January 21, 2009
The exploitation of international legal rhetoric is a major weapon in the political war to delegitmize Israeli anti-terror operations. Under this strategy, crystallized at the NGO Forum of the UN's 2001 Durban Conference, the terminology of international humanitarian (IHL) and human rights law is selectively applied to charge Israel with "violations of law," "crimes against humanity," "war crimes," "disproportionate force" and "indiscriminate attacks." In contrast, the violation of Gilad Shalit's human rights and Hamas' use of human shields are ignored. NGOs use the legal language to increase the credibility and seriousness of the charges, and in the Gaza conflict, many are already calling for international "investigations" and "lawfare" (i.e. filing lawsuits against Israeli officials in different countries) based on these accusations. Hamas, Hezbollah, and the PLO have reaped significant political benefits from this strategy in their conflicts with Israel. This NGO Monitor report analyzes common NGO legal claims: * NGO silence on Gilad Shalit's rights under international law is a significant moral failing by these self-proclaimed defenders of human rights and international law. Held hostage by Hamas since June 2006, Shalit is entitled to the rights and protections of prisoners of war guaranteed in the Third Geneva Convention, including the right to unfettered access to the Red Cross. Hamas flouts international law and very few NGOs call it to account or demanded enforcement of Shalit's rights.
* Hamas exploits schools, mosques, hospitals and cultural centers to carry out its attacks in flagrant violation of article 51 of the Fourth Geneva Convention. This factor is minimized or ignored by numerous NGOs, and the emphasis is placed on Israel to avoid civilian casualties. But international law is clear: in cases of human shields, civilian deaths that result are clearly the responsibility of Hamas and not Israel.
* Under international law, the test for proportionality is whether civilian harm is "clearly excessive in relation to the concrete and direct overall military advantage anticipated." Casualty ratios are not relevant, and this standard does not require equivalency in weaponry.
* NGO claims that Israel deliberately targets civilians or does not attempt to distinguish between civilian and military targets are entirely without foundation. The NGOs leveling these charges do not possess military expertise, detailed information on the dispersal of weapons by Hamas, and they are not privy to Israeli targeting decisions. Such information is essential in order to make a credible evaluation of Israeli military responses to the thousands of rocket attacks by Hamas.
* The NGO charge of "collective punishment" is false both legally and factually. "Collective punishment" refers to the imposition of criminal penalties, not economic sanctions. Israel is in compliance with article 23 of the Fourth Geneva Convention and allows access for humanitarian supplies well in excess of its legal obligations while under attack.
* Calls for "war crimes" investigations and lawsuits are part of the NGO anti-Israel lawfare strategy, in order to harass Israeli officials with civil lawsuits and criminal investigations and to promote a negative media image of Israel. Rather than obtaining "justice" for victims, these cases are intended to punish Israel for its anti-terror methods, to prevent future operations, to interfere with Israel's diplomatic relations, and to advance boycotts and other aspects of the Durban strategy.
Claim: The fate of Gilad Shalit is an unimportant international legal issue.
Analysis: The refusal of the NGO community to demand Red Cross access to Gilad Shalit is a significant moral failure. International humanitarian law was enacted to guarantee the rights and protections of prisoners of war. The Third Geneva Convention lays out these rights unequivocally: the right to humane treatment (article 13); the right to have knowledge of a POW's location (article 23); the right to send and receive letters and cards on a monthly basis (article 71); the right to unfettered access to the Red Cross (article 126), and others. Hamas has flouted each of these provisions and the NGO silence causes considerable damage to international humanitarian law and universal human rights.
Claim: The use of human shields by Hamas is irrelevant to Israel's compliance with IHL
Analysis: These NGO claims misstate the law as it applies to Israel and deliberately ignore violations by Hamas. Under article 51(7) of the First Protocol of the Geneva Conventions, civilians "shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations." Hamas is in direct violation of this rule, yet few if any NGOs mention it. Regardless of Hamas' abuse of article 51, under article 28 of the Fourth Geneva Convention, "the presence of a protected person may not be used to render certain points or areas immune from military operations." Therefore, Israel is not prohibited from attacking a military target simply because there are civilians present. The documentary and video proof of Hamas's exploitation of schools, mosques, hospitals and cultural centers to carry out its attacks is overwhelming, and responsibility for any civilian deaths that follow belongs to Hamas.[1]
Claim: NGOs such as Oxfam, Gisha, and B'Tselem, claim Israel has used "disproportionate force" highlighting the number of Palestinians killed especially children with emotive "testimonies" and anecdotes from Gazans in their reports. These claims frequently compare Palestinian casualties with Israeli casualties.
Analysis: While every civilian death is regrettable, casualty ratios are not relevant to the standard for evaluating proportionality. Pursuant to article 2(b)(iv) of the Rome Statute of the International Criminal Court, an attack is "disproportionate" if it causes damage or loss of civilian life "which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated" and as Israel's former UN Ambassador, Dore Gold notes, Israel "is not required to calibrate its use of force precisely according to the size and range of the weaponry used against it." "Just war" theorist Michael Walzer has also remarked that the concept of proportionality cannot be applied "speculatively." He points out that the test of proportionality is in relation to the future expected military advantage, not in relation to past events or civilian deaths from previous attacks. In his view, those leveling the charge of "disproportionate" do so only when it is "simply violence they don't like, or it is violence committed by people they don't like." Therefore, "Israel's Gaza war was called 'disproportionate' on day one, before anyone knew very much about how many people had been killed or who they were."
Claim: Human Rights Watch, Palestinian Center for Human Rights, Amnesty, Al Mezan, and others accuse Israel of "indiscriminate attacks" against Gazan civilians.
Analysis: The claim that Israel deliberately targets civilians or does not attempt to distinguish between civilian and military targets is entirely unfounded. The IDF has legal advisors embedded with combat units making analyses prior to any military action. Many attacks have been aborted when it was deemed the potential harm to civilians was too great. Moreover, the NGOs leveling these charges do not possess military expertise, detailed information on the dispersal of weapons by Hamas, and they are not privy to Israeli targeting decisions. Such information is essential in order to make a credible evaluation of Israeli military responses to the thousands of rocket attacks by Hamas.
Claim: Amnesty International accuses Israel of "unlawfully" killing "scores of unarmed civilians, as well as police personnel who were not directly participating in the hostilities".
Analysis: Amnesty has no basis relabelling Hamas operatives as "civilian" police officers and presents no evidence supporting its claim that these men were not "directly participating in the hostilities". In fact, a Hamas-linked website claims that these men were members of Hamas' Izz Al-Din Al-Qassam brigade.
Claim: Israel is engaging in "collective punishment"
Analysis: Restriction on the flow of goods in a war environment does not constitute "collective punishment" under international law and this charge is not only false legally, but factually as well. "Collective punishment" refers to the imposition of criminal penalties and does not refer to the legal act of retorsion (e.g. sanctions, blockades). In fact, pursuant to article 23[2] of the Geneva Convention (which sets standards for the provision of limited humanitarian aid), Israel has no obligation to provide any goods, even minimal humanitarian supplies, if it is "satisfied" that such goods will be diverted or supply of such goods will aid Hamas in its war effort. As numerous credible accounts have reported, Hamas has diverted supplies from Gaza’s civilian population. Although Israel is under no legal obligation and despite the diversion as well as attacks on the Israeli border crossings, including the April 9 attack on the Nahal Oz fuel depot and the May 22 truck bomb attack at the Erez crossing, Israel continues to provide thousands of tons of humanitarian supplies to Gaza. This is above and beyond any obligation under international law, and the claim of "collective punishment" is entirely unjustified.
Claim: NGOs ignore and even imply Israel should violate its international legal obligations to fight terrorism
Analysis: Israel has numerous binding obligations to fight terrorism under international law. These include Security Council Resolution 1373 (2001) made pursuant to Chapter VII of the UN Charter requiring Israel to:
* "prevent and suppress the financing of terrorist acts";
* "criminalize the wilful provision or collection, by any means, directly or indirectly, of funds" used to carry out terror attacks
* "refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts";
* "deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens";
* "prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens";
* "prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents."
The NGO statements on Gaza overwhelmingly ignore this obligation and seek to place "human rights" duties upon Israel that stand in direct conflict with Israel's legal obligations – in essence, demanding Israel violate international law.
Claim: Many NGOs have called for "war crimes investigations" and lawsuits against Israel for its operations in Gaza
Analysis: These calls are part of the lawfare strategy, adopted at the 2001 Durban Conference, used to harass Israeli officials with civil lawsuits and criminal investigations for "war crimes" or "crimes against humanity" by exploiting universal jurisdiction statutes in Europe and North America. These cases are a means for NGOs to punish Israel for its anti-terror methods; to prevent future operations; and to promote a negative media image of Israel. They are also a means of interfering with Israel's diplomatic relations. Leaders in this movement include the Palestinian Center for Human Rights (PCHR), Al Haq, the International Federation of Human Rights (France (FIDH)) and the Center for Constitutional Rights. PCHR is already issuing calls to bring suit for the killing during Operation Cast Lead of Shiekh Nizar Rayan, one of the leading architects of Hamas atrocities, and who sent his son out on a suicide bombing mission in 2001. To date, these cases have been dismissed at the preliminary stages. See NGO Monitor's monograph, NGO "Lawfare": Exploitation of Courts in the Arab-Israeli Conflict, for more information on this issue.
Conclusion:
The exploitation of international law by NGOs as seen in the Gaza conflict, according to Washington attorneys David Rivkin and Lee Casey, reflects an effort to “criminaliz[e] traditional warfare” rather than promote universal human rights.
Notes:
[1] This concept is analogous to the "felony murder" rule where the perpetrator of a crime will be held liable for murder if an innocent bystander is killed by a police officer or other law enforcement agent while attempting to apprehend the felon.
[2] Article 23 provides that
Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.
The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing:
(a) that the consignments may be diverted from their destination,
(b) that the control may not be effective, or
(c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods.
The Power which allows the passage of the consignments indicated in the first paragraph of this Article may ma permission conditional on the distribution to the persons benefited thereby being made under the local supervision of the Protecting Powers.
Such consignments shall be forwarded as rapidly as possible, and the Power which permits their free passage shall have the right to prescribe the technical arrangements under which such passage is allowed.
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