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Hamas, the Gaza War, and Accountability Under International Law

JURIST Guest Columnist Anthony D'Amato of Northwestern University School of Law says that the closest precedent to the Israeli position on the Gaza war is justification, an international law doctrine that has been a dead letter since the end of World War II and the adoption of the Fourth Geneva Convention...

I've been invited to a conference in Israel on a topic of great interest to me: "Hamas, The Gaza War, and Accountability Under International Law." The conference will be held at the David Citadel Hotel on June 18, 2009. I will not attend because it isn't a conference, it's a PowerPoint presentation. Every speaker on the agenda is an advocate of the Israeli position. There isn't an independent scholar of international law, much less a Palestinian, on the list of speakers.

If I had attended and had a chance to speak, I would say a few words about the closest precedent to the Israel-Gaza situation: justification. I doubt anyone at the Hotel would dare to bring it up. Justification for war crimes has been a dead letter since World War II.

The doctrine of justification in international law applies when one side commits a war crime in order to deter the continued commission of war crimes by the other side. During World War II in German-occupied European countries, if a sniper killed a German soldier on patrol and the German authorities were unable to identify the shooter, fifteen or twenty residents in the vicinity would be selected at random, taken to the town square, and shot. Today that kind of reprisal would be considered a war crime — Article 33 of the Fourth Geneva Convention of 1949 flatly prohibits collective punishment and reprisals against civilians — but back in the 1940's it was not illegal. The French, British, and U.S. field manuals had specifically recognized the practice and pointedly refrained from saying that it is illegal. Moreover, there were no allied protests of the German execution of hostages throughout the war. Most tellingly, in the 3000-plus war crimes trials in Europe after the war, German commanders who gave the orders to kill hostages in the 15 or 20-to-1 ratio were not prosecuted.

However, in the Hostages Case — the trial at Nuremberg of William List and others — the US Military Tribunal held that the killing of 100 hostages for each German killed lacked proportionality. The 100-to-1 ratio only pertained to a few places including the Balkans. By comparison, the ratio of Palestinians killed compared to Israelis in the recent Gaza War was 98-to-1.

Let us look at the Gaza War in light of the concept of justification as it applied during World War II. For the past seven years the Hamas political organization in Gaza has been firing rockets into Sderot and neighboring Israeli communities west of the Negev. The rockets have zero accuracy even if directed at military targets — which they are not. The rockets are fashioned from common metal pipes filled with explosives and propellants. The fuel is made of fertilizer and sugar. The rockets are built in simple metal shops and garages. The rockets that descend upon Israel bring unspeakable terror but not much destruction. As of March 2008 more than 500 people had been wounded by the attacks; miraculously only twelve had been killed. However, the townspeople have lived in fear of the rockets, and have confined themselves most of the time to shelters. The bombardment of undefended towns and villages is one of the oldest codified war crimes; it was prohibited by the Hague Convention of 1907.

Imagine for a moment if U.S. cities and towns near the Canadian and Mexican borders were hit by similar rockets fired by radical terrorist groups in Canada and Mexico. Would the United States tolerate such attacks for seven years? Or even seven days?

Israel's pent-up frustration over the rocket attacks erupted in a sudden military invasion of Gaza on December 27, 2008. Insofar as the invasion was a police action to rid Gaza of rockets, rocket launchers, and rocket factories, there was no war crime. But at the same time the Israeli Air Force dropped many hundreds of white phosphorus bombs indiscriminately over the residential areas of Gaza. I found the televised pictures of the bombs lighting up the night sky over Gaza to be eerily beautiful, and I had to check myself to reevaluate what I was seeing: in reality, these incendiary weapons were setting homes on fire and burning the skin of countless terrified people. The victims suffered third-degree burns that doctors reported went inches deeper into the flesh than ordinary fire. A spokesperson for the Israeli Defense Forces added insult to injury by flatly denying that phosphorus was used.

When a sniper killed a German soldier on patrol, it was clear that the marksman had been aided actively by his neighbors who assisted and harbored him. The sniper was also aided passively by other townspeople who did nothing to stop him. The same can be said of the people of Gaza who have enabled the rocket launchings by Hamas. The concept of collective responsibility applies to the civilians in German-occupied towns as it applies to the civilians of Gaza. Neither group is blameless.

If the two situations are factually analogous, why did the Fourth Geneva Convention of 1949 outlaw the defense of justification? The change is due to the demise of the concept "occupied territory." In the usual meaning of that term, a territory is occupied as the result of a war of conquest. But such wars are now illegal: conspiring to start a war of conquest is a "crime against peace" under the Nuremberg decisions. Thus we can conclude that the laws of war do not allow belligerent occupation, and since belligerent occupation is itself illegal it follows that justification, reprisals, and collective responsibility no longer apply. (Yet experts may wonder whether this logic improperly intermingles jus ad bellum with jus in bello.)

In 2005 two major things happened in Israel. The Supreme Court of Israel declared that the Gaza Strip was territory seized during warfare, and Israeli settlers and military forces pulled out of Gaza. So an argument can be made that Gaza was not "occupied territory" when Israel attacked in December 2008. But a response to this argument could be that despite disengagement Gaza remains under Israeli military control. Israel maintains total control over the air and sea space of Gaza, it controls movement of persons and goods between the West Bank and Gaza, and controls taxation of Gaza residents. And here I end with a question: are these Israeli controls tantamount to occupation?

Anthony D.Amato is Leighton Professor of Law at Northwestern University, where he teaches international law and human rights.


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