analysis of Gaza report

Changing the Storyline: Israel, Gaza and International Law

Reading Israel's Official Report on the Gaza Incursion

Yaacov Lozowick

This essay was first published at Yaacov Lozowick's Ruminations

August 7th 2009

Synopsis: Self anointed human rights organizations, followed by much of the media, have cast Israel as a serial transgressor against international law. The most recent case of this was Israel's incursion into Hamas-controlled Gaza in January 2009, which was widely portrayed

as criminal from inception to smallest detail. Defenders of Israel's actions, generally not well versed in the minutiae of international law, have allowed themselves to be wrong footed, claiming that facts are wrong, or mooting the unacceptability of international law itself if it forbids Israel to defend its citizens.

The State of Israel has now published its legal and factual rebuttal. The authors of the report emphatically embrace international law and insist that its principles guide the IDF as it trains, plans, executes and investigate; they demonstrate all these actions on the case of the Gaza incursion.

The report is serious and learned, which means it is open to discussion and disagreement. Yet such a discussion must be informed and reasoned – precisely as much of the criticism leveled at Israel isn't.

The full report, at 164 pages, is here. I urge anyone who feels the need to express an opinion, to read it. This 20-page summary and commentary is a service for the hasty.

*****

Late in June 2009 seven self-designated "Israeli human rights organizations"submitted a joint document. Here's how one organization introduced and summarized it.

30.06.2009

This week, seven human rights organizations based in Israel presented a report to the UN Fact-Finding team investigating allegations of war crimes during “Operation Cast Lead” in Gaza, led by Justice Richard Goldstone. The authors of the report - The Association for Civil Rights in Israel, Gisha, The Public Committee Against Torture in Israel, HaMoked: The Center for the Defence of the Individual, Yesh Din, Adalah - The Legal Center for Arab Minority Rights in Israel, and Physicians for Human Rights- Israel - believe that the Goldstone Committee’s mission of seeking the truth is of critical importance, in particular due to the refusal by Israel’s Attorney General of

the organizations' request to order a domestic, independent, and impartial inquiry into the Gaza events.

The report presents the Goldstone Committee with detailed findings concerning violations of the laws of war that the Israel military allegedly committed during its attack on the Gaza Strip, dubbed “Operation Cast Lead”, which should be investigated, referring mainly to policies of collective punishment used against the civilian population of the Gaza Strip. The report details Israeli military offensives that

failed to discriminate between combatants and civilians, damage to civilian government buildings for political objectives, attacks on medical rescue teams, damage to public infrastructure, holding detainees in conditions that violate Israeli and international law, and collective punishment. The authors stressed that, as human rights organizations based in Israel, it is their mandate to report on issues

under Israel’s control and responsibility. They also demanded that suspicions that Hamas violated the laws of war be investigated.

It's an odd document. The people who gravitate to such organizations, probably no more than a few thousands at most, often hold advanced degrees. Yet the document is surprisingly shoddy. It's undated. There's no letterhead. There's no executive summary. There are only eight footnotes, containing 11 citations. Three refer to previous documents of the same organizations. Five are to newspaper reports, one is to an IDF press-release, one to a very short speculative article in an academic publication which itself has no sources, and one is to a UN webpage which doesn't work.

The report offers no factual information Justice Goldstone wouldn't have had already, leaving us to speculate: was the purpose perhaps merely to call Goldstone's attention to these organizations? That could explain why 512 of its 4,938 words talk about themselves, their activities and their websites. Their point, in other words, is to distance themselves from their countrymen. The Israeli government has decided not to cooperate with your committee, your honor, but we're not like them. We welcome your arrival, bless your undertaking, suggest you look into the following lists of things our country did wrong, and always remember we're here to help you if you need us. That's the tone that permeates the whole document. These people are embarrassed of their country.

Their section titled "Background – Prior to the Attack" (a revealing choice of words) contains 567 words describing Palestinian suffering under Israeli malice. A single sentence refers to the incarceration of Corporal Gilad Shalit, and another, perched at the very end, admits that

Throughout this period, Hamas was sporadically firing rockets indiscriminately into

the towns of southern Israel.

What kind of people are these, who proudly stand against their own society in wartime and pronounce themselves better than their neighbors, while belittling years of suffering of those who live in rocket-stricken towns? On what authority do they assume this stance?

Well, if you believe them, it's the authority of international law. They know all about it while the rest of us and our benighted establishment wallow in ignorance or malice. So convinced are they of their superiority that they neglect even to substantiate their theses; stating their

correctness is enough. They are incessantly reinforced by reporters and pundits the world over, who reflexively reach for the terminology of international law to expose the shortcomings of Israel's actions.

There is an unfortunate reaction to this posturing. The centrality of international law and institutions in international affairs is largely a response to the atrocities of Nazism and the murder of Jews which was its core. If the world's response to the Shoah is to formulate principles which forbid the Jews from defending their political sovereignty and their very lives, many of us say, then a pox on the international order. The cards cannot always be stacked against the Jews with the Jews never responding – that's our lesson from the Shoah.

Last week the State of Israel finally gave a better response. It came in the form of a long, detailed and reasoned description of the principles of international law, and their application to the war with Hamas. The Operation in Gaza, December 27th 2008 – 18th January 2009; Factual and Legal Aspects. You can find it online at the website of the Foreign Ministry, here, PDF here.

The authors of the document recognize, accept, and embrace international law. Their thesis is not that it interferes with Israel's ability to defend itself. On the contrary, it supplies Israel with the tools to legitimately combat its enemies while demanding the support of the international community. Anyone who respects international law must step forward to Israel's side as it follows the letter and spirit of the law in rejecting criminal attacks on its people.

A more refreshing position can hardly be imagined. If anyone should be apologizing, it should be Israel's critics. Their entire narrative is turned on its head; the report documents how they cynically employ the terminology of international law in contradiction to its intent. Rather than conflicting with the right of the Jews, it reinforces them.

*****

The report has 164 pages, with an executive summary and glossary. There are 287 footnotes, with probably 500 citations. They range from newspaper stories through United Nations reports, documents from the International Criminal Tribunal for the Former Yugoslavia, Hague Conventions, Geneva Conventions, court decisions from various countries, and many academic papers from America, Canada, Europe, India, Singapore and Malaysia. There are even citations from the websites of alleged Israeli human rights organizations. The tone is carefully calm and academic. Its authors expect readers to be swayed by facts, logic and academic provenance.

The report combines legal principles with their application in reality. Yet neither the principles nor their applications assure an irrefutable certainty. The law itself sets conflicting requirements, to reflect the complexity of reality:

33. The third core proposition in this Paper is that the Law of Armed Conflict balances two competing considerations. According to Judge Greenwood, “[i]nternational humanitarian law in armed conflicts is a compromise between military and humanitarian requirements. Its rules comply with both military necessity and the dictates of humanity.”

13
(Christopher Greenwood, Scope of Application of Humanitarian Law, in THE HANDBOOK OF INTERNATIONAL HUMANITARIAN LAW 37 (Dieter Fleck ed., 2d ed. 2008).

This, in turn, necessitates people to think carefull. You can't simply glance and a situation and know what's right and what's wrong about it:

34. The final core proposition that runs through this Paper is that, while the principles of customary international law may be “basic” and can be simply stated, they nevertheless must be applied with analytical rigor. Reports by non-governmental organisations and rapporteurs and committees acting under mandates from international organisations too often jump from reporting tragic incidents involving the death or injury of civilians during armed combat, to the assertion of sweeping conclusions within a matter of hours, days or weeks, that the reported casualties ipso facto demonstrate violations of international law, or even “war crimes.”14 Often, these leaps of logic bypass the most basic steps, such as identification of the specific legal obligation at issue and explanation of how it was violated. The depth of feeling in the face of civilian losses is understandable, but it does not excuse this rush to judgment. It is a fundamental precept of the rule of law that any legal inquiry about events relating to armed conflicts cannot assume the conclusion, particularly a conclusion that — as shown below — proper application of the law does not sustain.15
14 See, e.g., Report, Operation Cast Lead: 22 Days of Death and Destruction, Amnesty International (29 June 2009); Report of the Independent Fact Finding Committee on Gaza, No Safe Place., League of Arab States (30 April 2009); Report, Rain of Fire: Israel’s Unlawful Use of White Phosphorus in Gaza, Human Rights Watch (March 2009).
15 Cf. Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 14 June 2000 (hereafter
“NATO Bombings, Final Report to the ICTY Prosecutor”), ¶ 51, available at http://www.un.org/icty/pressreal/nato061300.htm (“[m]uch of the material submitted to the OTP consisted of reports that civilians had been killed, often inviting the conclusion to be drawn that crimes had therefore been committed.” Yet in truth, “[c]ollateral casualties to civilians and collateral damage to civilian objects can occur for a variety of reasons.”).

Such a simple idea: merely reporting on destructions tells us nothing about the legal or moral stature of its authors. Motive, intention, measures taken on both sides, all must be scrutinized. Simple as Columbus' Egg.

The legal context framework begins, obviously, with the distinction between the justification for going to war (jus ad bellum) and waging war justly (jus in Bello). Pages 14-34 address jus ad Bellum by describing the background of the decision to attack Hamas in Gaza. This includes the exact numbers of rockets and mortars shot from Gaza at Israeli citizens, broken down by period, and ought to be read by anyone who doubts there was real provocation.

Footnote 29 contains a tragically comic moment when it lists the letters Israel sent over eight years to the United Nations, imploring it to do something about the indiscriminate attacks on its citizens. Here's the full list:

Letters of 3 October 2000 (U.N. Doc. S/2000/937 • A/55/441), 7 October 2000 (U.N. Doc. S/2000/970 • A/55/460), 11 October 2000 (U.N. Doc. S/2000/980 • A/55/470), 12 October 2000 (U.N. Doc. S/2000/985), 20 October 2000 (U.N. Doc. S/2000/1007 • A/55/508), 2 November 2000 (U.N. Doc. S/2000/1065 • A/55/540), 20 November 2000 (U.N. Doc.S/2000/1108 • A/55/634), 22 November 2000 (U.N. Doc. S/2000/1114 • A/55/641), 29 December 2000 (U.N. Doc. S/2000/1252 • A/55/719), 1 January 2001 (U.N. Doc.S/2001/1198 • A/56/706), 2 January 2001 (U.N. Doc. S/2001/2 • A/55/725), 23 January 2001 (U.N. Doc. S/2001/71 • A/55/742), 25 January 2001 (U.N. Doc. S/2001/81 • A/55/748), 2 February 2001 (U.N. Doc. S/2001/103 • A/55/762), 9 February 2001 (U.N. Doc. S/2001/125 • A/55/777), 13 February 2001 (U.N. Doc. S/2001/132 • A/55/781), 14 February 2001 (U.N.Doc. S/2001/137 • A/55/787), 2 March 2001 (U.N. Doc. S/2001/187 • A/55/819), 6 March 2001 (U.N. Doc. S/2001/193 • A/55/821), 7 March 2001 (U.N. Doc. S/2001/197 • A/55/823), 14 March 2001 (U.N. Doc. S/2001/24 • A/55/730), 19 March 2001 (U.N. Doc. S/2001/244 • A/55/842), 26 March 2001 (U.N. Doc. S/2001/278 • A/55/858), 27 March 2001(U.N. Doc.S/2001/280 • A/55/860), 29 March 2001 (U.N. Doc. S/2001/291 • A/55/863), 16 April 2001 (U.N. Doc. S/2001/364 • A/55/901), 23 April 2001 (U.N. Doc. S/2001/396 • A/55/910), 1May 2001 (U.N. Doc. S/2001/435 • A/55/924), 9 May 2001 (U.N. Doc. S/2001/459 • A/56/69), 11 May 2001 (U.N. Doc. S/2001/473 • A/56/72), 18 May 2001 (U.N. Doc. S/2001/506 • A/56/78), 25 May 2001 (U.N. Doc. S/2001/524 • A/56/80), 30 May 2001 (U.N. Doc. S/2001/540 • A/56/81), 4 June 2001 (U.N. Doc. S/2001/555 • A/56/85), 11 June 2001 (U.N. Doc. S/2001/580 • A/56/91), 13 June 2001 (U.N. Doc. S/2001/585 • A/56/92), 18 June 2001 (U.N. Doc. S/2001/604 • A/56/97), 19 June 2001 (U.N. Doc.S/2001/611 • A/56/98), 21 June 2001 (U.N. Doc. S/2001/619 • A/56/119), 2 July 2001 (U.N. Doc. S/2001/656 • A/56/131), 3 July 2001 (U.N. Doc. S/2001/662 • A/56/138), 13 July 2001 (U.N. Doc. S/2001/696 • A/56/184), 17 July 2001 (U.N. Doc. S/2001/706 • A/56/201), 26 July
2001 (U.N. Doc. S/2001/737 • A/56/223), 27 July 2001 (U.N. Doc. S/2001/743 • A/56/225), 6 August 2001 (U.N. Doc. S/2001/768 • A/56/272), 7 August 2001(U.N. Doc. S/2001/770 • A/56/275), 9 August 2001 (U.N. Doc. S/2001/775 • A/56/280), 10 August 2001 (U.N. Doc. S/2001/780 • A/56/286), 14 August 2001 (U.N. Doc. S/2001/787 • A/56/294), 28 August 2001 (U.N. Doc. S/2001/825 • A/56/324), 30 August 2001 (U.N. Doc. S/2001/834 • A/56/325), 5 September 2001 (U.N. Doc. S/2001/840 • A/56/331), 10 September 2001 (U.N. Doc.S/2001/858 • A/56/346), 17 September 2001 (U.N. Doc. S/2001/875 • A/56/367), 20 September 2001 (U.N. Doc. S/2001/892 • A/56/386), 25 September 2001 (U.N. Doc.S/2001/907 • A/56/406), 4 October 2001 (U.N. Doc. S/2001/938 • A/56/438), 5 October 2001 (U.N. Doc. S/2001/943 • A/56/444), 8 October 2001 (U.N. Doc. S/2001/948 • A/56/450), 17 October 2001 (U.N. Doc. S/2001/975 • A/56/483), 19 October 2001 (U.N. Doc. S/2001/990 • A/56/492), 25 October 2001 (U.N. Doc. S/2001/1011 • A/56/506), 30 October 2001(U.N.Doc. S/2001/1023 • A/56/514), 6 November 2001 (U.N. Doc. S/2001/1048 • A/56/604), 13 November 2001(U.N. Doc. S/2001/1071 • A/56/617), 28 November 2001 (U.N. Doc.S/2001/1121 • A/56/663), 29 November 2001(U.N. Doc. S/2001/1133 • A/56/668), 3 December 2001 (U.N. Doc. S/2001/1141 • A/56/670), 4 December 2001(U.N. Doc.S/2001/1150 • A/56/678), 27 December 2001 (U.N. Doc. S/2001/1262 • A/56/758), 4 January 2002 (U.N. Doc. S/2002/25 • A/56/766), 11 January 2002 (U.N. Doc. S/2002/47 • A/56/771),16 January 2002 (U.N. Doc. S/2002/73 • A/56/774), 17 January 2002 (U.N. Doc. S/2002/79 •
A/56/778), 18 January 2002 (U.N. Doc. S/2002/86 • A/56/781), 22 January 2002 (U.N. Doc.S/2002/104 • A/56/788), 24 January 2002 (U.N. Doc. S/2002/115 • A/56/793), 29 January 2002 (U.N. Doc. S/2002/126 • A/56/798), 8 February 2002 (U.N. Doc. S/2002/155 • A/56/814), 13 February 2002 (U.N. Doc. S/2002/164 • A/56/819), 19 February 2002 (U.N.Doc. S/2002/174 • A/56/824), 20 February 2002 (U.N. Doc. S/2002/185 • A/56/828), 27 February 2002 (U.N. Doc. S/2002/208 • A/56/843), 4 March 2002 (U.N. Doc. S/2002/222 • A/56/854), 5 March 2002 (U.N. Doc. S/2002/233 • A/56/857), 11March 2002 (U.N. Doc. S/2002/252 • A/56/864), 12 March 2002 (U.N. Doc. S/2002/257 • A/56/867), 15 March 2002 (U.N. Doc. S/2002/280 • A/56/876), 19 March 2002 (U.N. Doc. S/2002/293 • A/56/880), 22 March 2002 (U.N. Doc.S/2002/301 • A/56/884), 25 March 2002 (U.N. Doc. S/2002/302 • A/56/886), 27 March 2002 (U.N. Doc. S/2002/315 • A/56/889), 28 March 2002 (U.N. Doc. S/2002/322 • A/56/891), 1 April 2002 (U.N. Doc. S/2002/337 • A/56/895), 2 April 2002 (U.N. Doc. S/2002/345 • A/56/898), 3 April 2002 (U.N. Doc. S/2002/348 • A/56/899), 8 April 2002 (U.N. Doc.S/2002/360 • A/56/905), 11 April 2002 (U.N. Doc. S/2002/373 • A/56/912), 12 April 2002 (U.N. Doc. S/2002/415 • A/56/909), 1 May 2002 (U.N. Doc. S/2002/503 • A/56/936), 8 May
2002 (U.N. Doc. S/2002/533 • A/56/940), 22 May 2002 (U.N. Doc. S/2002/572 • A/56/957), 23 May 2002 (U.N. Doc. S/2002/583 • A/56/964), 24 May 2002 (U.N. Doc. S/2002/584 • A/56/965), 30 May 2002 (U.N. Doc. S/2002/604 • A/56/967), 5 June 2002 (U.N. Doc.S/2002/620 • A/56/970), 14 June 2002 (U.N. Doc. S/2002/669 • A/56/983), 19 June 2002 (U.N. Doc. S/2002/683• A/56/992), 21 June 2002 (U.N. Doc. S/2002/696 • A/56/995), 10 July 2002 (U.N. Doc. S/2002/743 • A/56/1001), 17 July 2002 (U.N. Doc. S/2002/775 • A/56/1006), 19 July 2002 (U.N. Doc. S/2002/800 • A/56/1008), 26 July 2002 (U.N. Doc. S/2002/841 • A/56/1014), 31 July 2002 (U.N. Doc. S/2002/852 • A/56/1016), 1 August 2002 (U.N. Doc. S/2002/859 • A/56/1018), 7 August 2002 (U.N. Doc. S/2002/893 • A/56/1021), 14 August 2002 (U.N. Doc. S/2002/919 • A/56/1025), 19 August 2002 (U.N. Doc. S/2002/1049 • A/57/419), 25 August 2002 (U.N. Doc. S/2002/1076 • A/57/431), 27 August 2002 (U.N. Doc. S/2002/1089 • A/57/438), 10 October 2002 (U.N. Doc. S/2002/1134 • A/57/463), 23 October 2002 (U.N. Doc. S/2002/1186 • A/57/495), 30 October 2002 (U.N. Doc. S/2002/1214 • A/57/579), 1 November 2002 (U.N. Doc. S/2002/1220 • A/57/585), 7 November 2002 (U.N.Doc. S/2002/1224 • A/57/592), 13 November 2002 (U.N. Doc. S/2002/1241 • A/57/601), 15
November 2002 (U.N. Doc. S/2002/1260 • A/57/615), 25 November 2002 (U.N. Doc. S/2002/1295 • A/57/625), 29 November 2002 (U.N. Doc. S/2002/1308 • A/57/632), 11 December 2002 (U.N. Doc. S/2002/1347 • A/57/642), 2 January 2003 (U.N. Doc. S/2002/1440 • A/57/697), 6 January 2003 (U.N. Doc. S/2003/9 • A/57/703),
14 January 2003 (U.N. Doc. S/2003/46 • A/57/706), 17 January 2003 (U.N. Doc. S/2003/62 • A/57/710), 29 January 2003 (U.N. Doc. S/2003/110 • A/57/719), 12 February 2003 (U.N.Doc. S/2003/171 • A/57/729), 26 February 2003 (U.N. Doc. /2003/225 • A/57/741), 5 March 2003 (U.N. Doc. S/2003/252 • A/57/745), 11 March 2003 (U.N. Doc. S/2003/299 • A/57/750),1 April 2003 (U.N. Doc. S/2003/395 • A/57/770), 25 April 2003 (U.N. Doc. S/2003/502 • A/57/799), 1 May 2003 (U.N. Doc. S/2003/517 • A/57/804), 6 May 2003 (U.N. Doc.S/2003/527 • A/57/807), 12 May 2003 (U.N. Doc. S/2003/540 • A/57/810, 20 May 2003 (U.N. Doc. S/2003/557 • A/57/815), 2 June 2003 (U.N. Doc. S/2003/603 • A/57/820), 13 June 2003 (U.N. Doc. S/2003/645 • A/57/839), 20 June 2003 (U.N. Doc. S/2003/662 • A/57/842), 10 July 2003 (U.N. Doc. S/2003/699 • A/57/846), 13 August 2003 (U.N. Doc. S/2003/809 • A/57/858), 10 September 2003 (U.N. Doc. S/2003/873 • A/57/862), 9 October 2003 (U.N. Doc. S/2003/972 • A/58/424), 14 January 2004 (U.N. Doc. S/2004/33 • A/58/682), 30 January 2004 (U.N. Doc. S/2004/80 • A/58/697), 25 February 2004 (U.N. Doc. S/2004/142 • A/58/721), 2 March 2004 (U.N. Doc. S/2004/172 • A/58/726), 16 March 2004 (U.N. Doc. S/2004/212 • A/58/736), 16 March 2004 (U.N. Doc. S/2004/211 • A/58/735), 3 May 2004 (U.N. Doc. S/2004/350 • A/58/780), 8 June 2004 (U.N. Doc. S/2004/465 • A/58/837), 28 June 2004 (U.N. Doc. S/2004/521 • A/58/850), 13 August 2004 (U.N. Doc. S/2004/647 • A/58/870), 30 August 2004 (U.N. Doc. S/2004/702 • A/58/881), 24 September 2004 (U.N. Doc. S/2004/757 • A/59/380), 2 November 2004 (U.N. Doc. S/2004/880 • A/59/548), 11 January 2005 (U.N. Doc. S/2005/14 • A/59/667), 19 January 2005 (U.N. Doc.S/2005/40 • A/59/678), 28 February 2005 (U.N. Doc. S/2005/130 • A/59/717), 15 April 2005 (U.N. Doc. S/2005/250 • A/59/781), 19 May 2005 (U.N. Doc. S/2005/327 • A/59/805), 7 June 2005 (U.N. Doc. S/2005/375 • A/59/829), 8 June 2005 (U.N. Doc. S/2005/457 • A/59/873), 23 June 2005 (U.N. Doc. S/2005/410 • A/59/854), 13 July 2005 (U.N. Doc. S/2005/452 • A/59/870), 29 August 2005 (U.N. Doc. S/2005/552 • A/59/905), 26 September 2005 (U.N. Doc. S/2005/609 • A/60/382), 27 September 2005 (U.N. Doc. S/2005/610 • A/60/385), 17 October 2005 (U.N. Doc. S/2005/655 • A/60/435), 27 October 2005 (U.N. Doc. S/2005/680 • A/60/448), 5 December 2005 (U.N. Doc. S/2005/756 • A/60/580), 5 December 2005 (U.N. Doc. S/2005/757 • A/60/581), 31 March 2006 (U.N. Doc. S/2006/205 • A/60/742), 26 May 2006 (U.N. Doc. A/ES-10/334 • S/2006/336), 12 June 2006 (U.N. Doc. S/2006/382 • A/60/885), 26 June 2006 (U.N. Doc. S/2006/436 • A/60/905), 30 June 2006 (U.N. Doc. S/2006/463 • A/60/913), 5 July 2006 (U.N. Doc. S/2006/485 • A/60/931), 10 July 2006 (U.N. Doc. S/2006/502 • A/60/935), 10 October 2006 (U.N. Doc. S/2006/798 • A/61/507), 14 November 2006 (U.N. Doc. S/2006/887 • A/61/574), 15 November 2006 (U.N. Doc. S/2006/891 • A/61/578), 24 November 2006 (U.N. Doc. S/2006/916 • A/61/594), 5 December 2006 (U.N. Doc. S/2006/941 • A/61/608), 19 December 2006 (U.N. Doc. S/2006/1000 • A/61/647), 26 December 2006 (U.N. Doc. S/2006/1029 • A/61/681), 19 January 2007 (U.N. Doc. S/2007/23 • A/61/705), 7 February 2007 (U.N. Doc. S/2007/60 • A/61/729), 22 February 2007 (U.N. Doc. S/2007/101 • A/61/755), 7 March 2007 (U.N. Doc. S/2007/129 • A/61/787), 4 September 2007 (U.N. Doc. S/2007/524 • A/61/1038), 12 December 2007 (U.N. Doc. S/2007/728 • A/ES-10/406), 19 December 2007 (U.N. Doc.S/2007/750 • A/ES-10/407), 15 January 2008 (U.N. Doc. A/62/647-S/2008/24), 4 February 2008 (U.N. Doc. A/62/673 - S/2008/72), 8 February 2008 (U.N. Doc. A/62/685 - S/2008/86), 11 February 2008 (U.N. Doc. A/62/688 - S/2008/90), 27 February 2008 (U.N. Doc. A/62/710
- S/2008/132), 13 March 2008 (U.N. Doc. A/62/735 - S/2008/169), 27 March 2008 (U.N. Doc. A/62/770 - S/2008/209), 9 April 2008 (U.N. Doc. A/62/797 - S/2008/233), 18 April 2008 (U.N. Doc. S/2008/261), 22 April 2008 (U.N. Doc. A/62/812 - S/2008/269), 25 April 2008 (U.N. Doc. A/62/820 - S/2008/277), 9 May 2008 (U.N. Doc. A/62/839 - S/2008/311), 12 May 2008 (U.N. Doc. A/62/840 - S/2008/316), 14 May 2008 (U.N. Doc. A/62/843 - S/2008/328), 5 June 2008 (U.N. Doc. A/62/857 - S/2008/367), 24 June 2008 (U.N. Doc.S/2008/420), 22 December 2008 (U.N. Doc. S/2008/807), 24 December 2008 (U.N. Doc. S/2008/814). 30 See, e.g., Letters of 13 March 2008, 18 December 2008, 29 December 2008.

There are still people who think the United Nations has the moral authority to arbitrate international conflicts.

The decision to wage war against Hamas in Gaza was legal. What about the way it was waged?

According to international law, killing civilians during war is not illegal. It is regrettable, certainly; and tragic; but it's not illegal. This is because for a legal system to make any sense and have any long-term viability, it must relate to the real world, and in the real world it's impossible to protect innocents from lethal malice without sometimes killing innocents. Would that it were otherwise, but it isn't. Which means a society faced by people willing to kill innocents, must decide if it wishes to protect them as best it can, or sit back and allow them to be murdered. That's how I'd say it. The authors of the report, however, are legal types, and they put it this way:

90. The fact of civilian casualties in an armed conflict, even in significant

numbers, does not in and of itself establish any violation of international law.

In fact, the doctrine of “proportionality operates in scenarios in which

incidental injury and collateral damage are the foreseeable, albeit undesired,

result of attack on a legitimate target.”63 As Kenneth Watkin, the Canadian

Judge Advocate General, has explained, “although civilians are not to be

directly made the object of an attack, humanitarian law accepts that they may

be killed or civilian property may be damaged as a result of an attack on a

military objective.”64

91. It is for this very reason that the Office of the Prosecutor, at the

International Criminal Tribunal for the former Yugoslavia, rejected any

suggestion, in its evaluation of the NATO bombing campaign in Yugoslavia,

that the mere fact of civilian harm was indicative of wrongdoing. As the

Committee Established to Review the 1999 NATO Bombing Campaign

Against the Federal Republic of Yugoslavia stated in 2000 to the Prosecutor of

the ICTY, “[m]uch of the material submitted to the OTP consisted of reports

that civilians had been killed, often inviting the conclusion to be drawn that

crimes had therefore been committed.” Yet as the Prosecutor’s Committee

noted, “[c]ollateral casualties to civilians and collateral damage to civilian

objects can occur for a variety of reasons.”65 For example, they may be harmed

due to their proximity to a military target, or by operational mistakes. At times

civilians may suffer harm because they are conscripted by the adversary to

serve as “human shields” against an attack upon a military target.

63 Michael N. Schmitt, The Principle of Discrimination in 21st Century Warfare, 2 YALE

HUM. RTS & DEV. L.J. 143, 150 (1999) (emphasis added).

64 Kenneth Watkin, Assessing Proportionality: Moral Complexity and Legal Rules, in

YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW 3, 9 (Timothy L.H. McCormack ed.,

2005).

65 NATO Bombings, Final Report to the ICTY Prosecutor, ¶ 51.

92. In those and similar situations, one cannot jump from the unfortunate

occurrence of civilian harm to the unfounded conclusion that the attacks were

illegal. The critical but often omitted link in determining the legality of an

attack — even an attack that results in death or injury to civilians — is

whether the attacking forces sought to observe the rules of the Law of Armed

Conflict, and in particular the principles of distinction and proportionality.

This analysis depends on the particular facts of each incident. When individual

attacks are legitimate, “the mere cumulation” of such instances, all of which

are deemed to have been lawful, “cannot ipso facto be said to amount to a

crime.”66

66 Id. ¶ 52

93. For this reason, and as discussed in detail below, any assessment of the

legality of particular conduct cannot focus only on the consequences (whether

civilians were harmed). Instead, the proper focus is on whether the persons

carrying out the attack, based on what they knew and the conditions they faced

at the time, complied with the applicable rules of international law. The IDF

made extensive efforts to comply, not only in its training and rules of

engagement but also as implemented regularly in the field. Hamas made no

attempt to comply with these principles, but has exploited these rules in an

attempt to gain military advantage from the constraints the rules imposed on

IDF activities.

It was wise of the authors to hark back to the Allied attack on the Serbs of former Yugoslavia and its legality, since many people who dislike Israel supported that war. If the result – dead civilians and destroyed non-military property – is not an indicator of criminality, what is? The answer is so crucial that I've brought ten paragraphs in their entirety, though I strongly recommend reading the entire section. It is profoundly significant.

102. Judging military advantage with respect to a target evaluated during

combat is not an exercise in hindsight. The perspective is that of the

commander in the field at the time of a targeting decision, with the

information then available.79

103. This point, too, is reflected in military manuals of many States. Thus, for

example, the Military Manual of the Netherlands explains that: “the definition

of ‘military objectives’ implies that it depends on the circumstances of the

moment whether an object is a military objective. The definition leaves the

necessary freedom of judgement to the commander on the spot.”80

104. The military manuals of other States likewise afford a margin of

discretion to the

commander in the field.81

105. The military manuals of many States also confirm that the relevant

“military advantage” defining a “military objective” relates to “the military

campaign or operation of which the attack is a part considered as a whole and

not only from isolated or particular parts of that campaign or operation.”82

Further, the “security of the attacking forces” is a proper consideration in

assessing military advantage.83

78 ICRC Commentary on Additional Protocol I. Article 5(4)(a), ¶ 1953.

79 Kenneth Watkin, Assessing Proportionality: Moral Complexity and Legal Rules, in 8

YEARBOOK OF

INTERNATIONAL HUMANITARIAN LAW 3, 38 (Timothy L.H. McCormack 2005) (quoting

Prosecutor v. Galic, (hereafter “Galic”) Case No. IT-98-29-T, Judgment and Opinion, ¶¶ 50-

51, 55 (5 December 2003).

80 ICRC CIL Study, Practice, Ch. 2, ¶ 335 (quoting Netherlands, Military Manual (1993)).

81 See, e.g., ICRC CIL Study, Practice, Ch. 2, ¶¶ 334, 337 (quoting manuals of Italy and

Spain). The U.S. Naval Handbook states that determinations of whether civilians have taken a

direct part in hostilities and thus may lawfully be attacked must likewise be made by

“[c]ombatants in the field,” who “must make an honest determination as to whether a

particular civilian is or is not subject to deliberate attack based on the person’s behavior,

location and attire, and other information available at the time.” ICRC CIL Study, Practice,

Ch. 1, ¶ 830. Canada’s Law of Armed Conflict Manual states that “[a] concrete and direct

military advantage exists if the commander has an honest and reasonable expectation that the

attack will make a relevant contribution to the success of the overall operation.” ICRC CIL

Study, Practice, Ch. 4, ¶ 169.

82 ICRC CIL Study, Practice, Ch. 2, ¶ 336 (quoting New Zealand’s Military Manual)

(emphasis added); see also ¶¶ 329, 332, 334, 337 (quoting manuals of Australia, Germany,

Italy, and Spain). The United States Government likewise recognizes that “the anticipated

military advantage need not be expected to immediately follow from the success of the attack,

and may be inferred from the whole military operation of which the attack is a part.” ICRC

CIL Study, Practice, Ch. 2, ¶ 361 (quoting the Report on U.S. Practice, 1997).

83 See ICRC CIL Study, Practice, Ch. 2, ¶¶ 329, 331, 336, 339 (quoting manuals of Australia,

Ecuador, New Zealand, and the United States); see also id. ¶ 361 (noting U.S. Government’s

view that “[t]he foreseeable military advantage from an attack includes increasing the security

of the attacking force.”). See also Noam Neuman, Applying the Rule of Proportionality: Force

Protection and Cumulative Assessment in International Law, 7 Yearbook of Int’l Hum. L 79,

91-96, 109, 111 (2005) (“When interpreting the term ‘similar military advantage,’… it seems

obvious that the lives of the soldiers must be taken into account.”).

106. The manuals recognise as well that objects “normally dedicated to

civilian purposes, but which are being used for military purposes” (such as

houses, schools or churches) lose their protection under the applicable law,

and may properly become lawful “military objectives.”84 This reality becomes

particularly important when a party, in violation of its own obligations under

the Law of Armed Conflict (see Section V.A(1)(b) below), deliberately places

combatants and weaponry at or near civilian sites in order to shield them from

attack, and thus exposes civilians to significant harm. As noted in the 2007

edition of the Operational Law Handbook, issued by the United States Air

Force Judge Advocates Corps, “Use refers to how an object is presently being

used.”85 Thus, as the Handbook notes, “[e]xamples of enemy military

objectives which by their use make an effective contribution to the military

action” would include “an enemy headquarters located in a school, an enemy

supply dump located in a residence, or a hotel which is used as billets for

enemy troops.”86

107. The loss of absolute protection for a civilian site when it is misused by

the adversary as a locus for military operations is broadly recognised in the

Law of Armed Conflict.87 Thus, for instance, the hidden placement of a

significant military asset within a civilian building or even the presence of

enemy combatants can make the otherwise civilian site amenable to attack.88

This is a harsh reality of urban warfare. 86 Id. (emphasis added).

87 See YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF ARMED

CONFLICT (Cambridge University Press 2004), at 99 (“The real test in land warfare is whether

a given place, inhabited by civilians, is actually defended by military personnel. Should that

be the case, the civilian object becomes – owing to its use – a military objective.”).

88 Charles Garraway, Moderator, Panel Discussion at the U.S. Naval War College: When

Civilian Objects Become Military Objectives, 78 INTERNATIONAL LAW STUDIES 214-216,

Blue Book series (“[I]f a prescribed area is defended[by opposing military forces], any

building within the area (other than an assembly point for the collection of wounded, marked

as such) would be exposed to attack, irrespective of its ostensible status as a civilian object.”).

122. By definition, then, evaluation of proportionality (or excessive harm to

civilians compared to military advantage) requires balancing two very

different sets of values and objectives, in a framework in which all choices

will affect human life. States have duties to protect the lives of their civilians

and soldiers by pursuing proper military objectives, but they must balance this

against their duty to minimise incidental loss of civilian lives and civilian

property during military operations. That balancing is inherently difficult, and

raises significant moral and ethical issues. Indeed, as the Committee

established to review NATO’s bombing campaign in the former Yugoslavia

emphasised: “The main problem with the principle of proportionality is not

whether or not it exists but what it means and how it is to be applied. It is

relatively simple to state that there must be an acceptable relation between the

legitimate destructive effect and undesirable collateral effects. …

Unfortunately, most applications of the principle of proportionality are not

quite so clear cut. It is much easier to formulate the principle of

proportionality in general terms than it is to apply it to a particular set of

circumstances because the comparison is often between unlike quantities and

values.”108

123. It is precisely because this balancing is difficult that international law

confirms the need to assess proportionality from the standpoint of a

“reasonable military commander,” possessed of such information as was

available at the time of the targeting decision and considering the military

advantage of the attack as a whole. Moreover, the balancing may not be

second-guessed in hindsight, based on new information that has come to light;

it is a forward-looking test based on expectations and information at the time

the decision was made. This perspective is confirmed by the use of the word

“anticipated” within the text of the rule itself, as well as in the explanations

provided by numerous States in ratifying Additional Protocol I.109

124. Inevitably, different soldiers in combat make different choices in

balancing competing values and interests. As the Committee Established to

Review NATO Bombings in Yugoslavia explained to the ICTY Prosecutor, “It

is unlikely that a human rights lawyer and an experienced combat commander

would assign the same relative values to military advantage and injury to

noncombatants. Further, it is unlikely that military commanders with different

doctrinal backgrounds and differing degrees of combat experience or national

military histories would always agree in

close cases. It is suggested that the determination of relative values must be

that of the ‘reasonable military commander’.”

108 NATO Bombings, Final Report to the ICTY Prosecutor, ¶ 48.

109 See, e.g., ICRC CIL Study, Practice, Ch. 4, ¶ 195 (noting Austria’s statement that “with

respect to any decision taken by a military commander, the information actually available at

the time of the decision is determinative” for judging proportionality in attack) (emphasis

added). Numerous other States have made similar declarations. See id.

¶¶ 196-205. As Germany stated forcefully, “the decision taken by the person responsible has

to be judged on the basis of all information available to him at the relevant time, and not on

the basis of hindsight.” Id. ¶ 199 (emphasis added).

110 NATO Bombings, Final Report to the ICTY Prosecutor, ¶ 50-1 (emphasis added).

Note how none of the footnotes substantiating Israel's position are from Israeli publications.

Launching the operation can be defended by the principles of international law. The certainty that some innocent bystanders would be killed and property destroyed do not make the method of waging the war illegal; for that determination one must apply rigorous empirical and legal criteria. Having established these principles, the report turns its attention to the behavior of Hamas and its practice of war. The purpose of this section is not to win brownie points by stating that Hamas unlike Israel never heeds international law although that's obviously true. Rather, the section describes how Hamas insistence on illegal behavior impacts the field of battle and the local decisions which confronted the IDF commanders.

Staging attacks from residential areas and schools, using medical facilities and ambulances, and many other illegal actions, forced IDF commanders to take them into account. If international law requires of a state that it protect its own civilians, and the civilians are being shot at from schools, say, the state is still required to protect its citizens. (Pages 52-75 of the report).

The fact that the principles of international law justify the Israeli actions does not mean their execution was legal. Lots of things can go wrong on the road from principle to action. Pages 76-82 tell how the IDF trains its soldiers at all ranks to understand and accept the law and its

practical implications. As the father of soldiers I have seen how this educative process begins in the very first months of military service; the report focuses mostly on the training of career officers. It concludes by observing that IDF training in international law is at least as rigorous as in other democracies; the independence of legal advisors embedded in military units and in the decision-making process is actually greater; and some orders in Western armies use almost the exact same terminology as the IDF:

219. NATO’s International Security Assistance Force (“ISAF”) in

Afghanistan recently issued tactical directives regarding compliance with the

Law of Armed Conflict which mirror many of the steps taken by Israel. One

Directive, issued on 30 December 2008, directs all ISAF forces to ensure that

uses of force be “proportionate” and that “the utmost of care should be taken

to minimize any damage.”199 The Directive also requires military commanders

to train their forces “to minimize the need to resort to deadly force” and to

issue — as Israel did — repeated “general and specific warnings (visual and

audible)” before using deadly force.200 A Directive issued 6 July 2009 calls for

commanders to scrutinise, as Israel does, the use of close air support (“CAS”)

against residential compounds and carefully to “weigh the gain of using CAS

against the cost of civilian causalities.”201 The Directive further instructs

commanders to ensure “complete understanding at all levels — down to the

most junior soldier” regarding the proper use of force.202

199 See International Security Assistance Force, Tactical Directive (30 December 2008) ¶ 4(a).

200 Id. ¶ 4(c).

201 International Security Assistance Force, Tactical Directive (6 July 2009).

202 Id.

Rules of engagement: readers who have never been in an army probably underestimate the centrality of orders before going into battle. The process of preparing for battle is detailed,multi-layered, and exacting. Both Hollywood and the media, two primary, almost exclusive

sources of information for most Western civilians, largely overlook this stage, because it's dramatic only if it's your life that's at stake. The process includes meetings, meetings, and more meetings, where an officer stands in front of a map and drones the most minute details in mind-numbing length. Numbers of troops, of units, of weapons, of obstacles, of buildings, trees, unused garages, dry canals, wet canals, numbers of adjacent units, numbers of enemy units, distances, ranges, altitudes, crisscrossing roads, unmarked trails, walls, hedges, wells… these are the stuff of preparation for battle. When time allows, preparations will take weeks, but in the heat of battle they often steal the few hours of sleep the soldiers can hope for, as the planning, briefing, de-briefing and additional planning take place in dusty tents with gunfire crackling nearby. There are moments of battle which are pure improvisation and ingenuity, but fewer than you think, and they draw heavily upon years of

preparation and painstaking rehearsal of potential scenarios.

The closest civilian experience to preparation for battle I can think of is cramming for an exceedingly important examination. Except of course cramming before battle is serious.

The report tells a bit about how the IDF prepared for the operation. The operative principles

included

• Only military targets shall be attacked.207

207 Military targets were defined in terms similar to those used in Additional Protocol I, art.

52(2).

• Any attack against civilian objectives shall be prohibited.

• A “civilian objective” is any objective which is not a military target. In case

of doubt, the forces are obliged to regard an object as civilian.

• When a civilian objective is used by the enemy for a military activity it loses its

protection and immunity and becomes a legitimate military target.

Nevertheless, when striking such a target, special care shall be taken to adhere

to the principle of proportionality.

• The presence of civilians within a military objective or in its vicinity does

not negate as such, the military character of the objective. Such a military

objective may be attacked, subject to the principle of proportionality.

• A dual use objective may be attacked if reliable, conclusive and up-to-date

information confirms that it serves the military activities of the enemy, and

subject to the principle of proportionality. In case of doubt, such objective

shall be presumed to be civilian. (Paragraph 223, p.83)

Targets were chosen in advance when possible. Here are two examples of what was known in advance:

o Izz al-Din al-Qassam Brigades and Executive Force headquarters in the

northern Gaza Strip (struck on 27 December): Hamas commandeered the

compound after it took control of the Gaza Strip in June 2007. It served to

store weapons and equipment, as well as housing armoured patrol cars

(confiscated from the Palestinian security services operating in the Gaza Strip

before the Hamas takeover). Hamas used two of the vehicles in the attack on

the Kerem Shalom crossing on 19 April 2008, during which seven IDF

soldiers were wounded. The headquarters also served as a base from which

terrorist attacks were dispatched. The facility was also Hamas’ main

interrogation facility and a holding place for Fatah prisoners. (p. 86)

o A Mosque in the Tel al-Hawa neighbourhood of Gaza City that served as a

storehouse for armaments (struck on 31 December): The mosque served as an

arms storage facility and a launching site for terrorist activity. The strike

caused a long series of secondary explosions from armaments and ammunition

that were stored in the mosque (including rockets, some of which were longrange

Grad rockets). The raid took place following information received prior

to the attack, indicating that many fighting operations were being launched out

of and in the vicinity of the mosque. For instance, the mosque was used for

storing weapons, firing rockets into Israeli territory (including fire on the

morning of 31 December), and providing a hiding place for terrorist

operatives.(P.88).

Pages 89-95 of the report work through the question of overlapping identities of Hamas fighters and regular police. Any student of regimes with these dual faces knows the distinction is not easy to maintain. Parties with private armies and illegal activities tend to combine them with legal state formations once they reach power for a whole range of compelling reasons. The idea that Hamas would refrain from such behavior is fanciful. And indeed, the report demonstrates that Hamas didn't restrain itself.

247. In fact, there is evidence that an overwhelming majority of the police

forces were also members of the Hamas military wing or activists of Hamas or

other terrorist organisations. A recent study has reviewed a list of all the

internal security services members that Hamas reported killed during the Gaza

Operation — consisting of 245 names in total. It found that 75.2 percent were

Hamas activists (mostly members of the al-Qassam Brigades), and the total

number of terrorist activists and fighters (including members of other terrorist

groups operating in Gaza) from among the number of fatal casualties of the

Palestinian security forces was 311, or 90.7 percent.219 In other words, more

than nine out of every ten alleged “civilian police” were found to be armed

terrorist activists and combatants directly engaged in hostilities against Israel.

[The full list can be found in PDF form near the bottom of this webpage. It's in

Hebrew and Arabic].

Gather information and list potential targets – then send them to the lawyers. That's how it's done these days in the IDF. The lawyers of the Military Advocate General (MAG) review the lists of targets and some were rejected. Munitions, angles of shot, time of day or night, and the ability to warn civilians were all taken into account. More than 1,900 buildings and installations were marked in advance as UN or Red Cross, schools or medical centers.

Contrary to the image of a callous invading army uncaring who it destroyed, there was cooperation with international organizations before and throughout the operation. This is so different from the media reports that it must to be quoted in full:

267. A central aspect of the IDF humanitarian effort was coordination with the

various humanitarian agencies and organisations. Humanitarian facilities were

marked on IDF operational maps and aerial photographs according to

information provided by the various organisations in advance. Furthermore, a

joint coordination map was prepared, to create a common language for the

IDF and the international organisations operating in Gaza.

268. On 23 December 2008, on the eve of the operation in Gaza, the Ministry

of Foreign Affairs held a specific meeting with representatives of the ICRC

and other organisations in order to establish clear channels of cooperation, and

to ensure the continuing flow of humanitarian supply and medical assistance

to Gaza during the operation. In addition, immediately upon the

commencement of the Gaza Operation, the then Foreign Minister, Tzipi Livni,

held a special high level meeting with representatives of ICRC, United

Nations Truce Supervision Organization (“UNTSO”), UNRWA, United States

Agency for International Development (“USAID”), World Food Program

(“WFP”) and the EU, in order to assess the needs of these organisations for the

benefit of the civilian population in Gaza. Furthermore, as discussed below, a

Humanitarian Coordinating cell was established during the operation in Gaza,

providing real-time assistance and coordination to international organisations

vis-a-vis the IDF and the Israeli authorities.

269. During the Gaza Operation itself, the Gaza Coordination and Liaison

Administration (“CLA”) operated a 24 hour operations room tasked with

communicating with the IDF and international organisations to deal with real

time problems and requests. The CLA coordinated close to 500 movements of

international organisations’ vehicles and convoys during the operation. In

addition, a special Humanitarian Coordination Centre (“HCC”) was

established for enhanced coordination with representatives of the international

organisations working in Gaza. Representatives of the United Nations Office

for the Coordination of Humanitarian Affairs (“OCHA”), UNRWA, ICRC,

WFP and other international organisations met on a daily basis with IDF

representatives to coordinate the entry of humanitarian aid into Gaza. There

were 120 humanitarian support and liaison officers, trained in advance and

deployed at all levels of field command, in order to manage implementation of

the humanitarian coordination and to serve as advisers to the

military commanders on humanitarian and coordination issues.

270. The IDF maintained communication with the Civil Affairs Committee of

the Palestinian Authority as well as with members of the Palestinian private

sector to coordinate supplies of goods and humanitarian assistance. In

addition, the IDF maintained contact with the Palestinian Electricity, Water

and Sewage and Communications Authorities in Ramallah and their crews in

Gaza, in order to coordinate the functioning of essential utilities during the

Gaza Operation.

And note: the coordination was even with Palestinian offices, not only international ones. Someone ought to ask the organizations to confirm all this; if they do, then ask why they forgot to mention it to the media.

More than 2,500,000 information leaflets (in Arabic) were distributed, containing directions to civilians on how to stay safe. Many observers and pundits were cynical about this. After all, there was no-where in Gaza to escape to. The report tells otherwise: the leaflets were often very precise and included local specifics about safe areas and how to reach them. Here's one of them:

To the Residents of the Sajaiya Neighbourhood

The IDF continues to intensify its operations against Hamas terrorism and will attack any

location in the Gaza Strip where terrorist operatives, tunnels or weapons are to be found. All

residents of the Sajaiya Neighbourhood must leave their homes and move towards the Old

City to the other side of Salah A’Din Road, with effect as of the distribution of this leaflet and

by no later than 6 hours after the distribution of this leaflet.

These instructions are in force until further notice. Adherence to IDF instructions has

prevented unnecessary casualties in the past.

Please continue to follow IDF instructions for your own safety.

IDF Command [page 99].

Yaacov Lozowick's reading of Israel's official report on the Gaza Incursion

August 2009

More than 160,000 phone calls were placed to civilians in Gaza with specific warnings; as I described at the time, this measure alone necessitated major preparations and expense.

The best laid plans may not withstand the full blast force of reality. While unlikely, it is even conceivable that years of training, inculcation of values, and rules that express them could all evaporate at the first whiff of bloody violence. I'm not certain such a thing has ever happened; my reading of history is that armies' behavior in the horror of war at least partially reflect the way they were prepared in advance, and the values of their society. Yet some breakdowns are inevitable, given the intensity of the experience that is war. The final chapter of the background section of the report tells of the tools Israel uses to investigate alleged aberrations, where things may have gone wrong. These investigations are crucial for many reasons, but the most important is internal: Israel will probably continue at war for many years, and must protect its moral stature. The conviction of Israelis – soldiers and civilians – that they are fighting a just war in a just manner may be the single most potent weapon they have; it is far more important than any discussion that might take place in the international arena. For this reason alone my inclination would be furiously to reject the demand of Israeli organizations that investigations be made by external entities. We need to investigate ourselves.

That, predictably, is not the line taken by the authors of this report. Legal-minded as they are, they require of Israel that its investigative processes and agencies adhere to international standards. The investigative procedures (described on pages 107-117) have three layers. First, the army has its own investigative units, who are trained to gather evidence. Second, the MAG evaluates the evidence and determines if there is justification for court martial proceedings. Unlike in many Western countries, the MAG is not subordinate to the military chain of command. Finally, all decisions made by the MAG (or military courts) are subject to review and upturning by the High Court of Justice, whose justices are all members of the Supreme Court – the highest legal instance in the land. In a sovereign country, there can be no higher legal instance.

310. Criminal procedures in the United States system are conducted through a

courts-martial system similar to that in place in Israel. Military prosecutors are

required to be free from command influence, although as a matter of structure

they are subordinate to the field commanders, unlike in Israel. In addition, in

Israel the legal adviser has the authority to order criminal investigations and to

prosecute soldiers, while in the United States, the “Convening Authority”252

has jurisdiction to refer cases to a Court-martial for trial and to approve,

modify, or disapprove the findings and sentences in Court-martial

proceedings, and Judge-Advocates in the United States may only advise the

Convening Authority.253 The U.S. system does not provide for independent

judicial review of the decision to commence or not commence a criminal

proceeding, as exists in Israel.254

252 “Convening Authority” is defined in R.C.M. 103(6) to include “a commissioned officer in

command for the time being and successors in command.”

253 See R.C.M. 401, 504, 505, 601, 1107.

254 Many other countries likewise do not provide (as does Israel) for independent judicial

review of either the decision to commence a criminal proceeding or the criminal proceedings

themselves. See India: T. Padmanabha Rao, Supreme Court Ruling on Court-Martial, The

Hindu, 17 April 2001, available at http://www.hindu.com/2001/04/17/stories/0217000p.htm

(noting the lack of judicial review of court martial proceedings); Singapore: Abdul Wahab bin

Sulaiman v. Commandant, Tanglin Detention Barracks, 1985-1 Malayian L.J. 418, 1985 MLJ

LEXIS 37 (Sing. 1985) (noting ruling by the High Court of Singapore that it lacked authority

to review decisions of the Military Court of Appeals by prerogative writ).

The final 40 pages of the report focus on about two dozen specific cases where things may have gone wrong. As any fair minded observer would expect, some of the cases really were tragic mistakes. Others were not what they appeared to be in the immediate media reports. And some – unsurprisingly – were simply lies propagated by Hamas propagandists.

Tragic errors include, for example, the killing of members of the Al-Daia family in Zeitun on January 6th.

386. The IDF has concluded that this tragic event was the result of an

operational error. An investigation determined that the IDF intended to strike a

weapons’ storage facility located in a building next to this residence.

However, the IDF erroneously targeted the Al-Daia residence, rather than the

weapons storehouse. Although the IDF did provide warning shots to the roof

of the Al-Daia residence, other warnings (such as the warning phone call)

were made to the building actually containing the weapons, not the Al-Daia

residence.

In the attack on the home of Nizar Rayan, surprisingly, he was not the target at all. The munitions stored in his home were. Moreover, the attack took place only after many precautionary steps had been taken.

389. In an effort to ensure that it destroyed only the storage facilities, and did

not harm civilians residing in the buildings, the IDF issued several warnings

before the attack. These included not only general leaflets and telephone calls,

alerting civilians to avoid facilities serving Hamas and other terrorist groups,

but specific phone calls to the residents of the targeted buildings, notifying

them of the planned strike and warning them to evacuate the premises. The

IDF also fired two separate rounds of preliminary warning shots with light

weapons, 13 minutes and 9 minutes before the strike, providing sufficient time

for residents to evacuate. The residents evidently understood these early

warnings, as a group

of them did leave the building, a fact confirmed by IDF surveillance before

proceeding with the strike. The IDF observed this group evacuation and drew

the reasonable conclusion that the buildings (including Ri’an’s house) were

empty. Only then did the IDF launch the strike.

The IDF had someone watching the building, and shot at it only after the civilians, who had been warned three times of the impending attack, were seen leaving. Rayan and his family went out of their way still to be there when the attack itself occurred.

Attacks on ambulances. Coordination procedures were in place with the Palestinian medical authorities. When they were adhered to, no-one got hurt. When they weren't, in some cases IDF troops mistakenly shot at real ambulances; in other cases, real ambulances were used by Hamas fighters for illegal purposes. (Pages 139-40).

Some reports of alleged Israeli crimes were simply bogus. Paragraph 380 cites two cases where Palestinian men allegedly killed in IDF attacks on ambulances are in fact still alive. One of them was even interviewed on a Hamas website several days after his "death".

Pages 145-152 look at the allegations that the IDF used forbidden weapons, or used permitted weapons in forbidden ways. None of these allegations are true. White phosphorous, incendiary and flechette munitions are nowhere forbidden in international law, and when used they were deployed in permissible manner.

The final section of the report focuses on destroyed Palestinian property. Property is not lives. It can be rebuilt. Lost lives can't. Yet destroyed property can be filmed weeks or years later, and a destroyed home can pose for whatever purpose the reporter wishes, irrespective of facts. The report found only one case where IDF troops destroyed Palestinian property in a wanton manner. All other cases were the result of legitimate actions, or property destroyed by Hamas fighters who often by booby-trapped residential buildings, or stashed arms in residential areas.

*****

So what does all this prove? Is this a definitive description of Israel's war against Hamas of January 2009? Does the report fully exonerate Israel of the myriad charges against it?

Of course not. By the very virtue of being a serious document, the report cannot expect to be more than part of a discussion. As college freshmen are taught the moment they pass the gates of school, even the most thoughtful academic tome must be questioned, its weaknesses sought, its loopholes exposed. Legal depositions can rarely be accorded the status of a thoughtful academic tome; by their very definition they seek to show how the law supports the positions of their clients. Israel's report on the Gaza incursion is nothing if not a legal deposition.

Yet that is precisely its game-changing significance. In its embrace of international law and use of it to justify Israel's actions at war, in this case, the war against Hamas in Gaza of January 2009, but also in general, it pulls the rug out of the vacuous and unsubstantiated norm of reflexively castigating Israel as a transgressor against international law. Israel's detractors are welcome to explain, in an equally learned and serious manner, why they think Israel's actions are wrong. Merely stating this sentiment, however, cannot suffice. Stating the sentiment while pretending that it is the only possible way of reading international law, must cast the critics in the profoundly unserious light they deserve.

Jerusalem

August 7th, 2009