Question and Answer on Gaza
January, 16 2009
By Stephen Shalom
Stephen Shalom’s ZSpace Page
On December 27, 2008, Israel launched its brutal assault on Gaza, Operation Cast Lead. The aim here has been to collect in one place the most frequently-asked questions and to offer answers and sources. You can read the whole thing through (warning: it’s long!) or see a separate list of sections and questions, and jump to the ones you’re interested in.
Rockets from Gaza aimed at Israeli civilians violate international law.
But any assessment of whether Israeli military actions constitute lawful self-defense has to take account of the context and the question of proportionality.
The broad context is that the Israeli occupation of the Palestinian territories is illegal and unjust and Israel can’t claim self-defense when Palestinians struggle by legitimate means to end the occupation. (In the same way, Japanese troops couldn’t claim self-defense when they were attacked by guerrillas in occupied China or the occupied Philippines during World War II.)
The proper Israeli response to such Palestinian actions is not “self-defense,” but full withdrawal from the occupied territories.
2. While conquests in wars of aggression are clearly illegal, didn’t Israel obtain the West Bank and Gaza as the result of a defensive war against an attack waged by neighboring Arab states?
The West Bank (including East Jerusalem) and Gaza, as well as the Sinai and the Golan Heights were conquered by Israel during the June 1967 war, a war in which Israel attacked first. Israel’s supporters argue that although Israel fired the first shots, this was a justified preventive war, given that Arab armies were mobilizing on Israel’s borders, with murderous rhetoric. The rhetoric was indeed blood-curdling, and many people around the world worried for Israel’s safety. But those who understood the military situation — in Tel Aviv and the Pentagon — knew quite well that even if the Arabs struck first, Israel would prevail in any war. Egypt’s leader was looking for a way out and agreed to send his vice-president to Washington for negotiations. Before that could happen, Israel attacked, in part because it rejected negotiations and the prospect of any face-saving compromise for Egypt. Menachem Begin, who was an enthusiastic supporter of that (and other) Israeli wars was quite clear about the necessity for launching an attack: In June 1967, he said, Israel “had a choice.” Egyptian Army concentrations did not prove that Nasser was about to attack. “We must be honest with ourselves. We decided to attack him.”
However, even if it were the case that the 1967 war was wholly defensive on Israel’s part, this could not justify continued rule over Palestinians. A people do not lose their right to self-determination because the government of a neighboring state goes to war. Sure, punish Jordan and don’t give it back the West Bank (to which it had no right in the first place, having joined with Israel in carving up the stillborn Palestinian state envisioned in the UN’s 1947 partition plan). And don’t return Gaza to Egyptian administrative control. But there is no basis for punishing the Palestinian population by forcing them to submit to foreign military occupation.
Israel immediately incorporated occupied East Jerusalem into Israel proper, announcing that Jerusalem was its united and eternal capital. It then began to establish settlements in the Occupied Territories in violation of the Geneva Conventions, which prohibit a conquering power from settling its population on occupied territory. The Israeli government legal adviser at the time, the distinguished jurist Theodor Meron, warned that any settlements would be illegal, but he was ignored.
And the International Court of Justice has ruled — in a portion of an opinion that had the unanimous support of all its judges, including the one from the United States — that all the settlements in the occupied territories are illegal.
The Israeli withdrawal did not end the occupation. As John Dugard, the UN’s then special rapporteur on the Occupied Palestinian Territories, noted in 2006:
Statements by the Government of Israel that the withdrawal ended the occupation of Gaza are grossly inaccurate. Even before the commencement of ‘Operation Summer Rains,’ following the capture of Corporal Shalit, Gaza remained under the effective control of Israel. This control was manifested in a number of ways. Israel retained control of Gaza’s air space, sea space and external borders. Although a special arrangement was made for the opening of the Rafah border crossing to Egypt, to be monitored by European Union personnel, all other crossings remained largely closed…. The actions of IDF [Israeli Defense Force] in respect of Gaza have clearly demonstrated that modern technology allows an occupying Power to effectively control a territory even without a military presence.
On November 20, 2008, Human Rights Watch wrote to Israeli prime minister Ehud Olmert, stating, among other things,
“Even though Israel withdrew its permanent military forces and settlers in 2005, it remains an occupying power in Gaza under international law because it continues to exercise effective day-to-day control over key aspects of life in Gaza.”
If Israel had truly withdrawn from Gaza, then Israel could not prohibit Gaza from trading by sea or air with other nations, bar people from sailing or flying in to or out of Gaza, overfly Gazan airspace or patrol its coastal waters, or declare “no go zones” within Gaza. Israel also controls Gaza’s Population Registry and collects import duties on any goods it allows into Gaza.
4. Regardless of whether the occupation legally continues, didn’t Israel give up its settlements and its military bases in Gaza?
Israel’s Gaza “disengagement” was a unilateral move, not worked out with any Palestinian leaders at all. Israeli settlers were removed from Gaza, but more new settlers moved to the West Bank in 2005 than left Gaza and more Palestinian land was taken over on the West Bank than was given up in Gaza. To many it seemed clearthat the disengagement, rather than a step towards eventual Palestinian statehood, was in fact a move to secure Israel’s hold on the West Bank and deny any independent existence for the Palestinian people. As Ariel Sharon’s chief aide, Dov Weisglass, told an interviewer for an Israeli newspaper: The significance of the disengagement plan
“is the freezing of the political process. And when you freeze that process you prevent the establishment of a Palestinian state and you prevent a discussion about the refugees, the borders and Jerusalem. Effectively, this whole package that is called the Palestinian state, with all that it entails, has been removed from our agenda indefinitely.”
5. Why should Israel have an obligation to open its borders with or transmit electricty or fuel to Gaza? Doesn’t it have the sovereign right to close its borders as it wishes?
When a country has controlled a territory for 40 years, and prohibits all construction or development that might allow that territory to function independent of the country, it bears obligations. When, in addition, the country prohibits the territory from engaging in trade via air or sea, it cannot claim the right to cut off land crossings.
When Israel “disengaged” from Gaza, it did not turn the Rafah crossing — the connection to Egypt — over to the Palestinians. Instead, the Rafah crossing was the subject of an Agreement on Movement and Access (AMA) signed in November 2005 by the Palestinian Authority and Israel, with U.S. backing, that provided that the crossing would be staffed by personnel from the European Union (EU). According to the Agreement, Israel would have a veto on who could come and go through the border (though Israelis wouldn’t be present at the crossing, but they would have real time video feed and advance notice of anyone seeking to cross).
As the Israeli human rights organization Gisha has noted, “With the exception of personal effects brought by travelers, imports through Rafah, the only crossing into Gaza not directly controlled by Israel, are not permitted. “
Egypt could, of course, ignore the AMA and open the border anyway. And it should do so. And the EU and the U.S. governments could and should end their financial strangulation of Gaza and send supplies by sea to Gaza’s coast, ignoring any Israeli blockade, since presumably Israel wouldn’t sink EU or U.S. vessels. The behavior of all of these governments is reprehensible.
7. Didn’t Hamas just use the Israeli disengagement from Gaza as an opportunity to launch rockets at Israel without provocation?
Rocket attacks declined after the Israeli “disengagement.” There were 281 rockets fired at Israel from Gaza in 2004, and 179 in 2005. The disengagement was completed in September 2005. In the four month period October 2005 through January 2006, there were only 40 rockets fired.
In late September, there was a flurry of rockets launched from Gaza, following a deadly explosion at a Hamas armed victory parade in the Jabaliya refugee camp in Gaza. Most observers, including the Palestinian Authority (then involved in internecine conflict with Hamas) blamed the explosion on a Hamas accident; Hamas claimed Israel was responsible. Whatever the truth, according to the Intelligence and Terrorism Information Center, an Israeli think tank closely tied to the Israeli intelligence and military establishment:
“Afterwards, Fatah factions and the PIJ [Palestinian Islamic Jihad] launched the greatest number of rockets. Hamas stopped its direct involvement in rocket launching following the internal and external criticism it received for having harmed the civilian Palestinian populace, and later because of its governmental commitments.”
Other Palestinian groups did launch rockets. In October 2005 there was another bout of rocket fire. But this did not occur in isolation. And in the pattern of violence and retaliatory violence it is hard to determine who “started” it. On October 23, 2005, Israeli forces killed two Islamic Jihad members on the West Bank; rockets were then fired from Gaza, without causing any injuries; Israel then closed border crossings; its planes flew low over Gaza creating sonic booms and it fired air to ground missiles, injuring five; a suicide bomber from the West Bank attacked an Israeli town, killing five; Israel unleashed further airstrikes and artillery on Gaza, killing eight including three children. Things cooled down a few days later and remained reasonably calm until after the election of Hamas at the end of January 2006.
In January 2006, Hamas participated in Palestinian legislative elections (reversing its previous policy of abstentionism), and received a plurality of the votes. International observers certified the elections as fair,and indeed, these were among the rare democratically elected leaders in the Arab world. Washington had pressed Israel to allow the 2006 election and Hamas’s victory was a surprise to everyone (including Hamas).
Ironically, earlier, the United States and Israel had given support to Hamas in an attempt to undermine the secular leadership of the PLO.
Most analysts concluded that voters were expressing not so much support for Hamas’s religious positions, as rejection of Fatah’s corrupt and pusillanimous leadership, which after many years had brought Palestinians no closer to a viable state of their own.
Hamas’s entry into the government might have been taken as an opportunity to try to encourage it to moderate its positions, but Israel, the United States, and the European Union determined to crush it. Israel refused to turn over Palestinian tax revenues and closed borders, causing severe economic hardship. International donors, especially the United States and the EU, withheld funds, and Washington went a step further and imposed draconian regulations. As the mainstream International Crisis Group explained,
“NGOs engaged in humanitarian relief work face significant obstacles stemming from extraordinarily restrictive U.S. Treasury Department regulations; U.S. organisations, for example, require pre-approval for their donations, which must be in-kind rather than cash.
“Such restrictions affect developmental assistance – $450 million in 2005 – even more severely, for it often involves direct contacts with the PA. Some U.S. NGOs have had entire projects suspended. CARE, the international aid agency, which had hitherto provided 30 per cent of the health ministry’s medicines under a USAID-funded emergency medical assistance program, halted regular supplies after USAID withheld approval.”
9. How could Hamas be a partner for peace? Didn’t they refuse the three U.S.-Israeli conditions: that they recognize Israel, renounce violence, and agree to accept all agreements previously accepted by the Palestinian Authority?
Hamas has indeed refused these three conditions, but no more so than Israel and the United States have done.
Hamas has not recognized Israel, but Israel and the United States have not recognized an independent Palestinian state.
Consider General Assembly resolution 63/165 that was adopted on December 18, 2008. The resolution reaffirms the right of the Palestinian people to self-determination, including the right to an independent State of Palestine, and further urged all States and United Nations entities to continue to support and assist the Palestinian people in the early realization of their right to self-determination. The resolution passed by the overwhelming vote of 173 in favor and 5 opposed, with 7 abstentions. The five nay votes were the United States, Israel, and three tiny U.S.-dependent Pacific island nations.
Of course, Israel may say that it is willing to accept a Palestine state, just not on the 1967 borders, and indeed so long as it is confined to a tiny swath of unviable territory. But if Hamas returned the favor, saying it was willing to recognize Israel, but only if it were confined to Tel Aviv and its suburbs, one doubts Israel and the United States would consider that adequately forthcoming.
Regarding the use of violence, it would be nice if Hamas renounced the use of violence. Certainly, however, any sermons in this regard from the United States or Israel are preposterous. (Think Sinai, 1956, or Lebanon, 1982, or Iraq, 2003.) It might also be noted that those Israelis who actually renounce violence — by refusing military service in an occupying army — are imprisoned.
As for agreeing with previous agreements, put aside Washington’s withdrawal from the Anti-Ballistic Missile treaty, its “unsigning” of the Comprehensive Test Ban Treaty, and its failure to comply with the World Court’s ruling on Nicaragua. Consider simply that the World Court found Israel to be in violation of the Fourth Geneva Convention (to which it is a party) in its construction of the Wall on the occupied West Bank. By a vote of 150 to 6 with 10 abstentions, the General Assembly affirmed that World Court opinion and called on Israel to comply. Israel refused to do so and the United States supported its refusal. Thus, for Israel and the United States, treaties solemnly accepted are just scraps of paper.
For Palestinians, who signed on to the 1993 Oslo Accords which promised them a state by 1999, only to see no state and a huge expansion in the number of Israeli settlers, Israel’s insistence that Hamas adhere to agreements must seem a cruel joke.
When Israeli Prime Minister Ehud Olmert addressed a joint session of the U.S. Congress in 2006, he declared his continuing belief “in our people’s eternal and historic right to this entire land.” Yet, he said, he understood the necessity of compromise. Hamas has taken a similar position: it considers Palestine in its entirety to be sacred Muslim land, it considers the state of Israel to be illegitimate, but yet it has made clear on numerous occasions that it was willing to compromise, and that it would accept a two-state solution on the 1967 borders, with East Jerusalem as the capital of the Palestinian state, along with a truce that could last 20, 30, or 50 years, or even indefinitely.
Israel and the United States, however, refused to pursue these Hamas offers and refused to talk with Hamas at all — despite the fact that a majority of Israelis and conservative analysts such as Efraim Halevy, the former head of the Israeli intelligence service, Mossad, supported such talks.
Unfortunately, throughout the Middle East over the past few decades secular nationalist and progressive movements have been replaced by fundamentalists, a result of both the tremendous repression the nationalist and leftist movements have faced and their own internal weaknesses. And anti-Semitism has grown across the Middle East, which is not surprising given that Palestinians have been subjected to horrendous barbarity by a self-described “Jewish state.” (And Middle Easterners are not encouraged to make fine distinctions when Israeli apologists declare that all criticisms of Israel are ipso facto anti-Semitic.) Obviously, we must reject anti-Semitism and the retrograde social views of fundamentalists.
Hamas, which had its origins in the Egyptian Muslim Brotherhood, comes out of an Islamic fundamentalist background. But origins alone do not determine present behavior. A March 2008 assessment of Hamas’s current practice by the mainstream International Crisis Group paints a mixed picture. Hamas
“denies any intent of coercively imposing an Islamist entity. It appointed some non-Hamas figures to run its security services and administer its judiciary. There are no flagrant signs of Islamisation of the courts and schools. The authorities did not alter the PA school curriculum, the PA’s law code or its constitution. In January 2008, in accordance with PA practice but controversial within Islamic tradition, they appointed a woman judge and promoted another to head the Appeals Court. Notably, since August 2007, Hamas has recruited policewomen to fill the gap, attracting them through television and radio stations, as well as through mosques. Over 100 women have applied. A Hamas official maintained: ‘The people in Ramallah are trying to stigmatise Hamas as extremist. But an Islamic emirate will not come about in Gaza.’
“That said, past performance is no guarantee of future conduct, and civil rights groups as well as non-Hamas preachers remain deeply worried, pointing in particular to indirect forms of social pressure. Within Hamas, a more hardline clerical faction insists on a greater role for Sharia (Islamic law)….
“A senior Hamas jurist’s reply was equivocal: ‘We want the courts to apply Sharia law, but we won’t compel the people.’ Yet in some cases, they have done just that….
“Moreover, amid Gaza’s intensifying isolation and accompanying withdrawal of a Western presence, social mores have grown increasingly conservative and patriarchal – a process that some of Hamas’s more zealous militants, particularly within the security forces, have encouraged. The time devoted to religious instruction in schools has increased, and some teachers are known to punish girls who do not wear the veil. Although women continue to walk the streets unveiled, and officials say there has been no ruling on dress-code, Hamas militants are known to have enjoined some women to don scarves. Similarly while Hamas has curbed the killing of women on grounds of immorality, unmarried couples in cars reported some cases of being beaten and detained. The rate of attacks on internet cafes – apparently by non-Hamas groups – has begun to climb after a brief lull following the [June 2007] takeover, and Gaza’s Christians accuse Hamas forces of doing too little too late to reverse a significant increase in attacks on their community of 3,000, evidence, say some, of the growing influence radical Islamism commands within Hamas ranks.”
Unfortunately, continuing Israeli brutality and Palestinian helplessness will likely increase the worst tendencies of Hamas.
At the same time, in Israel, Jewish fundamentalists are politically strong and part of the governing coalition. The U.S. State Department has noted the Israeli “Government’s unequal treatment of non-Orthodox Jews, including the Government’s recognition of only Orthodox Jewish religious authorities in personal and some civil status matters concerning Jews. Government allocations of state resources favor Orthodox (including Modern and National Religious streams of Orthodoxy) and ultra-Orthodox (sometimes referred to as “Haredi”) Jewish religious groups and institutions.”
Hamas’s 1988 Charter cites the Protocols of the Elders of Zion, though in many respects the document is outdated. The organization does, however, still resort to anti-Semitic rhetoric.
But that Hamas holds such views does not disqualify it as a party to peace talks, any more than the fact that Hindus and Muslims in South Asia have racist views of one another precludes them from sitting down together. And certainly many Israelis have racist views of Palestinians (recall the comment of the father of Obama’s new chief of staff, Rahm Emanuel, saying that Arabs were fit only to clean floors).
One can find vile anti-Jewish rhetoric from some Palestinian religious leaders. But one can find equally repulsive language from some Israeli rabbis. For example, the former Sephardic chief rabbi of Israel proclaimed a religious ruling in 2007 “that there was absolutely no moral prohibition against the indiscriminate killing of civilians during a potential massive military offensive on Gaza aimed at stopping the rocket launchings” because “an entire city holds collective responsibility for the immoral behavior of individuals.” The rabbi’s son, who is chief rabbi of Safed, explained: “If they don’t stop after we kill 100, then we must kill a thousand…. And if they do not stop after 1,000 then we must kill 10,000. If they still don’t stop we must kill 100,000, even a million. Whatever it takes to make them stop.”
Racism must be opposed, but it makes no sense to rule a party out as a potential partner for peace until its racism has been eliminated.
Hamas was never a terrorist organization like al-Qaeda. Unlike the latter, it has a mass base, social welfare programs, and, now, an electoral constituency.
Hamas has engaged in terrorist acts, most notably by purposely targeting civilians with suicide bombs.
Sherdia Zuhur, Research Professor of Islamic and Regional Studies at the Strategic Studies Institute at the U.S. Army War College, wrote:
“HAMAS operatives first utilized suicide attacks in 1994, after an American-born Israeli settler, Baruch Goldstein, fired on and threw hand grenades at unarmed worshippers in the al-Haram al-Ibrahimi mosque in Hebron on February 25, killing 29. It was thought that Goldstein had attained entry with assistance of Israeli troops. Until that date, HAMAS’ only targets were Israeli military. It ceased such attacks, which were very controversial with other Palestinians in 1995, and reintroduced them after the “targeted killing” of HAMAS leader Yahya Ayyash.”
Zuhur went on to note that
“HAMAS observed a 3-year moratorium on suicide attacks, which was then reestablished for a year, and possibly broken in a January 2008 attack in Dimona which may have been carried out by HAMAS or by other actors.”
And at various intervals, Hamas has fired rockets at civilian areas, which is also a form of terrorism.
What this record suggests is that Hamas has engaged in terrorism, has not ruled it out, but is also amenable to refraining from terrorism in what it sees as appropriate circumstances. Such a record should be condemned — for terrorism is always wrong — but Israel’s record of terrorism must be condemned as well.
13. How can Israel be accused of terrorism since it doesn’t intentionally kill civilians, and views all civilian deaths that it causes as regrettable accidents?
Keep in mind the official U.S. definition of terrorism: “premeditated, politically motivated violence perpetrated against noncombatant targets.”Three points need to be noted here.
First, inflicting pain on civilians for political purposes has long been official Israeli policy. When Hamas kidnapped an Israeli soldier in June 2006, Israel responded by destroying Gaza’s only power plant, causing massive suffering. Israeli leaders have openly acknowledged that they intended to cripple Gaza’s economy as a way to undermine support for Hamas. (That this is a foolish policy makes it no less immoral. That the governments of the United States, the European Union, and Egypt are complicit in the policy likewise makes it no less immoral.) Gazans have seen poverty and unemployment soar and their health and welfare decline as Israel has closed their borders, cut fuel and power supplies, and denied them their own tax revenues. Human rights groups and United Nations officials have condemned this policy of economic strangulation, deeming it “collective punishment.”
When New York Times columnist Thomas L. Friedman writes that he hopes Israel is pursuing a strategy in Gaza of trying to inflict “heavy pain on Gaza civilians,” he is endorsing a policy that is indistinguishable from the above-cited official U.S. government definition of terrorism.
Second, over the years Israel has intentionally killed civilians. Among other instances, it has used lethal fire against demonstrators who posed no serious threat. It has targeted and killed medical personnel and journalists. And now it has targeted and killed civilian police and non-military government personnel in Gaza (as will be discussed below).
Third, even when civilians have not been specifically targeted, Israel has shown reckless disregard for the welfare of civilians, killing many. These are not “unfortunate accidents,” but the result of willful, criminal negligence. It is true that in domestic law we distinguish between intentional and unintentional killing, with the former being a much more serious offense than the latter. But domestic law also recognizes that sometimes criminal negligence can be as condemnable as premeditation. As the Palestinian human rights organization Al Haq correctly puts it, “the choice of targeted areas, methods of attack and the number of civilians killed and injured clearly indicate a reckless disregard for civilian life synonymous with intent.”
Consider the record before the current Israeli attack on Gaza. According to statistics from the Israeli human rights group B’Tselem, from the beginning of the second Intifada on September 29, 2000, until November 30, 2008, 2,990 Palestinians in Gaza were killed by Israeli security forces. Of these, 1,382 were known not to be taking part in hostilities. (During this same seven year period, Palestinian rockets or mortars from Gaza killed a grand total of 22 Israeli civilians.) If these Palestinian rockets constituted terrorism and war crimes — and they do — how much greater were the crimes of the Israeli government?
And this is so whether Israeli officials express pro forma regret or instead declare, as Prime Minister Ariel Sharon did in March 2002, “The Palestinians must be hit and it must be painful. We must cause them losses, victims, so they feel the heavy price.”
Yes. But note that while Israeli weapons are far more accurate than those of Hamas, they are not accurate enough to hit military targets without substantial harm to nearby civilians. And certainly naval and aerial bombardment, artillery shelling, and tank fire cannot be accurate enough to avoid hitting civilians in as densely populated an area as Gaza.
International law is quite clear that the crimes of one’s enemy do not justify crimes in retaliation. This applies to Palestinians, but it applies as well (and — given the disproportion in power — especially) to Israelis.
Palestinian attacks on Israeli civilians –whether by rocket or by suicide bomb — are immoral and counter-productive, strengthening the most reactionary elements in Israeli society. But they are not surprising. In 1999, Ehud Barak — today Israel’s defense minister — confessed to an interviewer that if he had been born a Palestinian he probably would have joined a terrorist organization. And former Israeli politician Yossi Sarid wrote on January 2, 2009:
“This week I spoke with my students about the Gaza war, in the context of a class on national security. One student, who had expressed rather conservative, accepted opinions — that is opinions tending slightly to the right — succeeded in surprising me. Without any provocation on my part, he opened his heart and confessed: ‘If I were a young Palestinian,’ he said, ‘I’d fight the Jews fiercely, even by means of terror. Anyone who says anything different is telling you lies.'”
The Palestinians of Gaza lived for two decades under Egyptian administration; they have then suffered more than four decades under a brutal and debilitating Israeli occupation. As Israeli historian Avi Shlaim explained,
“With a large population of 1948 refugees crammed into a tiny strip of land, with no infrastructure or natural resources, Gaza’s prospects were never bright. Gaza, however, is not simply a case of economic under-development but a uniquely cruel case of deliberate de-development. To use the Biblical phrase, Israel turned the people of Gaza into the hewers of wood and the drawers of water, into a source of cheap labour and a captive market for Israeli goods. The development of local industry was actively impeded so as to make it impossible for the Palestinians to end their subordination to Israel and to establish the economic underpinnings essential for real political independence.”
The conditions of life for the people of Gaza are abysmal; human rights and aid agencies declared in March 2008 that “The situation for 1.5 million Palestinians in the Gaza Strip is worse now than it has ever been since the start of the Israeli military occupation in 1967.” And the vast majority of Gaza Palestinians are not descendants of people who originally came from Gaza. Rather they are descendants of those who lived in what is today Israel, who were driven out in 1948 to live as refugees. And as the people of Gaza look out from their misery they see near them Israeli communities built on lands that were once Palestinian villages. Some Gazans fire rockets at these Israeli towns. These rockets do not further the Palestinian cause. But they are no surprise.
Shalit was a soldier captured while on duty. It’s not clear why this should be considered a kidnapping. International law is a little murky here: It is improper to hold captured soldiers as hostages and all prisoners are entitled to humane treatment, but it is not improper to capture enemy soldiers, nor to engage in prisoner exchanges. In any event, however, Palestinians point to the fact that some 11,000 Palestinians from the occupied territories are held in Israeli prisons. Some of these people may be guilty of war crimes and some may simply be members of an opposing armed force. But many hundreds of them (750 at the time of Shalit’s capture and about 570 in November 2008) are being held without charge. Thus, at a minimum there are hundreds of Palestinians who are presumptively guilty of no crime, yet, like Shalit, are being held against their will. Just the day before Shalit’s capture, Israeli commandos seized two Gazan civilians, Osama and Mustafa Muamar — and here “kidnapped” might be a more accurate term — despite the fact that Israel had supposedly “disengaged” from Gaza nine months earlier.
Israel responded to Shalit’s capture by launching military incursions into Gaza and engaging in unrelenting shelling and bombing. Between June 26 and November 15, according to the Israeli human rights organization B’Tselem, the IDF killed 387 Palestinians, more than half of whom, 206, “among them eighty-one minors and forty-five women, were not taking part in the hostilities when they were killed.” Gaza’s power plant was destroyed and its borders closed; eight Hamas Cabinet ministers and 26 members of the elected Palestinian Legislative Council were arrested, along with other officials. As the UN’s Special Rapporteur for Human Rights in the Occupied Palestinian Territories, John Dugard, summarized:
“In effect, the Palestinian people have been subjected to economic sanctions — the first time an occupied people have been so treated. …[The] Palestinian people, rather than the Palestinian Authority, have been subjected to possibly the most rigorous form of international sanctions imposed in modern times.”
The evidence is quite clear that, whatever its wisdom, the Hamas take-over of Gaza was a preemptive move in the face of a plot hatched jointly by Mohammed Dahlan, Fatah’s Gaza security chief, and top U.S. officials to militarily oust the elected Hamas government from power. As investigative journalist David Rose concluded, on the basis of documents and interviews, “the secret plan backfired…. Instead of driving its enemies out of power, the U.S.-backed Fatah fighters inadvertently provoked Hamas to seize total control of Gaza.”
Hamas and Iran are allies, and they have common interests, but this is not the same as saying that Tehran dictates Hamas’s policies. The claim — bandied about by the Israeli government and its supporters — that Hamas simply acts on Iran’s instructions fails on several counts.
First, if Iran were using Hamas as a way to deflect any possible Israeli attack on its nuclear facilities, its timing makes no sense. There was a period when an Israeli — or a joint U.S.-Israeli — attack on Iran seemed possible. But that period coincided with the lull between Israel and Hamas. By December 2008, no serious analyst was discussing an Israeli attack on Iran as imminent.
Second, if Iran is able to get Hamas to go to war against Israel, why has it not also gotten Hezbollah to do the same (which would obviously relieve some of the pressure on Hamas)? After all, whatever Hamas’s connections to Iran, those of Hezbollah are stronger (Hezbollah is Shiite, like Iran; its ideological origins connected it to Iran; and, through Syria, it could be easily supplied with Iranian weaponry; Hamas, on the other hand, is Sunni and is able to smuggle in very few Iranian weapons). Clearly, Hezbollah does not consider it in its own interests to go to war to help Hamas. But if Iran can’t get Hezbollah to act contrary to its interests, there is no reason to think it can get Hamas to do so.
Iran has provided funds to Hamas, which became increasingly important since the cut off of international aid. And apparently some Hamas fighters have been trained in Iran — but in an organization having 10-20,000 armed men, the few hundred trained in Iran are hardly decisive. Iran has influence with Hamas, but there is no reason to think that Hamas has been blindly following Tehran’s orders. Israel is probably more dependent on U.S. military and diplomatic support than Hamas is on Iran.
In June 2008, after almost a year of military engagements and Israel’s crippling blockade of Gaza, Hamas and Israel agreed to a ceasefire, also called a truce or lull or calm. The two sides would not speak to one another directly and so there was an Egyptian mediated understanding, whose terms were never formally written down. The Associated Press reported the terms as follows:
“The truce takes effect at 6 a.m. Thursday (11 p.m. EDT Wednesday) [June 19].
“All Gaza-Israel violence stops. After three days, Israel eases its blockade on Gaza, allowing more vital supplies in.
“A week later, Israel further eases restrictions at cargo crossings.
“In the final stage, talks are conducted about opening the Rafah crossing between Gaza and Egypt and a prisoner exchange to free Cpl. Gilad Schalit, held by Hamas-affiliated groups for two years.”
And although Israel tried to claim in December 2008 that the lull was of unlimited duration, everyone (including the Israeli government in June 2008) referred to the lull as scheduled to last for six months, with hopes that it might be extended. Hamas had wanted the lull to apply to both Gaza and the West Bank, but Israel refused.
Various Palestinian armed groups — though not Hamas — had reservations about the lull, but they agreed to respect it. Islamic Jihad said, however, that while it would abide by the truce, it considered the West Bank and Gaza indivisible, so it reserved the right to retaliate from Gaza for an attack on its members in the West Bank.
As noted above, the terms of the lull were never written down and are contested.
According to the Intelligence and Terrorism Information Center, the think tank close to the Israeli government,
“It is Israel ‘s view that the lull commits Hamas and the other terrorist organizations operating in the Gaza Strip to end their weapons smuggling and stop their military buildup.”
Hamas and other Palestinian groups, however, made no such commitment. And Israeli leaders seemed to see no contradiction between their insistence that Hamas stop its military buildup and their own activities: An official in the Israeli prime minister’s office stated that during the lull “the IDF would continue preparing for a military action in the Gaza Strip, in the event the lull collapsed…” And “Chief of Staff General Gabi Ashkenazi said that the IDF would give the lull credit but at the same time would prepare for an action.”
Hamas certainly used the lull to smuggle in weapons, just as Israel was using the lull to openly import a vastly greater number of much deadlier weapons.
The lull got off to a rocky start. Islamic Jihad fired a few rockets from Gaza in response to the Israeli killing of one of their senior militants on the West Bank. But Hamas was generally able to convince the other Palestinian groups to respect the lull. In the five and half months before the lull there were 1,072 rockets fired from Gaza and 1,199 mortar shells. For the four and a half months from the start of the lull until November 4 there were 20 rockets and 18 mortar shells. No Israeli was killed — by rocket, mortar, sniper, or improvised explosive device from Gaza from mid-June to November 4.
Regarding these sporadic firings during this period, the Intelligence and Terrorism Information Center wrote:
“… Hamas was careful to maintain the ceasefire and its operatives were not involved in rocket attacks. At the same time, the movement tried to enforce the terms of the arrangement on the other terrorist organizations and to prevent them from violating it. Hamas took a number of steps against networks which violated the arrangement, but in a limited fashion and contenting itself with short-term detentions and confiscating weapons…. However, it was clear that … Hamas sought to avoid direct confrontations with the rogue organizations (especially the PIJ) insofar as was possible, lest it be accused of collaborating with Israel and harming the ‘resistance.’ Hamas therefore focused on using politics to convince the organizations to maintain the lull arrangement and on seeking support for it within Gazan public opinion (including issuing statements by its activists regarding the lull’s achievements).”
In terms of the border crossings, Israel did relieve the closures, but did not allow imports to return to anything approaching the levels of either December 2005 (before Hamas won the legislative council elections) or May 2007 (before Hamas took power in Gaza). During July 2008, the first full month of the lull, according to the UN, “the population of Gaza saw little tangible dividend from the truce implemented on 19 June, as the amount of commodities allowed into the Gaza Strip remained far below the actual needs.” Imports were less than half what they were in December 2005. This was nevertheless higher than in August, when imports dropped 30 percent, to a level about that of March 2008 — when aid agencies and human rights groups had spoken of a “humanitarian implosion.” In September there was a 15 percent increase, but in October there was another 30 percent decline. (See table.) Moreover, throughout the lull Israel continued to ban all exports from Gaza,essentially rendering Gaza’s economy non-functional. In October 2008, the World Bank reported that only about 2% of Gaza’s industrial establishments were still functioning, industrial employment had dropped from 35,000 in 2005 to 840, and 40,000 jobs in agriculture were lost.
The second phase of the lull began on November 4, 2008. On that day, Israel violated the ceasefire by sending troops into Gaza. As the Guardian reported,
“The Israeli military said the target of the raid was a tunnel that they said Hamas was planning to use to capture Israeli soldiers positioned on the border fence 250m away…. One Hamas gunman was killed and Palestinians launched a volley of mortars at the Israeli military. An Israeli air strike then killed five more Hamas fighters.”
Hamas responded with rocket fire, and the lull was then severely undermined. Both sides engaged in military actions from that point on, though not at the pre-lull level. Israel closed Gaza’s borders allowing just 579 trucks into the territory for the entire month of November (see table above) — this to support 1.5 million people. Furthermore, noted the UN,
“Staff and assistance from international NGOs were prevented from entering Gaza throughout the month. Additionally, the intensified closure forced UNRWA to suspend food distribution for five days during the month, along with its cash assistance programme, as a result of restrictions on cash shipments to Gaza.”
According to UNICEF, lack of fuel, electricity, and spare parts interrupted Gaza’s water supply. In Gaza City 50% of the population had access to water only several hours a week; 30% had access every four days and 20% every three days. Other areas of Gaza received water on average every other day.
No Israelis were killed by fire from Gaza during this period (November 5 – December 19, 2008). 13 Israel soldiers were injured (8 by mortar fire and 5 within Gaza), and 1 or 2 civilians. On the Palestinian side, 10-14 militants were killed and 3-4 civilians, and about a dozen and a half injured.
22. Wasn’t it legitimate for Israeli troops to go into Gaza to destroy a tunnel being used for a planned kidnapping?
We have no independent evidence confirming the Israeli claim regarding the purpose of the tunnel. (Jimmy Carter refers to it as a “defensive tunnel being dug by Hamas inside the wall that encloses Gaza.”) But even if the purpose were as claimed by Israel, it was hardly — as one anonymous senior Israeli military official called it — “a ticking tunnel,” that is, an imminent threat that required military action. There are many non-military ways Israel could have defended itself against such a threat.
The claim that Hamas refused to renew the truce is false. What Hamas refused to renew was a truce under which Israel would continue to violate its obligation to lift the blockade. As Khalid Mish’al put it, “When this broken truce neared its end, we expressed our readiness for a new comprehensive truce in return for lifting the blockade and opening all Gaza border crossings, including Rafah. Our calls fell on deaf ears.” Numerous statements before the expiration of the cease-fire made clear that this was Hamas’s position. Jimmy Carter described his efforts at mediation:
“It was clear that the preeminent issue was opening the crossings into Gaza. Representatives from the Carter Center visited Jerusalem, met with Israeli officials and asked if this was possible in exchange for a cessation of rocket fire. The Israeli government informally proposed that 15 percent of normal supplies might be possible if Hamas first stopped all rocket fire for 48 hours. This was unacceptable to Hamas, and hostilities erupted.”
Fifteen percent of normal supplies was less than the inadequate July level. It is thus not at all surprising that Hamas was not interested in such an agreement.
Here’s what various experts say: Sherifa Zuhur, a leading U.S. authority on Hamas, wrote in a study just published by the Army War College,
“Declarations of a tahdiya (calming) arranged by Alastair Crooke to end such attacks were made in 2002 and 2003. Crooke was the former Security Advisor to Javier Solana, the European Union High Representative. Crooke now heads Conflict Forum which advocates negotiating with HAMAS. Anothertahdiya was held from March 2005, but the first two were broken when Israelis assassinated HAMAS leaders.”
And a former senior European security official interviewed by the International Crisis Group pointed to:
“continued Israeli assassinations and killings that completely undermined genuine attempts at de-escalation. Israel’s response created a self-fulfilling prophecy. They had the expectation of failure and in effect guaranteed it. . . .[T]here were continued provocations, a dismissive attitude, no confidence-building measures, and unhelpful statements. Israel’s Minister of Defence would publicly claim that Hamas is re-grouping and that [the] IDF must prepare for a massive attack. Hamas begins to prepare for this eventuality. To Israel this is proof of its original thesis, a casus belli. It attacks, Hamas responds, the IDF feels vindicated and the hudna [truce] is history.”
25. Given the barrage of rockets that was launched from Gaza after the lull ended on December 19, did Israel have any alternative to a military attack?
Yes, of course it did. It could have extended the ceasefire by agreeing to lift the blockade (which it should have done on moral grounds in any case).
And beyond that, it could have taken steps toward ending the Israel-Palestinian conflict more generally by accepting the the Arab Peace Initiative. This calls for Israel withdrawing to its 1967 borders and the establishment of a Palestinian state on the West Bank and Gaza with East Jerusalem as its capital. This plan has been endorsed by all the Arab states — who offered Israel recognition afterwards. And, as noted above, even Hamas has indicated its support for the plan. About two-thirds of Palestinians back the plan.
This is the fundamental problem in Palestine: Israel occupies Palestinian land and seems determined to hold on to the most valuable pieces of it, leaving the Palestinians with scraps upon which they will be unable to establish a viable and independent state. As long as Israel maintains its illegal settlements, the Palestinians will be confined to Bantustans.
Until this basic reality is changed, until the Occupation ends, there will be no peace in Palestine.
26. If the cease-fire had been extended, couldn’t Hamas have smuggled in rockets of longer and longer range until even Tel Aviv was vulnerable? Doesn’t that mean that any new ceasefire would have had to include a provision to prevent weapons smuggling, and hence would have been unacceptable to Hamas?
One can understand why Tel Aviv would not want to live under threat of Hamas rockets. But one must understand as well why Gazans might not want to live under threat of Israeli F-16s. The difference between these two cases is that the threat the Gazans face is not hypothetical nor is it just a threat, as the events of the past few weeks have underlined.
As a practical matter, there are limits to what can be smuggled in via the Egyptian border. It is hard to prevent smuggling when authorities on both sides of the border want to do it. In the Gaza case, however, the Egyptian government bitterly opposes Hamas and does not knowingly allow weapons to be delivered to it.
When Carter sought to get Israel and Hamas to extend the truce and open the borders, Israel did not say that it would open the borders if only a better system for preventing weapons smuggling could be set up. It simply refused to fully open the borders. Therefore, whether Hamas would have accepted such an arrangement is unknown. To go to war without even asking surely violates the “last resort” criterion for just wars.
One might note that opening the border crossings would in fact reduce the incidence of weapons smuggling. Obviously, weapons are not going to come in through the Israeli crossings or through an EU-staffed Rafah crossing. But the incentive to dig tunnels would likely decline since as long as the crossings were closed digging tunnels, no matter how dangerous, has been essential for obtaining food and other necessities.
The Conduct of Operation Cast Lead
A country that has just cause to go to war must still act proportionately. Israel did not have just cause to go to war — given the fact that it is an occupying power, trying to maintain its occupation, and given the fact that the rocket fire could have been ended by agreeing to extend the truce with a lifting of the blockade. Therefore, regardless of how Israel conducted itself, its war would have been unjust.
But for those who believe (wrongly) that Israel did have just cause, the war would still not be just if it were not carried out in conformity with the principle of proportionality.
Under international law, the principle of proportionality prohibits attacking a military objective if doing so will result in a loss of civilian life or damage to civilian property or the natural environment that outweighs the value of the objective. The weighing here obviously includes a subjective component — exactly how many civilians might one kill in order to destroy a military objective which in turn may cause harm to one’s own population. But the subjectivity is not unlimited. Surely to destroy the capability to launch weapons that had caused 22 deaths over 7 years (and none since June 5, 2008), it cannot be proportionate to kill hundreds of civilians as Israel has done.
Does Israel really think what it is doing in Gaza is proportionate? It is doubtful that it does. In fact, its officials and think-tank analysts have explicitly advocated acting disproportionately. When one’s approach to dealing with Palestinians — and Arabs more generally — is to intimidate and bully rather than to seek some sort of diplomatic solution, it is no surprise that the chief concern will be the strength of one’s deterrent, which means that ferocity, not proportionality, will be what is valued.
28. Since Hamas places its military assets in civilian areas, thus using the population as human shields, isn’t Hamas responsible for all the harm to civilians?
International humanitarian law prohibits placing military assets in civilian areas. Nevertheless, this doesn’t give an attacker unlimited right to then strike these assets. The attacker must still weigh the harm to civilians against the military benefit. As Human Rights Watch explains:
“…the attacking party is not relieved from its obligation to take into account the risk to civilians simply because it considers the defending party responsible for having located legitimate military targets within or near populated areas. That is, the presence of a Hamas commander or military facility in a populated area would not justify attacking the area without regard to the threatened civilian population.”
In addition, since Israel’s target list includes the homes of Hamas leaders, there is no way that Hamas could have avoided intermingling civilians with military targets.
The comments of a former U.S. Marine are relevant here. One can question his account of what actual U.S. policy was in Iraq, but his remarks are telling nonetheless:
“I recently retired from the US Marine Corps, but I saw service in Iraq. I do know something of military matters that are relevant to the situation now in Gaza.
“I am dismayed by the rhetoric from US politicians and pundits to the effect that ‘if the US were under rocket attack from Mexico or Canada, we would respond like the Israelis’. This a gross insult to US servicemen; I can assure you that we would NOT respond like the Israelis. In fact, US armed forces and adjunct civilians are under attack constantly in Iraq and Afghanistan by people who are much better armed, much better trained and far deadlier than Hamas…. Israel has indeed taken a small number of casualties from Hamas rocket fire (about 20 killed since 2001), but we have taken thousands of casualties in Iraq and Afghanistan, including many civilian personnel. Hundreds of American casualties have occurred due to indirect fire, often from mortars. This is particularly true in or near the Green Zone in Baghdad. This fire often originates from densely populated urban areas.
“Americans do not, I repeat DO NOT, respond to that fire indiscriminately. When I say ‘indiscriminately’, I mean that even if we can precisely identify the source of the fire (which can be very difficult), we do not respond if we know we will cause civilian casualties. We always evaluate the threat to civilians before responding, and in an urban area the threat to civilians is extremely high. If US servicemen violate those rules of engagement and harm civilians, I assure you we do our best to investigate — and mete out punishment if warranted.”
Two further points should be noted.
First, the IDF also uses Palestinian civilians as human shields. According to Malcolm Smart, Director of Amnesty International’s Middle East and North Africa Program, “Our sources in Gaza report that Israeli soldiers have entered and taken up positions in a number of Palestinian homes, forcing families to stay in a ground floor room while they use the rest of their house as a military base and sniper position.” This, said Smart, “clearly increases the risk to the Palestinian families concerned and means they are effectively being used as human shields.”
Second, the IDF also intermingles it forces with Israeli civilians. Consider this report from the Israeli-government linked think tank:
“January 8: A rocket barrage was fired at an Israel village in the northwestern Negev. Seven IDF soldiers were wounded, one critically, one seriously, and five sustained minor injuries.”
|From:||Z Net – The Spirit Of Resistance Lives|
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