Australia/Israel & Jewish Affairs Council

Gaza Revisited

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Update from AIJAC

March 5, 2009
Number 03/09 #02

This Update features some pieces looking back, with a bit of hindsight, at the Gaza conflict at the beginning of this year, and the aftermath.

First up is British author Yvonne Green, who visited Gaza to see the effects of the Israeli operations there for herself. She finds a society intact, with busy streets and shops, while the destruction, she reports, appears to have been carefully targeted Hamas infrastructure. She also exposes considerable evidence that some of the allegations about much-reported events of the war do not bear close scrutiny - including the number of wounded and stories about the attack on Al-Fakhora, and an alleged massacre at Samouni Street. Green also reports that residents said that Israeli efforts to warn civilians to flee areas likely to be attacked were heeded and effective. For her full account from within Gaza, CLICK HERE. Another piece highlighting Israeli efforts to minimise civilian casualties comes from former Israeli official Uri Dromi.

Next up, top Israeli security reporter Ron Ben-Yishai details the recent discussions between Egypt, Hamas and Israel for a new longer-term ceasefire deal for Gaza. He says there is some agreement on most issues, but the problem is that there is a need to synchronise three different agreements - on a ceasefire, on the border crossings, and on a prisoner exchange for Gilad Shalit. He says Israel was burned before on Shalit, where Hamas promised progress after a ceasefire was agreed and didn't deliver, while Hamas is seeking to make sure the deal can be presented as a "diplomatic victory" for it. For this important detailing of what is currently being discussed and why progress is not occurring more quickly, CLICK HERE.

Finally, Marc Stern, a lawyer who serves as acting co-executive director of the American Jewish Congress, takes on Amnesty International's legal claims about the Gaza conflict. He points out that Amnesty is apparently re-defining the law of warfare to effectively make illegal almost all war, and certainly all war against irregular forces such as Hamas, al-Qaeda and the Taliban. He says that Amnesty's reporting effectively ignores all the law of war's key concepts which determine legality -  such as military necessity and proportionality -  and simply treats the death of civilians in any circumstances as proof of war crimes. For his full argument, CLICK HERE. Meanwhile, the Jerusalem Post editorialises about Amnesty's recent call for an arms embargo against Israel.

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Puzzled in Gaza


YVONNE GREEN

THE JERUSALEM POST, Mar. 2, 2009

I'm a poet, an English Jew and a frequent visitor to Israel. Deeply disturbed by the reports of wanton slaughter and destruction during Operation Cast Lead, I felt I had to see for myself. I flew to Tel Aviv and on Wednesday, January 28, using my press card to cross the Erez checkpoint, I walked across the border into Gaza where I was met by my guide, a Palestinian journalist. He asked if I wanted to meet with Hamas officials. I explained that I'd come to bear witness to the damage and civilian suffering, not to talk politics.

What I saw was that there had been precision attacks made on all of Hamas' infrastructure. Does UN Secretary-General Ban Ki-moon criticize the surgical destruction of the explosives cache in the Imad Akhel Mosque, of the National Forces compound, of the Shi Jaya police station, of the Ministry of Prisoners? The Gazans I met weren't mourning the police state. Neither were they radicalized. As Hamas blackshirts menaced the street corners, I witnessed how passersby ignored them.

THERE WERE empty beds at Shifa Hospital and a threatening atmosphere. Hamas is reduced to wielding its unchallengeable authority from extensive air raid shelters which, together with the hospital, were built by Israel 30 years ago. Terrorized Gazans used doublespeak when they told me most of the alleged 5,500 wounded were being treated in Egypt and Jordan. They want it known that the figure is a lie, and showed me that the wounded weren't in Gaza. No evidence exists of their presence in foreign hospitals, or of how they might have gotten there.

From the mansions of the Abu Ayida family at Jebala Rayes to Tallel Howa (Gaza City's densest residential area), Gazans contradicted allegations that Israel had murderously attacked civilians. They told me again and again that both civilians and Hamas fighters had evacuated safely from areas of Hamas activity in response to Israeli telephone calls, leaflets and megaphone warnings.

Seeing Al-Fakhora made it impossible to understand how UN and press reports could ever have alleged that the UNWRA school had been hit by Israeli shells. The school, like most of Gaza, was visibly intact. I was shown where Hamas had been firing from nearby, and the Israeli missile's marks on the road outside the school were unmistakeable. When I met Mona al-Ashkor, one of the 40 people injured running toward Al-Fakhora - rather than inside it as widely and persistently reported - I was told that Israel had warned people not to take shelter in the school because Hamas was operating in the area, and that some people had ignored the warning because UNWRA previously told them that the school would be safe. Press reports that fatalities numbered 40 were denied.

I WAS TOLD stories at Samouni Street which contradicted each other, what I saw and later media accounts. Examples of these inconsistencies are that 24, 31, 34 or more members of the Fatah Samouni family had died. That all the deaths occurred when Israel bombed the safe building it had told 160 family members to shelter in; the safe building was pointed out to me but looked externally intact and washing was still hanging on a line on one of its balconies. That some left the safe building and were shot in another house. That one was shot when outside collecting firewood. That there was no resistance - but the top right hand window of the safe building (which appears in a BBC Panorama film Out of the Ruins" aired February 8) has a black mark above it - a sign I was shown all day of weaponry having been fired from inside. That victims were left bleeding for two or three days.

I saw large scoured craters and a buckled container which appeared to have been damaged by an internal impact (its external surfaces were undamaged). Media accounts of Samouni Street don't mention these possible indications of explosive caches (although the container is visible on media footage). The Samouni family's elder told me during a taped interview that he had a CD film of the killings. As far as I'm aware, no such film has been made public. He also told me that there are members of his family who have still not been found.

The media have manufactured and examined allegations that Israel committed a war crime against the Samounis without mentioning that the family are Fatah and that some of its members are still missing. They have not considered what might flow from those facts: that Hamas might have been active not only in the Samouni killings but in the exertion of force on the Samounis to accuse Israel.

THE GAZA I saw was societally intact. There were no homeless, walking wounded, hungry or underdressed people. The streets were busy, shops were hung with embroidered dresses and gigantic cooking pots, the markets were full of fresh meat and beautiful produce - the red radishes were bigger than grapefruits. Mothers accompanied by a 13-year-old boy told me they were bored of leaving home to sit on rubble all day to tell the press how they'd survived. Women graduates I met in Shijaya spoke of education as power as old men watched over them.

No one praised their government as they showed me the sites of tunnels where fighters had melted away. No one declared Hamas victorious for creating a forced civilian front line as they showed me the remains of booby trapped homes and schools.

From what I saw and was told in Gaza, Operation Cast Lead pinpointed a totalitarian regime's power bases and largely neutralized Hamas's plans to make Israel its tool for the sacrifice of civilian life.

Corroboration of my account may be found in tardy and piecemeal retractions of claims concerning the UNWRA school at Al-Fakhora; an isolated acknowledgment that Gaza is substantially intact by The New York Times; Internet media watch corrections; and the unresolved discrepancy between the alleged wounded and their unreported whereabouts.

The writer is a poet and freelance writer who lives in London. Her collection Boukhara was a 2008 Smith/Doorstop prize winner. She also translates the poetry of Semyon Lipkin, the Russian World War II poet.

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The Gaza imbroglio

Lull deal virtually finalized, disagreements persist in respect to Shalit, crossings

Ron Ben-Yishai

Ynet.com, Published:     February 17 and 18, 2009
 
An agreement in principle on a lull in Gaza has already been achieved, yet there are still some disagreements in respect to the Gaza crossings and to abducted IDF soldier Gilad Shalit. However, as early as this week the security cabinet may make a decisive ruling, as Prime Minister Ehud Olmert does not wish to quit before putting an end to the Shalit affair.

The negotiations currently undertaken by Israel, Egypt, and Hamas are reminiscent of current coalition talks in Israel. In both cases we are seeing a bazaar where several merchants are simultaneously bargaining with each other over various types of goods. In both cases, the participants – including those serving as mediators – have their own interests, ego, domestic factions, and external patrons that all need to be appeased before finalizing a deal. This is the reason why both negotiations progress slowly, despite the fact that the outline of the overall deal to be reached is more or less known.
 
Negotiations


The imbroglio in the Gaza theater mostly stems from the need to synchronize three deals: A lull deal, a crossings deal, and a swap of Palestinian prisoners in exchange for Gilad Shalit.
 
On all three issues there is agreement in principle – more or less - between the sides. In respect to the lull there is even more than an agreement in principle. Yet in respect to the Gilad Shalit deal and the crossings deal, disagreements persist regarding the details, manner of implementation, and the way of coordinating the timelines of the various deals.
 
The Egyptian mediator is mostly interested in what we refer to as a lull. As long as the fighting in the Strip goes on, Mubarak’s regime sustains heavy pressure by the zealot Muslim camp in Egypt, as well as by the Arab world and the Iranians. Egypt fears domestic unrest and wishes to finalize the matter as quickly as possible so it is not pressured to open its border with the Strip.
 
Hamas is mostly interested in a crossings deal that will open the goods crossings between Israel and the Strip and between Egypt and the Strip. This will mitigate the Gaza population’s difficult financial situation, enable the Strip’s rehabilitation in the wake of Operation Cast Lead, and also allow Hamas to rebuild its military power. Therefore, Hamas wants to see long hours of operation at the crossings, monitoring by its own people, and the removal of limitations imposed by Israel on all types of goods.

Meanwhile, at this time Israel is mostly interested in a deal that would bring about Gilad Shalit’s release. The three leading figures in the government currently agree that the only pressure lever possessed by Israel vis-à-vis Hamas – without ordering the IDF back into the Strip – is the crossings. Should Israel allow the opening of its crossings with the Strip for more than the current output (30% of the time, quantity, and types of goods,) Hamas will not deliver on its pledge to seriously negotiate Shalit’s release.      

Hamas is willing to pledge to Egypt that should Israel open the crossings to an extent of 70%, it will continue to seriously negotiate a deal for the release of the kidnapped soldier. Hamas will receive the rest after Shalit’s release, as long as Israel and Egypt refrain from declaring that the two issues are related.
 
Initially, Israel was inclined to accept this formula, yet ultimately decided against it. The angry Egyptians were told that until a Shalit deal is not finalized and until the first phase is not implemented, the crossings will not be opened to a greater extent than they are open at this time. This position was uttered many times by Prime Minister Ehud Olmert.

Avoiding past mistakes


Egypt and Hamas have been able to reach agreement on almost all aspects of the Gaza lull deal. It was agreed that Hamas will pledge to maintain the lull for a year and a half at least; that it recognizes Israel’s right to respond militarily to every violation – that is, rocket fire or terror attacks originating from the Strip – and that Palestinian gunmen will not be allowed to act or be present less than 200 meters away from the border fence (although Israel demanded 500 meters initially.) In addition, it was agreed that the lull agreement will apply to all armed organizations in Gaza, and that Hamas must enforce this.
 
In respect to the crossings, there is a general agreement between Egypt and Hamas. All the details have not been finalized yet, but there is a clear outline in principle. We are dealing with three phases: In the first stage, Israel will open the crossings to the Strip to an extent of 70%. In the second phase, Israel will fully open the crossings. In the third stage, after Hamas reconciles with Fatah and the Palestinian Authority, the Rafah Crossing from Egypt to the Strip shall be opened, under the supervision of Abbas’ people and international observers.

This deal is hindered by Hamas’ desperate attempt to present the crossings deal as a diplomatic achievement by the organization, rather than capitulation to Israel’s ultimatum that ties the opening of the crossings to progress on the Shalit affair. Hamas wants the first stage in the crossings deal to be implemented before an agreement is reached on Shalit’s release. The Egyptians told Hamas what it wishes to hear, and asked Israel not to publicly contradict their words. However, Olmert, Barak and Livni refused due to a clear intention to refrain from repeating the mistake they made when the previous lull was declared last summer. Back then too, Hamas pledged to accelerate the Shalit negotiations, yet nothing happened.

As to the Gilad Shalit deal, here too we saw progress in recent weeks. First, because Hamas finally renewed the negotiations, clarified its demands in terms of numbers and names, and addressed Israel’s offers. The outline of the deal, which will include two phases, was also finalized in principle. Now, the sides are mostly bargaining on some of the names Hamas demands. We are talking about dozens of names, as well as – you got it - Hamas’ demand that Israel refrain from publicly tying the opening of the crossings to the Shalit deal.
 
Hamas wishes to make it clear that it is extorting Israel and not vice versa. This is important for the victory photo Hamas wishes to present.
 
All of the above makes it quite clear that Hamas and Egypt have an interest in announcing a new lull and a deal for opening the crossings as soon as possible. Therefore, they have been disseminating reports to that effect in the Arab media almost daily in recent weeks. It is even possible that Hamas or Egypt, or both, will announce a truce and a crossings deal in the coming days, in an attempt to exert pressure on Israel.

However, Israel realizes it must not let go of the “crossings card” before the Shalit deal is finalized and implemented. Therefore, Hamas and Egypt can keep on exerting pressure and making media statements. As long as Iran, via Khaled Mashaal, hinders any genuine progress on the Shalit front, the crossings shall remain open at the current format, which only enables the transfer of humanitarian aid.

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Amnesty’s War on the Law of War

By Marc Stern

New York Forward

Published March 04, 2009, issue of March 13, 2009.

Generating predictable newspaper headlines around the world, Amnesty International has issued a report calling for an arms embargo on Israel and Hamas. Journalists dutifully reported that demand, as well as Israel’s criticism of Amnesty’s report. The impression created is of the usual factual dispute about claims of human rights violations.

It’s a pity that coverage of the report has been so shallow. In fact, the Amnesty report is based on a set of assumptions about international law that are shared by some international lawyers — especially those affiliated with self-styled “human rights” groups — but which are rejected by most militaries and are impossible to reconcile with the governing legal texts.

At the heart of this dispute is a fundamental disagreement about the purpose of the law of war: Is it to regulate war, while minimizing harm to civilians? Or is it to protect civilians above all other considerations?

The latter position, as one of its advocates, sociologist Martin Shaw, has acknowledged, results in “new kinds… of delegitimization of war.” Nations that called the law of war into being to regulate war would no doubt be surprised to learn that they had unwittingly agreed to outlaw it.

The recent Amnesty report illustrates the legal understandings used by those who would invoke the law of war to delegitimize it entirely. Under current law, killing civilians as a collateral consequence of an otherwise legitimate attack on a military target is illegal only if (to quote the Geneva Conventions) it is “excessive in relation to the concrete and direct military advantage anticipated.”

Although it frequently denounces Israel’s recent campaign in Gaza as a whole and labels specific incidents in which civilians were killed as disproportionate, Amnesty never once in its report gives any consideration whatsoever to any possible military justification for the challenged actions. Not once. It tries to avoid this problem by labeling Israeli attacks “indiscriminate” but offers no proof that Israel has engaged in such attacks other than the fact that civilians were killed.

Scholars and lawyers debate how one assesses military advantage, how one weighs it against harm to civilians, and whether one judges individual military actions standing alone or as a contribution to a larger effort, whether the relevant perspective on military advantage is that of the commander based on what he knows at the time of an attack or a retrospective look by a neutral third party.

Amnesty does not attempt any weighing of military advantage. It cites no evidence about its absence (or its insignificance) in relation to particular attacks or to the entire assault on Hamas. It does not engage in any weighing of the value of achieving a military aim against the foreseeable harm to civilians. For Amnesty, the fact of civilian casualties establishes a war crime.

In a related vein, Amnesty’s report nowhere notes the fact that Hamas often places its military resources in and among civilians. This is quite odd, because the foundational principle of “distinction” in international law both requires that military resources not be placed among civilians and holds that placing such resources among civilians does not immunize otherwise legitimate targets from attack.

Hamas’s use of the tactic is itself a war crime, which Amnesty strangely passes over in silence. Use of the practice is not in doubt, having been confirmed by reporters, Human Rights Watch and other international observers, including the under-secretary-general of the United Nations, as well as substantial photographic evidence supplied by Israel.

The key point is that in failing to account for this practice, and its impact on an attacker’s military options, Amnesty again removes any consideration of military necessity as a justification for harm to civilians.

It would be unrealistic to expect that in any large-scale military action, all soldiers will act in keeping with the law of war. It is likewise inevitable that in the confusion and panic of battle, actions will be taken that in retrospect were mistaken, unnecessary or could have been foregone without any major harm to military effectiveness, although these categories of action are generally not war crimes.

What undergirds Amnesty’s call for an arms embargo, however, is a unilateral revision of the law of war to eliminate consideration of military effectiveness, in favor of the protection of civilians. It would be wonderful if war could be waged that way, but of course it can’t. Today’s target is Israel, but the bloodless war Amnesty would require — on penalty of a war crimes prosecution — would, as a practical matter, outlaw all military action against irregular forces, according groups like the Taliban, Hamas, Hezbollah and Al Qaeda de facto immunity from military action.

Amnesty may in good faith believe that its view is the way forward. But the texts of the law of war, agreed to by the nations of the world faced with real threats to their security, lend no support to Amnesty’s dewy-eyed view.

Marc Stern is acting co-executive director of the American Jewish Congress.

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