighborhoods, civilian buildings, civilian targets are all there is in Gaza. Israel chose to invade a very small, highly urbanized territory with almost no open space and populated almost entirely by civilians. Hamas fighters chose to fight back — against a vastly superior military force. You can call that self-defense, you can call it David and Goliath, but you cannot call it terrorism.
Finally, Pollak calls the “disproportionate force” charge “discredited and misrepresented” — which directly contradicts what Israel’s own military officers have said (see extended quote from Bisharat, above). And he disputes Bisharat’s assertion that the IDF illegally used white phosphorus (emphasis is mine):
… Catch Bisharat’s evasion:
Israel was finally forced to admit, after initial denials, that it employed white phosphorous in the Gaza Strip, though Israel defended its use as legal. White phosphorous may be legally used as an obscurant, not as a weapon, as it burns deeply and is extremely difficult to extinguish.
So, did Israel use white phosphorous illegally as a weapon or legally as an obscurant? Bisharat never says, although he categorizes the issue in his list of Israeli war crimes, letting the implication speak for itself. But Israel only used white phosphorous as an obscurant. Bisharat would rather you believe otherwise — and so would the Times editors who chose to publish such a deceptive op-ed.
Israel only used white phosphorous as an obscurant — according to whom? The IDF? Please. This is unsupported opinion, nothing else. Obviously, Pollak has the right to believe what he believes, but the argument that the IDF used white phosphorus only as an obscurant does not accord very well with the physical realities of Gaza. (See my paragraph above beginning, “Gaza is one of the tiniest yet most densely populated land area in the world.”) White phosphorus is not supposed to be used in or near large population centers, for precisely the reason that it causes such horrendous harm to human beings. So if you are going to argue that the IDF used white phosphorus as an obscurant and not as a weapon, you need to address that contradiction.
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