A War Crime Doesn't Excuse A War Crime

By Cernig

Prof. George Bisharat, Hastings College of the Law, writing in the WSJ:

Israel's current assault on the Gaza Strip cannot be justified by self-defense. Rather, it involves serious violations of international law, including war crimes. Senior Israeli political and military leaders may bear personal liability for their offenses, and they could be prosecuted by an international tribunal, or by nations practicing universal jurisdiction over grave international crimes. Hamas fighters have also violated the laws of warfare, but their misdeeds do not justify Israel's acts.

The United Nations charter preserved the customary right of a state to retaliate against an "armed attack" from another state... Minor border skirmishes are common, and if all were considered armed attacks, states could easily exploit them -- as surrounding facts are often murky and unverifiable -- to launch wars of aggression. That is exactly what Israel seems to be currently attempting.

Israel had not suffered an "armed attack" immediately prior to its bombardment of the Gaza Strip. Since firing the first Kassam rocket into Israel in 2002, Hamas and other Palestinian groups have loosed thousands of rockets and mortar shells into Israel, causing about two dozen Israeli deaths and widespread fear. As indiscriminate attacks on civilians, these were war crimes. During roughly the same period, Israeli forces killed about 2,700 Palestinians in Gaza by targeted killings, aerial bombings, in raids, etc., according to the Israeli human rights group B'Tselem.

But on June 19, 2008, Hamas and Israel commenced a six-month truce. Neither side complied perfectly. Israel refused to substantially ease the suffocating siege of Gaza imposed in June 2007. Hamas permitted sporadic rocket fire -- typically after Israel killed or seized Hamas members in the West Bank, where the truce did not apply. Either one or no Israelis were killed (reports differ) by rockets in the half year leading up to the current attack.

Israel then broke the truce on Nov. 4, raiding the Gaza Strip and killing a Palestinian. Hamas retaliated with rocket fire; Israel then killed five more Palestinians. In the following days, Hamas continued rocket fire -- yet still no Israelis died. Israel cannot claim self-defense against this escalation, because it was provoked by Israel's own violation.

An armed attack that is not justified by self-defense is a war of aggression. Under the Nuremberg Principles affirmed by U.N. Resolution 95, aggression is a crime against peace.

My good friend Larisa Alexandrovna writes:

I have said this before, but it should be repeated. As a Jew I am ashamed of what Israel is doing under the banner of my heritage. As an American, I am ashamed that the US has and continues to support this attack. As a person with a conscience, I am outraged. As a journalist, I am alarmed at the media censorship.

Comments

[Peter G.]

Hello Cernig
I find it interesting that the Professor admits that the facts surrounding border skirmishes are "murky and unverifiable" and then calmly assumes facts not in evidence. Whether or not Israel was the first to violate the cease fire is most certainly one of those murky questions. The tunnel that the Israelis claimed needed to be stopped in November is just one of those unverifiable facts. It resulted in the death of one Palestinian, presumably a member of Hamas, and one has to ask if firing hundreds of rocket and mortar rounds in return was in itself a proportional response. I am not offering this as any justification of Israel's foolish ground incursion but to dismiss the Qassam rocket attacks as a minor border skirmish unworthy of any response is an argument unlikely to resonate with the Israelis. I don't think trying to blame one side more than the other (as to causes) is at all helpful in getting the crap stopped. Clearly both sides had made considerable preparation for the end of the truce. I am really quite amazed by the size of the rocket stockpile Hamas must have cached during the truce. Surely the borders can not be as tightly sealed as one has been lead to believe if they were able to import munitions and rocket fabricating materials on the scale that is now evident. There were probably a lot more useful materials they could have imported considering the conditions in Gaza.

[Peter G.]

I should have made clear that I absolutely agree with your title. A war crime does not excuse a war crime but then I've never seen too many good excuses for war period. Has there ever been a war that didn't generate war crimes?