[DEBATE] : (Fwd) More on Israeli war crimes - from a surprising source, the Wall St Journal

[Patrick Bond]

http://online.wsj.com/article/SB123154826952369919.html

Hamas's violations are no justification for Israel's actions.

Israel's current assault on the Gaza Strip cannot be justified by 
self-defense. Rather, it involves serious violations of international 
law, including war crimes. Senior Israeli political and military leaders 
may bear personal liability for their offenses, and they could be 
prosecuted by an international tribunal, or by nations practicing 
universal jurisdiction over grave international crimes. Hamas fighters 
have also violated the laws of warfare, but their misdeeds do not 
justify Israel's acts.

The United Nations charter preserved the customary right of a state to 
retaliate against an "armed attack" from another state. The right has 
evolved to cover nonstate actors operating beyond the borders of the 
state claiming self-defense, and arguably would apply to Hamas. However, 
an armed attack involves serious violations of the peace. Minor border 
skirmishes are common, and if all were considered armed attacks, states 
could easily exploit them -- as surrounding facts are often murky and 
unverifiable -- to launch wars of aggression. That is exactly what 
Israel seems to be currently attempting.

Israel had not suffered an "armed attack" immediately prior to its 
bombardment of the Gaza Strip. Since firing the first Kassam rocket into 
Israel in 2002, Hamas and other Palestinian groups have loosed thousands 
of rockets and mortar shells into Israel, causing about two dozen 
Israeli deaths and widespread fear. As indiscriminate attacks on 
civilians, these were war crimes. During roughly the same period, 
Israeli forces killed about 2,700 Palestinians in Gaza by targeted 
killings, aerial bombings, in raids, etc., according to the Israeli 
human rights group B'Tselem.

But on June 19, 2008, Hamas and Israel commenced a six-month truce. 
Neither side complied perfectly. Israel refused to substantially ease 
the suffocating siege of Gaza imposed in June 2007. Hamas permitted 
sporadic rocket fire -- typically after Israel killed or seized Hamas 
members in the West Bank, where the truce did not apply. Either one or 
no Israelis were killed (reports differ) by rockets in the half year 
leading up to the current attack.

Israel then broke the truce on Nov. 4, raiding the Gaza Strip and 
killing a Palestinian. Hamas retaliated with rocket fire; Israel then 
killed five more Palestinians. In the following days, Hamas continued 
rocket fire -- yet still no Israelis died. Israel cannot claim 
self-defense against this escalation, because it was provoked by 
Israel's own violation.

An armed attack that is not justified by self-defense is a war of 
aggression. Under the Nuremberg Principles affirmed by U.N. Resolution 
95, aggression is a crime against peace.

Israel has also failed to adequately discriminate between military and 
nonmilitary targets. Israel's American-made F-16s and Apache helicopters 
have destroyed mosques, the education and justice ministries, a 
university, prisons, courts and police stations. These institutions were 
part of Gaza's civilian infrastructure. And when nonmilitary 
institutions are targeted, civilians die. Many killed in the last week 
were young police recruits with no military roles. Civilian employees in 
the Hamas-led government deserve the protections of international law 
like all others. Hamas's ideology -- which employees may or may not 
share -- is abhorrent, but civilized nations do not kill people merely 
for what they think.

Deliberate attacks on civilians that lack strict military necessity are 
war crimes. Israel's current violations of international law extend a 
long pattern of abuse of the rights of Gaza Palestinians. Eighty percent 
of Gaza's 1.5 million residents are Palestinian refugees who were forced 
from their homes or fled in fear of Jewish terrorist attacks in 1948. 
For 60 years, Israel has denied the internationally recognized rights of 
Palestinian refugees to return to their homes -- because they are not Jews.

Although Israel withdrew its settlers and soldiers from Gaza in 2005, it 
continues to tightly regulate Gaza's coast, airspace and borders. Thus, 
Israel remains an occupying power with a legal duty to protect Gaza's 
civilian population. But Israel's 18-month siege of the Gaza Strip 
preceding the current crisis violated this obligation egregiously. It 
brought economic activity to a near standstill, left children hungry and 
malnourished, and denied Palestinian students opportunities to study abroad.

Israel should be held accountable for its crimes, and the U.S. should 
stop abetting it with unconditional military and diplomatic support.

Mr. Bisharat is a professor at Hastings College of the Law in San 
Francisco.