An edited version of this article originally appeared at LobeLog.
Like many of us, I’ve been very busy on social media since this started. I see a lot of ignorant nonsense there, and it’s not limited to the pro-Israel side. I also see a lot of shoddy thinking and ignorance of the facts. Since I had to study up on a lot of this for my job as the Director of the US Office of B’Tselem, I thought I might clear a few of those up.
Various memes make the rounds in discussions of war crimes. One that I found particularly laughable was “Even the UN says Hamas is committing war crimes but they say Israel only might be.” I’ve also seen defenses of Hamas’ firing of missiles at civilian targets at Israel based on Palestinians’ right of self-defense.
Here is the long and short of it: War crimes are defined as “Serious violations of international humanitarian law constitute war crimes.” That’s going to encompass pretty much every violation that might become a public issue in any conflict.
International law recognizes that civilians are going to be hurt, killed and dispossessed in war. The obligation of combatants is to do all they can to minimize the death and destruction if they do need to operate in areas where it is likely civilians will be hurt.
As a result, when Israel proclaims its innocence of violating these laws, no matter how suspicious we may be, enforcers of international law cannot declare that war crimes have been committed without an investigation. Reasonable people who are not international lawyers can make assumptions, but the investigation needs to happen, and it is always possible, especially when the conflict involves an area as densely populated as Gaza, that it will turn out that the state in question did its best to avoid civilian casualties. High numbers of them are not proof, though they obviously do raise suspicions.
On Hamas’ side, this is true as well, but Hamas makes no secret of its use of weapons which, by definition, they do not have the ability to use in a manner that can discriminate between civilian and military targets. So, while the UN or other body would still investigate and make a case before taking any action against Hamas, they are committing war crimes. It’s not unfair to say so.
In this case, however, Israel has declared that the homes of leading Hamas activists (and those of other factions) are legitimate targets in their eyes. They have, in fact, willfully bombed such houses during these engagements as a result. Unlike the 2002 assassination of Salah Shehade, where Israel claimed (falsely, many say) to have believed Shehade to be alone in the building they bombed, Israel has made no such claims this time around. Therefore, it is also not unfair to say that Israel has committed war crimes in Gaza, even before an investigation.
If not for Iron Dome, there would have been many more Israeli casualties
This seems to make sense, but the numbers don’t bear it out. A study done through July 14, when rocket fire into Israel was at its most intense, showed that the number of rockets being fired from Gaza was fewer than in Operation Cast Lead and the frequency of hits was about the same.
I’m all for Iron Dome. Any defensive system whose purpose is to protect civilians is something I consider an absolute positive, and I only wish more countries would invest in such systems, endeavoring to protect, rather than avenge, their civilians. The concern that iron Dome would make Israel even more reckless and grant it even more impunity does not seem to be borne out by its actions in the current onslaught. Those actions, brutal as they are, are no worse than what Israel did in 2008 and 2012 to Gaza or what it did in 2006 to Lebanon. So, yeah, please let’s see more Iron Domes in the world.
But by the same token, it doesn’t seem like Iron Dome is actually protecting Israeli civilians nearly much as the lack of any sort of targeting ability for the rockets coming out of Gaza is.
Israel is committing genocide against the Palestinian people
Opponents of Israeli policies in the United States and in Israel itself have an uphill battle against an entrenched propagandistic view of the entire conflict. We do ourselves no favors by using bombastic, easily assailable language in making our arguments.
Genocide has a specific meaning in international law. It does not mean large scale killing. The Convention on the Prevention and Punishment of Genocide provides that definition:
Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
There is no evidence that this is what Israel is trying to do. Indeed, the best evidence that this is not what Israel is doing is the simple fact that the Palestinian population, in both the West Bank and Gaza continues to grow, despite the occupation and all its concomitant hardships.
Would Israel like to find a way to get rid of the Palestinians in the West Bank and cut off Gaza? Sure, but that is not genocide, it is ethnic cleansing, and frankly, that’s bad enough. Israel has done that very gradually over the years, confiscating more and more land, forcing Palestinians into ever smaller enclaves and turning Gaza into one big open air prison.
Laying claims that are contradicted by the facts, especially one as weighty as an accusation of genocide, is irresponsible and self-defeating. It plays right into Israel’s propaganda hands.
Hamas is exercising legitimate self-defense
It is absolutely true that an occupied people has the right to resist its occupiers. It is also true that the unusual nature of Israel’s occupation makes it very difficult for guerilla groups like Hamas, Islamic Jihad, the Popular Resistance Committees and other groups to take any violent action that would conform to international legal standards. As international legal expert Noura Erekat puts it: “Hamas has crude weapons technology that lacks any targeting capability. As such, Hamas rocket attacks ipso facto violate the principle of distinction because all of its attacks are indiscriminate. This is not contested.”
It is also true that Israel itself does not differentiate between attacks on its civilians and its soldiers. It views them as equally illegitimate and labels it all “terrorism,” even though legally, Israeli soldiers are combatants while on duty. Take, for example, the killing of IDF soldier Natanel Moshiashvili in 2012. The IDF statement about his death plainly states: “The IDF will not tolerate any attempt to harm Israeli civilians or IDF soldiers, and will operate against anyone who uses terror against the State of Israel.”
Nonetheless, the fact that Palestinians are largely unable to strike at only Israeli military targets does not mean that it is suddenly legal to use indiscriminate weapons or to target civilians. These are war crimes, and any credible investigation must investigate both sides while also taking into account the massive differences in capabilities and power of the two. Israel must also be scrutinized more closely because it has far more ability to discriminate between combatants and non-combatants than Hamas does.
Hamas is using human shields
Saying something over and over again doesn’t make it true, but it does make a whole lot of people believe it. For instance, Israeli Prime Minister Benjamin Netanyahu willfully and repeatedly lied to the Israeli public and the world about Hamas’ complicity in the kidnap and murder of the three young Israeli settlers which sparked this latest round. He kept saying he had proof which he never produced, and now the Israeli police are admitting what everyone who was actually paying attention at the time knew: this was an independent act of violence.
It’s the same with the human shield argument. Like genocide, the term “human shield” has a legal definition. According to the International Committee of the Red Cross, “… the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.” Again, as Noura Erekat wrote: “International human rights organizations that have investigated these claims have determined that they are not true.” Erekat correctly cites reports from Amnesty International and Human Rights Watch, which focused on past engagements. There is also doubt being cast by journalists in Gaza today.
In fact, no evidence has ever been presented to support the accusation apart from the high number of civilian casualties and Israel’s word. On the other hand, Israel’s own High Court had to demand that Israel stop using human shields. That happened in 2005, but the practice continued.
In any case, even the presence of human shields does not absolve or mitigate Israel’s responsibility to minimize civilian casualties. Again quoting Erekat: “Even assuming that Israel’s claims were plausible, humanitarian law obligates Israel to avoid civilian casualties …In the over three weeks of its military operation, Israel has demolished 3,175 homes, at least a dozen with families inside; destroyed five hospitals and six clinics; partially damaged sixty-four mosques and two churches; partially to completely destroyed eight government ministries; injured 4,620; and killed over 700 Palestinians. At plain sight, these numbers indicate Israel’s egregious violations of humanitarian law, ones that amount to war crimes.”
Finally, one last point and one more citation of Noura Erekat. The claim that Israel is merely acting in self-defense fails on a number of counts. As I and other have been saying from the beginning, the Netanyahu government willfully and cynically used the murders of three Israelis as an excuse to provoke Hamas with mass arrests and widespread activities that included the deaths of nine Palestinian civilians before this operation started. That removes the self-defense argument from the start. But more than that, the Gaza Strip, despite it being emptied of settlements and soldiers, remained under Israeli control all along, and was thus occupied territory, contrary to Israel’s claims. Please check out Noura’s excellent write-up of what this means for the right of self-defense. And please note, Noura never denies that Israel has a right to protect its own civilians, but that is not the same thing.