Yesterday, I was one of those shouting at the men and women who had come with their Israeli flags, their righteous arrogance, their anger to disrupt our protest organized to declare support for the Freedom Flotilla and the Free Gaza movement.

Central to this story is that I am a Jew. I am a Jew who has spent four summers in Palestine witnessing the toll that more than 40 years of Israeli occupation has taken on a people and on a land. I am a Jew who has come to understand, as the sign I was holding yesterday attests, that we are forsaking Jewish values for the sake of a Jewish state.

Read the rest at Mondoweiss.

(Cyprus, June 1, 2010, 6:30AM local) Under darkness of night, Israeli commandos from at least 14 warships and military helicopters boarded the Turkish passenger ship, Mavi Marmara, and began shooting. According to live video from the ship, at least two civilians have been murdered, and dozens injured. Israeli television is reporting 16 civilians killed.

The Mavi Marmara was part of a 6-ship unarmed flotilla, including a U.S.-flagged vessel, carrying 700 passengers from 40 different countries and 10,000 tons of humanitarian aid on a mission of mercy to besieged Gaza.

The last GPS signal from the flotilla, sent just prior to the attack, placed the ships at latitude:32.64113, longitude:33.56727 – approximately 65 miles off the coast of Netanya, well in international waters.

Palestinian fishermen are regularly fired upon off the coast of Gaza, but these are the first Israeli murders of internationals at sea. In recent years, the Israeli military has adopted increasingly vicious policies toward international human rights workers in Palestine, murdering Rachel Corrie and Tom Hurdall in 2003.

The names of the dead are not yet known. The flotilla passengers included retired US diplomats Amb. Edward Peck and Col. Ann Wright as well as humanitarian aid and human rights workers, several Members of Parliament from Ireland, Germany, Sweden, Turkey, Malaysia, and Palestinian Members of the Knesset.

Numbers for Israeli officials:

• Mark Regev in the Prime Minister’s office: +972 2670 5354 or +972 5 0620 3264
• Shlomo Dror in the Ministry of Defence: +972 3697 5339 or +972 50629 8148
• Major Liebovitz from the Israeli Navy: + 972 5 781 86248
• The Israeli Ministry of Defense, Fax: 972-3-697-6717
• The Israeli Ministry of Foreign Affairs, Fax: 972-2- 5303367
• Click here for a list of Israeli embassies in other countries

Organize a demonstration at an Israeli embassy
Register your demonstration or find a planned action in your area at the Gaza Freedom March

Numbers for United States officials:

• White House: 1.202.456.1111
• Department of State: 1.202.647.4000

Call or send a letter to your Congressional representative with this sample letter:

Dear YOUR REPRESENTATIVE,

In one of the most outrageous attacks on civilized people, the Israeli military killed at least three people and injured at least 30 more in an unprovoked assault on the Gaza Freedom Flotilla in international waters. The ships presented no threat as they were filled with diplomats, academics, journalists and human rights workers hoping to bring humanitarian goods to the besieged Gaza Strip.

I call on you to hold Israel accountable for their despicable actions and to immediately dispel your Israeli ambassador until a thorough investigation can be undertaken by a credible third party.

The Israeli attack on Gaza in December 2008/January 2009 was not merely a military assault on a primarily civilian population, impoverished and the victim of occupation and besiegement these past 42 years. It was also part of an ongoing assault on international humanitarian law by a highly coordinated team of Israeli lawyers, military officers, PR people, and politicians, led by (no less) a philosopher of ethics. It is an effort coordinated as well with other governments whose political and military leaders are looking for ways to pursue “asymmetrical warfare” against peoples resisting domination and the plundering of their resources and labor without the encumbrances of human rights and current international law. It is a campaign that is making progress and had better be taken seriously by us all.

Since Ariel Sharon was indicted by a Belgian court in 2001 over his involvement in the Sabra and Shatila massacres, and Israel faced accusations of war crimes in the wake of its 2002 invasion of the cities of the West Bank, with its high toll in civilian casualties (some 500 people killed, 1,500 wounded, more than 4,000 arrested), hundreds of homes demolished, and the urban infrastructure utterly destroyed, Israel has adopted a bold and aggressive strategy: alter international law so that non-state actors caught in a conflict with states and deemed by the states as “non-legitimate actors” (“terrorists,” “insurgents” and “non-state actors,” as well as the civilian population that supports them) can no longer claim protection from invading armies. The urgency of this campaign has been underscored by a series of notable setbacks Israel subsequently incurred at the hands of the UN. In 2004, at the request of the General Assembly, the International Court of Justice in The Hague ruled that Israel’s construction of the wall inside Palestinian territory is “contrary to international law” and must be dismantled — a ruling adopted almost unanimously by the General Assembly, with only Israel, the US, Australia, and a few Pacific atolls dissenting. In 2006 the UN Commission of Inquiry concluded that “a significant pattern of excessive, indiscriminate and disproportionate use of force by the IDF against Lebanese civilians and civilian objects, failed to distinguish civilians from combatants and civilian objects from military targets.” The harsh criticism of the UN’s Goldstone report on Gaza accusing the Israeli government and military again of targeting Palestinian civilians and causing disproportionate destruction has made this campaign even more urgent.

Fortunately, it is an uphill battle. The thrust of just war theory, from which international humanitarian law (IHL) draws, is to limit warfare and, in particular, to regulate its conduct and scope. Wars between states should never be total wars between nations or peoples. Whatever happens to the two armies involved, whichever one wins or loses, whatever the nature of the battles or the extent of the casualties, the two nations, the two peoples, must be functioning communities at the war’s end. The war cannot be a war of extermination or ethnic cleansing. And what is true for states is also true for state-like political bodies such as Hamas and Hezbollah, whether they practice terrorism or not. The people they represent or claim to represent are a people like any other (Margalit and Walzer 2009). Protecting the lives, property, and human rights of civilians caught up in warfare from the power and impunity of states is especially relevant in our age when, as British General Rupert Smith (2005) tells us, modern warfare is rapidly moving away from the traditional inter-state model to what he calls a “new paradigm” — “war amongst the people” — in which “[w]e fight amongst the people, not on the battlefield.” A more popular term used by military people, “asymmetrical warfare,” is perhaps more honest and revealing, since it highlights the vast power differential that exists between states and their militaries and the relative weakness of the non-state forces confronting them.

Now the issue of adapting laws and ethical approaches coming out of traditional inter-state warfare to new forms of “asymmetrical warfare” is a legitimate and vital endeavor. As Judge Richard Goldstone indicated in the report of the United Nations Fact Finding Mission on the Gaza Conflict (2009:5), “The Mission interpreted [its] mandate as requiring it to place the civilian population of the region at the centre of its concerns regarding the violations of international law.” Two prime issues of concern arise here: protecting all non-combatants finding themselves caught up in armed conflict, whether from state or non-state adversaries, and the degree to which non-state actors must be held accountable under IHL, no matter how just their cause may be. Thus the Goldstone Report, recognizing the limitations under which non-state actors operate, specified as well the obligation of Palestinian armed groups “to exercise care and take feasible precautions to protect the civilian population in Gaza from the inherent dangers of the military operations.”

Common sense and justice argue against a symmetry of responsibility between heavily armed and coordinated state-sponsored armies able to exert enormous force in order to exercise effective control over a territory and its people (Israel over the Occupied Palestinian Territories, in this case) and the military weakness, financial constraints, and fundamental difficulties of non-state actors resisting oppression in either protecting their people or creating a neutral “battleground” separate from its civilian populations (as in the case of the Palestinians). Nonetheless, even a certain implied symmetry introduced by the Goldstone committee in which non-state actors possess legitimacy as “a side” is unacceptable to Israeli political and military leaders. This, despite the fact that, in 1960, the UN General Assembly’s Declaration on the Granting of Independence to Colonial Countries and Peoples endorsed the right of peoples to self-determination and, by extension, their right to resist “alien subjugation, domination and exploitation” — again, with the obligations set out by the Goldstone Report. Nor is the notion that states and their armies should be significantly constrained in their military actions by IHL acceptable to Israeli decision-makers, political and military. They seek, therefore, to alter international law in ways that enable them — and by extension other states involved in “wars on terror” — to effectively pursue warfare amongst the people while eliminating both the legitimacy and protections enjoyed by their non-state foes.

This campaign is led by two Israeli figures: Asa Kasher, a professor of philosophy and “practical ethics” at Tel Aviv University, the author of the Israeli army’s Code of Conduct, and Major General Amos Yadlin, former head of the IDF’s National Defense College, under whose auspices Kasher and his “team” formulated the Code of Conduct, and today the head of Military Intelligence. And, Kasher vigorously asserts, it is completely appropriate and understandable that Israel should be leading it. “The decisive question,” he says,

is how enlightened countries conduct themselves. We in Israel are in a key position in the development of law in this field because we are on the front lines in the fight against terrorism. This is gradually being recognized both in the Israeli legal system and abroad. After the debate before the High Court of Justice on the issue of targeted killings there was no need to revise the document [on the ethics of fighting terrorism] that Yadlin and I drafted even by one comma. What we are doing is becoming the law. These are concepts that are not purely legal, but also contain strong ethical elements.

The Geneva Conventions are based on hundreds of years of tradition of the fair rules of combat. They were appropriate for classic warfare, where one army fought another. But in our time the whole business of rules of fair combat has been pushed aside. There are international efforts underway to revise the rules to accommodate the war against terrorism. According to the new provisions, there is still a distinction between who can and cannot be hit, but not in the blatant approach which existed in the past. The concept of proportionality has also changed (emphasis added, qtd. in Ha’aretz, Feb. 6, 2009).

Customary international law accrues through an historic process. If states are involved in a certain type of military activity against other states, militias, and the like, and if all of them act quite similarly to each other, then there is a chance that it will become customary international law…. I am not optimistic enough to assume that the world will soon acknowledge Israel’s lead in developing customary international law. My hope is that our doctrine, give or take some amendments, will in this fashion be incorporated into customary international law in order to regulate warfare and limit its calamities (Kasher 2009:7).

In their assault on protections afforded to non-state actors and the populations that support them by IHL, Kasher and Yadlin go after two of the most fundamental principles of IHL: the Principle of Distinction and the Principle of Proportionality.

The Principle of Distinction, embodied in the four Geneva Conventions of 1949 and their two Additional Protocols of 1977, lays down a hard-and-fast rule: civilians cannot be targeted by armies and, on the contrary, must be protected. Article 3 of the Fourth Geneva Convention states: “Persons taking no active part in the hostilities…shall in all circumstances be treated humanely….To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: violence to life and person…and outrages upon personal dignity.”

The Principle of Proportionality, embodied in the 1977 Protocols to the Fourth Geneva Conventions (to which neither the US nor Israel is a signatory, but which nevertheless, as customary law, binds them), considers it a war crime to intentionally attack a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage. “The presence within the civilian population of individuals who do not come within the definition of civilians,” says Protocol I, Article 50 (3), “does not deprive the population of its civilian character.” Undermining these principles is therefore a key to what Kasher and Yadlin (2005) put forward as their “new doctrine of military ethics.” It is based on privileging states in their conflicts with non-state actors and on giving them the authority to deem an adversary a “terrorist,” a term lacking any agreed-upon definition in IHL and one which obviously removes any legitimacy a non-state actor so labeled might otherwise have. Indeed, Kasher and Yadlin’s “Just War Doctrine of Fighting Terror” is grounded on a tendentious definition of “terrorism” custom-tailored to legitimize state policies and actions. We define an “act of terror,” they (2005:2) write,

as an act, carried out by individuals or organizations, not on behalf of any state, for the purpose of killing or otherwise injuring persons, insofar as they are members of a particular population, in order to instill fear among the members of that population (‘terrorize’ them), so as to cause them to change the nature of the related regime or of the related government or of policies implemented by related institutions, whether for political or ideological (including religious) reasons.

By defining terrorism as “an act” carried out by an individual or organization, Kasher and Yadlin both de-contextualize and de-politicize the protracted struggles of non-state actors, including those of all peoples oppressed by state (and corporate) regimes. Although they admit a certain legitimacy to “guerilla warfare,” reducing a popular struggle to a series of discrete acts makes it possible to label an entire resistance movement “terrorist” purely on the basis of one or more particular acts, with no regard to its situation or the justness of its cause. Once this is done, it is easy to criminalize non-state resistance, since terrorism is, in Kasher’s words, “utterly immoral.” When, for example, Palestinians or the Hezbollah attack Israeli soldiers on active duty, Kasher refers to these acts as “kidnapping” rather than “capturing” them.

This very language and approach also has the effect of privileging state actors, since it implies that state actions are by definition legitimate and not “utterly immoral.” Even when a country is accused of war crimes, it is often able to justify its actions by “military necessity.” It is extremely difficult to actually sanction or punish a country for war crimes even when they are deemed to have occurred, and even when all this takes place, “war crimes” possess a different meaning than the type of criminalization applied to non-state actors. States may be sanctioned, but their existential legitimacy is not removed. Germany was judged as having committed horrendous war crimes during the Nazi era, and paid certain penalties, but that did not prevent it from rejoining the international community immediately after the war. Thus Kasher and Yadlin define an act as terror by its “purpose” of terrorizing a particular population without the slightest thought of applying that principle to Israel’s own policies and actions over its occupation of 42 years, despite exhaustive documentation of that terrorization.

Just how self-serving the tendentious use of the concept “terror” can be is evident in Israel’s own attempts to have the Iranian Revolutionary Guards declared a “terror organization” even though, being an agent of a state, it would not fit into Kasher and Yadlin’s own state/non-state dichotomy. What, then, should prevent the international community from naming the IDF and various covert Israeli agencies such as the Mossad or the Shin Bet (the General Security Services) as “terror organizations”? The Goldstone Report itself concluded that Israel’s offensive against Gaza during Operation Cast Lead was “a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population.” Cognizant of this contradiction, Kasher and Yadlin are careful to add a caveat: they define an act of terror as one carried out “not on behalf of any state.”

Having de-legitimized state-defined “acts of terrorism,” Kasher and Yadlin then go on to further legitimize state actions such as those taken by Israel against Hezbollah, Hamas, or, indeed, all Palestinian resistance by invoking “self-defense” — again, a claim which, according to Just War Theory and Article 51 of the UN Charter, only a state can make. In order to do so they begin the narrative of events leading up to the attack on Gaza with what the “terrorist” organization alone had done, launching rockets on the town of Sderot and its vicinity. Nothing of the fact that the vast majority of Gazans are refugees from 1948, denied their right of return and deprived of all their properties and assets. Nothing of the occupation since 1967 and the deliberate de-development of the Gazan economy; nothing of the exclusion since 1989 of Gazan workers from the Israeli job market upon which they had been made dependent, and thus their subsequent impoverishment; nothing of the years of settlement in which 7,000 Israelis lorded it over a million and a half Palestinians at a cost to the Palestinians of much in terms of their lives and livelihoods; nothing of the siege illegally imposed since 2006, or of the transformation of Gaza into the world’s largest open-air prison; nothing of the fact that until today much of the land of Gaza — and the sea — are off-limits to Palestinian farmers and fishermen; nothing of the fact that Gazans live in mud and sewage created by Israel’s wholesale destruction of their infrastructure; nothing of the wasted lives of the young people; nothing of the fact that Hamas observed an 18-month ceasefire and was willing to extend it, until Israel broke it on Nov. 4, 2008, setting off the rocket attacks. Nothing, in short, which would call into question whether the assault on Gaza was genuinely an act of self-defense.

Indeed, the process of de-contextualization is a prerequisite to the ethics Kasher offers as the basis of international morality, law, political practice, and warfare. Rather than taking into account Israel’s four decades and more of occupation over Gaza and the West Bank, in which the Occupying Power may be said to have at least a modicum of responsibility for what transpires, Kasher instead bases his entire moral justification of what Israel has done over the years on a disembodied “double effect” principle, according to which, “when we are seeking a goal that is morally justified in and of itself, then it is also morally justified to achieve it, even if this may lead to undesirable consequences — on the condition that the undesirable consequences are unavoidable and unintentional, and that an effort was made to minimize their negative effects.” As if maintaining a belligerent occupation for almost a half-century is unavoidable and unintentional, and Israel actually took steps to minimize its negative effects. This, then, sets up a hierarchy of priorities — indeed, “obligations” on states — that turn IHL on its head. The Principle of Distinction cannot be honored, Kasher and Yadlin argue, because “terrorists do not play by the rules.” Nothing less is required than a fundamental “updating the concept of war.” “As we sought to try and formulate how to fight terror,” Yadlin (2004) writes,

we understood that we were in a different kind of war, where the laws and ethics of conventional war did not apply. It involves not only the asymmetry of tanks…. The main asymmetry is in the values of the two societies involved in the conflict — in the rules they obey.

A new model of warfare — the counter-terrorism war — requires a new set of rules on how to fight it. The other side is fighting outside the rules and we have to create new ethical rules for the international law of armed conflict. The duty of the state is to defend its citizens. Any time a terrorist gets away because of concerns about collateral damage, we may be violating our main duty to protect our citizens. We look for alternatives so as not to cause collateral damage, or to cause the minimum amount of collateral damage, but the main obligation is to defend our citizens.

Thus, says Kasher, in an area such as the Gaza Strip in which the IDF does not have effective control, “the responsibility for distinguishing between terrorists and noncombatants is not placed upon [Israel's] shoulders, since it is not the effective ruler.” Military commanders must thus place prime importance on achieving their military objectives, since this is what self-defense depends upon. Next in priority is protecting soldiers’ lives — indeed, Kasher and Yadlin define soldiers as “civilians in uniforms,” thereby eliding the principle of a state’s duty to protect its citizens with its deployment of trained and armed combatants sworn to pursue its military aims. Only then does the army have to worry about avoiding injury to civilian non-combatants. “Sending a soldier [to Gaza] to fight terrorists is justified,” writes Kasher, “but why should I force him to endanger himself much more than that so that the terrorist’s neighbor isn’t killed?” asks Kasher. “From the standpoint of the state of Israel, the neighbor is much less important. I owe the soldier more. If it’s between the soldier and the terrorist’s neighbor, the priority is the soldier. Any country would do the same.”

Kasher introduces a radically new principle of distinction — that in territories where it does not exercise effective control a country does not bear the moral responsibility for properly separating between dangerous individuals and harmless ones (Kasher 2010) — as if simply asserting it lends it the necessary authority. And this is, in fact, the point. “If you do something for long enough,” says Colonel (res.) Daniel Reisner, former head of the IDF’s Legal Department, “the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries….International law progresses through violations. We invented the targeted assassinations thesis [that extra-judicial killings are permitted when it is necessary to stop a certain operation against the citizens of Israel and when the role played by the target is crucial to the operation] and we had to push it. Eight years later it is in the center of the bounds of legality” (quoted in Kearney 2010:29). Or, as Kasher (2010) puts it, “The more often Western states apply principles that originated in Israel to their own non-traditional conflicts in places like Afghanistan and Iraq, then the greater the chance these principles have of becoming a valuable part of international law.”

Even the attempt to distinguish civilians from combatants was abandoned in the assault on Gaza. According to another report in Ha’aretz (3.2.10), “The Israel Defense Forces chose to risk civilians in Gaza in order to protect its soldiers during Operation Cast Lead, a high-ranking Israeli military officer told the British daily The Independent on Wednesday. The IDF officer claimed the traditional ‘means and intentions’ engagement principle — stating that a suspect must have both a weapon and a visible intent to use it before being fired at — was discarded during Israel’s Gaza incursion in late 2008 and early 2009.”

Does that mean that states cannot engage in terrorism? This is a pretty bold claim. In fact, the non-state “terrorism from below” which so concerns Kasher and Yadlin pales in its horror when compared to “terrorism from above:” State Terrorism. In his book Death by Government (1994:13), R.J. Rummel points out that over the course of the 20th century about 170,000 innocent civilians were killed by non-state actors, a significant figure to be sure. But, he adds,

during the first eighty-eight years of this [20th] century, almost 170 million men, women and children have been shot, beaten, tortured, knifed, burned, starved, frozen, crushed or worked to death; buried alive, drowned, hung, bombed or killed in any other of the myriad ways governments have inflicted death on unarmed, helpless citizens and foreigners. The dead could conceivably be nearly 360 million people.

And that doesn’t include Zaire, Bosnia, Somalia, Sudan, Rwanda, Saddam Hussein’s reign, the impact of UN sanctions on the Iraqi civilian population, and other state-sponsored murders that occurred after Rummel compiled his figures. It also does not account for all the forms of State Terrorism that do not result in death: torture, imprisonment, repression, house demolitions, induced starvation, intimidation, and all the rest.

“We do not deny,” Kasher (2009) concedes, “that a state can act for the purpose of killing persons in order to terrorize a population with the goal of achieving some political or ideological goal.” He then adds another crucial caveat:

However, when such acts are performed on behalf of a state, or by some of its overt or covert agencies or proxies, we apply to the ensuing conflict moral, ethical and legal principles that are commonly held to pertain to ordinary international conflicts between states or similar political entities. In such a context, a state that killed numerous citizens of another state in order to terrorize its citizenry would be guilty of what is commonly regarded as a war crime (emphasis added).

Kasher’s caveat — “a state that killed numerous citizens of another state in order to terrorize its citizenry” — apparently means that states can neither be accused of terrorism nor be held accountable for war crimes arising out of killing or terrorizing civilian populations such as the people of Gaza, since the latter are not citizens of another state.

As for the Principle of Proportionality, that, too, is a casualty of Kasher and Yadlin’s assault on IHL. Their alternative is what is known by the IDF as its Dahiya Doctrine. Coming out of the second Lebanon war of 2006, in which Israel destroyed the Hezbollah stronghold of Dahiya in Beirut, the Dahiya Doctrine states that attacks against Israel will be deterred by “harming the civilian population to such an extent that it will bring pressure to bear on the enemy combatants […] through the damage and destruction of civilian and military infrastructures which necessitate long and expensive reconstruction actions which would crush the will of those who wish to act against Israel” (PCATI 2009). According to the Goldstone Report (2009:48),

The tactics used by Israeli military armed forces in the Gaza offensive are consistent with previous practices, most recently during the Lebanon war in 2006. A concept known as the Dahiya doctrine emerged then, involving the application of disproportionate force and the causing of great damage and destruction to civilian property and infrastructure, and suffering to civilian populations. The Mission concludes from a review of the facts on the ground that it witnessed for itself that what was prescribed as the best strategy appears to have been precisely what was put into practice.

It then goes on to quote the head of Israel’s Northern Command, Gen. Gadi Eisenkott: “What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from which Israel is fired on. […] We will apply disproportionate force on it and cause great damage and destruction there. From our standpoint, these are not civilian villages, they are military bases. […] This is not a recommendation. This is a plan. And it has been approved.” But here again, it is the assertion of a new version of the principle that is important. Thus, declares Kasher, the Principle of Proportionality does not have to do with inflicting civilian injuries clearly excessive in relation to the anticipated military advantage, as the international community now thinks, but the exact opposite: “Proportionality is justifiability of the collateral damage on grounds of the military advantage gained” (Kasher 2010).

The upshot of Kasher and Yadlin’s “updating the concept of war” was clearly evident in the attack on Gaza. “When senior Israel Defense Forces officers are asked about the killing of hundreds of Palestinian civilians during the fighting in the Gaza Strip,” Ha’aretz (Feb.6, 2009) reported,

they almost all give the same answer: The use of massive force was designed to protect the lives of the soldiers, and when faced with a choice between protecting the lives of Israeli soldiers and those of enemy civilians under whose protection the Hamas terrorists are operating, the soldiers take precedence. The IDF’s response to criticism does not sound improvised or argumentative. And it operated there not only with the backing of the legal opinion of the office of the Military Advocate General, but also on the basis of ethical theory, developed several years ago, that justifies its actions.

Prof. Asa Kasher of Tel Aviv University, an Israel Prize laureate in philosophy, is the philosopher who told the IDF that it was possible. In a recent interview with Ha’aretz, Kasher said the army operated in accordance with a code of conduct developed about five years ago for fighting terrorism. “The norms followed by the commanders in Gaza were generally appropriate,” Kasher said. In Kasher’s opinion there is no justification for endangering the lives of soldiers to avoid the killing of civilians who live in the vicinity of terrorists. According to Kasher, IDF Chief of Staff Gabi Ashkenazi “has been very familiar with our principles from the time the first document was drafted in 2003 to the present.”

Kasher’s argument is that in an area such as the Gaza Strip in which the IDF does not have effective control the overriding principle guiding the commanders is achieving their military objectives. Next in priority is protecting soldiers’ lives, followed by avoiding injury to enemy civilians…. Prof. Kasher has strong, long-standing ties with the army. He drafted the IDF ethical code of conduct in the mid-1990s. In 2003 he and Maj. Gen Amos Yadlin, now the head of Military Intelligence, published an article entitled “The Ethical Fight Against Terror.” It justified the targeted assassination of terrorists, even at the price of hitting nearby Palestinian civilians. Lt. Gen. Moshe Ya’alon, who was the IDF Chief of Staff at the time, did not make the document binding, but Kasher says the ideas in the document were adopted in principle by Ya’alon and his successors. Kasher has presented them to IDF and Shin Bet security service personnel dozens of times.

Such arguments are also being taken up by “pro-Israeli” critics of IHL. Amichai Cohen (2010), for example, writing in the Global Law Forum of the neo-con Jerusalem Center for Public Affairs, sums up Kasher and Yadlin’s argument succinctly (though marshalling numerous legal citations just as Kasher mobilizes ethical arguments): “The concept of proportionality permits military personnel to kill innocent civilians, provided that the intended targets of the operation are enemy forces and not civilians.”

And yet, when challenged, the philosophy, ethics, and principled argumentation of Kasher and Yadlin dissipate, and one is found in the same kind of emotional and half-baked discourse that typifies shouting matches in bars or on the street. When, for example, Uri Avnery (2009) challenges Kasher’s reduction of the Gaza operation as merely a justified defensive reaction to “continued rocket attacks on Israel by the terrorist organizations in the Gaza Strip,” Kasher (2009) retreats from his philosophical argumentation into personal attacks: “Nor is it a surprise,” he writes, “that Avnery does not want us to use the term ‘terrorists’ to describe the Palestinians — with whom he identifies — because of these negative moral connotations. He himself does not wish to be morally tainted as someone who identifies with terrorists.”

From here Kasher abandons intellectual analysis completely and descends into mere personal opinion and unsupportable suppositions. “Some people claim that a peace agreement between Israel and the Palestinians would provide Israeli citizens with the best protection against rockets and missiles, suicide attacks, and other horrors of terrorism,” he begins.

It is true that a democratic state is required to seek peace agreements with neighboring states and peoples. However, the idea that it is possible to reach a political settlement with the Palestinians that would be upheld by Hamas, Islamic Jihad, and other terrorist organizations is quite doubtful. Even if we accepted the plausibility of such a claim, it is all but certain that rocket attacks on Israel would continue throughout the negotiations. In fact, they would likely increase. Leaving a state’s citizens vulnerable to persistent threat is not morally justified by the mere fact of ongoing negotiations. Nor can the fact that negotiations are taking place justify avoiding the last-resort option after all alternative courses of action have failed…. There are those who call on Israel to engage in direct negotiations with Hamas, in order to rid its citizens of the threats posed to them by rocket attacks and other kinds of terrorist activity. This argument warrants a similar response. From a moral standpoint, demanding that Israel engage in direct negotiations with a terrorist organization that does not recognize its right to exist cannot be justified (emphasis added, Kasher 2009).

Apparently this method is common when Israelis attempt to alter IHL in order to justify unjustifiable practices. A few years ago the Up Front weekend magazine of The Jerusalem Post (April 15, 2005, p. 34) published an interview with an Israeli “expert in international law” who, tellingly, chose to remain anonymous. This what s/he said:

International law is the language of the world and it’s more or less the yardstick by which we measure ourselves today. It’s the lingua franca of international organizations. So you have to play the game if you want to be a member of the world community. And the game works like this. As long as you claim you are working within international law and you come up with a reasonable argument as to why what you are doing is within the context of international law, you’re fine. That’s how it goes. This is a very cynical view of how the world works. So, even if you’re being inventive, or even if you’re being a bit radical, as long as you can explain it in that context, most countries will not say you’re a war criminal.

This is a serious stuff. We are in the midst of the second battle of Gaza, a campaign not only to refute and defame the UN’s Goldstone Report and sanitize Israel’s actions there but to change international humanitarian law in a way that protects the powerful states and their armies while removing the fundamental rights of the world’s poor and downtrodden to resist. The stakes are high. What will happen to the Palestinians — or oppressed peoples everywhere — if Kasher & Co. succeed in striking the Principles of Distinction and Proportionality from international law? Imagine an entire world unprotected against occupation, invasions, exploitation, and warehousing — a global Gaza. It would be a world that reflects current reality: everyone would be either an Israeli Jew, part of a privileged global minority whose main ethical responsibility is towards defending itself against “terrorists,” or a Palestinian, part of an impoverished, occupied majority with no control over its resources or its future, which nevertheless carries responsibility for the well-being and security of its violent “zero-tolerant” masters.

Standing on the ramparts of international law to guarantee its integrity should be an integral part of the struggle against oppression everywhere. If the people of Gaza can become fair game, so can any of us. In terms of vulnerability as well as solidarity, we are all, indeed, Palestinians. If IHL needs to be altered to take into account the rise of non-state actors in international conflicts — and here we should note the increased use of “outsourced” private military contractors by states and corporations, the emergence of “failed states,” many of which combine state apparatus with criminal activity, and even the role played by NGOs — then it must be done in a way that continues to protect civilians and oppressed peoples against states, often their own. Kasher and Yadlin’s assault on IHL, sponsored and legitimized by the Israel government “in the name of” other states engaged in so-called wars of terrorism, threatens to give powerful governments, their militaries, and allied corporations a free hand in bringing about a global “order” friendly to their interests at the expense of the world’s peoples.

Given what Michael Klare calls “the new landscape of global conflict” — state-initiated resource wars (initiated or fueled, it must be noted, primarily by the powerful democratic states which control the global economic system and account for more than 80 percent of the world’s arms trade, whose revenues reached $1.46 trillion in 2008) — the prospect of states free of the constraints of IHL should give us all pause. For, as it turns out, the sites of future wars are largely in the very areas where people — framed as “terrorists” — are resisting the plundering of their resources, neo-colonialism, and their own permanent warehousing. These sites, Klare (2001) tells us,

will be places that harbor particularly abundant supplies of vital materials — oil, water, diamonds, minerals, old-growth timber — along with supply routes that connect these areas to major markets around the world. These regions will command attention from the media, dominate the deliberations of international policy makers, and invite the heaviest concentrations of military power… [They comprise] a wide band of territory straddling the equator.

Israel’s attempt to globalize its legal, moral, political, and military justifications for what it did — and continues to do — in Gaza, the West Bank, and Lebanon should concern us all. Just as Israel used Gaza as a laboratory for tactics and weapons of “counterinsurgency” and urban warfare, so, too, is it attempting to export its “new doctrines” in a way that fundamentally compromises the well-being of people caught in conflicts worldwide. As Kasher and Yadlin (2005:4) write explicitly,

the proposed principles are meant to be justified and practically applicable under any parallel circumstances. Moreover, those principles are intended to be universal in an additional crucial sense…. The different defense agencies of a democratic state that faces terror should follow principles that rest on universal moral grounds and on the professional and organizational ethical grounds related to each of those state agencies on its own, be it military, regular police, combat police or preventive intelligence.

In this sense, everyone resisting oppression is a Palestinian. The stakes involved in losing this second battle of Gaza are high indeed. Israel’s attempt to “globalize” Gaza imperils us all.

References
Avnery, Uri. 2009. “Operation Cast Lead and Just War Theory.” Azure 38 (Autumn).

Cohen, Amichai. 2010. Proportionality in Modern Asymmetrical Wars. Jerusalem: Jerusalem Center for Public Affairs.

Kasher, Asa. 2010. “A Moral Evaluation of the Gaza War — Operation Cast Lead.” Jerusalem Center for Public Affairs Brief 9(18).
—. 2009. ”Response to Uri Avnery.” Azure 38 (Autumn).
—. 2009. “Operation Cast Lead and the Ethics of Just War.” Azure 37:43-75.

Kasher, Asa, and Amos Yadlin. 2006. ”The Military Ethics of Fighting Terror: Principles.” Philosophia 34.
—. 2005. “Military Ethics of Fighting Terror: An Israeli Perspective.” Journal of Military Ethics 4(1): 3-32.
—. 2005. “Assassination and Preventive Killing.” SAIS Review 25(1): 41-57.
—. 2003. ”Ethical Counterterrorism.”

Kearney, Michael. 2010. Lawfare, Legitimacy, and Resistance: The Weak and The Law. Ms.

Klare, Michael T. 2001. Resource Wars. New York: Henry Holt.

Margalit, Avishai, and Michael Walzer. 2009. “Israel: Civilians and Combatants.” New York Review of Books 56(8). (May 14).

McMahan, Jeff. 2009. Killing in War. New York: Oxford University Press.

The Middle East Project. 2009. Occupation, Colonialism, Apartheid? A Re-assessment of Israel’s Practices in the Occupied Palestinian Territories Under International Law. Cape Town: Human Sciences Research Council.

The Public Committee Against Torture in Israel (PCATI). 2009. No Second Thoughts: The Changes in the Israeli Defense Forces’ Combat Doctrine in Light of “Operation Cast Lead.” Jerusalem.

Report of the United Nations Fact Finding Mission on the Gaza Conflict (“Goldstone Report”). 2009. Geneva: Human Rights Council.

Siboni, Gabriel. 2008. Disproportionate Force: Israel’s Concept of Response in Light of the Second Lebanon War. INSS Insight 74.

Smith, Rupert. 2005. The Utility of Force: The Art of War in the Modern World. New York: Vintage Books.

Yadlin, Amos. 2004. “Ethical Dilemmas in Fighting Terrorism.” Jerusalem Center for Public Affairs Brief 4(8).

Gaza Freedom March

Jeff Halper, ICAHD: “The Road from Gaza and Nablus Leads to Your Door”
Joseph Massad, Columbia University: “Oslo and the End of Palestinian Independence”
Ann Wright, CODEPINK: “Gaza War Crimes”
and Palestinian-American Poet Remi Kanazi

7pm Tuesday October 27 @ the Church of the Holy Trinity, 316 East 88th, NYC (Parish hall between 1st and 2nd Aves.)

A $10 drawing will be held for one round trip airplane ticket to the Gaza Freedom March

Admission at the door: $20 – $10 sliding scale, Students $5 No one turned away.
All funds to benefit the Gaza Freedom March and ICAHD-USA

Endorsed by: Adalah-NY, Brooklyn For Peace, Code Pink NYC, Committee for Open Discussion of Zionism, ICAHD-USA, Jewish Voice for Peace, Jews Say No!, NY Community of Muslim Progressives, Veterans for Peace Chapter 34, WESPAC, Women in Black

Almost a decade ago I wrote an article describing Israel’s “matrix of control” over the Occupied Palestinian Territories. It consisted then of three interlocking systems: military administration of much of the West Bank and incessant army and air force intrusions elsewhere; a skein of “facts on the ground,” notably settlements in the West Bank, Gaza and East Jerusalem, but also bypass roads connecting the settlements to Israel proper; and administrative measures like house demolitions and deportations. I argued in 2000 that unless this matrix was dismantled, the occupation would not be ended and a two-state solution could not be achieved.

Since then the occupation has grown immeasurably stronger and more entrenched. The first decade of the twenty-first century has so far seen the steady constricting and fragmentation of Palestinian territory through still more wholesale expropriation of Palestinian land, checkpoints and other physical restrictions on freedom of movement, settlement construction, more and more massive highways intended for Israeli settlers, control over natural resources and, most visibly of all, the erection of the separation barrier in the West Bank and East Jerusalem. Since December 2000, according to the Israeli human rights organization B’tselem, the settler population of the West Bank has grown by 86,000 and that of East Jerusalem by 50,000. Gaza was evacuated of settlers and soldiers in 2005, but Israel retains near complete control over egress and exit of people and goods to and from the coastal strip, regularly cuts supplies of fuel and other necessities to punish the residents and mounts military incursions at will. All the Palestinian territories are subject, to one degree or another, to the measures of house demolitions, “closures” that halt economic activity, administrative restrictions on movement, deportation, induced out-migration and much more.

Indeed, the matrix has reconfigured the country to such an extent that today it seems impossible to detach a truly sovereign and viable Palestinian state from an Israel that has expanded all the way to the Jordan River. Anyone familiar with Israel’s “facts on the ground,” perhaps first and foremost the settlers, would reach the conclusion that, in fact, the matrix cannot be taken apart in a piecemeal fashion, leaving a few settlements here, a road there and an Israeli “greater” Jerusalem in the middle. The matrix has become far too intricate. Dismantling it piece by piece, with Israel stalling by arguing for the security function of each “fact on the ground,” would be a frustrating series of confrontations that would eventually exhaust itself. The only way to a genuine two-state solution and not a cosmetic form of apartheid is to cut the Gordian knot. The international community, led by the United States, must tell Israel that the occupation must be ended entirely. Israel must leave every inch of the Occupied Territories. Period.

And now, at this critical juncture, as the two-state solution for the Israeli-Palestinian impasse disappears under the weight of Israeli settlements, there is a great imponderable: Is President Barack Obama genuinely serious about reaching such a solution or is he merely going through the motions familiar from previous administrations? 

The Tea Leaves
Many Palestinian, Israeli and international proponents of a just peace took heart in Obama’s early gestures. Beginning with the appointment of former Sen. George Mitchell as special envoy and continuing through the president’s June 4, 2009 speech in Cairo, these proponents allowed themselves, after years of disappointment and struggle, a cautious hopefulness. Some of the speech’s formulations, like the nods to the “pain of dislocation” felt by Palestinians and the “daily humiliations” of occupation, had been heard before. But one sentence had not been: Obama said that a two-state solution “is in Israel’s interest, Palestine’s interest, America’s interest and the world’s interest.” Obama seemed to “get it,” that is, he seemed to understand that the US is isolated politically by its unquestioning backing of Israel, which is seen as obstructing a solution to the conflict. And, for the first time, a US president actually said that resolving the Israeli-Palestinian conflict is in the vital national interest, not just a nice thing to do. These words significantly raise the bar. Framing the conflict in this way makes it easier for the administration to win Congressional support for tougher demands upon Israel while undermining the ability of the American Israel Public Affairs Committee (AIPAC) to mount an effective resistance, given American Jewish sensibilities about suspicions of dual loyalty.

Since the Cairo speech, however, fundamental doubts about US efforts have resurfaced. The only demand made by Obama upon Israel has been for a settlement “freeze,” a welcome symbolic gesture, to be sure, yet irrelevant to any peace process. Israel has enough settlement-cities in strategic “blocs” that it could in fact freeze all construction without compromising its control over the West Bank and “greater” Jerusalem, the Arab areas to the north, south and east of the city where Israel has planted its flag. Focusing on this one issue — which, months later, is still being haggled over — has provided Israel with a smokescreen behind which it can actively and freely pursue more significant and urgent construction that, when completed, will truly render the occupation irreversible. It is rushing to complete the separation barrier, which is already being presented as the new border, replacing the “Green Line,” the pre-June 1967 boundary to which Israel is supposed to withdraw, by the terms of UN Security Council resolutions, but on which even the most ardent two-staters have long since given up. Israel is demolishing homes, expelling Palestinian residents and permitting Jewish settlement throughout East Jerusalem, measurably advancing the “judaization” of the city. It is confiscating vast tracts of land in the West Bank and “greater” Jerusalem and pouring bypass road asphalt at a feverish pace so as to permanently redraw the map. It is laying track on Palestinian land for a light-rail line connecting the West Bank settlement-city of Pisgat Ze’ev to Israel. It is drying up the main agricultural areas of the West Bank, forcing thousands of people off their lands, while instituting visa restrictions that either keep visiting Palestinians and internationals out of the country altogether or limit their movement to the truncated Palestinian enclaves of the West Bank.

“Quiet,” behind-the-scenes diplomacy is surely taking place, but the few details that have emerged are far from reassuring. The State Department has mocked as “fiction” a ten-point document given to the Arab press by Fatah figure Hasan Khreisheh that promises an “international presence” in parts of the West Bank and US backing for a Palestinian state by 2011. The component of this alleged plan that seems more likely is that the US wants a partial freeze on settlement activity from Israel in exchange for a pledge from Washington to push for more stringent sanctions upon Iran for its nuclear research. On August 25, 2009, the Guardian quoted “an official close to the negotiations” saying: “The message is: Iran is an existential threat to Israel; settlements are not.” By all indications, if the Obama administration does present a regional peace plan, which it is expected by many to do around the time of the UN General Assembly meeting on September 20, 2009, it will be nothing more than a “rough draft.” It is no exaggeration to say a two-state solution will rise or fall on the outlines of this draft — and may perhaps fall forever if no concrete plan is presented at all, which is also possible. Although the two-state solution has been eulogized many times in the past, Obama represents a best-case scenario. If he presents, in the end, a disappointing peace plan that offers no genuine breakthrough, then the shift to a one-state solution on the part of the Palestinian people and their international supporters will be inescapable.

Sovereignty and Viability
So how can Obama’s plan be judged if and when it is unveiled? Its chance of success can be predicted by how well it addresses the fundamental needs, grievances and aspirations of the peoples involved. An effective approach to ending the conflict, as opposed to shopworn posturing, rests on at least six elements: national expression for both peoples; economic viability for Palestine; a genuine addressing of the refugee issue; a regional approach; security guarantees; and conformity with human rights norms, international law and UN resolutions.

Israeli Jews and Palestinian Arabs are not simply ethnic groups, like, for example, American Jews or Arab-Americans. They are two peoples who, like national groups everywhere, demand self-determination. This reality actually lends credence to a two-state solution, but only if the Palestinian state is truly sovereign and economically viable. One should not forget that, in the days of apartheid, South Africa established ten “bantustans,” small and impoverished “homelands” on 11 percent of South African land, seemingly to address the demand of the black population for self-determination but actually to ensure a “democracy” for the white population on 89 percent of the country. Israeli Prime Minister Benjamin Netanyahu’s notion that the Palestinians should get “autonomy with certain characteristics of a state” on about 15 percent of historic Palestine — “autonomy plus-independence minus,” as he called it — is reminiscent of apartheid. 

If the Obama administration’s plan does not cut the Gordian knot that is Israel’s matrix of control — something no plan or initiative has yet succeeded in doing — it will simply fail to achieve an equitable two-state solution. Only a complete withdrawal of Israel from all the Occupied Territories and the sharing of Jerusalem with no restrictions on movement can avert a Palestinian bantustan. 

Obama’s plan, like its predecessors, seems destined to leave the major Israeli settlement blocs intact, including those in Palestinian East and “greater” Jerusalem. Even with so-called territorial “swaps,” this measure would significantly compromise the sovereignty and economic viability of a Palestinian state. The area designated on Israeli maps for future expansion of the Ma’ale Adumim settlement reaches to the outskirts of Jericho in the Jordan Valley, while the Ariel bloc already extends between the northern West Bank town of Nablus and points south. Taken together, settlements and the highways that interlink them displace Palestinian passenger and commercial vehicles onto a few narrow routes, while the checkpoints intended to protect the settlers snarl traffic on a predictably unpredictable schedule. And then there is the towering wall. It is not a landscape made for easy economic integration.

Why, then, leave these massive settlements intact? The argument is that their residents would object to the point of a civil war in Israel. This is patent nonsense. True, these settlement blocs contain 85 percent of Israelis living in the Occupied Territories, but these are not the ideological settlers who claim the entire Land of Israel from the Mediterranean Sea to the Jordan River. Instead, they are “normal” Israelis who have been attracted to the settlements by high-quality, affordable housing. They would have no objection to resettling inside Israel on the condition that their living standards do not fall, while the Israeli economy, assisted by international donors, would have no problem footing the bill for this population, about 200,000 in number. Settlements in “greater” Jerusalem, housing another 190,000 Israeli Jews, present no problem whatsoever. Residents are free to stay where they are in a shared and integrated Jerusalem. 

As for the “ideological” settlers of the West Bank, only about 40,000 in number (out of almost six million Jews altogether), they can easily be relocated inside Israel, just as were their counterparts in Gaza. Their relocation will be a test of international assertiveness, of course, because the settlers are able to mobilize the support of the right-wing parties in Israel. Since Israel can make no cogent argument as to the security necessity of these tiny settlements, however, internal opposition will simply have to be overruled; the international community cannot allow such frivolous ideological matters to destabilize the entire global system. If the legitimate concerns of the Israeli public over its security are addressed by the international community, which they can be, there is no compelling reason why Israel should not return to the pre-June 1967 border. In fact, if the Gaza episode indicates anything, it is that the Israeli public is willing to remove settlements if it is convinced that doing so will enhance its security. Reminding Israelis that leaving every inch of the Occupied Territories will still leave them sovereign over a full 78 percent of the country — not a bad deal for what will soon become a minority Jewish population — should seal the deal.

Refugees
The Obama platform, should it see the light of day, will probably also adopt the Israeli position that Palestinian refugees can only be repatriated to the Palestinian state itself, not to their former homes inside Israel. This plank would place a weighty economic burden on that tiny prospective state, since the refugees are, by and large, a traumatized and impoverished population with minimal education and professional skills. Add to that another significant fact: Some 60 percent of the Palestinian population is under the age of 18. A Palestinian state without the ability to employ its people and offer a future to its youth is simply a prison-state. 

Now the need for a viable Palestinian state is recognized and embodied in the “road map,” the peace initiative propagated by President George W. Bush in 2003, and will probably be acknowledged in a plan from Obama as well. Despite its limited size, a RAND Corporation study concluded that such a state is possible, but only if it controls its territory, borders, resources and movement of people and goods. Israel must be made to understand that while it will remain the hegemonic power in the region, its own long-term security depends upon the economic wellbeing of its Palestinian neighbors. 

Eighty percent of the Palestinians are refugees, and half of the Palestinians still live in refugee camps within and around their homeland. Any sustainable peace is dependent upon the just resolution of the refugee issue. Technically, resolving the refugee issue is not especially difficult. The Palestinian negotiators, backed up by the Arab League, have agreed to a “package,” to be mutually agreed upon by Israel and the Palestinians, involving a combination of repatriation in Israel and the Palestinian state, resettlement elsewhere and compensation. 

The “package” must contain, however, two other elements, without which the issue will not be resolved and reconciliation cannot take place. First, Israel must acknowledge the refugees’ right of return; a resolution of the issue cannot depend solely on humanitarian gestures. And Israel must acknowledge its responsibility for driving the refugees from their country. Just as Jews expected Germany to accept responsibility for what it did in the Holocaust (and Israelis criticized the Pope during his summer 2009 visit for not apologizing enough), just as China and South Korea will not close the book on World War II until Japan acknowledges its war crimes, so, too, will the refugee issue continue to fester and frustrate attempts to bring peace to the region until Israel admits its role and asks forgiveness. Genuine peacemaking cannot be confined to technical solutions alone; it must also deal with the wounds caused by the conflict. 

Regional Approach, Security and International Law
Obama’s edge over his predecessors lies in his understanding that the Israeli-Palestinian conflict is part of — and in some ways the symbolic epicenter of — a wider regional problem that extends from the neighboring countries to Iraq, Iran, Afghanistan, Pakistan and, indeed, throughout the entire Muslim world and beyond. This understanding lies behind his framing of the conflict’s persistence as being antithetical to vital US interests, and behind his chief of staff Rahm Emanuel’s statements making a solution for the conflict a virtual precondition for addressing the Iran issue. It is precisely this linkage, long denied by Israel, which insists that the Palestinian issue be handled separately, that the Obama administration seems finally to have embraced. Indeed, even in the confines of the Israeli-Palestinian conflict itself, the key issues – refugees, security, water, economic development and others — are regional in scope. A perfect peace between Israel and Palestine, in which both countries flourish, is not a viable solution for either if they exist as prosperous islands in an impoverished, unstable region.

Israel, of course, has fundamental and legitimate security needs, as do the Palestinians and the other peoples of the region. Unlike Israeli governments, the Israeli peace camp believes that security cannot be addressed in isolation, that Israel will not find peace and security unless it enters into a lasting peace with the Palestinians and achieves a measure of integration into the Middle East region. It certainly rejects the notion that security can be achieved through military means. Israel’s assertion that the security issue be resolved before any political progress can be made is as illogical as it is self-serving. Everyone, the Israeli political establishment and the military together with the peace movement and the Palestinians themselves, knows that terrorism is a symptom that can only be addressed as part of a broader approach to the grievances underlying the conflict. Israel, which also must be held accountable for its use of state terror, cannot be allowed to exploit legitimate security concerns to advance a political agenda of permanent control. 

To the degree that negotiations are entered into, they must have as their terms of reference international law and UN resolutions if the Palestinians are to enjoy even minimal parity with their Israeli interlocutors. The lack of grounding in such principles was the fatal shortcoming of all the preceding attempts to reach an agreement. Once negotiations are based solely on power, the Palestinians lose, the differential being so heavily weighted on the Israeli side, which totally controls Palestinian life and territory. Indeed, a peace agreement rooted in international law and human rights — in short, a just peace — would offer the best prospect of working.

Trump Cards
Put simply, any plan, proposal or initiative for peace in Israel-Palestine must be filtered through the following set of critical questions: Will this plan really end the occupation, or is it merely a subtle cover for control? Does this plan offer a just and sustainable peace or merely an imposed and false quiet? Does this plan offer a Palestinian state that is territorially, politically and economically viable, or merely a prison-state? Does this plan genuinely and justly address the refugee issue? And does this plan offer regional security and development? 

While one may glean optimism from the fact that a US president finally comprehends the need for a comprehensive peace in the Middle East, even if solely for the sake of US interests, it is difficult to be optimistic over the prospects of such a peace. No matter what the plan, Israel will neither cooperate nor negotiate in good faith. A solution will have to be imposed, if not overtly, then in ways that make Israel’s continued hold on the Occupied Territories too costly to sustain. Simply withholding Israel’s privileged access to American military technology and markets, for example, would have that effect. 

Any attempt to pressure Israel, however, will run into a familiar obstacle: Congress, Israel’s trump card in its encounters with the administration. In the case of Obama, Israeli leaders know well that his own party has always been far more “pro-Israel” than the Republicans. Already his loss of momentum after the Cairo address (perhaps related to his difficulties over his health care plan) has emboldened the temporarily cowed AIPAC. In early August, the vaunted lobby produced a letter signed by 71 senators from both parties — led by Sens. Evan Bayh (D-IN) and Jim Risch (R-ID) — telling the president to lay off Israel and place more pressures on the Arab states to “normalize” relations with Israel. Obama had already, in his comments introducing Mitchell as special envoy and subsequently, called for “normalization” simultaneous with Israeli moves to lessen the burdens of occupation, in contravention of the 2002 Arab League peace plan, which proposed that the Arab states establish ties with Israel after withdrawal to the pre-1967 lines. Now AIPAC and its backers in Congress want the administration to push for “normalization” before any Israeli overtures whatsoever. The Netanyahu government has played its part, as well. In August, its ministers, standing on the strategically crucial site of “E-1” between Jerusalem and the settlement of Ma’ale Adumim, vowed that Israel would continue building settlements anywhere it pleases. On September 7, 2009, Israel announced it was beginning work on 500 new apartments in Pisgat Ze’ev and 455 in other West Bank locales. These actions essentially tell Obama to go to hell mere weeks before he is projected to launch his peace initiative. The US replied with an expression of “regret.”

Any plan for Israeli-Palestinian peace that has a hope of succeeding requires both an effective marketing strategy and a level of assertiveness as yet unseen in a US president, excepting, perhaps, Dwight Eisenhower and Jimmy Carter. Obama’s only hope of breaking through the wall of Israeli and Democratic Party resistance is to articulate an approach to peace based on clear and accepted principles anchored in human rights and justice and then framed in terms of US interests. A cold, calculating assessment of US interests would certainly push Obama in this direction. Time will tell, though the limp response to the new settlement construction does not bode well.  

In the meantime, growing opposition to the occupation on the part of the international grassroots is making it increasingly difficult for governments to support Israeli policies. The movement targeting Israel for boycott, divestment and sanctions gains strength by the day, as the Israeli-Palestinian conflict begins to assume the dimensions of the anti-apartheid struggle. But the Palestinians, exhausted and suffering as they may be, possess a trump card of their own. They are the gatekeepers. Until the majority of Palestinians, and not merely political leaders, declare that the conflict is over, the conflict is not over. Until most Palestinians believe it is time to normalize relations with Israel, there will be no normalization. Israel cannot “win” — though it believes it can, which is why it presses ahead to complete the matrix and foreclose the possibility of a viable Palestinian state. The failure of yet another peace initiative will only galvanize international efforts to achieve justice for the Palestinians. Only this time the demand is likely to be for a single binational state, the only alternative that fits the single-state, binational reality that Israel itself has forged in its futile attempt to impose an apartheid regime. 

Jeff Halper is director of the Israeli Committee Against House Demolitions. He can be reached at jeff@icahd.org.

The International Coalition to End the Illegal Siege of Gaza formed after Israel’s 22-day assault on Gaza in winter 2008-09.

To mark the one year anniversary of the Israeli attack the coalition is mobilizing an international contingent for a nonviolent march alongside the people of Gaza on January 1, 2010 in order to end the illegal blockade.

The coalition conceives this march as part of a broader strategy to end the Israeli occupation by targeting nonviolently its flagrant violations of international law from the house demolitions and settlements to the curfews and torture.

Visit the website to learn more, endorse, and sign up for the trip.

Download the entire report here. (254 pgs, 6mb .pdf)

Executive Summary

1. The Independent Fact Finding Committee on Gaza to the League of Arab States (the Committee) was established in February 2009 with the tasks of investigating and reporting on violations of human rights law and international humanitarian law during the Israeli military offensive (hereinafter operation Cast Lead) against Gaza from 27 December 2008 to 18 January 2009 and collecting information on the responsibility for the commission of international crimes during the operation. The Committee comprised Professor John Dugard (South Africa: Chairman), Professor Paul de Waart (Netherlands), Judge Finn Lynghjem (Norway), Advocate Gonzalo Boye (Chile/Germany), Professor Francisco Corte-Real (Portugal: forensic body damage evaluator) and Ms Raelene Sharp, solicitor (Australia: Rapporteur).
2. The Committee held an initial meeting with the Secretary-General of the Arab League and his staff in Cairo on 21 February. It then travelled to Gaza on 22 February, which it entered at the Rafah crossing. The Committee was accompanied by three representatives of the League: Mr Radwan bin Khadra, Legal Advisor to the Secretary General and Head of the Legal Department, Mrs Aliya Ghussien, Head of Palestine Department, and Ms Elham Alshejni, from the Population Studies and Migration Department. The Committee was also accompanied by Mr Omar Abdallah from the Egyptian Foreign Ministry.
3. The Committee remained in Gaza from 22 to 27 February. The programme for its visit was organized by the Palestinian Centre for Human Rights, which provided logistical support to the Committee. The Committee met with a wide range of persons, including victims of operation Cast Lead, witnesses, members of the Hamas Authority, doctors, lawyers, businessmen, journalists and members of NGOs and United Nations agencies. It visited the sites of much of the destruction, including hospitals, schools, universities, mosques, factories, businesses, police stations, government buildings, United Nations premises, private homes and agricultural land.
4. The Committee collected a wealth of information from many sources, including the websites of the Israeli Foreign Ministry and Israel Defense Forces (IDF), Israeli newspapers and NGO reports, the reports of Palestinian and international NGOs, United Nations publications, Palestinian official documents and the testimony of witnesses to the conflict. On three occasions, the Committee wrote to the Government of Israel requesting its co-operation. Such letters were faxed to the Government in Israel and later delivered to the Israeli embassies in the Netherlands and Norway. The Committee received no response to its requests for co-operation, which compelled it to rely on official websites, publications and the media for information about the Israeli perspective. The Committee regrets the decision of the Government of Israel to withhold co-operation.
5. The Committee’s visit to and experiences in Gaza inevitably influenced and shaped its opinions and assisted it in making its findings. The Committee’s impressions and the inferences that it drew from what it saw and heard were corroborated by information from other sources. However, it could not have carried out its mandate without the visit to Gaza which allowed it to see for itself the destruction and devastation caused by operation Cast Lead and to speak to those who had experienced and suffered through the offensive.
6. The Committee’s report is divided into three main parts: a factual description and analysis; a legal assessment and possible remedies; and recommendations. The factual description includes a report by the body damage evaluator, who examined 10 individuals who sustained injuries during operation Cast Lead. Operating under internationally recognised standards, the report documents the injuries suffered and their alleged causes.

The Facts

7. The Committee saw, heard and read evidence of great loss of life and injury in Gaza. Statistics accepted by the Committee show that over 1,400 Palestinians were killed, including at the very least 850 civilians, 300 children and 110 women. Over 5,000 Palestinians were wounded. The Committee was unable to accept the figures given by Israel, which claim that only 295 of those killed were civilians, as they do not provide the names of the dead (unlike Palestinian sources). Moreover, Israel includes policemen as combatants, whereas they should be considered as civilians, and it asserts that only children below the age of sixteen qualify as such, whereas the accepted international age for children is eighteen. The Committee heard disturbing accounts of cold-blooded killing of civilians by members of the IDF, accounts which were later confirmed by Israeli soldiers at the Oranim military college.
8. Four Israeli civilians were killed by Palestinian rockets during operation Cast Lead and 182 wounded. Ten Israeli soldiers were killed (three by friendly fire) and 148 wounded.
9. Palestinian fighters had only unsophisticated weapons – Qassam rockets and Grads whereas Israel was able to employ the most sophisticated and modern weaponry to bombard the population of Gaza from the air, land and sea. Although Israel initially denied it had used white phosphorous in the offensive it later admitted its use but denied it had been used unlawfully. The Committee is, however, satisfied on the available evidence that white phosphorous was used as an incendiary weapon in densely populated areas.
10. There was substantial destruction of, and damage to property during the offensive. Over 3,000 homes were destroyed and over 11,000 damaged; 215 factories and 700 private businesses were seriously damaged or destroyed; 15 hospitals and 43 primary health care centres were destroyed or damaged; 28 government buildings and 60 police stations were destroyed or damaged; 30 mosques were destroyed and 28 damaged; 10 schools were destroyed and 168 damaged; three universities / colleges were destroyed and 14 damaged; and 53 United Nations properties were damaged.
11. It was clear to the Committee the IDF had not distinguished between civilians and civilian objects and military targets. Both the loss of life and the damage to property were disproportionate to the harm suffered by Israel or any threatened harm. There was no evidence that any military advantage was served by the killing and wounding of civilians or the destruction of property.
12. The Committee received evidence of the bombing and shelling of hospitals and ambulances and of obstructions placed in the way of the evacuation of the wounded.
13. The 22-day offensive with bombing and shelling from the air, sea and land traumatized and terrorised the population. Israel dropped leaflets warning the population to evacuate, but in most cases failed to give details of the areas to be targeted and conversely which areas were safe. Phone calls were equally confusing.
    Generally, the leaflets and phone calls simply served to confuse the population and to cause panic.
14. Israel has defended its actions by arguing that buildings were used to store munitions and hide militants and that the Palestinians made use of women and children as human shields. The Committee received evidence of human shields being used by both Hamas and Israel and has not been able to verify the truth of these allegations. Nevertheless it does not believe that such large scale killing and wounding can be attributed to the use of human shields. Similarly, Israel has produced no credible evidence of buildings being used to harbour munitions and militants. Again, it is likely that this did occur in some cases but it could not possible justify the type and amount of killing and wounding and damage to property that occurred.
15. The IDF conducted an internal investigation into allegations that its forces committed international crimes. It found that although there were a few irregularities international crimes were not committed by its forces. The Committee is unable to accept those findings. The Committee finds the IDF investigation to be unconvincing as it was not independent. There is also no suggestion that it considered Palestinian sources.

Legal Assessment

16. Before making its legal assessment, the Committee considered a number of issues that might affect criminal responsibility for any crimes that were committed. The Committee found that:
    1. Gaza remains occupied territory and that Israel is obliged to comply with the Fourth Geneva Convention in its actions in Gaza.
    2. Due to the uncertain meaning of ‘aggression’ it could make no finding on the question whether Israel’s offensive constituted aggression.
    3. Israel’s actions could not be justified as self-defence.
    4. It could not examine the criminal responsibility of either Israel or Hamas in the context of international terrorism as the meaning of both state terrorism and terrorism by non-state actors is too uncertain; consequently, criminal responsibility was best measured in accordance with the rules of international humanitarian law.
    5. Principles of proportionality should be applied in assessing criminal responsibility.
17. The focus of the report is on international crimes and the available remedies for prosecuting such crimes. Consequently little attention is paid to violations of human rights law and international humanitarian law that do not constitute international crimes. Nevertheless, the Committee found that there had been serious violations of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. There were also violations of the Fourth Geneva Convention and its Additional Protocols, particularly in respect of the prohibition on collective punishment.
18. The Committee then turned to the question of international criminal responsibility arising from the conflict. Here it considered war crimes, crimes against humanity and genocide.

War Crimes

19. The Committee examined the responsibility of parties to the conflict for the commission of only of those war crimes which are generally accepted and whose meaning and content is clear.
20. The Committee found that the IDF was responsible for the crime of indiscriminate and disproportionate attacks on civilians. In reaching this conclusion the Committee had regard to the number of civilians killed and wounded and to the extent of the destruction to civilian property. It rejected Israel’s determination of who is a civilian. Members of the Hamas civil government responsible for administering the affairs of Gaza are not combatants as claimed by Israel. Nor are members of the police force responsible for maintaining law and order and controlling traffic.
21. The Committee also found that Palestinian militants who fired rockets into Israel indiscriminately, committed the war crime of indiscriminate and disproportionate attacks on civilians.
22. The Committee found that the IDF was responsible for the crime of killing, wounding and terrorizing civilians. The Committee based this finding on the number of civilians killed by 22 days of intense bombardment by air, sea and land. The Committee also found the weapons used by the IDF, particularly white phosphorous and flechettes, caused superfluous and unnecessary suffering.
23. The Committee rejected Israel’s claim that it had warned civilians to evacuate their homes by leaflets and phone calls. The leaflets and phone calls generally failed to tell civilians which targets were to be bombed and where they might find safety. As a result they only served to cause confusion and panic. Incessant bombing and misleading warnings of this kind served to terrorize the population.
24. The Committee found that Palestinian militants who fired rockets indiscriminately into Israel which killed four civilians and wounded 182 committed the war crime of killing, wounding and terrorizing civilians.
25. The Committee found that the IDF was responsible for the wanton destruction of property and that such destruction could not be justified on grounds of military necessity. The number of civilian properties destroyed was completely disproportionate to any harm threatened and there was no credible evidence that the destruction served any military advantage.
26. There was considerable evidence that the IDF and its members had bombed and shelled hospitals and ambulances and obstructed the evacuation of the wounded. In the opinion of the Committee this conduct also constituted a war crime. The Committee was not able to accept the findings of the IDF internal investigation on this subject as it took no account of Palestinian allegations.

Crimes Against Humanity

27. A crime against humanity comprises acts of murder, extermination, persecution and similar other inhumane acts committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack. The Committee found that Israel’s offensive met the legal requirements for this crime and that the IDF was responsible for committing this crime.

Genocide

28. Genocide is considered the “crime of crimes”. It has been singled out for special condemnation and opprobrium. The very suggestion that a state has committed genocide should therefore be approached with great care. Nevertheless the Committee believes that operation Cast Lead was of such gravity it was compelled to consider whether this crime had been committed.
29. The Committee found Israel’s actions met the requirements for the actus reus of the crime of genocide contained in the Genocide Convention, in that the IDF was responsible for killing, exterminating and causing serious bodily harm to members of a group – the Palestinians of Gaza. However, the Committee had difficulty in determining whether the acts in question had been committed with a special intent to destroy in whole or in part a national, ethnical or religious group, as required by the Genocide Convention. It rejected the argument that Israel had carried out operation Cast Lead in self-defence. However, it found the main reason for the operation was not to destroy a group, as required for the crime of genocide, but to engage in a
    vicious exercise of collective punishment designed either to compel the population to reject Hamas as the governing authority of Gaza or to subdue the population into a state of submission.
30. The Committee found although operation Cast Lead had not been carried out by the IDF to destroy the Palestinians of Gaza as a group, individual soldiers may well have had such an intent and might therefore be prosecuted for this crime. This finding was based on the brutality of some of the killing and reports that some soldiers had acted under the influence of rabbis who had encouraged them to believe that the Holy Land should be cleansed of non-Jews.

State Responsibility For Genocide

31. Under international law a state may be held responsible for the commission of internationally wrongful acts that are attributable to it. Such responsibility may arise from customary international law or in terms of treaty obligations. It is clear internationally wrongful acts were committed by Israel in operation Cast Lead.
32. Most human rights and international humanitarian law treaties do not confer jurisdiction on the International Court of Justice for the commission of internationally wrongful acts under such conventions. However, the Genocide Convention, in Article 9, confers such jurisdiction on the International Court of Justice in respect of the responsibility of a state for violation of the Convention, at the request of any other state party. It is not be necessary for the other state party to show that it has a national interest in the dispute as the prohibition on genocide is an obligation erga omnes.
33. Proof of the commission of genocide is a prerequisite for bringing a claim under the Genocide Convention. It has already been shown that the Committee was not able to find that the state of Israel acting though the IDF had the necessary specific intent to destroy a group as required for the crime of genocide. On the other hand, there is a prospect that such a claim might succeed if it can be proved that individual members of the armed forces committed acts of genocide while they were acting under the direct control of the Government of Israel. Such a scenario would allow Israel to be held responsible under the Genocide Convention for failure to prevent or to punish genocide.

Responsibility Of Israel

34. The Committee has found that members of the IDF committed war crimes, crimes against humanity and, possibly, genocide in the course of operation Cast Lead. Those responsible for the commission of such crimes are individually responsible for their actions, as are those who ordered or incited the commission of such crimes or participated in a common purpose to commit such crimes. Military commanders and political leaders are likewise responsible for crimes committed under their effective command, authority or control where they knew or should have known the forces were committing such crimes and they failed to prevent or repress the commission of such crimes or to investigate and prosecute those responsible.

Responsibility Of Hamas

35. As the governing de facto authority of Gaza, Hamas may be held responsible for violations of international humanitarian law attributed to it. Individuals who have fired rockets indiscriminately into Israel are criminally responsible for their actions and must be held accountable for them under the law governing the commission of war crimes. In assessing the responsibility of Hamas and individual Palestinian militants there are a number of factors that reduce their moral blameworthiness but not their criminal responsibility. Such factors include the fact Palestinians have been denied their right to self-determination by Israel and have long been subjected to a cruel siege by Israel.

Remedies

36. There are a number of remedies in the criminal law field that may be invoked by states, NGOs and individuals to secure redress for crimes committed in Gaza. These include prosecutions for violation of the Fourth Geneva Convention in national courts in accordance with Articles 146 and 147 of the Convention, prosecutions pursuant to universal jurisdiction statutes which allow a person to be prosecuted in a third country for an international crime committed extraterritorially, and referral to the International Criminal Court. On 22 January 2009 the Palestinian Minister of Justice, Mr Ali Kashan, lodged a declaration with the Registrar of the International Criminal Court on behalf of the Government of Palestine recognizing the jurisdiction of the Court for international crimes committed in Palestine since 1 July 2002 under Article 12(3) of the Rome Statute. At this time the Registrar is still considering her decision. The Committee believes that the International Criminal Court should accept the declaration lodged by the Government of Palestine and investigate the commission of international crimes in the course of operation Cast Lead.
37. There are also a number of civil law remedies available to states, NGOs and individuals. As shown above, states may be able to initiate proceedings against Israel for failure to prevent or to punish the commission of the crime of genocide if it can be established that members of it armed forces were responsible for the commission of that crime.
38. The American Alien Tort Act, which allows American Federal Courts to exercise jurisdiction in any civil action brought by an alien for violation of a peremptory norm of international law outside the United States, is another remedy that may be considered.
39. Procedures within the United Nations may also be invoked. States may request the Security Council to refer the situation in Gaza to the International Criminal Court in the same way that such a referral was made in the case of Darfur in Resolution 1593 of 31 March 2005. States may also request the General Assembly to request the International Court of Justice for an Advisory Opinion on the legal consequences of operation Cast Lead for Israel and other states. In 2005 the General Assembly adopted the Summit Outcome Document in which the United Nations undertakes the responsibility to protect states against genocide, war crimes and crimes against humanity. The General Assembly, and possibly the Security Council, might be approached to take action under this commitment.

Recommendations

40. The Committee makes the following recommendations:

    Recommendations to Organs of the United Nations

    1. The League of Arab States should request the General Assembly of the United Nations to request the International Court of Justice to give an advisory opinion on the legal consequences for states, including Israel, of the conflict in Gaza between 27 December 2008 and 18 January 2009 (the Conflict in Gaza).
    2. The League of Arab States should request the Security Council to refer the situation in Gaza, arising from Operation Cast Lead, to the Prosecutor of the International Criminal Court under Article 13(b) of the Rome Statute.
    3. The League of Arab States should request the Security Council, failing which, the General Assembly, to exercise its Responsibility to Protect, affirmed in the Summit Outcome Document of 2005 in respect of Gaza.

    Recommendations involving the International Criminal Court

    4. The League of Arab States should endorse Palestine’s declaration accepting jurisdiction of the International Criminal Court under Article 12(3) of the Rome Statute. If the Security Council fails to refer the situation in Gaza to the International Criminal Court under Article 13(b) of the Rome Statute (Recommendation 2), the League of Arab States should request the General Assembly to endorse Palestine’s declaration under Article 12(3) of the Rome Statute in a meeting convened under the Tenth Emergency Special Session, constituted in terms of the Uniting for Peace Resolution 377 A (V).

    Recommendations relying on the Geneva Conventions

    5. The League of Arab States should request the Swiss Government to convene a meeting of the State Parties to the Fourth Geneva Convention to consider the findings of the present Report.
    6. The League of Arab States should request states to consider taking action under Article 146 of the Fourth Geneva Convention to ensure that those suspected of having committed grave breaches of the Convention under Article 147 be investigated and prosecuted.
    7. The League of Arab States should remind State Parties to the Geneva Conventions that they are obliged by Article 1 of the Fourth Geneva Convention “to ensure respect” for the Convention. This obligation was confirmed by the International Court of Justice in its 2004 Advisory Opinion on “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”. It may be argued that the obligation contained in Article 1 “to respect and to ensure respect for the present convention in all circumstances” includes an obligation on all states to render whatever assistance they can to a state subjected to violations of the Convention.

    Recommendations to other States

    8. The League of Arab States should recommend to its members that they consider instituting legal proceedings against Israel in accordance with Article 9 of the Convention on the Prevention and Punishment of the Crime of Genocide, with due regard to the caution expressed in the present Report.
    9. The League of Arab States should encourage states to prosecute persons responsible for the international crimes identified in the present Report before their national courts (where universal jurisdiction statutes so permit).
    10. The League of Arab States should recommend to states that incurred damage to their property in the conflict in Gaza that they claim compensation from Israel for such losses.

    Recommendations for action by the League of Arab States directly

    11. The League of Arab States should facilitate negotiations between Fatah and Hamas in order to ensure that the welfare of the people of Gaza is not affected by the conflict between these two parties, particularly in the medical field.
    12. The League of Arab States should establish a documentation centre to keep a record of breaches of international humanitarian law in Palestine. Such an historical archive would ensure that a record is kept of crimes against the Palestinian people, and may assist any future action(s) taken by the League or other bodies.
    13. This report should be referred to the United Nations, the European Union, the African Union, the Organization of American States, the Organization of Islamic Conference, the Association of South East Asian Nations and the International Criminal Court; and distributed to relevant NGO’s and the general public.

George Bisharat

Chilling testimony by Israeli soldiers substantiates charges that Israel’s Gaza Strip assault entailed grave violations of international law. The emergence of a predominantly right-wing, nationalist government in Israel suggests that there may be more violations to come. Hamas’s indiscriminate rocket attacks on Israeli civilians also constituted war crimes, but do not excuse Israel’s transgressions. While Israel disputes some of the soldiers’ accounts, the evidence suggests that Israel committed the following six offenses:

• Violating its duty to protect the civilian population of the Gaza Strip. Despite Israel’s 2005 “disengagement” from Gaza, the territory remains occupied. Israel unleashed military firepower against a people it is legally bound to protect.
• Imposing collective punishment in the form of a blockade, in violation of Article 33 of the Fourth Geneva Convention. In June 2007, after Hamas took power in the Gaza Strip, Israel imposed suffocating restrictions on trade and movement. The blockade – an act of war in customary international law – has helped plunge families into poverty, children into malnutrition, and patients denied access to medical treatment into their graves. People in Gaza thus faced Israel’s winter onslaught in particularly weakened conditions.
• Deliberately attacking civilian targets. The laws of war permit attacking a civilian object only when it is making an effective contribution to military action and a definite military advantage is gained by its destruction. Yet an Israeli general, Dan Harel, said, “We are hitting not only terrorists and launchers, but also the whole Hamas government and all its wings.” An Israeli military spokeswoman, Maj. Avital Leibovich, avowed that “anything affiliated with Hamas is a legitimate target.”
  Israeli fire destroyed or damaged mosques, hospitals, factories, schools, a key sewage plant, institutions like the parliament, the main ministries, the central prison and police stations, and thousands of houses.
• Willfully killing civilians without military justification. When civilian institutions are struck, civilians – persons who are not members of the armed forces of a warring party, and are not taking direct part in hostilities – are killed.

International law authorizes killings of civilians if the objective of the attack is military, and the means are proportional to the advantage gained. Yet proportionality is irrelevant if the targets of attack were not military to begin with. Gaza government employees – traffic policemen, court clerks, secretaries and others – are not combatants merely because Israel considers Hamas, the governing party, a terrorist organization. Many countries do not regard violence against foreign military occupation as terrorism.

Of 1,434 Palestinians killed in the Gaza invasion, 960 were civilians, including 121 women and 288 children, according to a United Nations special rapporteur, Richard Falk. Israeli military lawyers instructed army commanders that Palestinians who remained in a targeted building after having been warned to leave were “voluntary human shields,” and thus combatants. Israeli gunners “knocked on roofs” – that is, fired first at corners of buildings, before hitting more vulnerable points – to “warn” Palestinian residents to flee.

With nearly all exits from the densely populated Gaza Strip blocked by Israel, and chaos reigning within it, this was a particularly cruel flaunting of international law. Willful killings of civilians that are not required by military necessity are grave breaches of the Geneva Conventions, and are considered war crimes under the Nuremberg principles.

• Deliberately employing disproportionate force. Last year, Gen. Gadi Eisenkot, head of Israel’s northern command, speaking on possible future conflicts with neighbors, stated, “We will wield disproportionate power against every village from which shots are fired on Israel, and cause immense damage and destruction.” Such a frank admission of illegal intent can constitute evidence in a criminal prosecution.
• Illegal use of weapons, including white phosphorus. Israel was finally forced to admit, after initial denials, that it employed white phosphorous in the Gaza Strip, though Israel defended its use as legal. White phosphorous may be legally used as an obscurant, not as a weapon, as it burns deeply and is extremely difficult to extinguish.

Israeli political and military personnel who planned, ordered or executed these possible offenses should face criminal prosecution. The appointment of Richard Goldstone, the former war crimes prosecutor from South Africa, to head a fact-finding team into possible war crimes by both parties to the Gaza conflict is an important step in the right direction. The stature of international law is diminished when a nation violates it with impunity.

George Bisharat is a professor at the University of California Hastings College of the Law.

Early this morning, Jewish activists in a historic first in Los Angeles, chained themselves to the entrance of the Israeli Consulate and blocked the driveway to the parking structure, blocking all traffic in and out of the building. “We sent a clear message to the world that LA Jews are part of the global majority in opposition to the Israeli siege of Gaza,” said Lenny Potash a 72-year old protester who was cuffed to eight other activists, blocking the driveway to the consulate. The activists were joined by 50 other supporters and who chanted “LA Jews say, End the Siege of Gaza” and “Not in Our Name! We will Not be Silent!” Protesters also held up signs reading “Israeli Consulate: Closed for War Crimes.”

“We succeeded today in letting Jews and other Americans of conscience know that it is safe to speak out against the policies of the Israeli government and that the Israeli lobby does not speak for everyone,” said Robin Ellis, a Registered Nurse who also risked arrest to block the consulate entrance. “We are committed to escalating non-violent activities in the future to end the siege and win justice for Palestinians,” Ellis said.

The group of activists were an ad-hoc, multi-generational group of LA Jewish residents, including members of the recently founded International Jewish Anti-Zionist Network. They shared a commitment to ending the Israeli siege on Gaza and an end to Israeli apartheid. The demonstration will kick off a wave of demonstrations across the United States uniting Palestinians, Jewish people, and other Americans outraged by the siege.

“We are shocked and outraged at Israeli’s latest act of violent aggression against the Palestinian people. Killing over 950 people, including 250 women and children, bombing schools and mosques and then calling it self-defense—that is the worst kind of hypocrisy. It also amounts to war crimes,” said Hannah Howard, a local member of the International Jewish Anti-Zionist Network. “We shut down the Israeli consulate today because as Jewish people we cannot allow business as usual while violence is being done in our name.”

Action participants also spoke out against the US government’s unconditional support for Israel’s siege and its ongoing war against the Palestinian people. “While US-funded F16′s rain down bombs on the people of Gaza, our elected officials locally and nationally offer unqualified support.” said Marsha Steinberg, a retired union representative. “Our government must stop sending billions of dollars in military and economic aid to the Israeli war machine,” Goldberg said. In the coming week, concerned Americans from all backgrounds will call on the new Presidential administration to make a 180 degree change in policy.

“While the end of the siege on Gaza is our most immediate priority, this is only the latest chapter in Palestinians’ 60 plus year experience of occupation and ethnic cleansing. Peace and justice in the region will only come when Palestinians have freedom and control their own destiny,” said Lisa Adler, a community organizer in Los Angeles and another member of the International Jewish Anti-Zionist Network. “Even before the siege began, Israel’s inhumane months-long blockade of Gaza created a major humanitarian crisis. We must end the siege. And we are building a nonviolent international movement of boycott, divestment and sanctions that brings an end to Israel’s policies of occupation and apartheid and advances the Palestinian struggle for justice,” said Adler.

Visit the website for more information on the International Jewish Anti-Zionist Network.

Not one of the nearly 450 presidents of American colleges and universities who prominently denounced an effort by British academics to boycott Israeli universities in September 2007 have raised their voice in opposition to Israel’s bombardment of the Islamic University of Gaza earlier this week. Lee C. Bollinger, president of Columbia University, who organized the petition, has been silent, as have his co-signatories from Princeton, Northwestern, and Cornell Universities, and the Massachusetts Institute of Technology. Most others who signed similar petitions, like the 11,000 professors from nearly 1,000 universities around the world, have also refrained from expressing their outrage at Israel’s attack on the leading university in Gaza. The artfully named Scholars for Peace in the Middle East, which organized the latter appeal, has said nothing about the assault.

While the extent of the damage to the Islamic University, which was hit in six separate airstrikes, is still unknown, recent reports indicate that at least two major buildings were targeted, a science laboratory and the Ladies’ Building, where female students attended classes. There were no casualties, as the university was evacuated when the Israeli assault began on Saturday.

Virtually all the commentators agree that the Islamic University was attacked, in part, because it is a cultural symbol of Hamas, the ruling party in the elected Palestinian government, which Israel has targeted in its continuing attacks in Gaza. Mysteriously, hardly any of the news coverage has emphasized the educational significance of the university, which far exceeds its cultural or political symbolism.

Established in 1978 by the founder of Hamas — with the approval of Israeli authorities — the Islamic University is the first and most important institution of higher education in Gaza, serving more than 20,000 students, 60 percent of whom are women. It comprises 10 faculties — education, religion, art, commerce, Shariah law, science, engineering, information technology, medicine, and nursing — and awards a variety of bachelor’s and master’s degrees. Taking into account that Palestinian universities have been regionalized because Palestinian students from Gaza are barred by Israel from studying either in the West Bank or abroad, the educational significance of the Islamic University becomes even more apparent.

Those restrictions became international news last summer when Israel refused to grant exit permits to seven carefully vetted students from Gaza who had been awarded Fulbright fellowships by the State Department to study in the United States. After top State Department officials intervened, the students’ scholarships were restored — though Israel allowed only four of the seven to leave, even after appeals by Secretary of State Condoleezza Rice. “It is a welcome victory — for the students,” opined The New York Times, and “for Israel, which should want to see more of Gaza’s young people follow a path of hope and education rather than hopelessness and martyrdom; and for the United States, whose image in the Middle East badly needs burnishing.”

Notwithstanding the importance of the Islamic University, Israel has tried to justify the bombing. An army spokeswoman told The Chronicle that the targeted buildings were used as “a research and development center for Hamas weapons, including Qassam rockets. … One of the structures struck housed explosives laboratories that were an inseparable part of Hamas’s research-and-development program, as well as places that served as storage facilities for the organization. The development of these weapons took place under the auspices of senior lecturers who are activists in Hamas.”

Islamic University officials deny the Israeli allegations. Yet even if there is some merit in them, it is common knowledge that practically all major American and Israeli universities are engaged in research and development of military applications and receive money from the Pentagon and defense corporations. Weapon development and even manufacturing have, unfortunately, become major projects at universities worldwide — a fact that does not justify bombing them.

By launching an attack on Gaza, the Israeli government has once again chosen to adopt strategies of violence that are tragically akin to the ones deployed by Hamas — only the Israeli tactics are much more lethal. How should academics respond to this assault on an institution of higher education? Regardless of one’s stand on the proposed boycott of Israeli universities, anyone so concerned about academic freedom as to put one’s name on a petition should be no less outraged when Israel bombs a Palestinian university. The question, then, is whether the university presidents and professors who signed the various petitions denouncing efforts to boycott Israel will speak out against the destruction of the Islamic University.

Neve Gordon is chair of the department of politics and government at Ben-Gurion University of the Negev and author of Israel’s Occupation (University of California Press, 2008). Jeff Halper is director of the Israeli Committee Against House Demolitions. His latest book is An Israeli in Palestine: Resisting Dispossession, Redeeming Israel (Pluto Press, 2008).