Doc's Talk: Dr. Avi Bell on War Crimes in Gaza

Monday, March 02, 2009

Dr. Avi Bell on War Crimes in Gaza

JCPA

While the human rights organizations are pointing an accusing finger at Israel due to the operation in Gaza, according to international law it is precisely Hamas that committed war crimes. The widespread accusation regarding disproportional use of force does not meet the test of international law that places the emphasis on intention rather than results.
Below is a summary from a briefing to foreign journalists and diplomats at the Jerusalem Center for Public Affairs on February 9, 2009.

War Crimes in Gaza
A few days ago an article appeared in which human rights organizations responded to the question of why they did not demand the launch of an investigation regarding human rights violations by Hamas. The answer that they provided was that the firing of rockets constituted such a clear violation that it left nothing to investigate. On the other hand, Israel's actions are more subject to interpretation. If the objective of the organizations is to promote taking responsibility for unsavory actions, they should focus on clear violations and not on cases that can provoke scholarly research at the universities.

The Hamas Covenant Is a Flagrant Violation of the Genocide Convention

The Hamas covenant, written more than 21 years ago, posits the need to destroy Israel via armed struggle as part of a more comprehensive struggle against the Jews. The covenant contains detailed descriptions of the Jew as a hoarder of money, instigator of revolutions, war monger, the founder of secret societies, etc. Zionist influence is omnipresent, and the covenant calls for a continuation of jihad in its various forms. According to the covenant, the Jews must recognize the superiority of Islam and convert to it. If they fail to do so, their fate is sealed. There is no option for peace arrangements or compromise. One can view the copious evidence that demonstrates that the call for liquidating the Jews is broadcast daily in the mosques. Given the definition of targets in its covenant, Hamas engages in terror atrocities directed primarily against civilians.
Excerpts from this Briefing:
* Did Israel Commit War Crimes?
* Why NGOs Are Not Investigating Hamas War Crimes
* What Hamas Really Is
* Despite their Political Victory, Hamas is Still a Terrorist Organization

The Obligation to Restrain Hamas
From a legal standpoint we are dealing with a violation of paragraph 2 to the Convention on the Prevention and Punishment of Genocide. Ostensibly, anyone who is a signatory to the convention is expected to restrain and punish Hamas. It has also been established that even a country that is not a signatory is bound by the convention and must act accordingly.

The Legitimacy of Attacking Targets that Engage in Incitement
An additional implication of the convention is related to the definition of "legitimate targets," because it was decided that striking targets that incite to genocide is permissible. This occurred in Rwanda and in Kosovo, where radio and television stations that incited to genocide were hit.

The UN Security Council Resolution on the Prevention of Terror Mandates a Worldwide Struggle against Hamas

The definition of a terrorist organization according to the international convention also includes someone who supports or contributes to a terrorist organization. According to the UN Security Council Resolution on the Prevention of Terror (paragraph 7), all states are obligated to act in accordance with this resolution; in other words, to take action against the financing of terror or any form of active or passive support for terror. Resolution 1566 of the Security Council emphasized that there is no justification for evading the resolution due to political, ethnic, or other identification. In other words, the fact that Hamas has a political agenda, and even the fact that it was a party elected in democratic elections, has no relevance to its definition as a terrorist and genocidal organization.

A Violation of International Law: The Manner in which Hamas Initiated the War against Israel and Its Conduct during the War

In all the main media outlets it was reported that the war began on December 27, despite the fact that it was Hamas who announced a week previously that it was terminating the cease-fire. Hamas also declared its intention to subject thousands of additional Israelis to the threat of rockets.

Paragraph 2 (4) to the UN Charter prohibits a state from attacking another state save for the purpose of self-defense (paragraph 51). This is, of course, relevant if we define Hamas' role in Gaza as that of a state. It is prohibited to direct attacks against civilian targets, whereas Hamas attacked civilians exclusively.

As for the use of human shields, the Fourth Geneva Convention prohibits the use of civilians to protect combatants. The New York Times, as well as other noted newspapers, published pictures and descriptions of Hamas members calling upon civilians to stand on buildings in order to prevent attacks on the buildings.

Disguising oneself as a civilian or the military use of doctors uniforms or ambulances is similarly prohibited. In many places it was reported that Hamas members were attired in civilian clothing. Additionally, there were reports that Hamas members used hospitals as a refuge, fighters concealed their weapons, while ambulances were commandeered.

Aside from the use of human shields, a separate prohibition exists on employing children. There are many pictures illustrating Hamas' involving children in terror activity.

Accusations Regarding the Disproportionate Use of Force: What Are the Criteria Governing This Definition?

Israel was accused of aiming at civilian targets. This accusation was already born on the first day of the operation, even before the defined targets existed, and therefore it is difficult to respond to this accusation because it is not based on evidence. A more common accusation is that Israel "undoubtedly" committed war crimes, given the high number of Palestinians killed in comparison with the low rate of casualties sustained by Israel. This accusation in practice argues that there was a disproportionate use of force.

International law determines that when one attacks legitimate military targets one can inflict collateral damage as long as this damage is proportional in terms of military necessity. Following the war in Kosovo, complaints were directed against NATO regarding the indiscriminate use of force. For example, one accusation was that NATO forces struck a television broadcasting station. All sides admitted that the station was deliberately bombed. Some 10 to 17 civilians were killed in the attack. The question that was asked at a special tribunal that examined the issue was whether this was a legitimate target, because the result was the suspension of broadcasts for only a few hours. The verdict was that the attack was proportional to the objective of silencing the station's activity for a few brief hours. The question of proportionality is something that is difficult to quantify; nonetheless, the aforementioned precedent illustrates what is acceptable under international law. In Gaza, no attacks took place that even approached these ratios.

Comparative Statistics and the Issue of the Reliability of the Information Sources

During the first Gulf War there were no known cases where people were placed on trial for disproportionate use of force. During that war 605 Kuwaitis, as opposed to 20,000-25,000 Iraqis, were killed. The Ministry of Health in Gaza that belongs to Hamas reported that during the Gaza operation, 1,300 Palestinians, including 48 Hamas members, were killed. These numbers were cited everywhere. From Israeli statistics, by contrast, it emerges that 1,134 Palestinians were killed in the operation, of which 673 belonged to Hamas and other terror groups.

Legitimate Targets
There is a dearth of systematic material regarding the definition of legitimate targets. Nevertheless, the International Red Cross drew up a list detailing what are legitimate targets during war: armed forces and their auxiliaries, providers of logistic support, factories and plants manufacturing for the war effort, auxiliary research institutes, means of communication, and transportation arteries.

Mistakes Are Not Considered War Crimes
One of the charges leveled against Israel was voiced following the attack on a laboratory within a university. An inspection revealed that we were dealing with a laboratory for manufacturing Kassam rockets. But even if we were to assume that Israel made a mistake about the target, due to an intelligence failure, for example, this does not turn it retroactively into a war crime. The prohibition applies to premeditated damage to a civilian target. The NATO forces in Kosovo were likewise not accused of war crimes, although they hit a train and other civilian targets due to intelligence errors. Furthermore, it was decided that NATO aircraft did not have to risk their lives in low altitude flights in order to acquire more precise intelligence data. Therefore, even if Israel erred in its target selection, we are not dealing with war crimes but with an unfortunate error. The important point is the intent of the attacker, whether he intended at the very outset to damage civilian targets, rather than the result in practice.

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The IDF’s Minorities in Numbers and Pictures

In honor of IDF Diversity Week, we present diversity through numbers and pictures. Each year, more and more Muslims, Christians, Druze, Bedouin and immigrants from around the world take on the responsibility of defending Israel.

MUSLIMS:

Muslim Arab Israelis are not required to draft in the IDF, but there are many who volunteer. In 2013, there were over 200 Muslims serving in the IDF and over 300 in the reserves.

Bedouins:

Bedouins are nomadic Muslims who were in Israel when modern borders were set in place and are now considered Israeli citizens. They are not required to draft but a growing number choose to enlist. In 2012, there were over 1,400 Bedouin Muslim soldiers doing regular IDF service and almost 1,500 in the reserves.

Read more:http://www.idfblog.com/2014/02/27/truth-idf-numbers-pictures/#more-34027

Are you aware that in 2013, Middle class taxes go up-significantly?

In January of next year, the federal income tax rate for middle-class taxpayers is scheduled to rise from 25 percent to 28 percent, and the payroll tax is scheduled to rise from 13.3 percent to 15.3 percent… This drives the marginal tax rate based on the aforementioned three taxes to 48.12 percent. Add in state and local property, corporate, excise, and other state and local taxes, and the percentage of each additional dollar that is taxed hovers around 50 percent… When half of each additional dollar earned is taxed away, taxpayers experience a disincentive to start businesses or expand existing ones. This leads to fewer jobs being created.

Why is HAMAS Inside Tampa Schools?

Clare Lopez

Kelly Miliziano, who teaches history classes at Steinbrenner High School in the Tampa, Florida area apparently thinks it’s perfectly OK to invite a senior official of a HAMAS-affiliated organization into her classroom to discuss Islam with her students. According to local media reports, not only has this been going on for years, but in spite of the civil and criminal proceedings that could result from such reckless negligence, the Hillsborough County school superintendent, Mary Ellen Elia, and the chairman of the school board, Candy Olson, also expressed approval for students under their responsibility to be exposed repeatedly to guest speaker, Hassan Shibly, who is the Executive Director for the Council on American-Islamic Relations (CAIR) in the Tampa area.
More...

Did You Know... Ignoring the Call to Islam will Bring Jihad

‘Conquest through Da’wa [proselytizing] that is what we hope for. We will conquer Europe, we will conquer America! Not through sword but through Da’wa.’
-- Yousef al-Qaradawi , Muslim Brotherhood spiritual leader The Arabic word ‘Da’wa’ means the “call to Islam.” But do not think that Da’wa is the same thing as an invitation to an optional holiday event. The classical Islamic doctrine of jihad mandates that enemies must be given the opportunity to convert to Islam or pay the jizya tax before it is permissible to attack them.
Clare M. Lopez

Who is being discriminated-facts tell the truth

Religious bias

Hate crimes motivated by religious bias accounted for 1,409 offenses reported by law enforcement. A breakdown of the bias motivation of religious-bias offenses showed:

65.4 percent were anti-Jewish.
13.2 percent were anti-Islamic.
9.5 percent were anti-other religion, i.e., those not specified.
4.3 percent were anti-Catholic.
3.8 percent were anti-multiple religions, group.
3.3 percent were anti-Protestant.
0.5 percent were anti-Atheism/Agnosticism/etc.

http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2010/narratives/hate-crime-2010-incidents-and-offenses.

On March 31, 1977, the Dutch newspaper Trouw published an interview

with PLO executive committee member Zahir Muhsein. Here's what he said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct "Palestinian people" to oppose Zionism.

For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

In March 1977, Zahir Muhsein, a PLO executive, said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct Palestinian people to oppose Zionism."

"For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

The Arab Apartheid

Ben-Dror Yemini
In 1948, the Arab countries refused to accept the UN partition proposal and they launched a war of annihilation against the State of Israel which had barely been established. All precedents in this matter showed that the party that starts the war - and with a declaration of annihilation, yet - pays a price for it. Between 550,000 and 710,000 Arabs fled because of the war and a larger number of 850,000 Jews were expelled or fled from Arab countries (the "Jewish nakba").
Population exchanges and expulsions were the norm at that time, occurring in dozens of other conflict points and affecting about 52 million people. In all the population exchange precedents that occurred during or at the end of an armed conflict, there was no return of refugees to the previous region, which had turned into a new national state.
Only the Arab states acted completely differently from the rest of the world. Instead of assimilating the refugees, they crushed them despite the fact that they were their coreligionists and members of the Arab nation - instituting a regime of apartheid. So the "nakba" was not caused by the actual dispossession, which had also been experienced by tens of millions of others. The "nakba" is the story of the apartheid, oppression, abuse and denial of rights suffered by the Arab refugees at the hands of the Arab countries. (Maariv)

International Law and Military Operations in Practice - Col. Richard Kemp

"Islamist fighting groups study the international laws of armed conflict carefully and they understand it well. They know that a British or Israeli commander and his men are bound by international law and the rules of engagement that flow from it. They then do their utmost to exploit what they view as one of their enemy's main weaknesses. Their very modus operandi is built on the correct assumption that Western armies will normally abide by the rules, while these insurgents employ a deliberate policy of operating consistently outside international law. "

Lost Historical Moments

What Rabin’s last Knesset speech really said:repudiation of a Palestinian state

Rabin ruled out a fully sovereign Palestinian state :

“We view the permanent solution in the framework of State of Israel which will include most of the area of the Land of Israel as it was under the rule of the British Mandate, and alongside it a Palestinian entity which will be a home to most of the Palestinian residents living in the Gaza Strip and the West Bank. We would like this to be an entity which is less than a state, and which will independently run the lives of the Palestinians under its authority.”

Rabin ruled out a total withdrawal from Judea and Samaria and thus a return to the pre-June 1967 borders :

“The borders of the State of Israel, during the permanent solution, will be beyond the lines which existed before the Six Day War. We will not return to the 4 June 1967 lines.”

Rabin ruled out withdrawing form the Jordan Valley:

“The security border of the State of Israel will be located in the Jordan Valley, in the broadest meaning of that term.”

Rabin ruled out uprooting settlement blocs, like the Gush Katif bloc in Gaza (which was subsequently uprooted by former Prime Minister Ariel Sharon):

“The establishment of blocs of settlements in Judea and Samaria, like the one in Gush Katif.

AND

Rabin ruled out removing any settlement before coming to a full peace agreement with the Palestinians:

“I want to remind you: we committed ourselves, that is, we came to an agreement, and committed ourselves before the Knesset, not to uproot a single settlement in the framework of the interim agreement, and not to hinder building for natural growth.”

Rabin insisted on Israel retaining full security control of the borders with Egypt and Jordan, contrary to Israel’s relinquishment of the Philadelphia Corridor on the border with Egypt:

“The responsibility for external security along the borders with Egypt and Jordan, as well as control over the airspace above all of the territories and Gaza Strip maritime zone, remains in our hands.”

Correcting Oslo Myths-Part 2

3) Kuttab laments that the post-1993 Oslo process resulted in a Palestinian Authority "whose ministers and legislators are not guaranteed passage between Gaza and the West Bank ...."

Before free passage or other perquisites, PA leaders were obligated, among other things, to eliminate the terrorist infrastructure in the West Bank and Gaza Strip, end anti-Israeli, antisemitic incitement in schools, mosques, and communications media, and resolve all outstanding issues through peaceful negotiations. They met none of these commitments, sometimes bolstering terrorism and greatly increasing incitement.

4) Kuttab complains that under Oslo the PA got "lightly armed police ---- but no real sovereignty over the land or contiguity between our communities in Gaza and the West Bank."

Oslo agreements repeatedly were revised, regardless of Palestinian non-compliance, until the authorized number of police grew from 8,000 to 40,000. Though they were to be the only armed forces in the territories, Israeli estimates early in the second intifada put the number of gunmen - police, "security services," terrorists, and armed gangs - at 85,000. Their armament reportedly included not only heavy machine guns and rocket-propelled grenades, but also anti-tank and anti-aircraft missiles.

Sovereignty was to be negotiated in the envisioned 1998 "final status" talks - after a five-year period of confidence-building. Palestinian leadership chronically undermined the process. Palestinian terrorism made the 1993 - 1998 Oslo period more deadly for Israelis than the 15 years preceding it.

The United States doesn't have contiguity between the lower 48 states and Alaska and Hawaii; territorial contiguity between the West Bank and Gaza Strip - that is, through the 20 miles of Israeli territory between them - was never promised and would destroy Israeli contiguity.

5) "Palestinians have been made to endure hundreds of checkpoints in the West Bank, an eight-foot wall deep in our territories, and tight Israeli control over borders."

The security barrier is not "deep in Palestinian territories," but rather encompasses less than 8 percent of Judea and Samaria, and is mostly a fence, rarely a wall; the land in question is not "our [Palestinian] territories" but disputed territory to which, according to the authors of U.N. Security Council Resolution 242, Jews as well as Arabs have claims; and there are no international borders, only the 1949 armistice lines with Jordan. Under 242, borders remain to be negotiated. As for checkpoints - like the security barrier and "tight Israeli control" - Palestinian Arabs precipitated these measures themselves. No terrorism and there would be no fence or tight Israeli control and few checkpoints - like before the first intifada.

Correcting Some Oslo Myths

1) In Oslo "Israeli, Palestinian and other world leaders promised that ... Palestinian sovereignty would be solidified."

No, they didn't. The 1993 Declaration of Principles and subsequent Oslo agreements outlined a process by which final status negotiations about the West Bank and Gaza Strip would be reached. The process required an end to anti-Israel terrorism and incitement and a commitment to peaceful negotiations. The PA, Fatah, Hamas, Islamic Jihad, the Popular Front for the Liberation of Palestine, and other terrorist groups, sabotaged the process from the start.

2) "The reality is that, in defiance of U.N. Security Council Resolution 242, which states that it is inadmissible to occupy land by force, Palestinian territories are still under foreign military occupation."
Wrong again. Resolution 242 (1967) does note "the inadmissibility of the acquisition of territory by war." It also affirms the right of every state in the area "to live in peace with secure and recognized boundaries free from threats or acts of force." There were no "Palestinian territories." Jordan occupied the West Bank, Egypt controlled Gaza. Israel did not have "secure and recognized boundaries," so retention of some of those territories was possible under 242. Israel is not a "foreign" military occupier in the West Bank but, pending final negotiations, the lawful military administrator as a result of a successful war of self-defense.

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