Gaza War Crimes

By Alan Shapiro

To the Teacher:

A UN fact-finding mission recently determined that war crimes were committed by both Israelis and Palestinians during the 2008 Gaza War. The UN panel declared that the two parties should either conduct their own "appropriate investigations" or the UN Security Council should refer the charges to the prosecutor of the International Criminal Court. Israel received the strongest criticisms in the report.

The first student reading below covers the charges against Israel, the second those against the Palestinians, as well as background on Gaza. The third reading provides notes on the Geneva Conventions and other international agreements dealing with war crimes and crimes against humanity.

See the high school section of www.teachablemoment.org, for "Israelis and Palestinians: 'A Clash Between Right and Right,'" which includes readings on the basic issues in the Israeli-Palestinian conflict, the close relationship between Israel and the U.S., and opposing views of the Israeli attack on Gaza as well as suggested inquiries into the background of the conflict. Five earlier sets of readings on Israel and the Palestinians are also available there.

Student Reading 1:
The Israeli attack

On December 27, 2008, Israeli planes bombed government buildings, police stations and other sites in the Gaza Strip that Israel regarded as military. The strikes continued for a week. Then Israeli troops invaded. Israel's stated purpose in these assaults was to halt rocket and mortar attacks on southern Israel and arms smuggling into the Strip.

Hamas, which governs the Gaza Strip, and other militant Palestinian groups have made such attacks on Israel for years. They say the attacks are justified because of Israel's economic embargo, which limits medical supplies, food, and commercial goods from reaching Gazans. In addition, Hamas opposes Israel's claim to lands Hamas views as Palestinian.

On January 18, 2009, Israel declared a unilateral ceasefire and by January 21 had removed its troops.

A UN fact-finding mission led by Richard Goldstone investigated the actions of Israelis and Palestinians during the Gaza War. On September 15, the mission released a 575-page report, which concluded that both Israel and Hamas, as well as other Palestinian militant groups, committed what amounted to war crimes during the conflict. It aimed its strongest criticisms at Israel, whose invasion it described as "a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population, radically diminish its local economic capacity both to work and to provide for itself and to force upon it an ever-increasing sense of dependency and vulnerability."

"I saw the destruction of the only flour-producing factory in Gaza," Goldstone said, in a later interview with Bill Moyers on PBS. "I saw fields plowed up by Israeli tank bulldozers. I saw chicken farms, for egg production, completely destroyed. Tens of thousands of chickens killed. I met with families who lost their loved ones in homes in which they were seeking shelter from the Israeli ground forces."

"I had to have very emotional and difficult interviews with fathers whose little daughters were killed, whose family were killed," said Goldstone. In one family, he said, "over 21 members [were] killed by Israeli mortars. So, it was a very difficult investigation, which will give me nightmares for the rest of my life."

Goldstone charged: "These attacks amounted to reprisals and collective punishment, and constitute war crimes. The government of Israel obviously has a duty to protect its own citizens. That in no way justifies a policy of collective punishment of a people under effective occupation, destroying their means to live a dignified life and the trauma caused by the kind of military intervention the Israeli government called Operation Cast Lead." (Interview with Bill Moyers, www.pbs.org/moyers/journal, 10/23/09)

Other key charges in the UN report about Israel:

• Israeli forces committed "grave breaches of the fourth Geneva convention" that included "individual criminal responsibility." This means soldiers could face prosecution.
• Israeli troops used Palestinian civilians as human shields, a war crime.
• Israel's economic blockade of Gaza in the years before the war amounted to "collective punishment intentionally inflicted by the government of Israel on the people of the Gaza Strip."
• Israeli actions depriving the people of Gaza of the means of subsistence, employment, housing, water, and freedom of movement, "could lead a competent court to find that the crime of persecution, a crime against humanity, had been committed." (www.guardian.co.uk, 9/15/09)

In his interview with Moyers, Goldstone described evidence that Israeli forces attacked noncombatant civilians, including bombing the Palestinian legislative assembly and bombing 200 industrial factories. He charged that Israel had bombed Gaza's water supply facilities and sanitation facilities, "which caused an overflow of filth and muck into well over a square kilometer of land."

Senior Hamas official Mahmoud al-Zahar stated that Israeli forces "shelled everyone in Gaza….They shelled children and hospitals and mosques…and in doing so, they gave us legitimacy to strike them in the same way."

Israeli and Palestinian sources disagree about how many Palestinian civilians were killed during the war. The Palestinian Center for Human Rights said 1,417 Palestinian people were killed, including more than 900 civilians. (www.huffingtonpost.com, 3/26/09) Amnesty International reported similar figures, but also reported 5,000 Palestinian wounded and 300 Palestinian children dead. B'tselem, the Israeli human rights organization, documented 773 cases in which Israeli forces killed civilians. (Lawrence Wright, an investigative journalist, "Captives," The New Yorker, 11/9/09)

An Israeli spokesperson said that its military investigation found that a total of 1,166 Palestinians had been killed, including 709 Hamas militants and 205 civilians. The Israelis said it was unclear whether another 162 men who died were militants or civilians.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. What do you understand to be the major reasons for the conflict between Israel and the Palestinians in Gaza?

3. What is a "war crime"? If you don't know, how might you find out?

4. What specific Israeli actions in the Gaza war constituted war crimes, according the UN mission? Why are they regarded as war crimes? For example, the UN report charges Israel with inflicting "collective punishment" on the people of Gaza. What does this mean?

5. How would you explain the conflicting estimates of Palestinian casualties?

Student Reading 2:
Hamas rocket attacks & controversy over UN report

The UN report condemned the Hamas rocket and mortar bomb attacks in southern Israel. The report charged that these attacks "were either deliberately aimed at civilians or so inaccurate as to put them at risk, causing widespread trauma," and were "therefore also a war crime." The report also charged that Hamas' abuse of members of Fatah (a rival Palestinian group) was "a serious violation of human rights."

According to the Israeli military, about 12,000 rockets and mortars were fired into Israel between 2000 and 2008, causing only about 30 deaths because they are so inaccurate. During the Gaza War, Hamas fired more than 750 rockets and mortar bombs into Israel from Gaza. Three civilians and one Israeli soldier died in these attacks; 182 were wounded and another 584 suffered from shock and anxiety as a result of the rocket and mortar fire.

Other key charges the UN report made against Hamas and the Palestinians:

• Palestinian rocket and mortar attacks did not distinguish between civilian and military targets, caused terror among Israeli civilians and "would constitute war crimes and may amount to crimes against humanity."
• Gaza's security forces, controlled by Hamas, carried out extrajudicial executions, arbitrary arrests and detention, and other ill-treatment of people, especially targeting political opponents (like members of Fatah).
• Gilad Shalit, an Israeli soldier held captive in Gaza for more than three years, is a prisoner of war and should be released on humanitarian grounds. (www.guardian.co.uk, 9/15/09)

The UN report called upon both Israel and Hamas to make "appropriate investigations" into the violations within six months. If either does not, it said, the UN Security Council should forward the case to the prosecutor of the International Criminal Court.

Israel immediately refused. The Israeli foreign ministry declared that the UN mission Goldstone led "prejudged the outcome of any investigation, gave legitimacy to the Hamas terrorist organization and disregarded the deliberate Hamas strategy of using Palestinian civilians as cover for launching terrorist attacks."

For its part, Hamas said it would create a committee to investigate the UN report's charges against it.

Obama administration officials have said that the report was overly critical of Israel. Goldstone said that the Obama administration had "joined our recommendation calling for full and good-faith" domestic investigations of the alleged crimes in both Israel and Gaza, "but said that the report was flawed." He added: "But I have yet to hear from the Obama administration what the flaws in the report that they have identified are. I mean, I would be happy to respond to them, if and when I know what they are." (www.nytimes.com, 10/23/09)

The House of Representatives called the Goldstone report "irredeemably biased and unworthy of further consideration or legitimacy" and, on November 3, 2009, voted 334-36 to condemn it. Goldstone responded with an open letter to the House Committee on Foreign Affairs in which he asserted that the House resolution contained "serious factual inaccuracies and instances where information and statements are taken grossly out of context."

On November 5, 2009, the UN General Assembly voted 114 to 18, with 44 abstentions, to endorse the Goldstone report. The resolution urged both Israel and the Palestinians to carry out the investigations the report calls for. The U.S. voted against the resolution.

In past years, Richard Goldstone, a South African jurist, has led official investigations of war crimes and crimes against humanity in the Balkans, Rwanda and in Argentina (where he investigated Nazi activities). In their PBS interview, Bill Moyers asked Goldstone about his views of Israel, including its response to Hamas rocket attacks:

"BILL MOYERS: And Israel, in your judgment, was justified in trying to put an end to those rocket attacks.

"RICHARD GOLDSTONE: Absolutely. No country can be expected to accept that with equanimity.

"BILL MOYERS: You're Jewish, and a Zionist as well. When you say, "I'm a Zionist," in your case, what does that mean?

"RICHARD GOLDSTONE: Well, what it means, that I fully support Israel's right to exist. That's for the Jewish people to have their own national homeland, in Israel."

The Gaza Strip is slightly more than twice the size of Washington, DC. About 1.5 people live in Gaza; most are Palestinians who are Sunni Muslims. (www.cia.gov) Hamas won an election against its rival, Fatah, in June 2007 and has governed the Gaza Strip ever since. Although Hamas has opposed the existence of Israel as an occupier of Palestinian land, its leaders have indicated they would accept a 10-year truce.

"Ten months after the Israeli military said it invaded this Palestinian coastal strip to stop the daily rocket fire of its Islamist rulers, there are many ways to measure the misery of Gaza," wrote Ethan Bronner, a reporter for the New York Times. "Bits of rubble are being cleared, but nothing is going up. Several thousand homes remain destroyed. Several dozen families still live in United Nations tents strung amid their ruined houses. A three-year-old embargo on Hamas imposed by Israel and Egypt keeps nearly all factories shut and supplies away. Eighty percent of the population gets some form of assistance….

"Israel allows about 100 trucks a day to pass into Gaza bearing food, medicine and other humanitarian goods. But it has closed off commerce in the hope of alienating the population here from their rulers." ("In Gaza, Opportunities Fade As Feeling of Isolation Grows," New York Times, 10/27/09)

For discussion

1. What questions do students have about the reading? How might they be answered?

2. According to the UN mission, what specific war crimes did Hamas commit? Why are they regarded as war crimes? For example, the UN report charges Hamas with "failure to distinguish between civilian and military targets." What makes this a war crime?

3. What is Goldstone's response to Obama administration claims that the UN mission's report is "flawed"? Why do you suppose that he has not received an explanation?

4. Based on what you have learned of the Gaza War and Richard Goldstone's views on Israeli and Palestinian actions, do you think he is impartial in his judgments? Why or why not?

5. Why has Israel imposed limits on all kinds of supplies needed by Gazans? With what results?

6. How would explain such conflicting reactions to the Goldstone report? Do you think you know enough about what happened in Gaza to reach your own conclusion about its fairness? Why or why not? If you think you need more information, how would you go about finding it?

Student Reading 3:
Crimes against humanity, war crimes and the International Criminal Court

War means organized murder, widespread destruction, terror, and misery. In 1864, 12 nations agreed that if they could not eliminate war, they could at least prevent some of its horrors by signing an international treaty, the First Geneva Convention.

Other nations joined the original 12 in committing to the Convention. But there were significant omissions in the treaty, and new horrors to be addressed. So they added a Second Geneva Convention in 1906 and a Third in 1929.

During World War I, the allies, Britain, France, and Russia, issued a statement charging for the first time that a government had violated the Geneva Conventions. On May 24, 1915, the allies charged that the Ottoman Empire was responsible for massacres and had committed "a crime against humanity." They declared their determination to "hold personally responsible…all members of the Ottoman Government, as well as those of their agents who are implicated in such massacres."

The Fourth Geneva Convention of 1949, largely a product of World War II, focused on "the protection of civilian persons in time of war." Germany's extermination of six million civilian Jews and a million others (Gypsies and gays, for example) and Japan's torture and abuse of prisoners of war and civilians led to postwar trials and the execution of leaders of both countries. It also led to new language in the Geneva Conventions barring "war crimes."

The war crimes definition: "Willful killing, torture or inhuman treatment, including... willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile power, or willfully depriving a protected person of the rights of fair and regular trial, ...taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly." (Article 147 of the Fourth Geneva Convention)

The United Nations Convention Against Torture declares that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture." This international treaty was signed by the United States government in 1988.

The International Criminal Court (ICC) is a permanent court in The Hague, Netherlands, to prosecute individuals for war crimes and crimes against humanity. It came into existence on July 1, 2002, and was "established to help end impunity for the perpetrators of the most serious crimes of concern to the international community." (http://www.icc-cpi.int/Menus/ICC/About+the+Court/)

As of October 2009 the ICC had 110 states as members. The United States was not among them. President George W. Bush and others in his administration or supporting it gave a number of reasons for rejecting membership in the ICC. They objected that the court had the potential to:

• prosecute alleged crimes committed by Americans on American soil, which the U.S. Constitution says must be tried in American courts
  
• second guess U.S. actions and infringe on its sovereignty
  
• prosecute on the basis of political motivations

The Bush administration did, however, support the ICC investigation of war crimes and crimes against humanity in Darfur. President Obama has not announced publicly his position on ICC membership. Other large nations that do not belong to the ICC include Russia, China, and India.

In 1996, Congress overwhelmingly approve the War Crimes Act, which prohibits a "grave breach of the Geneva Conventions," including acts "committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health."

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Since warfare always involves killing, maiming, and destruction, what is the point of having any rules about it?

3. Article 147 of the Fourth Geneva Convention includes a definition of war crimes. Based on what you know about the Gaza War, does any part of that definition apply to Israeli actions? To Palestinian actions?

4. What is your assessment of why the Bush administration refused to join the International Criminal Court?

5. Should the U.S. become a member of the ICC? Why or why not?

For study of a controversial issue

You might engage your students in an activity called "Constructive Controversy" to help them consider the war crimes charges against Israel and/or Hamas. The activity was developed by David and Roger Johnson to help people discuss a subject about which they disagree. Students are assigned to small groups and pairs within each group to consider facts and opinions on all sides of an issue. For details on "Constructive Controversy," see "Engaging Your Class Through Groupwork" in the high school section of www.teachablemoment.org.

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email author Alan Shapiro at his new email address: lnshapiro07@gmail.com

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