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Both Israel and Hamas have been accused of war crimes and breaches of international law during the four weeks of Operation Protective Edge. According to legal experts, there may be an element of truth to both accusations.
Civilian casualties have been high in Gaza, where more than 1,400 people have been killed, while three Israeli civilians have been killed in attacks from Gaza, and 55 Israeli soldiers have died in battle.
Israel’s supporters claim it is acting in self-defense and has conducted its campaign within the bounds of international law. Israel has accused Hamas of systematic war crimes — firing rockets indiscriminately at Israeli population centers and basing military operations in civilian neighborhoods.
Critics of Israel’s actions claim the massive bombardment of civilian areas amounts to a war crime and question whether it is possible to carry out such operations in Gaza — one of the world’s most densely populated areas — without violating the rules of war.
“It seems clear that you can’t pursue these military objectives by these means in a way that is compatible with international humanitarian law,” said Richard Falk, an international law professor emeritus at Princeton University. “The whole mission is one that is legally flawed. The civilian character of Gaza is so overwhelmingly a part of this reality.”
Falk, a former United Nations special rapporteur on the occupied Palestinian territories, added that an underlying question concerns what rights an occupying power can claim to self-defense when its obligations under international law are to protect the occupied people.
There are two key principles of international law at work in assessing charges of war crimes in Gaza: distinction and proportionality.
The obligation of distinction requires that military action distinguish between civilian and military targets. And the principle of proportionality requires that the military advantage gained by such targeting of civilians or civilian infrastructure must outweigh the harm caused by the attack.
Both sides in the current conflict have been criticized for allegedly targeting civilians or civilian infrastructure. Under international law, the only valid targets for military actions are those that are being used for military purposes.
Accusations that Israel has breached international law in the Gaza operation center on the impact of Israel Defense Forces (IDF) actions on civilians and civilian infrastructure and on the principle of collective punishment.
The IDF has in the course of Operation Protective Edge bombed civilian infrastructure such as hospitals, schools, mosques and homes. If those installations were not being used for military purposes at that moment, such strikes violate international law. The Israeli military argued that it targeted such infrastructure only when those buildings were being used for military purposes by Palestinian fighters.
Some argue that regardless of the intent, the massive civilian toll in death and destruction amounts to a war crime.
“The answer to [the question of] whether or not Israel can target civilian infrastructure if there are military actions occurring there is in theory yes, but that’s not to say that any of its particular attacks are justified,” George Bisharat, an international law professor at the University of California at Hastings, told Al Jazeera.
Israel’s military said it has used leaflets and text messages to warn thousands of Gazans to leave their homes ahead of planned attacks in an effort to protect civilians. But many on ground have argued that even with Israel’s warnings, Gaza residents have no place to seek refuge. It is a small, densely populated strip whose residents are virtually sealed off.
“Even if everybody evacuated the neighborhood and it was empty with no risk to human life, destroying civilian neighborhoods, infrastructure without military necessity is still a war crime,” Bisharat said. “Just clearing an area does not entitle the military to flatten nonmilitary targets. It would still be subject to the principle of proportionality and distinction.”
Assuming the buildings were being used for military purposes at the time of their destruction, questions remain on whether strategic objectives outweighed civilian deaths, according to the principle of proportionality.
“There’s no clear demonstration that the use of this kind of overwhelming force really is connected to reducing the risks to Israel,” Falk said. “Two previous operations have not had that effect, but caused tremendous devastation. There are alternative ways to pursue security, and Israel has to clearly demonstrate that these tactics are effective in eliminating the supposed threat.”
Israel’s defenders, however, put the onus on its critics to outline how Israel should respond to the missile threat emanating from civilian areas. Writing in The Los Angeles Times, Israel’s former U.N. Ambassador Dore Gold argued that the only way it could address the risk of inflicting civilian casualties in response to missile fire was to "separate, as much as possible, the civilian population from the Hamas fighters and arms in their midst." Gold said Israel has tried to follow that principle by warning civilians to evacuate ahead of military strikes on their neighborhoods.
Another area of contention has been Israel’s killing of civilian members of Hamas, people whose status as noncombatants prompts some to challenge the legal basis for targeting them.
“Let’s take the attempted assassination of Tayseer al-Batsh, a Gaza City police chief who is a civilian in international law ,and civilians cannot be attacked unless they are at that time directly partaking in military action,” Bisharat said. “He was in his cousin’s home, and when his cousin’s home was bombed, it killed 18 people. That is almost certainly a war crime.”
Accusations that Hamas has committed war crimes are based on the indiscriminate targeting of Israeli civilians with rockets and of firing those rockets from civilian areas. Israel has accused Hamas fighters of using civilians as human shields.
Hamas’ defenders argue that the group has no other viable option than to mount a military challenge to the Israelis given the seven year siege of Gaza, and they note that international law grants occupied peoples a right to armed resistance. But the terms and parameters of that right are hotly debated, and it doesn’t extend to deliberately targeting civilians — the classic definition of terrorism.
Israel claims that its withdrawal of settlements and military bases from Gaza in 2005 means the territory is no longer occupied, disputing Hamas’ claim to a right to resist.
“That’s a view that Israel has maintained … but is not being said by most international law experts or the international community, including the United Nations,” Falk said.
Despite its disengagement, Israel’s military has retained effective control over the coastal enclave via a land, sea and air blockade — arguing that the move was necessary in order to prevent weapons from entering the territory.
“The analogy frequently used is that Gaza is an open-air prison where the guards are on the walls and the internal administration is left to the prisoners,” Falk said. “The rational for withdrawing had nothing to do with ending the control. It was just changing the method of control, and that control has been the defining feature of occupation as understood in Geneva conventions and international humanitarian law.”
Ending the seven-year blockade, which has economically strangled Gaza, is one of the top Hamas conditions for any cease-fire.
Israel has also accused Hamas of using unwilling civilians as human shields, feeding the high rate of civilian casualties.
Answering the question of whether Hamas used human shields and whether Israel targeted civilian infrastructure that was not being used for military purposes will require a thorough investigation, which may or may not take place.
Israel’s military has pointed out the asymmetry of its efforts to investigate alleged crimes in contrast to Hamas, which it said has no functioning legal system to investigate its actions in a truthful way.
After Israel’s Operation Cast Lead in Gaza in 2008 and ’09, the U.N. Human Rights Council conducted an official inquiry, known as the Goldstone Report, which alleged serious violations by both sides, which Israel and Hamas were urged to investigate. The report was mired in controversy, however, and resulted in negligible investigation by the Israeli side and none by Hamas.
The track record, then, suggests there’s little reason to expect meaningful inquiries by either side into the conduct of the war.
Navi Pillay, the U.N. high commissioner for human rights, said Thursday that Israel prosecuted only four Israeli soldiers for actions carried out during Cast Lead, including one for alleged theft of a credit card.
Little came of the Goldstone investigation due to a lack of political will, and Pillay said she did not expect a proper investigation of Operation Protective Edge despite her belief that war crimes had been carried out on both sides.
Falk said that even though violations were likely on both sides of the Gaza conflict, false equivalence should be avoided.
“Israel’s crimes are so powerfully overwhelming, and the disparity in the casualties seems to be a pretty good indicator of the disparity of accountability,” he said, “and not only the numbers of killed, wounded and traumatized but also the nature of who’s dying. Fifty-five of the 58 Israelis killed have been military personnel. You have not only a quantitative disparity but also a qualitative disparity.”
But for the Israeli side, Hamas’ targeting of Israeli population centers was used to justify the heavy bombardment of Gaza.