Unjust & Illegal
Unjust and Illegal: The Israeli Attack on Gaza
Stephen R. Shalom
from Logos: A Journal of Modern Society and Culture, vol. 8, no. 1, 2009
The reports of statements from Israeli soldiers documenting their horrendous war crimes1 have greatly discomforted those who engaged in cheerleading for the brutal Israeli assault on Gaza. It is hard to proclaim the "purity of arms" of the Israeli Defense Forces (IDF) when its members wear t-shirts showing the stomach of a pregnant Palestinian woman in a gun sight, above the caption "1 shot, 2 kills."2
But while these revelations may have welcome consequences, both on internal Israeli political discourse and on world public opinion, the new evidence was unnecessary for the legal or moral condemnation of Operation Cast Lead. It was possible to deliver such a verdict at the time of the attack, despite the IDF's closing of Gaza to the international press and human rights organizations, and despite a massive propaganda campaign by the Israeli government.
The conduct of Operation Cast Lead violated numerous principles of international humanitarian law and morality, but even had Israeli conduct complied perfectly with these principles, the attack was legally and morally unacceptable because the act of going to war itself was unjust. In the widely accepted moral schema of just war theory, a distinction is made between jus ad bellum (the justification for going to war) and jus in bello (the justness of the conduct of the war), and adherence to the latter does not mitigate violation of the former. Likewise, in international law, in the words of the Nuremberg judgment, "To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."3
Israel, of course, argues that its attack on Gaza was an instance of legitimate self-defense, a response to rocket attacks launched from Gaza by Palestinian militants. But any assessment of whether Israeli military actions constitute lawful self-defense has to take account of the context and the question of proportionality.
The Context of Operation Cast Lead
The broad context is that the Israeli occupation of the Palestinian territories is illegal and unjust and Israel cannot claim self-defense when Palestinians struggle by legitimate means to end the occupation. (In the same way, Japanese troops couldn't claim self-defense when they were attacked by guerrillas in occupied China or the occupied Philippines during World War II.)
The proper Israeli response to such Palestinian actions is not "self-defense," but full withdrawal from the occupied territories.
Israel preposterously claims that there neither is nor has been an occupation of the West Bank or Gaza.4 Needless to say, no one takes this view seriously.5 In what must be the most original use of the passive voice on record, the Israeli government claims that "Control over the West Bank and Gaza passed to Israel in 1967 in a war of self-defense."6 In fact, the West Bank (including East Jerusalem) and Gaza, as well as the Sinai and the Golan Heights were conquered by Israel during the June 1967 war, a war in which Israel attacked first. Israel's supporters argue that although Israel fired the first shots, this was a justified preventive war, given that Arab armies were mobilizing on Israel's borders, with murderous rhetoric. The rhetoric was indeed blood-curdling, and many people around the world worried for Israel's safety. But those who understood the military situation -- in Tel Aviv and the Pentagon -- knew quite well that even if the Arabs struck first, Israel would prevail in any war. Egypt's leader was looking for a way out and agreed to send his vice-president to Washington for negotiations. Before that could happen, Israel attacked, in part because it rejected negotiations and the prospect of any face-saving compromise for Egypt. Menachem Begin, who was an enthusiastic supporter of that (and other) Israeli wars was quite clear about the lack of necessity for launching an attack: In June 1967, he said, Israel "had a choice." Egyptian Army concentrations did not prove that Nasser was about to attack. "We must be honest with ourselves. We decided to attack him."7
However, even if it were the case that the 1967 war was wholly defensive on Israel's part, this could not justify continued rule over Palestinians. A people do not lose their right to self-determination because the government of a neighboring state goes to war. Sure, punish Jordan and don't give it back the West Bank (to which it had no right in the first place, having joined with Israel in carving up the stillborn Palestinian state envisioned in the UN's 1947 partition plan). And don't return Gaza to Egyptian administrative control. But there is no basis for punishing the Palestinian population by forcing them to submit to foreign military occupation.
Israel immediately incorporated occupied East Jerusalem into Israel proper, announcing that Jerusalem was its united and eternal capital. It then began to establish settlements in the Occupied Territories in violation of the Geneva Conventions, which prohibit a conquering power from settling its population on occupied territory. The Israeli government legal adviser at the time, the distinguished jurist Theodor Meron, privately warned that any settlements would be illegal,8 but he was ignored.
And the International Court of Justice has ruled -- in a portion of an opinion that had the unanimous support of all its judges, including the one from the United States -- that all the settlements in the occupied territories are illegal.9
Now Israel did withdraw its troops and settlements from Gaza in 2005. Most international law experts deny that this has ended the occupation of that territory. As John Dugard, the UN's then special rapporteur on the Occupied Palestinian Territories, noted in 2006:
"Statements by the Government of Israel that the withdrawal ended the occupation of Gaza are grossly inaccurate. ... Gaza remained under the effective control of Israel. This control was manifested in a number of ways. Israel retained control of Gaza's air space, sea space and external borders. Although a special arrangement was made for the opening of the Rafah border crossing to Egypt, to be monitored by European Union personnel, all other crossings remained largely closed.... The actions of IDF [Israeli Defense Force] in respect of Gaza have clearly demonstrated that modern technology allows an occupying Power to effectively control a territory even without a military presence."10
On November 20, 2008, Human Rights Watch wrote to Israeli prime minister Ehud Olmert, stating, among other things,
"Even though Israel withdrew its permanent military forces and settlers in 2005, it remains an occupying power in Gaza under international law because it continues to exercise effective day-to-day control over key aspects of life in Gaza."11
If Israel had truly withdrawn from Gaza, then Israel could not prohibit Gaza from trading by sea or air with other nations, bar people from sailing or flying in to or out of Gaza, overfly Gazan airspace or patrol its coastal waters, or declare "no go zones" within Gaza. Israel also controls Gaza's Population Registry and collects import duties on any goods it allows into Gaza.12
To be sure, an occupation accomplished by surrounding a territory and cutting off all outside contact is not the same as one in which occupying troops are directly deployed in the territory.13 (And that's why Gazans object when Israeli troops re-enter the Strip.) But whatever it's called, Israeli control over the lives of Palestinians, including those in Gaza, must end, and as long as Israel denies Palestinians the right of self-determination, its claim of self-defense rings hollow.
Israeli officials ask why they should be obligated to open borders with another territory. After all, countries don't have to trade with their neighbors if they don't want to. That might be true if Israel actually recognized the independence of Gaza. But in fact, Israel will not allow planes to fly into Gaza, and will not allow ships to dock in Gaza. So, yes, if Spain chose not to allow commerce across its borders with Portugal, it has the sovereign right to so decide -- but not if it denied Portugal access to the sea and air, essentially cutting it off from all worldly contact. And not if over many long years of direct occupation, all the fuel and power lines and all the roads in Portugal were built precisely so as to enforce its dependence on Spain.
The Israeli government argues that ending the occupation will not end attacks on Israel because Hamas and some other Palestinian factions "repeatedly declare that even if Israel would fully withdraw from the territories they will continue their attacks, since they refute Israel's basic right to exist."14
In fact, however, whatever Hamas's many faults, in this regard it has repeatedly declared the opposite. That is, it has (1) declared its willingness to support a long term truce (for as long as fifty years, or even indefinitely) if Israel were to withdraw from the occupied territories;15 and (2) it has indicated that if Israel withdrew and the Arab states then recognized Israel in conformity with the Arab Peace Initiative, it would not oppose the settlement.16 Hamas's position is not unlike that expressed by then-Israeli prime minister Ehud Olmert, when he addressed a joint session of the U.S. Congress in 2006. He declared his continuing belief "in our people's eternal and historic right to this entire land."17 Yet, he said, he understood the necessity of compromise. Hamas has taken a similar position: it considers Palestine in its entirety to be sacred Muslim land, it considers the state of Israel to be illegitimate, but yet it has made clear on numerous occasions that it is willing to compromise, and that it would accept a two-state solution on the 1967 borders, with East Jerusalem as the capital of the Palestinian state, along with a long-term truce.
The fact that Israel's "disengagement" from Gaza did not put an end to all violence does not show that ending the occupation as a whole would not lead to peace. Under the "disengagement," Israeli settlers were removed from Gaza, but more new settlers moved to the West Bank in 2005 than left Gaza and more Palestinian land was taken over on the West Bank than was given up in Gaza.18 As Ariel Sharon's chief aide, Dov Weisglass, told an interviewer for an Israeli newspaper: The significance of the disengagement plan
"is the freezing of the political process. And when you freeze that process you prevent the establishment of a Palestinian state and you prevent a discussion about the refugees, the borders and Jerusalem. Effectively, this whole package that is called the Palestinian state, with all that it entails, has been removed from our agenda indefinitely."19
It is not surprising that such a disengagement did not bring peace. As Jerome Slater has noted,
"even if Israel had genuinely withdrawn from Gaza and also ended all its other means of repression of its people, that hardly would have met the need and the right of the Palestinians as a whole for a viable independent state of their own. The Palestinians living in Gaza are not a separate nation from those living in the West Bank and East Jerusalem; to believe otherwise is the equivalent of believing that if in the 1770s the British had withdrawn from New Jersey but continued to occupy New York, the residents of New Jersey would no longer have the right to take up arms in support of American independence."20
Thus, in response to Israel's question, "what else could it do given the barrage of rockets that were being fired from Gaza?," the answer was clear: end the occupation. Thus, Operation Cast Lead was not a "last resort." Under just war theory, a war must be a last resort in order to meet the jus ad bellum criteria. And under international law, "necessity" is a legal requirement for war, a condition not met if there was an alternative that would have eliminated the claimed cause of the war.
But even short of ending the occupation, Operation Cast Lead was not a last resort. There had been a "lull" -- a truce -- between Hamas and the Israeli government that was supposed to run from mid-June 2008 until mid-December 2008 and the truce could have been extended. That it was not was largely Israel's fault.
The lull have gotten off to a rocky start. Islamic Jihad fired a few rockets from Gaza in response to the Israeli killing of one of their senior militants on the West Bank.21 But Hamas was generally able to convince the other Palestinian groups to respect the lull. In the five and half months before the lull there were 1,072 rockets fired from Gaza and 1,199 mortar shells. For the four and a half months from the start of the lull until November 4 there were 20 rockets and 18 mortar shells.22 No Israeli was killed -- by rocket, mortar, sniper, or improvised explosive device from Gaza from mid-June to November 4.23
Regarding the sporadic firings during this period, the Intelligence and Terrorism Information Center (an organization closely tied to the Israeli government) wrote:
"... Hamas was careful to maintain the ceasefire and its operatives were not involved in rocket attacks. At the same time, the movement tried to enforce the terms of the arrangement on the other terrorist organizations and to prevent them from violating it. Hamas took a number of steps against networks which violated the arrangement, but in a limited fashion and contenting itself with short-term detentions and confiscating weapons."24
Then, on the evening of November 4, 2008, Israel violated the ceasefire by sending troops into Gaza. As the Guardian reported,
"The Israeli military said the target of the raid was a tunnel that they said Hamas was planning to use to capture Israeli soldiers positioned on the border fence 250m away.... One Hamas gunman was killed and Palestinians launched a volley of mortars at the Israeli military. An Israeli air strike then killed five more Hamas fighters."25
Hamas responded with rocket fire, and the lull was then severely undermined. Both sides engaged in military actions from that point on, though not at the pre-lull level.
As the mid-December formal end of the lull approached, Hamas made clear that it was interested in extending the lull, but with a crucial condition. One of the initial terms -- as reported in the press; there was no official written text -- had been that Israel would lift the crushing blockade it had imposed on imports into and exports from Gaza.26
Israel did relieve the closures, but did not allow imports to return to anything approaching the levels of either December 2005 (before Hamas won the legislative council elections) or May 2007 (before Hamas took power in Gaza). During July 2008, the first full month of the lull, according to the UN, "the population of Gaza saw little tangible dividend from the truce implemented on 19 June, as the amount of commodities allowed into the Gaza Strip remained far below the actual needs."27 Imports were less than half what they were in December 2005. This was nevertheless higher than in August, when imports dropped 30 percent, to a level about that of March 2008 -- when aid agencies and human rights groups warned that the blocaked was causing a "humanitarian implosion."28 In September there was a 15 percent increase, but in October there was another 30 percent decline. (See table.) Moreover, throughout the lull Israel continued to ban all exports from Gaza,29 essentially rendering Gaza's economy non-functional. In October 2008, the World Bank reported that only about 2% of Gaza's industrial establishments were still functioning, industrial employment had dropped from 35,000 in 2005 to 840, and 40,000 jobs in agriculture were lost.30
Truckloads Per Month Entering Gaza31
Israel closed Gaza's borders allowing just 579 trucks into the territory for the entire month of November (see table above) -- this to support 1.5 million people. Furthermore, noted the UN,
"Staff and assistance from international NGOs were prevented from entering Gaza throughout the month. Additionally, the intensified closure forced UNRWA to suspend food distribution for five days during the month, along with its cash assistance programme, as a result of restrictions on cash shipments to Gaza."32
According to UNICEF, lack of fuel, electricity, and spare parts interrupted Gaza's water supply. In Gaza City 50% of the population had access to water only several hours a week; 30% had access every four days and 20% every three days. Other areas of Gaza received water on average every other day.33
It was obvious that Hamas could never agree to an extension of a truce while this sort of crippling economic blockade was in place. But, as Hamas leader Khalid Mish'al explained, "When this broken truce neared its end, we expressed our readiness for a new comprehensive truce in return for lifting the blockade and opening all Gaza border crossings, including Rafah. Our calls fell on deaf ears." Numerous statements before the expiration of the cease-fire made clear that this was Hamas's position.34 Jimmy Carter described his efforts at mediation:
"It was clear that the preeminent issue was opening the crossings into Gaza. Representatives from the Carter Center visited Jerusalem, met with Israeli officials and asked if this was possible in exchange for a cessation of rocket fire. The Israeli government informally proposed that 15 percent of normal supplies might be possible if Hamas first stopped all rocket fire for 48 hours. This was unacceptable to Hamas, and hostilities erupted."35
Fifteen percent of normal supplies was less than the inadequate July level.36 It is thus not at all surprising that Hamas rejected such an agreement.
Thus, the second answer to the Israeli question, "what else could it do given the barrage of rockets that were being fired from Gaza?," was clear: lift the blockade -- which it ought to have done on humanitarian grounds in any case -- and then a truce would be possible, and there would be no need for war to end rocket attacks.
Hamas foolishly and immorally decided that renewed rocket attacks would make Israel more accommodating. Immorally, because Israel's punishment of innocent Palestinians does not justify punishment of innocent Israelis. Foolishly, because it played right into the hands of those Israeli leaders who wanted a war to redeem themselves and Israel's military reputation after the debacle of the 2006 war with Lebanon. But this Hamas policy doesn't alter the fact that Israel could have ended rocket attacks without the need for resort to war.
Now it might be argued that a truce was too dangerous for Israel because Hamas could not be trusted to keep its word. In fact, however, just as it was Israel, not Hamas, that broke the 2008 truce, so Hamas's record for maintaining truces was better than that of Israel. Sherifa Zuhur, a leading U.S. authority on Hamas, wrote in a study recently published by the U.S. Army War College that truces with Hamas in 2002 and 2003 "were broken when Israelis assassinated HAMAS leaders."37 A former senior European security official interviewed by the International Crisis Group pointed to:
"continued Israeli assassinations and killings that completely undermined genuine attempts at de-escalation. Israel's response created a self-fulfilling prophecy. They had the expectation of failure and in effect guaranteed it. . . .[T]here were continued provocations, a dismissive attitude, no confidence-building measures, and unhelpful statements. Israel's Minister of Defence would publicly claim that Hamas is re-grouping and that [the] IDF must prepare for a massive attack. Hamas begins to prepare for this eventuality. To Israel this is proof of its original thesis, a casus belli. It attacks, Hamas responds, the IDF feels vindicated and the hudna [truce] is history."38
And Nancy Kanwisher and her associates did a quantitative study showing that whenever there was a pause in the killing, Israel was much more likely to break it than was Hamas, and the longer the pause, the more likely that it was Israel that broke it.39
There is thus no justification for Israel to have refused to pursue a continuation of the lull, and thus no necessity for having gone to war.
A country that has just cause to go to war must still act proportionately. Israel did not have just cause to go to war -- given the fact that it is an occupying power, trying to maintain its occupation, and given the fact that the rocket fire could have been ended by agreeing to extend the truce with a lifting of the blockade. Therefore, regardless of how Israel conducted itself, its war would have been unjust.
But for those who believe (wrongly) that Israel did have just cause, the war would still not be just if it were not carried out in conformity with the principle of proportionality.
Under both international law and just war theory, the principle of proportionality prohibits attacking a military objective if doing so will result in a loss of civilian life or damage to civilian property or the natural environment that outweighs the value of the objective. The weighing here obviously includes a subjective component -- exactly how many civilians might one kill in order to destroy a military objective which in turn may cause harm to one's own population. But the subjectivity is not unlimited. Surely to destroy the capability to launch weapons that had caused 22 deaths over 7 years (and none since June 5, 2008),40 it cannot be proportionate to kill hundreds of civilians. This though is exactly what Israel did in Operation Cast Lead: some 1,400 Palestinians were killed, at the very least half of them civilians.41 Thirteen Israelis were also killed, of whom three were civilians.
Michael Walzer argues, correctly, that proportionality is forward-looking, not backward looking: that is, that the harm caused by one's attack should be weighed against the likely future harm from not attacking rather than against the harm caused previously.42 But since the future harm to Israel from not attacking was likely zero if Israel had seriously pursued a truce with Hamas, let alone if it had moved to end the occupation, the proportionality principle would ban any attack at all.
Did Israel really think what it did in Gaza was proportionate? It is doubtful. In fact, its officials and think-tank analysts explicitly advocated acting disproportionately.43 When one's approach to dealing with Palestinians -- and Arabs more generally -- is to intimidate and bully rather than to seek some sort of diplomatic solution, it is no surprise that the chief concern will be the strength of one's deterrent, which means that ferocity, not proportionality, will be what is valued.
Israel maintains that any civilians killed were unintended and regretted accidents and that it was Hamas that bears responsibility for any Palestinian civilian casualties because it intermingled its military assets with civilians. Neither of these are convincing claims.
It is hard to claim that deaths were unintended when a member of the IDF General Staff told a journalist before the Operation took place that 600-800 civilian deaths were expected.44 Or when a senior IDF officer declared that "When we suspect that a Palestinian fighter is hiding in a house, we shoot it with a missile and then with two tank shells, and then a bulldozer hits the wall. It causes damage but it prevents the loss of life among soldiers."45 Or when the IDF approach was, in the words of an Israeli commander, "We are very violent. We do not balk at any means to protect the lives of our soldiers."46 Or when the weapons used in one of the most densely populated areas in the world were those that cannot possibly discriminate between combatants and noncombatants, such as white phosphorus,47 flechettes,48 and 155 mm. artillery shells.49 And when it was known beforehand that, "Unlike in Lebanon, the civilians in Gaza won't have many places to escape to," in the words of the IDF Chief of Staff50 -- precisely because Israel prohibited Gazans from seeking refuge. As the United Nations High Commissioner for Refugees put it, Gaza was "the only conflict in the world in which people are not even allowed to flee."51
Moreover, apart from the permissive rules of engagement recently documented,52 we know that the IDF did intentionally strike certain civilian targets: civilian police, and government buildings for which no claim was made that they were being improperly used for military purposes.
Now it might be argued that police are armed and hence legitimate targets, but international law is quite explicit that police are presumptively civilians unless they are taking part in hostilities.53 A territory of one and a half million people needs police -- to direct traffic, prevent crime, and so on -- this doesn't make them combatants. The police attacked by Israel were not engaged in hostilities: many of them were police cadets at a graduation ceremony. In its opening salvo, Israel bombed (in the words of the Israeli human rights organization B'Tselem) "the main police building in Gaza and killed, according to reports, forty-two Palestinians who were in a training course and were standing in formation at the time of the bombing. Participants in the course study first-aid, handling of public disturbances, human rights, public-safety exercises, and so forth. Following the course, the police officers are assigned to various arms of the police force in Gaza responsible for maintaining public order."54
It is true, of course, that these police trainees might have become Hamas fighters at a later point in time. But it is also true that attacks on many Israeli civilian targets kill those who -- given widespread membership in the reserves -- might later be called to military duty. It would be grotesque to justify the suicide bombing of a bus by pointing to the reserve status of the victims. It is no less grotesque to justify the slaughter of these police cadets. And think what we would say if Osama bin Laden declared that many of the casualties on 9-11 were legitimate military targets because they were New York City police.
Israel has also targeted government buildings and anyone connected to Hamas, regardless of their war role, and Israeli officials have acknowledged that these attacks were intentional and have felt no need to show that the building or person in question had a military connection. A senior Israeli military official told the Washington Post, "There are many aspects of Hamas, and we are trying to hit the whole spectrum, because everything is connected and everything supports terrorism against Israel." Major Avital Leibovitch, an IDF spokeswoman, said, "Anything affiliated with Hamas is a legitimate target."55 Brigadier General Dan Harel declared:
"We are hitting not only terrorists and launchers, but also the whole Hamas government and all its wings.... We are hitting government buildings.... After this operation there will not be one Hamas building left standing in Gaza...."56
"'Hamas's civilian infrastructure is a very, very sensitive target. If you want to put pressure on them, this is how,' said Matti Steinberg, a former top adviser to Israel's domestic security service and an expert on Islamist organizations."57 On January 13, the New York Times reported that Israeli intelligence officials said that although the military wing of Hamas remained substantially intact, (in the Times's words) "greater damage has been done to Hamas's capacity to run the Gaza strip, with a large number of government buildings destroyed over the course of the operation."58
Israel also intentionally bombed civilian money exchange shops on the grounds that this was a way to harm Hamas financially.59 Again, what would we think of an argument by bin Laden that striking the World Trade Center was a legitimate military target because this was a way to harm the U.S. government financially?
Israel is quite right that international humanitarian law prohibits placing military assets in civilian areas. Nevertheless, this doesn't give an attacker unlimited right to then strike these assets. The attacker must still weigh the harm to civilians against the military benefit. As Human Rights Watch explains:
"...the attacking party is not relieved from its obligation to take into account the risk to civilians simply because it considers the defending party responsible for having located legitimate military targets within or near populated areas. That is, the presence of a Hamas commander or military facility in a populated area would not justify attacking the area without regard to the threatened civilian population."60
In addition, since Israel's target list included the homes of Hamas leaders, there is no way that Hamas could have avoided intermingling civilians with military targets.
The comments of a former U.S. Marine are relevant here. One can question his account of what actual U.S. policy was in Iraq, but his remarks are telling nonetheless:
"I recently retired from the US Marine Corps, but I saw service in Iraq. I do know something of military matters that are relevant to the situation now in Gaza.
"I am dismayed by the rhetoric from US politicians and pundits to the effect that 'if the US were under rocket attack from Mexico or Canada, we would respond like the Israelis'. This a gross insult to US servicemen; I can assure you that we would NOT respond like the Israelis. In fact, US armed forces and adjunct civilians are under attack constantly in Iraq and Afghanistan by people who are much better armed, much better trained and far deadlier than Hamas.... Israel has indeed taken a small number of casualties from Hamas rocket fire (about 20 killed since 2001), but we have taken thousands of casualties in Iraq and Afghanistan, including many civilian personnel. Hundreds of American casualties have occurred due to indirect fire, often from mortars. This is particularly true in or near the Green Zone in Baghdad. This fire often originates from densely populated urban areas.
"Americans do not, I repeat DO NOT, respond to that fire indiscriminately. When I say 'indiscriminately', I mean that even if we can precisely identify the source of the fire (which can be very difficult), we do not respond if we know we will cause civilian casualties. We always evaluate the threat to civilians before responding, and in an urban area the threat to civilians is extremely high. If US servicemen violate those rules of engagement and harm civilians, I assure you we do our best to investigate -- and mete out punishment if warranted."61
Two further points should be noted.
First, the IDF has also used Palestinian civilians as human shields. According to Malcolm Smart, Director of Amnesty International's Middle East and North Africa Program, "Our sources in Gaza report that Israeli soldiers have entered and taken up positions in a number of Palestinian homes, forcing families to stay in a ground floor room while they use the rest of their house as a military base and sniper position." This, said Smart, "clearly increases the risk to the Palestinian families concerned and means they are effectively being used as human shields."62
Second, the IDF also intermingles it forces with Israeli civilians. Consider this report from the Israeli-government linked think tank:
"January 8: A rocket barrage was fired at an Israel village in the northwestern Negev. Seven IDF soldiers were wounded, one critically, one seriously, and five sustained minor injuries."63
Hamas, of course, was guilty of war crimes of its own: firing rockets at civilians and apparently killing some of its political opponents.64 Whether Hamas used human shields is not yet clear: Israel makes this claim, but kept independent human rights observers out of Gaza during the fighting and for much time afterwards.65 When Human Rights Watch was able to examine similar Israeli claims in the 2006 Lebanon war, they found the claims to be false.66
Israel's crimes -- though on a vastly larger scale than those of Hamas as measured by civilian casualties -- do not justify what Hamas did. Nor does the fact that Israel violated jus ad bellum make permissible violations of jus in bello by Hamas. However, there is one connection between jus ad bellum and jus in bello that should be noted. If a country engages in an unjust war, then not only are the civilian deaths unjustified killing, but so too are the combatant deaths. This doesn't necessarily mean that the individual soldiers doing the killing are the equivalent of murderers, and certainly not that they should be punished as such. But a state launching an unjustified war -- which, I have argued here, Israel did -- has blood on its hands not just for the civilians killed, but for the soldiers as well. The responsible officials should be brought to account.
Operation Cast Lead was a massively disproportionate assault on a imprisoned population. Even if Israel had just cause to go to war, its conduct was morally and legally grotesque. But Israel did not have just cause to go to war: the threat posed by Palestinians rockets could have been nullified by ending the four-decade long occupation or even by simply lifting the blockade of Gaza, a blockade that was in any event a morally unacceptable form of collective punishment.
Jimmy Carter was exactly right when he called this "the unnecessary war."67 And an unnecessary war is necessarily an unjust and illegal war.
1. Amos Harel, "IDF in Gaza: Killing civilians, vandalism, and lax rules of engagement," Haaretz, Mar. 19, 2009; Amos Harel, "'Shooting and crying'," Haaretz, Mar. 20, 2009; Amos Harel, "Testimonies on IDF misconduct in Gaza keep rolling in," Haaretz, Mar. 22, 2009.
2. Uri Blau, "Dead Palestinian babies and bombed mosques - IDF fashion 2009," Haaretz, Mar. 20, 2009.
3. "Judgment of the International Military Tribunal for the Trial of German Major War Criminals," Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945 - 1 October 1946 ("The Nazi Regime in Germany: The Common Plan or Conspiracy and Aggressive War").
4. Israel Ministry of Foreign Affairs, "What is the status of the territories?" Israel, the Conflict and Peace: Answers to frequently asked questions, Nov. 2007.
5. Even the US government doesn't accept this view. See the CIA World Factbook which states: "West Bank and Gaza Strip are Israeli-occupied with current status subject to the Israeli-Palestinian Interim Agreement - permanent status to be determined through further negotiation." Accessed 3/23/09.
6. Israel Ministry of Foreign Affairs, "What is the status of the territories?" Israel, the Conflict and Peace: Answers to frequently asked questions, Nov. 2007.
7. "Excerpts from Begin Speech at National Defense College," New York Times, Aug. 21, 1982.
8. Donald Macintyre, "Secret memo shows Israel knew Six Day War was illegal," The Independent, May 26, 2007.
9. International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, July 9, 2004; Declaration of Judge Buergenthal (agreeing that the Israeli settlements violate Article 49, paragraph 6, of the Fourth Geneva Convention and thus violate international humanitarian law).
10. John Dugard, Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, report transmitted by the Secretary General, "Situation of human rights in the Palestinian territories occupied since 1967," UN General Assembly doc. A/61/470, Sept. 27, 2006.
11. Human Rights Watch, "Letter to Olmert: Stop the Blockade of Gaza," Nov. 20, 2008.
12. Sari Bashi and Kenneth Mann, Disengaged Occupiers: The Legal Status of Gaza, Tel Aviv: Gisha: Legal Center for Freedom of Movement, Jan. 2007.
13. This is David Luban's argument for why "the Israeli operation should be regarded as an armed conflict, not an act of occupation" ("Was the Gaza Campaign Legal?" American Bar Association National Security Law Report, Vol. 31, No. 1, Jan./Feb. 2009, p. 3.
14. Israel Ministry of Foreign Affairs, "Which came first - terrorism or 'occupation'?" Israel, the Conflict and Peace: Answers to frequently asked questions, Nov. 2007.
15. See, for example, Ismail Haniya, "A just peace or no peace," Guardian, Mar. 31, 2006; Danny Rubinstein, "Haniya tells Haaretz: Withdrawal to 1967 borders will lead to peace," Haaretz, May 23, 2006 (summary here); Ismail Haniyeh, "Aggression Under False Pretenses," Washington Post, July 11, 2006; Ahmed Yousef, "What Hamas Wants," New York Times, Nov. 1, 2006; Khalid Mish'al, "Our unity can now pave the way for peace and justice," Guardian, Feb. 13, 2007; Amira Hass, "Haniyeh: Hamas willing to accept Palestinian state with 1967 borders," Haaretz, Nov. 9, 2008. See also Jennifer Loewenstein, "Setting the Record Straight on Hamas," CounterPunch, June 12, 2006; Khalid Mish'al interviewed by Ibrahim Humaydi, Damascus, October 10, 2006, published in al-Hayat, Oct. 12, 2006, quoted in Sherifa Zuhur, Hamas and Israel: Conflicting Strategies of Group-Based Politics (Carlisle, PA: Strategic Studies Institute, U.S. Army War College, Dec. 2008), pp. 45-46; International Crisis Group (ICG), Palestinians, Israel and the Quartet: Pulling Back from the Brink, Middle East Report N°54, June 13, 2006, p. 3 (Crisis Group interview with Riad Mustafa, a Hamas parliamentarian, Ramallah, May 2006).
16. Robert Plotkin, "Hamas would accept Saudi peace plan, spokesman says," San Francisco Chronicle, Apr. 28, 2002.
17. U.S. Congressional Record, May 24, 2006, p. 3144.
18. Chris McGreal, "Israel redraws the roadmap, building quietly and quickly; Settler population grows as Sharon grabs more West Bank land than he returned in Gaza," Guardian, Oct. 18, 2005.
19. Avi Shavit, "The big freeze," Haaretz, Oct. 8, 2004.
20. Jerome Slater, "A Perfect Moral Failure: Just War Philosophy and the Israeli Attack on Gaza," Tikkun, Mar. 2009 [extended, footnoted version on the Tikkun website], pp. 4-5.
21. Avi Issacharoff and The Associated Press, "Gaza truce shaken as four Qassams slam into west Negev," Haaretz, June 24, 2006.
22. Intelligence and Terrorism Information Center (ITIC), "Summary of rocket fire and mortar shelling in 2008," Jan. 1, 2009, p. 7. The source gives three contradictory sets of statistics for July-October (cf. pp. 6, 8), but these are the most consistent figures. Three of these rockets and five of the mortar shells landed within Gaza.
23. See the listing of Israeli casualties at Israeli Ministry of Foreign Affairs, "Victims of Palestinian Violence and Terrorism since September 2000," accessed 1/9/09.
24. ITIC, Six Months of the Lull Arrangement, Dec. 2008, p. 7.
25. Rory McCarthy, "Gaza truce broken as Israeli raid kills six Hamas gunmen," Guardian, Nov. 5, 2008.
26. AP, "Details of Israel-Hamas Truce," June 17, 2008.
27. United Nations, Office for the Coordinator of Humanitarian Affairs (OCHA), "Humanitarian Monitor," No. 27, July 2008, p. 4.
28. Amnesty International UK, et al., The Gaza Strip: A Humanitarian Implosion, Mar. 6, 2008.
29. OCHA, "Humanitarian Monitor," No. 31, Nov. 2008, p. 4.
30. Cited in Human Rights Watch, "Deprived and Endangered: Humanitarian Crisis in the Gaza Strip," Jan. 13, 2009.
31. OCHA, "Humanitarian Monitor," no. 24, Apr. 2008 (for Mar. and Apr.); no. 26, June 2008 (for May and June 2008); no. 28, Aug. 2008 (for July and Aug.); no. 30, Oct. 2008 (for Sept. and Oct.); and no. 31, Nov. 2008 (for Dec. 2005, May 2007, and Nov. 2008).
32. OCHA, "Humanitarian Monitor," no. 31, Nov. 2008, p. 4.
33. OCHA, "Humanitarian Monitor," no. 31, Nov. 2008, p. 8.
34. See the quotes collected by ITIC, Escalation in attacks from the Gaza Strip as Hamas announces the end of the lull arrangement, Dec. 18, 2008, pp. 4-5.
35. Jimmy Carter, "The Unnecessary War," Washington Post, Jan. 8, 2009, p. A15.
36. Converting monthly to daily figures is not so simple because sometimes daily figures are the monthly figures divided by the number of days the crossings were potentially open -- that is, excluding the Sabbath and holidays. But in any event, Carter refers to the first period of the lull reaching only 20 percent of the normal level, so 15 percent would be lower than even the highest month of the lull.
37. Zuhur, Hamas and Israel: Conflicting Strategies of Group-Based Politics, p. 56.
38. ICG, Dealing With Hamas, , Middle East Report No. 21, Jan. 26, 2004, p. 56.
39. Nancy Kanwisher, Johannes Haushofer, and Anat Biletzki, "Reigniting Violence: How Do Ceasefires End?," Huffington Post, Jan. 6, 2009.
40. ITIC, Rocket threat from the Gaza Strip, 2000-2007, Dec. 2007, pp. 72, 74, 101-02 (two additional mortar victims were soldiers); ITIC, Summary of rocket fire and mortar shelling in 2008, Jan. 1, 2009, p. 3.
41. The Palestinian Center for Human Rights provided a list of names of 1,434 (updated figure) killed, with over 900 of them civilians. The IDF has offered two conflicting counts, without revealing its listing of names, with much lower civilian tolls, but these counts both treat all police as combatants and leave a large category of uncategorized victims. If, as per international humanitarian law which deems civilian police not involved in hostilities to be noncombatants (see note 53 below), we reclassify the police, fewer than half the dead were claimed by the IDF to be known to be militants. (See Sagi Or, "How many Palestinians were killed?" Haaretz, Mar. 19, 2009; PCHR, "Press Release: Confirmed figures reveal the true extent of the destruction inflicted upon the Gaza Strip; Israel's offensive resulted in 1,417 dead, including 926 civilians, 255 police officers, and 236 fighters," Ref: 36/2009, Mar. 12, 2009; Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk, A/HRC/10/20, Mar. 17, 2009, paragraph 8a; Amos Harel, "IDF: 600 Hamas men, 309 civilians died in Gaza offensive," Haaretz, Mar. 25, 2009; Anshel Pfeffer and Associated Press, "Israel challenges Palestinian claim on Gaza war dead," Haaretz, Mar. 26, 2009; PCHR, "Press Release: PCHR Contests Distortion of Gaza Strip Death Toll," Ref: 44/2009, Mar. 26, 2009.
42. Michael Walzer, "The Gaza War and Proportionality," Dissent magazine online, Jan. 8, 2009. Walzer notes that Hamas's weaponry has been constantly improving, so the potential for future harm was far greater than the few pre-December 27, 2009 deaths. But note that though Hamas had longer range rockets in its arsenal, it did not use these until after Israel began Operation Cast Lead. The rockets it did fire immediately before Cast Lead caused no serious injuries and mostly landed in open fields -- "probably by design," notes former Israeli peace negotiator Daniel Levy ("What next on Gaza/Israel and Why Americans Should Care," Prospects for Peace, Dec. 27, 2008).
43. Reuters, "Israel warns Hezbollah war would invite destruction," Oct. 3, 2008; Gabriel Siboni, "Disproportionate Force: Israel's Concept of Response in Light of the Second Lebanon War," INSS Insight No. 74, Oct. 2, 2008. During the 2006 Lebanon war, Israel's ambassador to the United Nations responded to charges that Israel was using disproportionate force, saying "You're damn right we are." (Steven Erlanger, "With Israeli Use of Force, Debate Over Proportion," New York Times, July 19, 2006.) See also Ben White, "Israel: Wedded to War?" Guardian, Oct. 7, 2008.
44. Amos Harel, "Cast Lead expose / What did the IDF think would happen in Gaza?" Haaretz, Mar. 28, 2009.
45. Amos Harel, "IDF officer: 'It will take many years to restore' bomb-wracked Gaza," Haaretz, Jan. 7, 2009.
46. Amos Harel and Avi Issacharoff, "Israel and Hamas are both paying a steep price in Gaza," Haaretz, Jan. 10, 2009.
47. Human Rights Watch, Rain of Fire: Israel's Unlawful Use of White Phosphorus in Gaza, 2009.
48. Amnesty International, "Israeli army used flechettes against Gaza civilians," Jan. 27, 2009.
49. Human Rights Watch (HRW), "Israel: Stop Shelling Crowded Gaza City," Jan. 16, 2009.
50. Amos Harel, "Cast Lead expose / What did the IDF think would happen in Gaza?" Haaretz, Mar. 28, 2009. The Chief of Staff warned the cabinet, "When an armored force enters the city, shells will fly, because we'll have to protect our people."
51. Quoted in Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk, A/HRC/10/20, Mar. 17, 2009, paragraph 18.
52. See note 1.
53. HRW, "Israel/Hamas: Civilians Must Not Be Targets; Disregard for Civilians Underlies Current Escalation," Dec. 30, 2008.
54. B'Tselem, "B'Tselem to Attorney General Mazuz: Concern over Israel targeting civilian objects in the Gaza Strip," Dec. 31, 2008.
55. Griff Witte and Sudarsan Raghavan, "'All-Out War' Declared on Hamas; Israel Expands List of Targets to Include Group's Vast Support Network in Gaza," Washington Post, Dec. 30, 2008, p. A01.
56. Tova Dadon, "Deputy chief of staff: Worst still ahead," Ynet, Dec. 29, 2008.
57. Witte and Raghavan, "'All-Out War' Declared on Hamas; Israel Expands List of Targets to Include Group's Vast Support Network in Gaza," p. A01.
58. Steven Erlanger and Michael Slackman, "Israel Says Hamas Is Damaged, Not Destroyed," New York Times, Jan. 13, 2009.
59. Ethan Bronner, "Israel Rejects Cease-Fire, but Offers Gaza Aid," New York Times, Jan. 1, 2009.
60. Human Rights Watch, "Q & A on Hostilities between Israel and Hamas," Dec. 31, 2008.
62. Amnesty International, "Gaza civilians endangered by the military tactics of both sides," Jan. 8, 2009.
63. ITIC, "Operation Cast Lead, Update No. 10," Jan. 8, 2009.
64. Amnesty International, "Hamas waged a deadly campaign as war devastated Gaza," Feb. 12, 2009.
65. Human Rights Watch, "Israel: End Ban on Human Rights Monitors; IDF Denies Human Rights Watch, B'Tselem Access to Gaza," Feb. 22, 2009.
66. Human Rights Watch, Fatal Strikes: Israel's Indiscriminate Attacks Against Civilians in Lebanon, Aug. 2, 2006.
67. Jimmy Carter, "The Unnecessary War," Washington Post, Jan. 8, 2009, p. A15.