Legal Affairs: And the fight goes on
By DAN IZENBERG
The Jerusalem Post, August 13, 2009

A 160-page report on Operation Cast Lead published last week by the Foreign Ministry appears to have elicited less public interest than its authors had hoped for. Explosion from IDF artillery fire in Gaza during Cast Lead. Photo: AP In an attempt generate greater attention, the Foreign Ministry spokesman's office held a press conference this week for the foreign media. The report, entitled "The Operation in Gaza: Factual and Legal Aspects," is meant as a rebuttal of a long list of special reports and study papers published by human rights organizations - especially Human Rights Watch and Amnesty International - which have been extremely critical of IDF conduct during the war. The report presents a detailed description of the laws of war, or the "Law of Armed Conflict," as it is defined in the report, followed by detailed sections on the conduct of Hamas and other terrorist groups in the Gaza Strip, and the conduct of the IDF in the context of the laws governing warfare. Not surprisingly, the report finds that the Palestinians violated the Law of Armed Conflict in many ways, while the IDF, despite occasional errors, on the whole scrupulously observed it. The Foreign Ministry's deputy legal adviser, Daniel Taub, said at the press conference that the government would have preferred to wait before publishing the report, because a large number of incidents are still being investigated by the army. Nevertheless, this is the most comprehensive report published by Israel so far, and it is unlikely that further investigation will change the basic thrust of Israel's position. Reading the report - as well as the controversial 90-page document published in July by the foreign-funded left-wing NGO Breaking the Silence, which was based on testimonies of soldiers who fought in Operation Cast Lead, and another one, also published in July, by Amnesty International entitled "Israel/Gaza, Operation Cast Lead: 22 Days of Death and Destruction" - has led this writer to a number of conclusions: The government has presented a powerful and detailed description of the events leading up to Operation Cast Lead, from the beginning of Hamas's indiscriminate shelling of the Western Negev in 2000 until the outbreak of the fighting. It has presented a convincing case that Hamas violated the Law of Armed Conflict by positioning its armed forces and rocket launchers among or adjacent to Palestinian civilians. It has also provided clear evidence of the fact that war crimes were committed by Palestinian combatants who deliberately used civilians as human shields. The report fails to disprove allegations that Israeli forces on many occasions deliberately attacked nonmilitary objectives, that it often used excessive force and was guilty of wanton destruction. THE GOVERNMENT presents a detailed chronological and factual narrative of the increasing threat from rocket and mortar attacks by Hamas and other Palestinian terrorist organizations against the civilian population from the country's southwestern border to Beersheba in the East and Ashdod in the North. The only problem is that almost no one denies that the Palestinians in Gaza have committed war crimes by deliberately attacking civilians. Human Rights Watch (HRW) has devoted at least two reports, and Amnesty International a chapter in its latest report, to this issue.The government argues that these organizations pay only lip service to this matter so that they can go on to blithely and unfairly bash Israel, when all Israel did was to react to these Palestinian war crimes in self-defense. But the organizations argue that, whatever the reasons for Israeli acts of war in Gaza, and however justified military measures may be, these acts themselves must be judged on their own merits as to whether or not they are legal in the context of international law. Regarding the second point, Israel has continually accused Hamas of using Palestinian civilians as human shields, and used this argument as a means of explaining the high civilian casualty toll, and the extent of the physical damage to civilian homes and infrastructure during the fighting. The two issues, however, although sometimes linked, must be looked at separately. The report provides a great deal of proof that not only did Hamas violate the Law of Armed Conflict by locating fighters and rocket launchers among the civilian population, but it did so with intent, thus fulfilling the criteria for determining that war crimes were committed, and that those who perpetrated these crimes are personally liable. Some of the evidence is based on eyewitness testimony, either by captured Hamas terrorists who admitted that they fired from within the civilian population as a means of self-protection, or by journalists who reported from the scene of the fighting. The report quotes from Newsweek correspondent Rod Nordland, who wrote on January 20, "Suddenly there was a terrific whoosh, louder even than a bomb explosion. It was another of Hamas's homemade Kassam rockets being launched into Israel - and the mobile launchpad was smack in the middle of the four [apartment] buildings, where every apartment was full?" The IDF has also provided footage and maps indicating that Palestinian terrorists fired rockets and mortars from within residential areas and civilian buildings. Amnesty International acknowledged that Hamas endangered its own civilians by conducting military operations from within residential areas. However, for reasons that are, at best, hard to understand, it rejected Israel's allegations that the organization used civilians as human shields. "Amnesty International, for its part, did not find evidence that Hamas or other Palestinian groups violated the laws of war to the extent repeatedly alleged by Israel. Amnesty International delegates interviewed many Palestinians who complained about Hamas's conduct, and especially about Hamas's repression and attacks against their opponents, including killings, torture and arbitrary detentions, but did not receive any accounts of Hamas fighters having used them as 'human shields.'" IN A report issued by HRW last week, Jerusalem researcher Bill Van Esveld writes, "Deliberately using civilians to deter attacks on military targets amounts to 'human shielding,' which is a war crime. Human Rights Watch either could not determine or the evidence did not indicate that militants launched rockets from areas close to civilians with the intention of deterring Israeli forces from counterattacking." Explosion from IDF artillery fire in Gaza during Cast Lead. Photo: AP He adds, however, that another human rights organization, the International Crisis Group, had interviewed three Hamas fighters in January, who told it they fired from civilian areas in the hope that Israeli soldiers would not return fire. In response to the testimony by Nordland quoted in the Foreign Ministry report, Van Esveld acknowledges that this added to the evidence that war crimes were perpetrated with regard to the use of Palestinian civilians as human shields. It is in the section that deals with Israel's management of the fighting that the report fails badly. In the 40-page chapter entitled "IDF's Conduct of the Operation and Procedures to Ensure Compliance with International Law," the government does almost nothing to refute the allegations its critics have leveled against Israel. Most of the chapter is devoted to theoretical matters, in the sense that they have nothing to do with the conduct of the troops in the field during the actual fighting. In it, there are subchapters dealing with IDF routine training and legal supervision, the rules of engagement that were issued on the eve of the conflict and Israel's system of investigating complaints after the fighting, including the military justice system, the right of review of military prosecution decisions by the attorney-general and the right of appeal to the Supreme Court. Only in the subchapter entitled "IDF Pursuit of Legitimate Military Targets During the Gaza Conflict," does the report address - and even then only in a general way - the fighting on the ground. It maintains that the IDF distinguished between combatants and civilians by only attacking targets "directly connected to Hamas and other terrorist organizations' military activities against Israel. For instance, IDF forces targeted Hamas rocket launchers, weapons stockpiles, command and control facilities, weapons factories, explosives laboratories, training facilities and communications infrastructure. That these objects were often concealed or embedded in civilian facilities such as residential buildings, schools or mosques did not render them immune from attack." It rejects charges that the 240 Gaza Strip policemen who were killed in the first days of the fighting, when their barracks were bombed, were part of civil society and not combatants - on the grounds that Hamas had standing plans to use the force in the battle against the IDF. It maintains that it took into account the principle of proportionality by weighing the potential harm to the civilian population vis-à-vis the military gain to be achieved by operations. It also maintains that it gave advance warning to civilians of its intention to bomb districts or even specific buildings, and also took into account the special humanitarian needs of the Palestinian civilian population during the fighting. IT IS no wonder, then, that the army was so enraged by the report published last month by Breaking the Silence, containing testimony of soldiers who were eyewitnesses to how the training, teaching of the Law of Armed Conflict, the rules of engagement and the government's claim that it observed the rules of warfare as described in the report played out on the ground. If their testimony is any indication, the ideal scenario described in the report had little to do with at least some of what happened in the field. One soldier described the physical destruction that he saw. "They [the army] destroyed houses all the time in our area. You could see clearly that these were houses that sustained a great deal of fire with a great deal of force. We didn't see a single house that wasn't destroyed - a house totally shattered or one with a big hole in it or another with many bullet holes, but we didn't see a single house that wasn't destroyed. All the infrastructure, the paths, the fields, the roads - completely destroyed." Another soldier described the rules of engagement that he received at the start of the operation. "The battalion commander told me, and at that moment I completely understood what he meant, I pretty much agreed with him, he said, 'I don't want one hair from the head of any of my soldiers to be touched, and I am not prepared to be in a situation where one of my soldiers endangers himself because he hesitates. If you aren't certain - fire a bullet [whether] you're in doubt or you're not in doubt.' The firepower was crazy, we went in and there were explosions like mad. As soon as we got to our starting line, we simply began shooting at suspicious places. Even at the beginning, when it was still dark, we got there just before dawn. You see a house, you see a window, you shoot at the window. You don't see a terrorist there, you still shoot at the window. This was actually fighting in a built-up zone. The difference between that and restricted warfare is that in fighting in a built-up zone everyone's an enemy; there is no difference between an innocent and an enemy." The army has charged that the soldiers who testified to Breaking the Silence did not give their names or provide details of the time and location of the incidents they described. Therefore, it cannot investigate their allegations. Breaking the Silence says the soldiers are afraid to give their names because they will be punished and because they don't want to get into trouble with the other soldiers in the units. It is very unlikely that anything more will come of this report, or that the descriptions of the soldiers, often general and vague but still powerful, will ever be examined. On the other hand, organizations like Amnesty International have provided facts, dates, locations and testimony from Palestinian victims or their neighbors or relatives, regarding IDF attacks. In many cases, they have also seen the physical damage that was caused. In a section entitled "Precision Strikes," it presents a sample of 15 different incidents involving heavy civilian casualties allegedly caused by air strikes or tank shelling. One of the most severe of these cases involved the al-Sammouni family "who lost 31 members of their extended family in the al-Zaytoun neighborhood in the southeast of Gaza City. Most of those who perished were killed when one of the family homes was shelled, seemingly with tank rounds, on January 5, a day after Israeli soldiers had ordered dozens of family members to move there from a nearby house belonging to the same extended family." Explosion from IDF artillery fire in Gaza during Cast Lead. Photo: AP ACCORDING TO the Foreign Ministry report, the army is conducting field investigations involving more than 60 incidents, including five of those mentioned in the AI report and has already launched criminal investigations of 13 other incidents, including seven involving allegations that soldiers used Palestinians as human shields. Although it is not known how many different incidents of the kind discussed by IA in the section on "Precision Strikes" there were, or have been collected by the various human rights groups and other organizations, it seems clear that Israel will not come close to examining all or most of them, and will therefore not be able to respond to the war crime charges involved in each one. At any rate, there is nothing in the "theoretical" section of the Foreign Ministry report on the measures the army took before and during the fighting to allay the fears that the ideal portrayed in the report is far from the reality of Operation Cast Lead.