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    February 23, 2009 Edition 8                      Palestinian-Israeli crossfire
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  Israel, Gaza, war crimes
  . A message for Washington, Brussels and Cairo as well as Jerusalem        by Yossi Alpher
Compare Israel in Gaza to NATO in Afghanistan and the US in Iraq.
. There must be recourse to law        by Ghassan Khatib
Israel is treated as a country above international law.
  . Ensuring accountability        by Jessica Montell
An initial overview raises grave suspicion that Israel did indeed breach international humanitarian law. Hamas also.
. We have no right to forget or forgive        an interview with Raji Sourani
Do Jews have the right to prosecute Nazi war criminals? Of course. Do we have a right to prosecute Israeli war criminals? Of course.

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A message for Washington, Brussels and Cairo as well as Jerusalem
by Yossi Alpher

Israel should not be accused of war crimes in the Gaza Strip during the recent war. In contrast, Hamas can indeed be accused of crimes--terrorist crimes, if not war crimes, since it is not a sovereign state--not only during the war but before it and since it ended. But this too must be stated: it's time that Israel and virtually the entire international community be held to account for the humanitarian ramifications of the past 20 months' economic warfare against the population of Gaza.

Israel should not be accused of war crimes because it took more than reasonable precautions to prevent them, while fighting in a war zone characterized by guerilla and terrorist exploitation of Gazan civilians and their dwellings and institutions as tools of war. Yes, there were excesses on the part of the IDF, but they were proportional and they constituted the exception. Israel also took unusually thorough measures during the war to alleviate humanitarian suffering on the part of the Palestinian population, although as always there were inevitable lacunae here, too.

In view of recent international experience with urban warfare against terrorist enemies, the war crimes accusations against Israel can only be seen as a kind of selective witch hunt waged by religious and ideological extremists, political opportunists and Israel-bashers in certain Middle East countries and among western Islamist and leftist circles. Israel is Jewish, small and diplomatically isolated, hence vulnerable. Attacks on its human rights record sell well in the Muslim world and among anti-Semites.

Compare Israel in Gaza to NATO in Afghanistan and the United States in Iraq. Civilian deaths in Afghanistan rose 40 percent in 2008; many of these casualties were inflicted in the process of attacks against the Taliban by the US and other NATO forces. When was NATO dragged before the court of world opinion and accused of war crimes?

Similarly, when US armed forces conquered Fallujah in Iraq for the third and last time, in a battle waged between Nov. 7 and Dec. 24, 2004, a force about the size of the Israeli force that invaded Gaza faced an estimated 3,000 Islamists (Israel confronted around 20,000 in Gaza). Six thousand civilians were killed and most of the city's dwellings were either destroyed or damaged, along with 65 mosques and 60 schools that were used to hide weapons. Nearly 80 US soldiers were killed.

All this happened 7,000 miles away from the US. Needless to say, no rockets were fired from Fallujah at American civilians for the previous eight years and no one in Fallujah disputes America's right to exist. Fallujah was quickly rebuilt and became a model for successful counter-terrorism operations in Iraq. You don't have to support the US occupation of Iraq to appreciate the challenges involved in Gaza and the relatively successful way the IDF dealt with them there.

Then there is the total disregard for international legal norms displayed by Hamas itself. It deliberately attacks Israeli civilians as a matter of policy. It holds an Israeli prisoner who is denied the most minimal Red Cross demands regarding access and communication with his family. It calls for a neighboring country, Israel, to disappear. It makes common cause with other sponsors of terrorism in Iran and Hizballah.

Accordingly, if the International Criminal Court in The Hague should decide, against virtually all expectations and by bending its own procedures, to hear Palestinian accusations about Israeli war crimes, Israel's army lawyers should show up at the court not only to disprove the accusations but to turn the tables and submit accusations against Hamas and the government it has formed in Gaza.

Yet there is one aspect of the conflict with Hamas where not only Israel but virtually the entire relevant international community, including the Quartet (US, UN, EU and Russia), Egypt and the Palestinian Authority, share blame for an apparent gross violation of international law: the economic blockade of the Gaza Strip since the Hamas takeover of June 2007. This appears to be a clear case of collective punishment of 1.5 million Gazans for the undoubted sins of Hamas.

Moreover, it never worked. Restricting supplies allowed into Gaza to a bare minimum of food and medicines was supposed to provoke the Gazan population into dumping Hamas, or at least prevailing upon it to behave responsibly. Instead, it has pushed Gazans into ever greater support for Hamas, while impoverishing the moderate traditional middle class that used to engage in trade with and via Israel and enriching Hamas-linked tunnel diggers. So not only is this a violation of international law--it has proven counterproductive. Had Israel and its international and regional supporters recognized this fact and opened the crossings months ago, the recent war might have been avoided.

Looking for something particularly ludicrous? The same Palestinian Authority that, through its minister of justice, wants to prosecute Israel at the International Court of Justice, has also connived in the Gaza economic blockade.

Making war on urban terrorists is not criminal, but it is clearly an ugly business. Certainly, we should explore the alternatives and abandon failed and painful non-combat strategies before invoking military warfare. In the case of Gaza, we did not do this. We are still not doing this.- Published 23/2/2009 © bitterlemons.org

Yossi Alpher is coeditor of the bitterlemons.org family of internet publications. He is former director of the Jaffee Center for Strategic Studies at Tel Aviv University.

There must be recourse to law
by Ghassan Khatib

The period during and after the three-week long Israeli war on Gaza has witnessed numerous calls by different parties to investigate allegations of Israeli war crimes. These include calls by Palestinian, Israeli and international human rights organizations.

One of the incidents that proved a turning point in international public opinion was the Israeli shelling of a United Nations school that was used as shelter for civilians whose homes had been damaged or destroyed during the Israeli offensive. The Geneva conventions and other protocols prohibit the destruction of properties and indiscriminate killing of civilians, two acts Israel has been accused of engaging in during the war.

Although international law expects the state whose forces are accused of war crimes to conduct its own inquiry, the UN Security Council and the General Assembly have the power to establish special international tribunals, such as those set up for the former Yugoslavia and Rwanda. The Palestinian Authority and other Palestinian human rights organizations would like to see the International Criminal Court in The Hague look into whether war crimes were committed in Gaza during the conflict.

However, the court's prosecutor can only instigate proceedings against a state that belongs to the court and Israel is not a formal member. The UN Security Council can refer cases against non-members to the court, but such a move would likely be blocked by the United States, Israel's strongest ally. A state party to the court can ask for a referral--but there is no Palestinian state.

In order to avoid these constraints, the Palestinian Authority has lodged a declaration recognizing the authority of the court. At the same time, an Arab League delegation traveled to Gaza to document Israeli war crimes. The delegation is made up of international legal and forensic experts. They will present their findings to Arab League chief Amr Mousa. The Arab League and its 22 member states could then attempt to pursue war crime charges in individual countries that allow such lawsuits to be brought.

But the difficulties Palestinians face in having international legal bodies at least examine whether war crimes were committed by Israel is consistent with the frustration they face in ensuring the application of international law to the Palestinian-Israeli conflict in general. Palestinian public opinion, and for that matter the political elite, would have no problem if international procedures were enforced on both sides as long as the same standards were applied.

When Israel started building a wall inside occupied territory to consolidate Jewish settlements on land confiscated illegally from Palestinians who are still alive and carry deeds of ownership, Palestinians complained to the ICC. The Court's verdict confirmed the illegality of the wall and the settlements, and yet Israel continued its violations in this regard. The ICC's advisory ruling also did not lead to pressure on Israel by any international body or state to desist from those practices.

Palestinians believe that Israel is treated--by the international community and as result of the influence of the United States--as a country above international law. The war on Gaza has not changed anything in this regard. Israel continues to violate different aspects of international law and specific resolutions of the United Nations Security Council with impunity and without being held accountable.

This attitude, on behalf of Israel and the international community, and the inherent double standards evident on almost every occasion Israel has needed to be censured, also have a radicalizing effect on Palestinian public opinion. The application of international law and UNSC resolutions will strengthen the argument of the peace camp that legitimate objectives can be achieved by legitimate means.

One way of reversing negative trends in both Palestinian and Israeli public opinion is to hold military and political leaders on both sides equally accountable to applicable laws--whether the laws of war, international humanitarian law or UN resolutions.- Published 23/2/2009 © bitterlemons.org

Ghassan Khatib is coeditor of the bitterlemons family of internet publications. He is vice-president for community outreach at Birzeit University and a former Palestinian Authority minister of planning. He holds a PhD in Middle East politics from the University of Durham.

Ensuring accountability

by Jessica Montell

Only now that the fighting has stopped are we beginning to understand the full scale of the damage in the recent Israeli military operation in the Gaza Strip. While much remains to be learned, one conclusion is incontrovertible: the toll among the civilian population is immense. Over 1,300 people were killed, many of them civilians, including 315 children. Over 14,000 homes were damaged or destroyed. Yet statistics alone cannot convey the full extent of the damage. Whole families have been wiped out. Children bled to death before their parents' eyes. Even after the dead are buried and the rubble has been cleared away, the residents of the Gaza Strip will carry scars from this operation for a long time to come.

The extensive harm to the civilian population is not, in and of itself, proof of violations of the laws of war. Such a judgment requires a legal rather than a purely moral reckoning, weighing this suffering in light of legal obligations like the need to distinguish between military and civilian objects and the requirement to use only the minimum force necessary to achieve military goals without causing disproportionate harm to the civilian population.

Determinations regarding distinction and proportionality in the middle of armed confrontations can sometimes be a complicated calculus. However, an initial overview of Operation Cast Lead raises grave suspicion that Israel did indeed breach international humanitarian law during the fighting. This suspicion relates not only to the conduct of individual soldiers, but also and perhaps primarily to policy decisions. For example, Israel by its own claim intentionally targeted civilian institutions like the Ministries of Housing and Labor and the Legislative Council solely because they were affiliated with Hamas. Israel also used massive firepower when striking legitimate targets such that large numbers of civilians were also killed.

The legal determination regarding Israel's behavior in Gaza depends also on an analysis of Hamas' behavior, and there are well-founded concerns that Hamas also violated the laws of war. This includes not only the deliberate firing of rockets at Israeli communities, which is clearly a grave breach of IHL, but also Hamas' conduct in the fighting inside Gaza: the hiding of weapons in mosques and other civilian areas and the extrajudicial executions of those suspected of aiding Israel. While one side's violations of the laws of war in no way grant license to the other side to do the same, they can mitigate or even shift legal culpability.

The only way to render a definitive judgment is to conduct a comprehensive, impartial and independent investigation. Such an investigation must include a commitment to hold accountable all those found to have committed grave breaches of the laws of war--these are in fact war crimes that carry individual criminal liability. Accountability is crucial--indeed, it is the bedrock of any legal system, for there can be no rights without a remedy when rights are violated.

It is clear that the responsibility to conduct such an investigation rests first and foremost with Israel. The international legal system is predicated on the principle that justice should be done at home. Israel's attorney general must therefore initiate an impartial and effective investigation into the recent fighting in Gaza. If this does not happen, it is likely that initiatives to pursue justice abroad will intensify. These initiatives are inevitably flawed, such as the one-sided investigations mandated by the Human Rights Council or the efforts to ensure universal jurisdiction in places like Spain and the UK. However, in the words of former Chief Justice Aharon Barak of Israel's High Court, gone are the days when Israel could maintain some kind of legal vacuum.

But how do we ensure accountability for Hamas' war crimes in Gaza? What system, domestic or international, will investigate its crimes and hold it responsible? The answer is that there probably is none. This is highly regrettable but in no way affects Israel's obligations. Israel is a member of the United Nations, a country that enjoys all the fruits of close relations with Europe and the United States, a nation that takes pride in its liberal democracy. Hamas is none of these things. Hamas is not the standard for Israeli behavior in any sphere, and certainly not when it comes to accountability.

The extreme polarization between Palestinian and Israeli narratives regarding the fighting in Gaza leaves many well-intentioned people not knowing what to believe. Indeed, it is hard to reconcile Palestinian allegations of cold-blooded massacres with Israeli claims that the IDF is the most moral army in the world and that Hamas is to blame for the civilian suffering. This is not an area where we can tolerate such ambiguity. Israelis have a right, even an obligation to know the truth about what was done in our name in Gaza. Palestinians have a right to redress where crimes were committed. Israel must investigate all allegations and hold responsible those found to have violated the law. Now is the time for Israel to demonstrate the strength of its rule of law and show that justice can be done at home.- Published 23/2/2009 © bitterlemons.org

Jessica Montell is executive director of B'Tselem: the Israeli Information Center for Human Rights in the Occupied Territories.

We have no right to forget or forgive

an interview with Raji Sourani

bitterlemons: Were war crimes committed during the recent Israeli offensive on Gaza and can they be prosecuted?

Sourani: I believe that war crimes were committed, not only during the brutal Israeli offensive that started on December 27 last year, but from before.

We have worked hard to record Israeli war crimes and we are working hard to bring Israeli war criminals to justice. This approach is working and the proof is Israel has instituted new procedures to counter such moves. There is legislation by the Israeli parliament that punishes anyone giving information that can lead to the legal prosecution of war criminals and there is provision for legal aid for any Israeli so accused.

Moreover, the Israeli government is engaged in a campaign in Europe in particular to persuade countries to change their laws to prevent the possibility of holding Israelis accountable in courts there.

bitterlemons: What kind of crimes are we talking about?

Sourani: There are verified specific past cases, such as that of [the July 2002 assassination of] Salah Shehadeh in which a 985-kilo bomb was dropped on a civilian area, killing six children and nine women. In the recent war, hundreds of such bombs were dropped every day over the Gaza Strip.

We have prepared very serious legal documentation of war crimes committed against Gazan civilians during the war. I won't say where or how we are going to use this information. But we have files and names; we know where to use this information effectively and we will use it, sooner or later.

bitterlemons: Is there not a problem of process if this were to be taken, for instance, to the International Court of Justice?

Sourani: No. We avoid any body related to the political will of the United States for the simple reason that we know the limits, pressure and political reality faced by the International Court of Justice, the International Criminal Court and the UN Security Council.

What we instead pursue is what is known as universal jurisdiction, which does not depend on political will but on the rule of law and the independence of the judiciary in individual countries. So we have to identify where the Geneva conventions are part of a legal system and how we can then effectively use that system.

It is therefore very important for us to coordinate with counterparts in other countries. And there is a real area of cooperation between people across the world seeking the rule of law over the law of the jungle.

bitterlemons: There have been several much-publicized incidents of families decimated and neighborhoods destroyed. In terms of what happened in such incidents, how would you characterize the Israeli offensive?

Sourani: In the Fourth Geneva Convention, these are characterized as "grave breaches" or "war crimes". I don't want to exaggerate and go beyond that, though the Spanish court, in its recent ruling on Salah Shehadeh, said that incident could be described as a crime against humanity.

We have a lot of evidence and detailed legal files on those publicized cases and many, many more. These will make Israeli military and political leaders real targets for those who seek justice and want to ensure accountability for war criminals. This is our duty and our obligation as human rights activists. Our loyalty to the suffering, pain and bloodshed of our innocents, the protected Palestinian civilians in Gaza, will be reflected through this legal process. We want to see the rule of law, not the law of the jungle.

bitterlemons: Israel will say the rocket fire from Gaza is a war crime. Will this complicate efforts to pursue Israeli crimes?

Sourani: A crime doesn't legitimize another crime. If Israel believes that rockets are war crimes perpetrated by Hamas, why is it afraid of having an independent, international investigation committee to look into what happened in Gaza and let them look at both sides? That is the mission of the Human Rights Council. Israel never allowed any of the special human rights rapporteurs, whether John Dugard or Richard Falk, to visit the occupied territories.

If Israel believes the Palestinian side is guilty of war crimes, let an international commission investigate. We are ready to be held accountable as long as it goes both ways. But everyone knows that there hasn't been such a level of suffering, bloodshed and killing as that which occurred between December 27 and January 19 since the Nakba in 1948.

bitterlemons: Are you hopeful that anyone will be brought to justice?

Sourani: Of course. We have to be optimistic. We are aware that the US provides full legal and political cover for Israel; we know Europe is part of a conspiracy of silence; we know Europe is even providing excuses for Israel's war, calling it a "defensive" war. But we also know that this was the first ever war crime broadcast live on TV with the whole world watching. And we know that what happened to our people was unjustified, unfair and illegal. We are not going to be good victims and stay quiet, and we are not going to give up.

We have no right to forget or forgive. One day, the situation will change. Do Jews have the right to prosecute Nazi war criminals? Of course. Do we have a right to prosecute Israeli war criminals? Of course.

I want Israeli military commanders to face justice. They seem proud of what they have done. If they can defend themselves, let them stand in a court of law and do just that.- Published 23/2/2009 © bitterlemons.org

Raji Sourani is director of the Gaza-based Palestinian Center for Human Rights.

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Editors Ghassan Khatib and Yossi Alpher can be reached at ghassan@bitterlemons.org and yossi@bitterlemons.org, respectively.

Bitterlemons.org is an internet newsletter that presents Palestinian and Israeli viewpoints on prominent issues of concern. Each edition addresses a specific issue of controversy. Bitterlemons.org maintains complete organizational and institutional symmetry between its Palestinian and Israeli sides.