Israel has commenced full-scale warfare on the people of Gaza. The recent tensions began about six weeks ago when Israeli forces abducted 17 Palestinian teenage boys in the occupied West Bank. Then, on June 12, three Israeli teenagers were abducted in the southern West Bank; Israel blamed Hamas. After the three youths were found dead, a group of Israelis tortured and killed a Palestinian teenager in Jerusalem. Finally, on July 7, Israel launched a large military operation dubbed “Operation Protective Edge” in the Gaza Strip.
During the past week, Israel has killed 162 Palestinian civilians and counting, including 34 children. In addition to more than 1,200 Israeli airstrikes, Israel has threatened to launch a ground invasion of Gaza. Israel attacked a center for the mentally and physically disabled in Beit Zahiya, killing three patients and a nurse. In addition, Israel has stepped up demolitions of Palestinian homes, and administrative detentions of Palestinians without charge or trial.
The UN Office for the Coordination of Humanitarian Affairs(OCHA) reported that 77 percent of the people Israel has killed in Gaza were civilians. Although Hamas has launched about 1,000 rockets into Israel in the past week, no Israelis have been killed.
UN High Commissioner for Human Rights Navi Pillay expressed alarm at the Israeli military operations as well as the indiscriminate firing of rockets from Gaza into Israel. “For its part, the Government of Israel must take all possible measures to ensure full respect for the principles of distinction, proportionality and precautions in attack, during the conduct of hostilities, as required by international humanitarian law. In all circumstances, they must avoid targeting civilians,” she said. In light of “deeply disturbing reports that many of the civilian casualties, including of children, occurred as a result of strikes on homes,” Pillay continued, “serious doubt [has been raised] about whether the Israeli strikes have been in accordance with international humanitarian law and international human rights law.”
The principle of distinction forbids deliberate attacks on civilians or civilian objects. The proportionality principle forbids disproportionate and excessive civilian casualties compared to the claimed military advantage gained in the attack. Precaution requires that measures be taken in advance to ensure compliance with the principles of distinction and proportionality, to minimize incidental loss of civilian life, injury to civilians and damage to civilian objects, and requires taking all feasible precautions in the choice of means and methods of warfare.
Collective Punishment by Israel
Headlines in the mainstream media falsely portray an equivalence of firepower between Israelis and Palestinians in Gaza. But Israel’s use of force greatly exceeds that of the Palestinians, and the asymmetric warfare continues to escalate. The Obama administration and Congress have condemned the rocket fire into Israel by Hamas and the “deliberate targeting of civilians.” But Washington says Israel has a right to defend itself, justifying Israel’s bombing campaign in Gaza and blaming Hamas, while minimizing Israel’s role in creating and escalating the violence.
Israel’s overwhelming use of military force constitutes collective punishment, which is a war crime. The laws of war, also known as international humanitarian law, are primarily found in the Geneva Conventions. Article 33 of the Fourth Geneva Convention, to which Israel is a party, specifically forbids collective punishment. It says, “No protected person [civilian] may be punished for an offense he or she has not personally committed . . . Reprisals against protected persons and their property are prohibited.”
Israel’s collective punishment of Palestinians in Operation Protective Edge constitutes a deliberate policy to punish the entire population of Gaza. Since the Palestinians concluded a unity agreement between Fatah in the West Bank and Hamas in Gaza in June, Israel has stepped up the construction of illegal Israeli settlements in the West Bank and Jerusalem. Richard Falk, former UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967, noted that Israel broke off the peace talks with the Palestinians before the formation of the Palestinian unity agreement.
Israeli Prime Minister Benjamin Netanyahu has blamed Hamas for the kidnapping and killing of the three Israeli teens in order to discredit the new Palestinian unity agreement. In what amounts to a catch-22, Netanyahu has cynically stymied the peace negotiations because, he said, there was no unified voice to speak for the Palestinians. But now that the Palestinians have a unity agreement, Netanyahu is driving a wedge between Fatah and Hamas in an effort to justify and maintain Israel’s occupation of Palestinian territory.
The 140 square-mile Gaza Strip, home to 1.7 million people (half of whom are children), is one of the most densely populated areas in the world. It is often described as the world’s largest “open air prison,” as Israel maintains a tight blockade, restricting all ingress and egress. Since mid-2013, unemployment has dramatically increased and delivery of basic services has decreased. More than 90 percent of the water in Gaza is unsuitable for drinking. The health system is close to collapse, according to the World Health Organization. Last year, the UN Committee on the Rights of the Child reported, “Palestinian children arrested by [Israeli] military and police are systematically subject to degrading treatment, and often to acts of torture.” The committee also concluded that Israel’s “illegal long-standing occupation” of Palestinian land, continued expansion of “unlawful” Jewish settlements, construction of the barrier wall into the West Bank [found by the International Court of Justice 10 years ago to violate international law], and the confiscation of land and demolition of homes and livelihoods “constitute severe and continuous violations of the rights of Palestinian children and their families.”
After Israel’s 2008 to 2009 Operation Cast Lead, in which nearly 1,400 Palestinians (82 percent of whom were civilians) and 13 Israelis were killed, a UN Human Rights Council report by a commission headed by Justice Richard Goldstone concluded, “Disproportionate destruction and violence against civilians were part of a deliberate policy [by Israel].”
In its 2009 report, the Public Committee Against Torture in Israel (PCATI) found, “During Operation Cast Lead no type of property was left untouched: residences, hospitals, schools, mosques, factories and agricultural fields were demolished by the IDF.”
Israel, according to PCATI, employed “a coherent strategy that incorporated two major elements into the planning of Operation Cast Lead: 1) The implementation of the ‘Dahiye Doctrine,’ the principal tenet of which was to cause intentional suffering to civilians so that they would bring pressure to bear on those who were fighting against the IDF [Israel Defense Forces], and 2) The ‘No Risk’ policy, which placed absolute priority on preventing harm to IDF soldiers, even at the cost of greater danger to Palestinian civilians.” Israel is apparently pursuing the same policy in Operation Protective Edge.
In 2013, Falk said, “the people of Gaza have endured the unendurable and suffered what is insufferable for six years. Israel’s collective punishment of the civilian population in Gaza must end today.” He added, “Israel has the responsibility as the Occupying Power to protect the civilian population.”
“In circumstances of prolonged occupation and state terrorism,” Falk observed, “Hamas is entitled to claim rights of resistance, although their precise contours are not clearly established by international law. Hamas is certainly entitled to act in self-defense within the constraints of international humanitarian law.”
On July 12, 2014, the UN Security Council issued a unanimous statement calling for an immediate ceasefire and “de-escalation of the situation, restoration of calm, and reinstitution of the November 2012 ceasefire.” That ceasefire ended eight days of bombings of Gaza by Israel that killed 140 Palestinians, and rocket attacks by Hamas along the border that killed five Israelis. In its July 12 statement, the Council expressed “serious concern regarding the crisis related to Gaza and the protection and welfare of civilians on both sides” and called for respect for international humanitarian law, including the protection of civilians.
Hanna Amira, a member of the executive committee of the Palestine Liberation Organization in the West Bank, said of the Council’s statement, “This announcement deals with the oppressor and the victim in the same way; it is a general call to end the fighting, without setting any mechanism to end the fighting. What is needed is an end to the aggression against the Palestinian people in Gaza.”
The Palestinian Boycott, Divestment and Sanctions (BDS) National Committee has called on “international governments to impose a two-way arms embargo immediately and to suspend bilateral agreements until Israel fully complies with international law.” Indeed, US military aid to Israel also violates US law. The Human Rights and Security Assistance Act requires that the United States halt all military aid to Israel because the latter has engaged in a consistent pattern of gross violation of internationally recognized human rights.
“Because collective punishment is a war crime under the Geneva Conventions, [the Palestinian BDS National Committee] urge[s] the international community to pressure Israel to end its all-out military assault aimed against the total population of Gaza, open the Rafah crossing [between Egypt and Gaza] permanently and heed our call for boycotts, divestment and sanctions.” Organizations such as the Bill Gates Foundation, the Presbyterian Church USA and the United Methodist Church are divesting from companies that profit from Israel’s occupation, including Hewlett Packard, Motorola Solutions and Caterpillar.
“Israel is able to act with utter impunity because of the military, economic and political support it receives from governments around the world,” according to Zaid Shuaibi, a spokesperson for the Palestinian BDS National Committee. Indeed, Israel would be unable to carry out its policies of aggression in Gaza without the support of the United States, which gives Israel more than $3 billion per year.
The United States should demand an immediate ceasefire from both Israel and Hamas. The US government should condemn Israel’s escalation, bombing and collective punishment of civilians just as forcefully as it has condemned Hamas’ firing of rockets. The Gaza blockade and limitations on freedom of travel of Gazans should be lifted and Israel’s occupation of the Palestinian territories should be ended.
Marjorie Cohn is a professor at Thomas Jefferson School of Law, a former president of the National Lawyers Guild, and deputy secretary general of the International Association of Democratic Lawyers. Her books include Cowboy Republic: Six Ways the Bush Gang Has Defied the Law. Her next book, Drones and Targeted Killing: Legal, Moral and Geopolitical Issues, will be published next month.