Sunday, 31 May 2009

Legal Arguments proving Israeli War Crimes. Fwd: Defending Israeli War Crimes

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From: JMD Morgan <JohnM...@email.non>
Date: May 31, 4:43 am
Subject: Defending Israeli War Crimes
To: soc.culture.indonesia, soc.culture.malaysia, soc.culture.pakistan,
soc.culture.canada, soc.culture.australian

Defending Israeli War Crimes

Posted By Stephen Zunes On May29,2009@9:00pm

In response to a series of reports by human rights organizations and
international legal scholars documenting serious large-scale
of international humanitarian law by Israeli armed forces in its
war on the Gaza Strip,10U.S. state attorneys general sent a letter
[.pdf] 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
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 nearly11weeks
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
concerns about civilian casualties from U.S. air and missile strikes
Afghanistan and Pakistan have grown.

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

Facile Legal Reasoning

The legal rationale put forward in the March30letter 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 Article51of the UN Charter.?
In reality, however, while Article51does allow countries the right to
resist an armed attack, it doesn?t grant any nation the right to
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
in effect. Even when Hamas resumed firing rockets into Israel in
December, following a deadly Israeli raid into Gaza the previous
there were few casualties. Indeed, not a single Israeli had been
by Hamas rocket attacks for more than half a year prior to Israel
launching its war on Dec.27. During the subsequent three weeks of
fighting, Palestinians killed10Israelis, three of whom were civilians,
while Israeli forces killed more than1,400Palestinians, 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 Article33of the UN
Charter explicitly prohibits nations going to war unless they ?first
all, seek a solution by negotiation, inquiry, 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
with Hamas to negotiate a long-term cease-fire, which Hamas had
prior to the breakdown of the six-month lull in return for a lift in
Israeli siege of the enclave.

The letter correctly accuses Hamas, which had lobbed rockets into
civilian-populated areas in southwestern Israel, of violating
of Protocol I to the Geneva Convention of1948, 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 ?
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
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
to the conflict? and attacks by both sides against civilian areas in
which no fighters were present, the attorneys general insisted that
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
of negligence or recklessness with regard to United Nations premises
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
of the incidents.?

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

The International Committee of the Red Cross (ICRC) focused on other
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 ?
that Israel violated international humanitarian law by attacking
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
Strip soon after the fighting reported that ?that Israeli forces
deliberately targeted civilians during the Gaza offensive.? The
press has reported testimony of Israeli soldiers who killed
civilians under highly permissive rules of engagement that allowed
soldiers to kill any Palestinian in certain areas regardless of
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
as a ?flagrant violation of international humanitarian law, as set
in the Geneva Conventions.? Falk, an American Jew and emeritus
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 air strikes?were aimed
civilian areas in one of the most crowded stretches of land in the

Ignoring such evidence, the attorneys general insisted that Israel was
directing its artillery, bombings, and missile attacks only toward ?
source of Hamas? military attacks? and the Israeli government should
therefore not be held responsible for any military action that 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
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
conflict from their legal obligations with respect to the civilian
population and civilians.?

To argue otherwise, as do these attorneys general, is a dangerous
position for the chief law enforcement official of a state to take,
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
in claiming that ?Israel withdrew from Gaza in2005? 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,
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
With Israel 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
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 in2007.? 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
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 January2006. The following year, Saudi
officials negotiated a power-sharing agreement between Hamas and
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
taking full control of the Gaza Strip in June2007. Alvaro de Soto,
former UN special coordinator for the Middle East peace process,
[.pdf] in his confidential final report leaked to the press a few
before the Hamas takeover that ?the Americans clearly encouraged a
confrontation between Fatah and Hamas? and ?worked to isolate and
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),
boasts that the organization has sent42state attorneys general to
Israel in the past21years. It refers to the letter as ?a strong
rejoinder to those who have castigated Israel over its role in Gaza
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
?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
and ordinary citizens in their respective states for their signing on
such a reckless statement, it could mark a dangerous precedent
respect for human rights and the rule of law.

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