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 |  Subject: Israhell faces questions of war crimes in Gazaschwitz  Sun Jan 18, 2009 9:19 pm | |
| JERUSALEM: Your unit, on the edges of Jabaliya, has taken mortar fire from the crowded refugee camp nearby. You plot the launch and go to return fire, and perhaps you notice - or perhaps you don't, even though it's on your map - that there is a United Nations school just there, full of internally displaced Gazans. You know that international law allows you to protect your soldiers and return fire, but also demands that you ensure that there is no excessive harm to civilians. Do you remember all that in the panic?
You pick GPS-guided mortars, which are supposed to be accurate and of a specific explosive force, and fire back. In the end, you kill some of the Hamas fighters, but also, the United Nations says, more than 40 civilians, some of them children. Have you committed a war crime?
Whatever the military and political results of Israel's three-week-old war against Hamas in Gaza, Israel is again facing serious accusations and anguished questioning over the legality of its military conduct. As in Israel's 2006 war against Hezbollah, the perception abroad of how Israel fights, and hence of Israelis, may prove to be more lasting than any strategic gains or losses.
The photographs of devastation in crowded Gaza and the large asymmetry in deaths, especially of civilians, have created an uproar in the Arab world and the West reminiscent of 2006.
A plethora of Western foreign ministers, United Nations officials and human rights groups, both Israeli and foreign, have expressed shock and disgust. Human Rights Watch and Israel's B'Tselem have called for investigations into possible war crimes. Such groups also say Hamas is clearly violating the rules of war.
More than 1,100 Palestinians have died in Gaza, the Hamas-run Ministry of Health says, which estimates that 40 percent were women and children under 18. Israel contends that only a quarter of the dead were civilians. Israel, which has suffered 13 dead, 3 of them civilians, has been accused of a disproportionate use of force.
Death tolls in warfare may carry a moral weight, but not a legal one.
Under international law, proportionality is defined as a question of judgment, not of numbers: Is the potential risk to civilians excessive in relationship to the anticipated military advantage? That puts the weight on military advantage, since civilian risk is a given and must only not be "excessive." Even if the target is legitimate, was the right weapon used to try to minimize civilian damage? The key is the expected damage the commander anticipated from the use of a certain weapon, and not what actually happened when it was fired.
The other key legal principle is "discrimination" - has a military struggled hard enough to hit only military targets and combatants, while trying to avoid purely civilian targets and noncombatants?
Deciding requires an investigation into battlefield circumstances that cannot be carried out while the fighting rages, and such judgments are especially difficult in urban guerrilla warfare, when fighters like Hamas live among the civilian population and take shelter there. While Israel is the focus of most criticism, legal experts agree that Hamas, a semi-state, radical Islamic group, is guilty.
Shooting rockets out of Gaza aimed at Israeli cities and civilians is an obvious violation of the principle of discrimination and fits the classic definition of terrorism. Hamas fighters are also putting civilians at undue risk by storing weapons among them, in mosques, schools and, the Israelis say, hospitals, making them potential military targets. While urban and guerrilla warfare is not illegal, by fighting in the midst of civilians, often in civilian clothing, Hamas may also bring unnecessary risk to noncombatants.
But Hamas's violations tend to be treated as a given and criticized as an afterthought, Israeli spokesmen and officials assert. They insist that Israel has never targeted civilians, medical workers or United Nations facilities or personnel.
"The rules of engagement are very clear," said Mark Regev, the spokesman for Prime Minister Ehud Olmert. "Not to target civilians, not to target UN people, not to target medical staff. All this is very clear in Israeli military doctrine."
Asa Kasher, 69, has a chair in professional ethics at Tel Aviv University and helped write the Israeli military's ethical code. He still teaches in the army's College of Command and General Staff.
He said that he believes the Israeli Army's ethical and legal standards are high and that they are conscientiously taught to its military. But as for what happens on the ground, he said, "I have a general confidence in their attitudes and decency, but who knows?"
More here:
http://www.iht.com/articles/2009/01/17/mideast/israel.4-409612.php?page=2
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Anarcho-Capitalist, AnCaps Forum, Ancapolis, OZschwitz Contraband
“The state calls its own violence law, but that of the individual, crime.”-- Max Stirner
"Remember: Evil exists because good men don't kill the government officials committing it." -- Kurt Hofmann |
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