By Reem Salahi
Reem Salahi is a lawyer specializing in national security and civil rights. In February 2009, Reem traveled with the National Lawyers Guild delegation to assess the legal implications of Israel’s onslaught on Gaza. Reem would like to dedicate this article to all the Palestinians she met and interviewed while in Gaza and to all the Palestinians that continue to tragically live under Israeli occupation, siege and constant bombardment. With the Obama administration’s recent push for a renewal of peace talks and the consequent sidelining of the Goldstone Report, the Obama administration is denying the Palestinians what they want most: justice and accountability. This author is only one of innumerable voices seeking to shed light on the realities of the Palestinians as an occupied, besieged and terrorized people who desire not an empty peace, doused in meaningless rhetoric, but a viable and equitable solution which will not forsake the humanity of one people for the alleged security of another.
In Israel’s 22-day offensive termed “Operation Cast Lead,” approximately 1,417 Palestinians were killed, 926 of which were civilians, and 5,303 Palestinians were injured, including 1,606 children and 828 women. In comparison, Israeli deaths totaled thirteen – three civilians and ten soldiers (four of whom were killed by friendly fire). Despite Israel’s attempts to deny foreign media sources from entering Gaza, and its own heightened media campaign, disturbing images of brutally killed Palestinians and ravaged Palestinian infrastructure trickled out and led many in the international community to question Israel’s compliance with international humanitarian law. The outcry and demand for accountability included not only international lawyers, but also prominent United Nations figures, including United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, Richard Falk, and Director of United Nations Relief and Works Agency (UNRWA) in Gaza, John Ging. These allegations have been granted further credibility by Israeli soldier testimonials admitting to the willful killing of Palestinian women and children and the unnecessary destruction of Palestinian civilian infrastructure.
On February 2, 2009, I crossed into Gaza through Rafah along with six other lawyers and one law student on the National Lawyers Guild delegation. Our objective was to examine first-hand the legal implications of Israel’s recent military operations in the Gaza Strip between December 27, 2008 and January 18, 2009. Specifically, the delegation sought to interview witnesses, medical workers, and other relevant persons in order to determine: 1) whether Israel targeted Palestinian civilians and civilian infrastructure; 2) whether Israel used weapons illegally; and 3) whether Israel deliberately or arbitrarily blocked needed medical assistance. Each of these three areas implicates international humanitarian laws that if violated, could amount to war crimes.
In all three areas, we found that Israel breached international humanitarian law and that it did, in fact, commit war crimes. Despite Israel’s claims of self-defense, it failed to abide by the international legal principles of distinction and proportionality in its military offensive. In addition, it breached multiple articles defining the laws of war in the conventions that comprise the cornerstone of international humanitarian law: the Geneva Conventions of 1949 along with the two additional protocols of 1977. While Israel is a party and thus bound by the four Geneva Conventions, it has not ratified either of the additional protocols. Yet there is international consensus that Additional Protocol I and provisions of Additional Protocol II state principles of customary international law and are thus binding on all states, including Israel.
In its offensive, Israel attacked civilians and murdered innocent men, women, and children in close proximity with documented claims of at least seven incidences where Israeli soldiers were seen firing at Palestinian civilians carrying white flags. Civilian infrastructure, including the American International School in Gaza and United Nations facilities, were targeted and demolished or heavily damaged. In addition, Israel used white phosphorus extensively and illegally throughout Gaza, causing tremendous damage to Palestinian infrastructure and resulting in serious and even deadly injuries to the Palestinian people. Aside from white phosphorus, both doctors and weapons experts have made strong claims that Israel used experimental weapons, such as the new Israeli-produced Spike missiles, which have concentrated blasts and release large numbers of sharp-edged cube-shaped shrapnel up to twenty meters away, as well as DIME (Dense Inert Metal Explosive). Due to the relative newness of DIME munitions and the lack of information on its potential longterm carcinogenic effects, DIME may violate Protocol I of the Convention on Conventional Weapons, which would make its use illegal not only against civilians, but also against combatants.
Additionally, Israel unnecessarily blocked paramedics’ access to the injured for hours and days at a time and denied medical assistance to wounded Palestinians, many of whom died from blood loss or treatable injuries. Israel also targeted medical personnel, killing approximately sixteen medical workers and injuring twenty-five, all while performing their medical duties. Finally, Israel hit thirty-four medical facilities, including eight hospitals and twenty-six primary care clinics.
In this article, I will examine international humanitarian law as it relates to civilians and civilian infrastructure. I will show how Israel breached those laws in its military offensive and how such grave breaches of international humanitarian law constitute war crimes, and – if criminal intent is shown – require criminal prosecution. Where appropriate, I will include first-hand Palestinian testimonials and observations from my visit to Gaza, which exemplify specific instances of Israel’s violations of international humanitarian law. Part II of the article examines the laws of distinction and proportionality and Part III discusses how Israel breached those laws by targeting Palestinian civilians and civilian infrastructure, specifically Israel’s illegal targeting of the American International School in Gaza and various UN facilities. Part IV discusses how Israel breached both the Fourth Geneva Convention and the principle of distinction by using Palestinians as human shields. Part V rejects Israel’s justification of self-defense and explains how Israel acted aggressively and outside of the law in its military offensive in Gaza. Lastly, Part VI concludes by examining U.S. complicity in its arms supplies and military funding to Israel and calls for both the U.S. and the international community to hold Israel accountable.
Read the full report at the Rutgers Law Journal.