Australia/Israel & Jewish Affairs Council

Gaza and Annapolis

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Update from AIJAC

March 6, 2008
Number 03/08 #02


US Secretary of State Condoleezza Rice is back in the Middle East trying to get the Israel-PA talks, begun at Annapolis in November, restarted after the recent clashes in and around Gaza. This Update look at how the Gaza problem is hampering prospects in this area.

First up, Washington Institute peace process specialist David Makovsky argues that Hamas-controlled Gaza is essentially a problem that is going to make progress in talks very difficult and must be tackled.  He suggests four steps for Rice to take to help neutralise this problem. For all of his suggestions, CLICK HERE. Meanwhile, The Jerusalem Post  editorialises that Rice needs to push Abbas to strengthen a Palestinian narrative of eventual two-state coexistence in response to Hamas'  rejectionist narrative.  The Times (UK) argues that the Gaza situation may make plans to establish a Palestinian state unviable, and require Egyptian and Jordanian intervention.

Next up, Israeli columnist Calev Ben-David also takes up the case that the Gaza problem must be tackled first, before the Annapolis process can have much prospect of success. He says the belief that the Gaza problem can be circumvented or left for later has been proven wrong, and Rice must turn her attention to it if the larger peacemaking project is to move forward. For his full argument, CLICK HERE.

Finally, American law professor Michael I. Krauss takes on the argument that Israeli policy toward the Gaza Strip can be considered "Collective Punishment" of its inhabitants. He examines the origins of the international law "collective punishment" prohibition and what it actually applies to. He then looks especially at the claim that Israel is not allowed to withhold fuel or electricity in response to attacks, and argues it is under no obligation to supply them in the first place. There's much more of course, and to read it all, CLICK HERE. Also discussing the question of whether Israel is legally obliged to supply goods to Gaza is Israeli international law specialist Dr. Avi Bell.  Answering the accusation that Israeli military actions in Gaza are "disproportionate" are the Israeli Foreign Ministry and the "Myths and Facts" website.

Readers may also be interested in:


Gaza v. Annapolis

By David Makovsky

International Herald Tribune, Tuesday, March 4, 2008

WASHINGTON: It is be tempting to view the current violence in Gaza as just another symptom of the greater Israeli-Palestinian conflict.

But it is not. The Hamas-sanctioned rockets and the Israeli retaliation are actually at the core of Secretary of State Condoleezza Rice's inability to move the peace process even one inch forward since it was launched in Annapolis last November. Stop the rockets, and the process could move.

Annapolis certainly has been plagued with many problems, but nothing greater than the Gaza violence, which undermines any confidence among Israelis and Palestinians that the conflict can be solved.

In Israel, the violence emanating from Gaza undercuts a central premise: that the end of occupation means an end of violence. Israelis believe that they disengaged from Gaza in 2005, but that Gaza did not disengage from them. In 2007 alone, more than 3,000 rockets were fired from Gaza onto Israeli soil.

So now the idea of land for peace has been replaced by land for violence and vulnerability. And if Israelis do not like the book in Gaza, why would they want to see the movie in the West Bank, from where Qassam rockets could reach much of Israel?

Furthermore, the rockets not only put pressure on Prime Minister Ehud Olmert to retaliate, but also on Palestinian Authority President Mahmoud Abbas, who is made to appear impotent in the eyes of his public. Abbas was compelled to declare a freeze in the peace talks due to the violence.

Being surrounded by violence makes people view peace as a mirage. Unless treated quickly, the Gaza problem will not go away. Rocket fire could resume as soon as Rice leaves the region, if not before.

The earlier Palestinian rocket, the Qassam, has a range of 10 kilometers, putting the 20,000 Israelis in the town of Sderot within striking distance. Now the Palestinians have imported the Iranian Grad rocket, and have struck the Israeli coastal town of Ashkelon, 15 kilometers from Gaza, with 160,000 residents.

Until now, Rice's Gaza strategy has been to leverage a diplomatic breakthrough on the broader conflict, including the fate of the West Bank. She believed Abbas could use this to bring about his re-election, and thus achieve the political reunification of Gaza and the West Bank.

But things are not likely to get that far. Abbas cannot reach a deal because of the ongoing violence, and Israelis will see Gaza as a cautionary tale against any deal over the West Bank.

There is little question that if Hamas ceases firing rockets on Israel, there will be no reason for Israel to strike back at Gaza. In other words, putting an end to the rocket fire would put an end to the violence. How can this be achieved?

There are a few things Rice could do to improve the situation.

First, there needs to be a meaningful international consensus against such rocket attacks. No country would act with Israel's relative restraint after 3,000 rockets had been fired on its territory.

Second, Rice should urge the Arab states to acknowledge that the rockets attacks must stop. The same Arab League that views borders as sacrosanct has been silent about Arab attacks inside pre-1967 Israel.

Arab delegations came to Annapolis because they understood that peace requires a regional umbrella. It is in the interest of Arab states that an Islamist victory in Gaza not be emulated in the region. Arab leaders condemned Hezbollah's provocation at the start of the 2006 war, and they should do the same against Hamas now.

Third, Rice needs to urge the Egyptians to reach military-to-military cooperation with Israel to plug the tunnels used for smuggling rockets from Egypt to southern Gaza. The United States is sending technology and advisers to Egypt to deal with the tunnels, but there is no substitute for direct Israeli-Egyptian cooperation. And Egypt has its own interest in preventing an Islamist state on its eastern frontier.

Fourth, a de facto cease-fire with Hamas - facilitated by Egypt or Norway - cannot be ruled out. It is not a panacea, as some of its advocates believe. Hamas's price may be prohibitive, and it may not be willing to allow its Fatah rivals from the West Bank to take control over Gaza's crossing point.

Furthermore, previous failed cease-fires between Palestinian factions show that Hamas, which is sworn to Israel's destruction, is ideologically loathe to impose a cease-fire on other rejectionist groups.

Even a de facto cease-fire should not be confused with any direct engagement with Hamas. Such engagement can only undermine the Palestinian moderates who have taken risks for a two-state solution.

Should a cease-fire occur, its effectiveness would be based on improved Egyptian-Israeli cooperation along the porous southern Gaza border, where the arms originate. A de facto cease-fire with Hamas must not become a means for Hamas rearmament.

Gaza is itself a problem, but it is also a metaphor for a broader issue. Failure to grapple with it is to ensure the escalation of violence there, and to doom any chance Rice has of reinvigorating a diminishing Annapolis process.

David Makovsky is a senior fellow and director of the Project on the Middle East Peace Process at the Washington Institute for Near East Policy.

 
 Copyright © 2008 The International Herald Tribune | www.iht.com

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Analyze This: It's time for a second look at 'Gaza first'

Calev Ben-David

THE JERUSALEM POST, Mar. 5, 2008


Prime Minister Ehud Olmert spent Tuesday paying a solidarity visit to a community that has suffered the fear and terror of Katyusha attacks, the last one of which came in the summer of 2006.

Olmert decided to head north to Julis, just east of Acre, where he attended a gathering of senior Druse leaders.

He certainly wasn't lacking for political company in the area. Defense Minister Ehud Barak also traveled to the Western Galilee, visiting Shlomi to dedicate an air raid shelter and to meet with municipal leaders from other northern front-line communities. And as it happens, just down the road to the coast, President Shimon Peres was in Nahariya dedicating a new emergency room at the local hospital.

Presumably these visits were all planned well in advance and the timing was purely coincidental. Still, there's at least the appearance of incongruity when three of the nation's top leaders head up north on a day when the rockets from Gaza continue to pose an imminent threat to communities in the South, and just a day after the IDF's withdrawal from the Strip.

Perhaps there's a message here that even now, after more than 18 months of quiet following the Second Lebanon War, we must remain vigilant so the events of 2006 don't repeat themselves in the North.

Or maybe by heading up there our leaders can at least spend one day distracted from the fact that those events are in fact happening again to some degree in the South.

But the impact, literally and politically, of the rockets from Gaza is no longer an issue that should be put off for even one more minute, let alone a day.

As US Secretary of State Condoleezza Rice returns to Israel, it is the current status of Gaza - and not the future dispensation of the West Bank - that occupies the ranking position on the agenda of her discussions here.

It wasn't supposed to be this way. At Annapolis, and during the follow-up visits here by Rice and US President George W. Bush, Gaza almost seemed an afterthought. Pressed on how Israel and Fatah could possibly attain a two-state solution while Gaza remained firmly in Hamas hands, the US leadership insisted that the "vision of hope" embodied in a final-status agreement would enable the more moderate Palestinian forces to gain the upper hand there over the Islamists.

As for the Israeli side, Foreign Minister Tzipi Livni reminded the international diplomatic community here on Tuesday that Jerusalem believed "the success of this peace process depends on the determination of the leaders of both sides not to let the goings-on outside of the negotiating room enter the negotiating room."

Alas, in breaking off the talks with Israel this week, Palestinian Authority President Mahmoud Abbas made clear that this was not a feasible paradigm for him to live with - or more accurately, politically survive. And truth be told, neither is it for the current Israeli leadership, especially if the scope of attacks from Hamas continue to widen.

It is now more than abundantly clear - and should have been from the start of the Annapolis process - that Gaza is not an obstacle that can be circumvented and left for last. If anything, the opposite is true: In the past, both at the start of the Oslo process and during the 2005 disengagement, the logical beginning step was "Gaza first" - because it was in the Strip that Israel could most easily withdraw to the 1967 lines and provide the Palestinians with a contiguous piece of territory entirely under their authority, as a testing ground of their capability for national sovereignty.

While that experiment hasn't been a notable success, to say the least, it's a delusion to think the current situation there can be more or less put aside while the same experiment is repeated in the West Bank. For one thing, Hamas has made clear it won't let Israel do that, as long as it can manufacture its own rockets, or obtain even deadlier ones from Iran. And for another, it will use the Strip as a base to assiduously undermine the Fatah leadership in Ramallah, to the point where neither Abbas nor his successors will ever be in a position to make a final deal with Israel.

Livni made a belated admission of these facts Tuesday, when she said: "Let's assume that we reach a peace treaty. I hope so; this is what I'm devoted to. How can Abu Mazen [Abbas] and the others control the Gaza Strip in the future without internal fighting? They cannot. So to turn a blind eye to the situation in Gaza is something we cannot afford - and 'we' is Israel, 'we' is Abu Mazen and the others, and 'we' is the international community."

Whether Israel and the PA reach that agreement is irrelevant to the fortunes of Hamas in Gaza; the Islamist movement doesn't rule the area by popular consent, but the power of its weapons and its willingness to use them on its own people no less mercilessly than against Israelis.

And anyway, that agreement won't be reached as long as Hamas retains the power to strike at Israel with impunity.

So as tempting as it might be to look beyond the suffering of the civilians in Sderot, Ashkelon and those being held hostage by Hamas in Gaza to bigger and brighter visions elsewhere, now is the time that all of Livni's "we" - especially Rice, who has invested so much of her future status in achieving some kind of progress here - must turn their focus preeminently on Gaza first, and the task of changing the reality on the ground there, before whatever precious little is left of the peace process heads permanently south.

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Collective Punishment and Newspeak


By Michael I. Krauss

The American Thinker, February 24, 2008
 
Activists and some UN Security Council members argue that Israel's restrictions on fuel deliveries to Gaza constitutes collective punishment in violation of the Fourth Geneva Convention. The argument is nonsense.

On May 17, 1942, SS Obergruppenfuhrer Reinhard Heydrich was killed in the suburbs of Prague, Czechoslovakia  by a bomb thrown by Free Czech agents trained in England.  The killing of Heydrich, the commander ("Deputy Reich Protector of Bohemia and Moravia") of invading forces, was clearly legal under international law. 

In response, the Gestapo and the SS killed over 1000 people suspected of being involved in the plot.  In addition, 3000 Jews were deported from the ghetto at Terezin (Theresienstadt, created by Heydrich) for immediate extermination.  In Berlin 152 Jews were ordered executed on the day of Heydrich's death.  Finally, on June 10, 1942 Lidice was ordered destroyed.  All 172 Czech men and boys over 16 were shot.  80 women were deported to Ravensbruch concentration camp, where almost all died.  90 young children who looked Aryan were distributed to German families, while others were shipped to Gneisenau concentration camp for extermination.  The village itself was then razed and its name removed from German maps.

The massacre at Lidice, along with other Nazi atrocities such as the killing of the entire population (642) of Oradour-sur-Glane, France two years to the day after Lidice (to punish the village for Resistance activities) and the horrific massacres of Serbian civilians by SS Prinz Eugen  division troops for supporting the resistance movements, continued a sad German tradition [in the First World War, Germans had executed Belgian villagers in mass retribution for resistance activity].

These atrocities were fresh in the minds of international diplomats after the end of the War.  Article 33 of the Fourth (1949) Geneva Conventions enshrined collective punishment as a war crime, emphasizing individual responsibility:

Article 33. No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Pillage is prohibited. Reprisals against protected persons and their property are prohibited.

Article 52 of the Convention's Additional Protocol I (adopted in 1977) similarly states that "Civilian objects shall not be the object of attack or of reprisals." 

The doctrine of collective punishment has died hard, despite the Fourth Convention's clear insistence on individual responsibility. Arab states expelled the majority of their Jewish populations in reprisal for Israel's successful self-defense in the War of Independence.  Britain arguably used collective punishment against villages where Communist rebels had been concealed in Malaya in 1951, and again to suppress the Mau Mau uprising in Kenya in 1952.  Hafez El-Assad of Syria notoriously destroyed half of the conservative Sunni city of Hama (massacring 20,000 men, women and children) as collective punishment for a Muslim Brotherhood uprising against his Alawi regime in 1982. 

The Israeli Government's reduction of fuel and electricity exports to the Gaza Strip has recently been termed a modern instance of collective punishment that violates Israel's obligations under the laws of war. In a lawsuit filed by Israeli and Palestinian civil rights groups before Israel's Supreme Court, these organizations asked the Supreme Court to make Israel end fuel restrictions that caused power blackouts in the Gaza Strip. The activists argued, as did representatives of many members of the Security Council in their special meeting on the Middle East on January 22, 2008, that the restrictions constitute collective punishment of Gaza's 1.5 million people and violate the Fourth Geneva Convention.

But this claim is nonsense, and makes a mockery of international law. This is so for the following reasons:

It conflates failure to aid with active criminal harm.  Acts of war are launched daily against Israel from Hamas-run Gaza.  Bombs are lobbed against Israeli cities (especially Sderot), resulting in official government rejoicing when an Israeli civilian is killed or maimed.  Hamas denies Israel's right to exist, and has masterminded countless acts of war against military and civilian targets in Israel. 

The Jewish state has the uncontested right to defend itself against such acts of war.  The bar on collective punishment forbids the imposition of criminal or military penalties (imprisonment, death, etc) on some people for crimes committed by other individuals.  But ceasing trade with a country is not  inflicting a criminal or military penalty against that country's citizens, not least because those citizens have no entitlement to objects of trade that they have not yet purchased.  If Canada tolerated and celebrated car-bombings of Buffalo from Fort Erie, Ontario, the United States could cease exporting cars to Canada - such cessation of trade was never contemplated as collective punishment, because it is not a military or a criminal sanction. The United States quite legally froze trade with Iran after that country committed an act of War against the USA following the 1979 Revolution. 

Even prevention of access of goods coming from third parties is not collective punishment: the U.S. blockade of Cuba after they installed nuclear missiles directed at the United States was not a collective punishment of the Cuban people, it was a non-violent act of war in self-defense. In any case, Israel has made no effort to prevent Gaza from receiving electricity from Egypt; it has merely declined to furnish this assistance itself.  Article 49 of the Geneva Conventions clearly does not outlaw such acts.  The current misuse of the term in the Security Council would have exactly that effect.

The electricity withheld from sale was a military tool
. Article 52 of the 1977 Amendment to the Geneva Convention explicitly countenances attacks on legitimate military objectives, which are "those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage." As Israel has pointed out, its (minor) reduction in electricity sold means that "Hamas will have to decide whether to provide electricity to hospitals or weapons lathes."  Diesel will be allowed in to fuel ambulances, sewage pumps, generators and garbage trucks, but gasoline will be restricted.  According to estimates, Israel still exports approximately US$500 million worth of goods and services into the Gaza Strip each year.

The claim is Newspeak.   The charge of collective punishment is appropriately leveled against one side in the Israeli-Palestinian dispute; but that side is not Israel.  As Joseph Klein recently pointed out in a Front Page Magazine article, the innocent Israeli women and children slaughtered while going about their daily lives in homes, schools, on buses and at shopping malls are not warriors against the Palestinian people. They are in large number the victims of the Hamas' measures of collective punishment against Jews -- intimidation and terrorism, which violate their most basic of human rights - life itself.  Indeed, Israel has targeted the perpetrators of these atrocities individually, entirely in conformity with its international obligations.  When Israel kills such targets, precisely the people who have individually committed acts of war against Israel, it highlights the difference between legal force and collective punishment. 

Michael I. Krauss is Professor of Law, George Mason University


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