A Step Toward Ending Israel's Impunity

Published on Thursday, April 16, 2009 by The Baltimore Sun

by George Bisharat

The appointment of Richard Goldstone to head a United Nations fact-finding mission to the Gaza Strip represents an important first step toward ending Israel's impunity from international law. Mr. Goldstone - a former supreme court justice in South Africa and chief prosecutor in the international tribunals for Rwanda and Yugoslavia - and three other esteemed experts will investigate both Israel and Hamas for possible offenses before, during, and after Israel's invasion of Gaza.

Evidence, indeed, suggests that Israel committed war crimes and crimes against humanity before, during, and after its winter assault on the Gaza Strip. Long before the attack, Israel had imposed a ruinous siege on Gaza, collectively punishing its residents for choosing Hamas in democratic elections in January 2006. During the December-January invasion, Israeli troops apparently killed civilians without justification, wantonly destroyed civilian infrastructure and private property, used weapons illegally, and abused Palestinian detainees. Since a January cease-fire, Israel has blocked relief supplies to Gaza, and it continues to attack and kill Palestinians.

Individual misconduct does not explain Israel's offenses during the invasion; lax rules of engagement were the root problem. Israeli military lawyers classified any Palestinian who remained in an area after a warning of an impending attack as a "voluntary human shield" and therefore a combatant subject to attack. Warnings were issued via leaflets, cell phone calls, and in some cases, bombing of a building's corners (before the roof was collapsed by additional fire). Yet Gaza Palestinians were barred refuge outside of the tiny strip, and thus were denied effective flight. Israeli jurists also approved the bombing of a police cadet graduation ceremony; in total, some 250 civilian Palestinian policemen lost their lives during the invasion. Military rabbis exacerbated matters, counseling that Israeli soldiers show no mercy to Palestinians.

Such elastic definitions of "combatants" defy well-settled international law. Yet Daniel Reisner, the former head of the International Law Division of the Israeli Military Advocate General, recently claimed: "If you do something for long enough, the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries ... International law progresses through violations."

Hamas, in its indiscriminate rocket attacks on Israeli civilians, also committed war crimes, and should be held to account. Yet Hamas' violations have no power to alter the terms of international law. Israel, by its capacity to defy the world community - and because its doctrines have been followed by some other nations, including the United States - jeopardizes the status of international law in a way that Hamas cannot.

It is true that new customary international law is formed by the actions of states and the acceptance of those actions as lawful by other states. Israel, however, misconstrues the sullen impotence of the world to curb its excesses for acceptance of the lawfulness of its actions. That is a grave mistake.

In fact, Israeli abuses are deeply resented across the globe. To the extent the United States has emulated them - torturing detainees, for example, or assassinating foes by unmanned drones that commonly kill innocent civilians along with their intended targets - we engender similar enmity against us.

Powerful states often promote legal principles that favor their interests, without regard for how the rule might be applied against them. Before the Israeli attack on Gaza, Hamas had repeatedly warned that it would resume rocket fire if Israel did not lift the siege. Did this render all of southern Israel a free-fire zone? Would we, in the United States, agree that our civilian police forces are fair game for our enemies?

Israel's attempted legal innovations are simply bad for humanity, and our response to them should be: "No thanks." For too long we have indulged that country, bestowing it $3 billion annually in military aid since 1973 and repeatedly vetoing resolutions in the U.N. Security Council holding Israel accountable for its serial violations of international law.

Times are changing, and our policies must now change as well. The Obama administration should back the Goldstone mission in word and in deed. The United Nations Human Rights Council, which appointed Mr. Goldstone, is often derided by Israel's defenders for its focus on Israeli human rights abuses. In fact, that relatively toothless body would have little role in this issue were the Security Council not so derelict - because of U.S. obstructionism - in its duties. Mr. Goldstone (who happens to be Jewish, and has ties to Israel) holds impeccable credentials and repute for great personal integrity. He is the right person to start salvaging international law from the damage it has suffered in recent years.

International law protects weak and strong alike, and we ignore its continuing abuse at our peril.

© 2009 The Baltimore Sun

George Bisharat, a professor at Hastings College of the Law, writes frequently on law and politics in the Middle East. His e-mail is bisharat@uchastings.edu.