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Jabaliya School Tragedy/ "Proportionality", International Law, and Gaza

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Update from AIJAC

January 8, 2009
Number 01/09 #02


As readers will probably be aware, Tuesday night saw tragic news that more than 30 people were killed at the Fakhura UNWRA school in Jabaliya after it was struck by Israeli counter-fire responding to Hamas mortar attacks from the school grounds. The official Israeli Foreign Ministry statement on this terrible incident is here.

Israeli academic counter-terrorism expert Eli Karmon explains the context of this horrible tragedy. He points out both the current and past Hamas mortar fire from the school, and Hamas' policy of using human shields to protect its operations. And he does more than this, providing video links to concrete examples, as well as making it clear that such incidents, and much worse ones, are more common than one might think in the Middle East, yet inspire little attention or outrage when Israel is not the perpetrator. For Dr. Karmon's  analysis and links, CLICK HERE. Evidence from witnesses interviewed by the Associated Press stating that mortars were fired from near the school just before the Israeli counter-attack is here. The Jerusalem Post comments on this terrible incident in its editorial, expressing how Israelis feel about such incidents - shaken, distressed, and sorrowful, but, the paper argues, not guilty, because Hamas is primarily responsible for such incidents.  An additional interesting comment on the school and media fascination with alleged Jewish moral failing from American author and journalist Jeffrey Goldberg, as well as British commentator Melanie Phillips. Israeli commentator Bradley Burston offers a prayer for the children of Gaza.

Next up, Israel's former UN ambassador and leading academic Dr. Dore Gold discusses the claim that Israel's actions in Gaza are "disproportionate" and therefore illegal, and makes it clear that the understanding usually given to this legal term is completely erroneous and in fact, the concept has nothing whatsoever to do with the number of Israelis killed by Hamas actions versus those Palestinians killed by Israel. What matters is the purpose of the use of force, and calculations made to attempt to minimise the effect on civilians without compromising important military goals. He also argues that the idea Israel must wait until large amounts of its own people die before it can respond is obviously asking of Israel something no state would accept. For his full argument, CLICK HERE. Also disputing the claims about proportionality is noted American international law specialist Louis Rene Beres, and for those who missed it, Australian academic legal expert Prof. Greg Rose has an excellent piece on this issue in the Canberra Times.  A longer piece on international law and the Israeli-Hamas conflict, written before the current fighting began, is here.

Next up, blogger and veteran Middle East reporter Michael Totten collects the specific legal clauses and language that are being debated in the context of the Israel-Hamas conflict in Gaza. Examining the rules, he argues that these provisions are being misrepresented by those who charge Israel with violating them and that Israel appears compliant. He also argues that international law makes Hamas effectively responsible for all civilian casualties. For his complete discussion, CLICK HERE.  Later, Michael Totten similarly asked Israel's critics what a "proportional response" by Israel would look like. American military historian Victor Davis Hanson offers some modest proposals how this could be achieved. A terrific discussion of the absurdity of the claims about "proportionality" comes from French philosopher Andre Glucksman (in full in Spanish here, with a partial translation here).

Readers may also be interested in:



Gaza -The humanitarian Aspect and the Propaganda War

By Ely Karmon


Institute for Counter-Terrorism, January 7, 2009


On 6 January 2009, some 40 Palestinians were killed in a     tragedy at a school in Jabaliya.  Israeli mortar shells exploded near the
U.N. school in Gaza that was sheltering hundreds of people displaced by Israel's attacks against Hamas militants.

Innocent civilians should not have died. However, it is vitally important to understand how this horrific incident occurred and who truly bears the responsibility for it.

According to a communiqué of the IDF, an initial inquiry by forces on operating in the area of the incident indicates that a number of mortar
shells were fired at IDF forces from within the Jabalya school. In response to the incoming enemy fire, the forces returned mortar fire to the source.

According to Associated Press Writers Ibrahim Barzak and Steve Weizman, the IDF report that two Hamas militants - Imad Abu Askar and Hasan Abu Askar -were among the dead in the school bombing incident, was confirmed by localGazan residents, who said that a group of militants fired mortars from astreet near the school, then fled into a crowd of people in the streets. Israel then opened fire. The residents, who spoke on condition of anonymity because they feared for their safety, said the Abu Askar brothers were known low-level Hamas militants.

This is not the first time that Hamas has fired mortars and rockets from schools in such a way, deliberately using civilians as human shields in
their acts of terror against Israel. This was already proven several months ago by footage from an unmanned plane showing rockets and mortars being fired from the yard of the same UNRWA school. See the video at (the title is
wrong):

http://www.youtube.com/watch?v=zmXXUOs27lI

On that occasion the UN secretary general ordered an investigation into the incident in which Palestinian militants fired mortars at Israel from the UN-run school in Gaza. Ban Ki-moon condemned the abuse of UN facilities and described it a "serious violation of the UN's privileges and immunities"(BBC News, 9 November 2007).

The human shield strategy

It is a clear and known fact that Hamas deliberately uses the strategy of human shields in its operational terrorist and guerrilla activities. I have
stressed this in my article concerning the targeting of the high level Hamas leader Nizar Rayyan, who according to the Hamas website "took the initiative, two years ago, to protect homes against Israeli occupation air strikes by forming human shields." His family was warned before the attack but did not leave the building and was killed alongside Rayyan.

Please see a comprehensive paper on the "human shield" strategy at the below link (open also the pdf file at the end of the document):  

http://www.terrorism-info.org.il/malam_multimedia/English/eng_n/html/hamas_e
028.htm


Another explicit example of this tactic is the Hamas video which shows Hamas militants firing mortar shells yesterday from the middle of a street in the Gaza city. The cell is formed by people dressed as civilians, flying the area of the incident after the firing of a bunch of mortars. See the video at (the title is wrong)::

http://www.youtube.com/watch?v=WyPF-XeBG4A


I would like to add another aspect in the dispute about the humanitarian tragedies in the Middle East which I stressed in a previous paper: the
double standard in responding to such incidents when Israel is seen as responsible and in cases when Arabs or Muslims kill innocent Muslims. I will present only one example:

The Nahr Al-Bared Palestinian refugee camp tragedy

In the second half of May 2007, fighting broke around the Palestinian refugee camp of Nahr Al-Bared, in the north of Lebanon. Lebanese troops began shelling the camp, near the northern city of Tripoli, after it pledged to "finish off" the radical Fatah Al-Islam group entranced in the camp. Militants from Fatah Al-Islam responded with gun and mortar fire. See some of the first reports at:

http://electronicintifada.net/v2/article6929.shtml

The Lebanese army artillery and air force bombed the camp for consecutive three months until they expelled the 200 Fatah  al-Islam militants. The expressions of outside support and the outcry of the Palestinian residents and the PLO did not impress anyone in the Arab world.  You can vision the results of the complete destruction of the camp, where some 30,000 displaced Palestinians lived. It speaks for itself.

http://www.youtube.com/watch?v=9kwir6FUHr4&feature=related

 * Dr. Karmon is Senior Research Scholar at the International Institute for
Counter-Terrorism (ICT) at The Interdisciplinary Center (IDC) in Herzlyia,
Israel.


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Is Israel using 'disproportionate force' in Gaza?

Dore Gold

THE JERUSALEM POST, Dec. 30, 2008

Israel is currently benefiting from a limited degree of understanding in international diplomatic and media circles for launching a major military operation against Hamas on December 27. Yet there are significant international voices that are prepared to argue that Israel is using disproportionate force in its struggle against Hamas.

There are good reasons why initial criticism of Israel has been muted. After all, population centers in southern Israel have been the target of over 4,000 rockets, as well as thousands of mortar shells, fired by Hamas and other organizations since 2001.

The majority of those attacks were launched after Israel withdrew completely from the Gaza Strip in August 2005. Indeed, rocket attacks increased by 500% (from 179 to 946) from 2005 to 2006.

Moreover, lately Hamas has been extending the range of its striking capability even further, with new rockets supplied by Iran. Hamas used a 20.4-kilometer-range Grad/Katyusha for the first time on March 28, 2006, bringing Ashkelon into range of its rockets for the first time. That change increased the number of Israelis under threat from 200,000 to half a million.

Moreover, on December 21, 2008, Yuval Diskin, head of the Shin Bet (Israel Security Agency), informed the government that Hamas had acquired rockets that could reach Ashdod, Kiryat Gat, and even the outskirts of Beersheba. The first Grad/Katyusha strike on Ashdod, in fact, took place on December 28.

There had been no formal cease-fire between Israel and Hamas, but only an informal six-month tahadiya (lull), during which 215 rockets were launched at Israel. On December 21, Hamas unilaterally announced that the tahadiya had ended.

Critical Voices

On December 27, UN Secretary-General Ban Ki-moon's spokesmen issued a statement saying that while the secretary-general recognized "Israel's security concerns regarding the continued firing of rockets from Gaza," he reiterated "Israel's obligation to uphold international humanitarian and human rights law."

The statement specifically noted that he "condemns excessive use of force leading to the killing and injuring of civilians [emphasis added]."

A day later, Navi Pillay, the UN High Commissioner for Human Rights "strongly condemned Israel's disproportionate use of force."

French President Nicolas Sarkozy, who holds the rotating presidency of the European Union, also condemned Israel's "disproportionate use of force," while demanding an end to rocket attacks on Israel.

Brazil also joined this chorus, criticizing Israel's "disproportionate response."

Undoubtedly, a powerful impression has been created by large Western newspaper headlines that describe massive Israeli air strikes in Gaza, without any up-front explanation for their cause.

Proportionality and International Law

The charge that Israel uses disproportionate force keeps resurfacing whenever it has to defend its citizens from non-state terrorist organizations and the rocket attacks they perpetuate. From a purely legal perspective, Israel's current military actions in Gaza are on solid ground.

Under international law, Israel is not required to calibrate its use of force precisely according to the size and range of the weaponry used against it. Israel is not expected to make Kassam rockets and lob them back into Gaza.

When international legal experts use the term "disproportionate use of force," they have a very precise meaning in mind. As the president of the International Court of Justice (ICJ) in The Hague, Rosalyn Higgins, has noted, proportionality "cannot be in relation to any specific prior injury - it has to be in relation to the overall legitimate objective of ending the aggression."

In other words, if a state, like Israel, is facing aggression, then proportionality addresses whether force was specifically used by Israel to bring an end to the armed attack against it. By implication, force becomes excessive if it is employed for another purpose, like causing unnecessary harm to civilians.

The pivotal factor determining whether force is excessive is the intent of the military commander. In particular, one has to assess what was the commander's intent regarding collateral civilian damage.

What about reports concerning civilian casualties? Some international news agencies have stressed that the vast majority of those killed in the first phase of the current Gaza operation were Hamas operatives.

Ibrahim Barzak and Amy Teibel wrote for the Associated Press on December 28 that most of the 230 Palestinians who were reportedly killed were "security forces," and Palestinian officials said "at least 15 civilians were among the dead."

It is far too early to definitely assess Palestinian casualties, but even if they increase, the numbers reported indicate that there was no clear intent to inflict disproportionate collateral civilian casualties.

During the Second Lebanon War, Professor Michael Newton of Vanderbilt University was in e-mail communication with William Safire of The New York Times about the issue of proportionality and international law.

Newton had been quoted by the Council on Foreign Relations as explaining proportionality by proposing a test: "If someone punches you in the nose, you don't burn down their house." He was serving as an international criminal law expert in Baghdad and sought to correct the impression given by his quote. According to Newton, no responsible military commander intentionally targets civilians, and he accepted that this was Israeli practice.

What was critical from the standpoint of international law was that if the attempt had been made "to minimize civilian damage, then even a strike that causes large amounts of damage - but is directed at a target with very large military value - would be lawful."

Numbers matter less than the purpose of the use of force. Israel has argued that it is specifically targeting facilities serving the Hamas regime and its determined effort to continue its rocket assault on Israel: headquarters, training bases, weapons depots, command and control networks, and weapons-smuggling tunnels. In this, Israel is respecting the international legal concept of proportionality.

Alternatively, disproportionality would occur if the military sought to attack, even if the value of a target selected was minimal in comparison with the enormous risk of civilian collateral damage.

This point was made by Luis Moreno-Orampo, the chief prosecutor of the International Criminal Court, on February 9, 2006, in analyzing the Iraq War. He explained that international humanitarian law and the Rome Statute of the International Criminal Court "permit belligerents to carry out proportionate attacks [emphasis added] against military objectives, even when it is known that some civilian deaths or injuries will occur."

The attack becomes a war crime when it is directed against civilians (which is precisely what Hamas does) or when "the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage."

In fact, Israeli legal experts right up the chain of command within the IDF make this calculation before all military operations of this sort.

Proportionality as a Strategic Issue

Moving beyond the question of international law, the charge that Israel is using a disproportionate amount of force in the Gaza Strip because of reports of Palestinian casualties has to be looked at critically.

Israelis have often said among themselves over the past seven years that when a Hamas rocket makes a direct strike on a crowded school, killing many children, then Israel will finally act.

This raises the question of whether the doctrine of proportionality requires that Israel wait for this horror to occur, or whether Israel could act on the basis of the destructive capability of the arsenal Hamas already possesses, the hostile declarations of intent of its leaders, and its readiness to use its rocket forces.

Alan Dershowitz noted two years ago: "Proportion must be defined by reference to the threat proposed by an enemy and not by the harm it has produced."

Waiting for a Hamas rocket to fall on an Israeli school, he rightly notes, would put Israel in the position of allowing "its enemies to play Russian Roulette with its children."

The fundamental fact is that in fighting terrorism, no state is willing to play Russian Roulette.

After the US was attacked on 9/11, the Western alliance united to collectively topple the Taliban regime in Afghanistan; no one compared Afghan casualties in 2001 to the actual numbers that died from al-Qaeda's attack. Given that al-Qaeda was seeking non-conventional capabilities, it was essential to wage a campaign to deny it the sanctuary it had enjoyed in Afghanistan, even though that struggle continues right up to the present.

Is There Proportionality Against Military Forces?

In fighting counterinsurgency wars, most armies seek to achieve military victory by defeating the military capacity of an adversary, as efficiently as possible. There clearly is no international expectation that military losses in war should be on a one-to-one basis; most armies seek to decisively eliminate as many enemy forces as possible while minimizing their own losses of troops.

There are NATO members who have been critical of "Israel's disproportionate use of force," while NATO armies take pride in their "kill ratios" against the Taliban in Afghanistan.

Moreover, decisive military action against an aggressor has another effect: it increases deterrence. To expect Israel to hold back in its use of decisive force against legitimate military targets in Gaza is to condemn it to a long war of attrition with Hamas.

The loss of any civilian lives is truly regrettable. Israel has cancelled many military operations because of its concern with civilian casualties.

But should civilian losses occur despite the best efforts of Israel to avoid them, it is ultimately not Israel's responsibility. As political philosopher Michael Walzer noted in 2006: "When Palestinian militants launch rocket attacks from civilian areas, they are themselves responsible - and no one else is - for the civilian deaths caused by Israeli counterfire."

International critics of Israel may be looking to craft balanced statements that spread the blame for the present conflict to both sides. But they would be better served if they did not engage in this artificial exercise, and clearly distinguish the side that is the aggressor in this conflict - Hamas - and the side that is trying to defeat the aggression - Israel.

The writer, Israel's ambassador to the UN in 1997-99, is president of the Jerusalem Center for Public Affairs and author of Hatred's Kingdom: How Saudi Arabia Supports the New Global Terrorism (Regnery, 2003) and The Fight for Jerusalem: Radical Islam, the West, and the Future of the Holy City (Regnery, 2007). This article is reprinted with permission of the Institute for Contemporary Affairs, The Jerusalem Center for Public Affairs, www.jcpa.org.

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Gaza and the Law of Armed Conflict

Michael J. Totten -

Commentary "Contentions" Jan. 3, 2009

While much of the world engages in hand-wringing, placard-waving, teeth-gnashing, and rocket-launching over Israel’s “disproportionate” response to Hamas attacks from Gaza, it’s worth looking at what the doctrines of “proportionality” actually say.

Making the rounds is a two-year old quote from Lionel Beehner’s paper for the Council on Foreign Relations in which he summarizes the principle of proportionality as laid out by the 1907 Hague Conventions. “According to the doctrine, a state is legally allowed to unilaterally defend itself and right a wrong provided the response is proportional to the injury suffered. The response must also be immediate and necessary, refrain from targeting civilians, and require only enough force to reinstate the status quo ante.”

The precise wording of the doctrine can be found in Article 51, not Article 49 as Beehner writes, of the Draft Articles of the Responsibility of States for Internationally Wrongful Acts. “Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.”

This is vague and open to interpretation, as Beehner admits. And it’s further complicated by the fact that the doctrine was laid out at a time when war was fought between sovereign states with standing armies rather than asymmetrically between a sovereign state and a terrorist gang.

Proportion, as defined by Beehner and the Hague Conventions, is impossible between Israel and Hamas. The Israel Defense Forces are more professional, competent and technologically advanced than Hamas and will inflict greater damage as a matter of course. And Hamas’s war aim is entirely out of proportion to Israel’s. Israel wants to halt the incoming rocket fire, while Hamas seeks the destruction or evacuation of Israel.

Beehner’s proportionality doctrine is therefore unhelpful. Each side’s ends and means are disproportionate to the other. And nowhere in that doctrine are casualty figures or the intent of the warring parties factored in.

In any case, no war has ever been fought tit for tat, and the Hague Conventions doesn’t say any war should be. The American response to Japan’s attack on Pearl Harbor went well beyond sinking an equal number of ships in a Japanese harbor, for instance. And European Jews certainly were not entitled to execute six million German civilians after the Holocaust.

The proportionality doctrine spelled out here is really only useful up to a point. “It’s always a subjective test,” Beehner correctly quotes Vanderbilt University Professor Michael Newton as saying. “But if someone punches you in the nose, you don’t burn their house down.” That much most of us can agree on. Israel should not – and will not – implement a Dresden-style fire-bombing of Gaza City in response to Qassam and Grad rocket attacks.

So aside from the obvious, we’re wading into murky territory that could be debated forever. Another doctrine of proportionality, though, clearly applies to this war, and it’s found in the Law of Armed Conflict.

The Law of Armed Conflict “arises from a desire among civilized nations to prevent unnecessary suffering and destruction while not impeding the effective waging of war. A part of public international law, LOAC regulates the conduct of armed hostilities. It also aims to protect civilians, prisoners of war, the wounded, sick, and shipwrecked.”

Proportionality, in short and according to the law, “prohibits the use of any kind or degree of force that exceeds that needed to accomplish the military objective.”

In other words, if a surgical strike is all that is needed to take out a Grad rocket launcher, carpet bombing the entire city or even the neighborhood isn’t allowed.

Hamas is still firing rockets; therefore, the IDF is not using more force than necessary to disrupt the firing of rockets. Israel, arguably, is using less force than necessary. And the IDF, unlike Hamas, does what it can to minimize injury to civilians. “Militants often operate against Israel from civilian areas,” the Associated Press reported last week. “Late Saturday, thousands of Gazans received Arabic-language cell-phone messages from the Israeli military, urging them to leave homes where militants might have stashed weapons.” Israeli commanders are even warning individual Hamas leaders that their homes are on the target list so they can vacate the premises in advance.

It’s also worth looking at the doctrine of distinction, which Israel follows while Hamas does not.

Distinction, according to the Law of Armed Conflict, “means discriminating between lawful combatant targets and noncombatant targets such as civilians, civilian property, POWs, and wounded personnel who are out of combat. The central idea of distinction is to only engage valid military targets. An indiscriminate attack is one that strikes military objectives and civilians or civilian objects without distinction. Distinction requires defenders to separate military objects from civilian objects to the maximum extent feasible. Therefore, it would be inappropriate to locate a hospital or POW camp next to an ammunition factory.”

Hamas violates this doctrine in two ways at once. Its fighters launch Qassam, Katyusha, and Grad rockets into Israeli civilian areas, and they fire those rockets from inside Palestinian civilian areas. Both are prohibited by the Law of Armed Conflict.

The law does not, however, prohibit Israel from striking legitimate military targets in civilian areas. “Although civilians may not be made the object of a direct attack, the LOAC recognizes that a military target need not be spared because its destruction may cause collateral damage that results in the unintended death or injury to civilians or damage to their property.”

Hamas, then, is legally to blame for all, or nearly all, injuries and deaths of both Israelis and Palestinians.

I shouldn’t even need to point out that Hamas is not allowed to target civilians with rockets, but I’ll cite the law anyway. “The LOAC protects civilian populations. Military attacks against cities, towns, or villages not justified by military necessity are forbidden. Attacking noncombatants (generally referred to as civilians) for the sole purpose of terrorizing them is also prohibited.”

Concern for the suffering innocents of Gaza – and all children of all nations are innocent – is well, good, and proper. And whether Israel’s operation in Gaza will turn out to be prudent, wise, and productive is yet to be seen. But either way, and at the end of the day, Israel’s rules of engagement comply with the laws of war forged by civilized nations, while nearly every one of Hamas’s military tactics are war crimes.

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