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- guardian.co.uk, Tuesday 10 February 2009 12.00 GMT
On top of the dreadful casualties from Israel’s 22-day war in Gaza, we should add a further serious injury. It is longer-lasting and threatens the lives and wellbeing of very many people in the future. In the Israel/Palestine conflict, we are seeing a terrible undermining of international law and the principle that armies should adhere to minimum standards of humane behaviour, even during the heat of battle.
If they fall below this minimum, they should, according to the laws of war, be held responsible for their war crimes – first, by their own superiors or courts, but, if necessary, by other nations or international courts. This principle – of accountability, even in war – is now in a critical condition as the standards are being ignored by Gaza’s warring parties. Then, it’s being assailed afresh by pugnacious and irresponsible remarks from leaders in the region.
Both sides endangered civilian lives during the conflict, but obviously the behaviour of Israel was massively more destructive. There were reports from Amnesty International of Israeli Defence Forces units commandeering Palestinian homes, forcing families to remain in a ground-floor room while then using the property as a military operations point. In other words, Palestinian families were used as human shields or, at the very least, were exposed to quite unacceptable risk.
Hamas is also accused of using local civilians as human shields, but since this excuse was used for every Israeli attack on civilian targets, we must await objective reports on whether this allegation is true. Even more shockingly, evidence has been growing of the IDF’s use of white phosphorous shells in residential areas – a clear war crime in exposing civilians to horrendous deep-burn injuries that have shocked and bewildered burns unit doctors in Gaza’s overrun hospital wards. Moreover, as the new BBC Panorama programme on Gaza asks, was the colossal destruction of roads, houses, factories, farms and ordinary civilian infrastructure right across the Gaza Strip (creating what an Amnesty researcher called “total devastation“) an act of “wanton destruction” and therefore itself a war crime.
It is true that virtually every conflict has involved atrocious deeds and virtually every armed force, however professional, has lapsed into barbarity. Senior military figures and their apologists will regularly seek to excuse these actions as occurring in the “heat of the moment” or because of the “tremendous pressure of conflict”, but it is notable in the House of Commons that it was MPs with a military background who were most shocked by the use of white phosphorus.
It’s depressing but predictable that, as things stand, with little word from the UN security council, no one looks likely to be held responsible for the wiping out of hundreds of civilian lives in the three-week Gaza war. This abrogation of responsibility doesn’t just let down civilians in Israel and Palestine; it lets down people all over the world. And it is not just the Bush administration that won’t apply the Geneva convention in the occupied Palestinian territories.
The UK and the EU are equally collusive in Israel’s grave breaches of international law and, as human rights lawyer Phil Shiner has pointed out, have taken no action to uphold the opinion of the International Court of Justice that held the route of the wall and the settlements a complete breach of the Geneva convention. The convention requires all high contracting parties (those who have signed and ratified it) to take action to enforce it. The UK and the EU have taken no such action and, instead, plan to upgrade the EU relationship with Israel, which already extends privileged trade access in a treaty containing conditionalities on human rights which are not invoked. By failing to uphold these standards in the occupied territories, our governments are undermining the whole structure of international law.
Adding further insult to international law in the aftermath of Israel’s massive military campaign is the strident post-conflict tone. Prime minister Ehud Olmert has recently threatened a “disproportionate” response to continuing Palestinian rocket attacks – precisely what international humanitarian law forbids and what Israel already stands accused of having engaged in.
The international criminal court’s prosecutor Luis Moreno-Ocampo recently confirmed that he is assessing whether the court has jurisdiction over war crimes committed in Gaza. But, in fact, the right way forward is for the security council to fulfil the role envisaged for it when the international criminal court was set up. It was anticipated that some international crimes would not be dealt with when the suspects were from states not party to the Rome Statute.
Instead of establishing ad hoc tribunals, as in Rwanda and former Yugoslavia, it was provided that the security council should have power to refer cases to the ICC. This was done in the case of Darfur and surely should be done in the case of Gaza.
Last November, I saw for myself the damage wrought by Israel’s 19-month blockade of Gaza, and with this battered territory now a scene of almost biblical destruction, of course I understand that humanitarian aid and reconstruction are a priority.
However, the UN security council shouldn’t turn a blind eye to wanton destruction and war crimes either. ICC cases against Israel and Hamas will prove explosive, but it’s my firm belief that it will also set down a marker for future conflict in the Middle East, as well as more widely in the world – from Sri Lanka to Burma to Zimbabwe.
Tags: Amnesty International reports, blockade of Gaza, civilian lives, Hamas, international law, Israeli Defence Forces, Israeli war in Gaza, laws of war, UN security counci, white Phosphorous shells
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