Israel went too far to protect Gaza civilians

Once again, the above headline reads like a parody. Only, unlike my previous post, this one is deadly serious.

The International Criminal Court (ICC) is  preparing to send a team to investigate the IDF for alleged war crimes during Operation Protective Edge,

As part of a preliminary examination of the Palestinians’ claims, the investigators are scheduled to arrive on June 27 and will try to determine if there is sufficient evidence that crimes covered by the court have been committed, Haaretz reported on Thursday, citing Palestinian sources.

The Office of the Prosecutor at the International Criminal Court said in a statement that such trips by prosecutors are not an unusual occurrence.

“As part of its preliminary examination activities, the Office of the Prosecutor conducts field visits as it has done in the past with other situations under preliminary examinations,” the statement said. “From the outset, the prosecutor has consistently made clear that the situation in Palestine will not be treated any differently from the others. Therefore, the office as per normal practice, is considering a visit to the region during the course of its preliminary examination. Contrary to media reports, no date has been confirmed and further planning is required.”

The following sentence should raise red flags as to the even-handedness (or lack of it) of the investigating team (emphases are mine):

Should the review lead to an investigation, the court may also look into crimes allegedly committed by the Palestinians as well.

Surely if an investigation is being carried out into a war, both sides of the conflict should be examined?

However, Israel is playing it cool:

Even if the ICC decides to launch a full-fledged investigation, the UN Security Council can ask the court to delay proceedings for up to two years, the report said.

Haaretz cited Palestinian sources to the effect that security council members Russia and China have both said they would veto a motion to delay an investigation.

An unnamed senior Israeli official was quoted as saying that the development is no indication that the ICC is giving the investigation special attention.

“Nothing about it testifies to the progress of the examination or its pace,” he said and noted that Israel is to review the prosecution’s intention to visit in the coming days.

“We will examine every request for a visit while taking into account all the relevant considerations, including Israel’s position that Palestine is not a state and therefore the court has no authority to consider the Palestinian complaint,” the official was quoted as saying.

And of course here is the Palestinians’ role in the whole farrago:

News of the ICC visit came as the Palestinians prepared to submit two files of alleged Israeli crimes to ICC Chief Prosecutor Fatou Bensouda.

The Palestinian Authority officially joined the International Criminal Court on April 1, after having signed the court’s founding treaty, the Rome Statute, last December. Though Israel is not a member of the court, cases could be brought before it against Israeli individuals suspected of war crimes committed in territory claimed by the Palestinians. In January, Bensouda initiated an investigation into alleged war crimes committed by Israel during the seven-week war between Israel and armed actions in Gaza last summer.

Israel has dubbed the Palestinians’ joining the court as “scandalous,” with Prime Minister Benjamin Netanyahu warning that it turns the ICC “into part of the problem and not part of the solution.” Meanwhile, the Israeli non-governmental organization Shurat Hadin — Israel Law Center has begun collecting incriminating information on Palestinian leaders as a deterrent measure at the ICC.

In order to prepare for, and counteract, the ICC investigation, Israel commissioned its own  panel of legal experts to examine Operation Protective Edge, and as we have come to expect, they slammed the IDF – but not for any war crimes committed.  Rather, they slammed the IDF for over-warning Gazans!!  Their zealousness in going to such lengths is endangering other armies in the war on terror:

The IDF went to extraordinary lengths last summer to prevent civilian casualties while fighting Hamas terrorists in Gaza, achieving a remarkable 1:1 civilian to combatant ratio, but according to international legal experts it went too far in avoiding casualties among the enemy population.

Willy Stern of Vanderbilt Law School, in an article to be published next Monday in the Weekly Standard, details what he found while spending two weeks with attorneys in the IDF’s international law department dubbed “Dabla” as well as front-line commanders, and documents the IDF’s “legal zeal” which as he notes has not stemmed the deluge of international criticism against it.

Stern listed how the IDF bombarded Gaza residents with thousands of telephone calls, leaflet drops, TV and radio messages, as well as calls to influential citizens urging them to evacuate residents, and in doing so gave the terrorist enemy detailed information about its troop movements.

In contrast, the Hamas “doctrine manual” captured by the IDF in the Shejaiya neighborhood early last August documents how the terror group urges its fighters to embed themselves among civilians in hopes that the IDF will kill civilians.

“IDF harming fight against terror”

Indeed, international legal experts quoted in the article argued that the IDF’s actions do go to inappropriate measures, and may end up harming the ability to fight terrorist organizations.

These legal experts are no small fry. UN Watch has produced the key preliminary findings of the high-level military group on the Gaza conflict: (emphases are mine):

From 18th – 22nd May 2015, the High Level International Military Group, made up of 11 former chiefs of staff, generals, senior officers, political leaders and officials from the United States, Germany, the United Kingdom, Holland, Spain, Italy, Australia and Colombia visited Israel for a fact-finding mission on the 2014 Gaza conflict. We were led by General Klaus Naumann, former Chief of Staff of the Bundeswehr and Chairman of the NATO Military Committee, the most senior officer in the Alliance, and Giulio Terzi, former Foreign Minister of Italy. Also in the group were Ambassador Pierre-Richard Prosper, formerly US State Department Ambassador at Large for war crimes issues; and Mr Rafael Bardaji, former National Security Adviser to the Government of Spain.

Our mission to Israel was unprecedented. We were the first such multi-national group of senior officers to visit the country. We were granted a level of access to the Israeli government and Defence Force that has not been afforded to any other group, from the Prime Minister, Benjamin Netanyahu, and the Minister of Defence, Moshe Ya’alon, right down to the field commanders responsible for fighting the battle on the ground.

We were well aware of the allegations made by some governments, the United Nations, human rights groups and the media, that Israel acted outside the laws of armed conflict in Gaza. Some have suggested that the IDF lacked restraint or even deliberately targeted innocent civilians.

Our findings lead us to the opposite conclusion. We examined the circumstances that led to the tragic conflict last summer and are in no doubt that this was not a war that Israel wanted. In reality Israel sought to avoid the conflict and exercised great restraint over a period of months before the war when its citizens were targeted by sporadic rocket attacks from Gaza. Once the war had begun, Israel made repeated efforts to terminate the fighting. The war that Israel was eventually compelled to fight against Hamas and other Gaza extremists was a legitimate war, necessary to defend its citizens and its territory against sustained attack from beyond its borders.

The report goes on to list the war crimes committed by Hamas in shelling civilian communities and digging tunnels to perpetrate terror activity. It continues:

The Israel Defence Force employed a series of precautionary measures to reduce civilian casualties. Each of our own armies is of course committed to protecting civilian life during combat. But none of us is aware of any army that takes such extensive measures as did the IDF last summer to protect the lives of the civilian population in such circumstances.

The report lists the measures taken by the IDF to protect Gaza’s civilians as listed in the Arutz Sheva article above, and describes the consequences:

The measures taken were often far in excess of the requirements of the Geneva Conventions. They sometimes placed Israeli lives at risk. To an extent these steps also undermined the effectiveness of the IDF’s operations by pausing military action and thus allowing Hamas to re-group and replenish. Supplies provided to the civilian population by Israel were often commandeered by Hamas for military use.

An IDF evacuation leaflet dropped on Gaza, warning residents of an impending attack on terrorists

We understand that over 2,000 people died in Gaza during the conflict. In a population of approximately 1.8 million, over a 50-day period many would have died of causes unrelated to the fighting. We also know that some died when Hamas’s attacks against Israel went wrong, and a recently published report by Amnesty International asserts that Hamas murdered at least twenty-three people in Gaza during this period, and tortured dozens more.

We recognise that some of these deaths were caused by error and misjudgement as we mention below. But we also recognise that the majority of deaths were the tragic inevitability of defending against an enemy that deliberately carries out attacks from within the civilian population. We must therefore consider that Hamas and its terrorist associates, as the aggressors and the users of human shield, are responsible for the overwhelming majority of deaths in Gaza this summer.

We agree with the Chairman of the US Joint Chiefs of Staff, General Martin Dempsey, who following the Pentagon’s fact-finding mission to Israel, went on record last November as saying that in the 2014 Gaza conflict, “Israel went to extraordinary lengths to limit collateral damage and civilian casualties”.

Our overall findings are that during Operation Protective Edge last summer, in the air, on the ground and at sea, Israel not only met a reasonable international standard of observance of the laws of armed conflict, but in many cases significantly exceeded that standard. We saw clear evidence of this from the upper to the lower levels of command. A measure of the seriousness with which Israel took its moral duties and its responsibilities under the laws of armed conflict is that in some cases Israel’s scrupulous adherence to the laws of war cost Israeli soldiers’ and civilians’ lives.

Another very interesting read is by Jim Molan, a retired major-general in the Australian Army, who comments on the upcoming release of the UN Human Rights Council report on Operation Protective Edge. (which by chance or by plan) is set to be published at the same time as the ICC investigative team is supposed to arrive in Israel.

Maj. Gen. Jim Molan’s report, “Israel’s war in Gaza was just”  (originally published in The Australian) appears at UN Watch:

I can say that Israel’s prosecution of Operation Protective Edge not only met a reasonable international standard of observance of the laws of armed conflict, it ­exceeded them significantly, often at cost to Israeli soldiers and citizens. It did this to preserve the life and property of those trying to kill Israeli citizens. Where there were individual failures, Israel is taking transparent legal action.

In war any military can exceed the “reasonable” standard. ­According to the strict internal ­review methods that were applied to my conduct of military operations back in Iraq, my actions were ­always legal, and where I could, I exceeded them. The IDF did this and more.

Many will still question how ­Israel can have acted legally given its losses were markedly less in soldiers and civilians. Israel is so strong and Hamas so weak. We all saw the grainy videos of houses being demolished by bombs.

Those who hate Israel will continue to make the case that everything Israel does is bad and that Hamas was struggling nobly for Palestinian freedom. I do not ask anyone to necessarily believe what I say, but at least there is an obligation to be equally sceptical of what Hamas says.

Given our examination of the cause of Operation Protective Edge, it would be indefensible to argue that Israel wanted it, init­iated it or sustained it, or that ­Israel acted in anything other than defence of its citizens. On this basis alone, Israel’s war was just. It will be interesting to see if the imminent UNHRC report and the ICC inquiry can deliver fairness. Many do not understand it is not illegal to kill civilians in war as long as that is not the purpose of your actions, hence the appalling term “collateral damage”. Unlike our fight in Iraq or Afghanistan, Israel fights repeatedly in the same neighbourhood, and so its understanding and its intelligence is far superior to anything that I have enjoyed in similar targeting decisions that I have made.

Maj. Gen. Molan’s conclusion is both moving and so expressive of the assymetry of Israel’s war against the Palestinian terrorists:

The women of the kibbutz were proud of their sons, but they would also be proud of what one senior Israeli commander whose soldier son was about to deploy to Gaza, recounted.

“Come back alive,” he said in farewell, “but come back human.” I wonder what the Hamas version of this farewell would be.

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8 Responses to Israel went too far to protect Gaza civilians

  1. OyiaBrown says:

    Reblogged this on Oyia Brown.

  2. Brian Goldfarb says:

    Darn it, beaten to the punch (so to speak) by Anne! The version of that report I was going to use was from The Times of Israel. Now I’ll have to refer people here, rather than to anything I’ve written.

    More importantly than any “humorous” complaints by me is the very last comment by Maj. Gen. Molan on the IDF Senior Commander requesting that his son come back alive, but come back human.

    How Jewish is that? To anyone out there who needs a response to that, very.

  3. Reality says:

    So if all these bigwigs have already come to the conclusion that we acted reasonably &in self defense, it begs the question,why is the ICC even considering investigating?
    Another thing that puzzles me,is if Israel is NOT part of the ICC & it’s a known fact that Palestine is not a country &Palestinians DON’T have a country, why the investigation? Has any ICC investigation gone on in Syria,or any other war torn country? Perhaps they don’t read or hear the news ,& therefore have no idea that wars are being conducted in practically everywhere where there is an Islamic sect?Should I write them a letter?!
    Or could all this be an excuse for(gasp, dare I say it,) hauling Israel over the coals for the pure exhilaration of the ICC members?

    • Brian Goldfarb says:

      I would imagine that, like all courts that operate (or at least appear to operate) like proper courts, they have to wait for cases to be brought to them. They do not act on their own initiative; that is the role of the DA (in the US) or equivalents everywhere. In the case of the ICC, this means that member states have to bring cases to them. Which is the point at which the court appoints an investigator to decide whether there is a prima facie case.

      So, Reality, it isn’t an exercise for the delight and delectation of the ICC members, who are all, almost certainly, high ranking members of open court systems across the world. This doesn’t mean that they are all somehow above having ideological stances: just note how the nature of the US Supreme Court changes over the years and decades as its personnel changes.

      All that said, if the ICC can consider “charges” brought by a member against a non-member (Palestine, a non-state against Israel) then the real question becomes, why on earth isn’t Israel a member? Then it could bring counter-charges against both the PA and Hamas, as being de facto in charge of their territories.

      We should ask a sympathetic lawyer with appropriate qualifications if there is any traction in any of this.

      Anyone got useful addresses or phone numbers out there?

      • anneinpt says:

        Part of the reason that Israel didn’t join the ICC was to avoid the very scenario that is playing out now. They didn’t imagine that an imaginary State of Palestine would request to join, and that their request would be granted. So now here is Israel, a non-member, being sued (if that’s the right word) by a member which is a non-state. Go figure.

        I don’t think Israel belonging to the ICC will help it one whit. On the contrary, it will just open the floodgates for every other state to start another pile-on. See the UN for example.

        It doesn’t matter what Israel does or says, or how many world-respected generals say Israel acted legally, the UN at least will find Israel guilty of something, even if it’s “just” poisoning the wells or being the world’s worst human-rights violator (as happened last month).

        I do hold out slightly more hope and have slightly more respect for the ICC but I will reserve judgement until they issue theirs.

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