Israel violated humanitarian law in Gaza – Israeli lawyer
22 March, 2009, 10:10
Although Israel had the right to use force in Gaza, it had no right to target civilians, believes Michael Sfrad, Israeli expert in international human rights and humanitarian law.How many human right laws have been violated in the recent Palestinian-Israeli war? Michael Sfrad has spoken to RT’s Paula Slier about the sensitive issue.
RT: The Israeli army and most Israelis do not believe that they committed war crimes in Gaza. Why do you think they did?
MS: Most criminals do not think they commit crimes. For me there is no doubt that the Israeli defense forces have gravely violated international humanitarian law. They have violated the very fundamental principles of humanitarian law. Let's not forget that one of the major principles of humanitarian law is the principle of distinction which lays down that combatants must always distinguish between enemy combatants and enemy civilians and must always direct their weapons towards the combatants. Israel has targeted illegitimate targets. It decided that governmental officers, the Islamic university are all legitimate targets.
It has also violated the second most important principle of humanitarian law and that is the principle of proportionality. They have bombarded from the air the most densely populated civilian area in the world. We knew that it would cause massive injury and death.
RT: If we unpack what you are saying, the first principle – the principle of distinction. The Israelis have argued that it was Hamas's fault so many civilians were killed, that Hamas was using the civilian population as human shields. How do you respond to this kind of argument?
MS: Well the fact that one party violates international humanitarian law does not let the other party violate international law. Yes, if it's true, it must be investigated. These are allegations that I've never seen any proof for – but if it's true and Hamas militants had been hiding in the civilian population and waging their war from there then probably if targeted while engaging in combat then it was a legal attack by the Israeli defense forces if it operated according to principles of proportionality.
However what Israel was doing in this war was by no means only responding to attacks. Israel has targeted certain targets that were not in the course of fighting. Israel has never explained why it targeted the type of facilities that I’ve mentioned. Like governmental officers, the Palestinian parliament, these were not installations from which war was being waged but installations from where Hamas was operating – the government buildings, the police buildings – they were all part of the war effort.
War is a use of force and international relations and international law. You are not allowed – according to international law – to go to war because you dislike the government. Maybe the Israeli government does not like the Hamas government but also that the Hamas government might be a government of criminals. Still, that does not allow Israel to go to war unilaterally, without a decision by the Security Council, without the backing of international community.
RT: You talk about self-defense. But is not it self-defense for Israel after eight years after being fired at to then launch this operation in Gaza?
MS: I have no doubt that Israel has the right to use force. That's not the question. The question is what kind of force and what kind of ammunition and which targets to choose.
RT: Do you think Israel used illegal weapons?
MS: I think it did, but I do not have the evidence, I have press reports, I have testimonies that were collected by human rights organizations in Gaza from the victims, and I have my understanding of how the Israeli army operates. But that's not enough in order to be sure that it did happen or it didn't.
RT: You talk about distinction but the Israeli army was very particular in what it struck. It only struck certain buildings. A lot of Gaza in fact was not damaged at all by Israeli military efforts.
MS: I challenge the Israeli army to allow an investigation. If it's true that the Israeli army was following international law and I am wrong the fact is that up till now the Israeli army and the government of the state of Israel are not allowing a professional independent external investigation to be launched.
RT: Why do you believe that?
MS: Because they have something to hide, because they don't want anyone outside the Israeli army apparatus to look into the deeds of the army and I believe that this is in itself a violation of international law.
RT: You spoke earlier about proportionality. But Israelis would argue that it's not their fault that Gaza is one of the most densely populated areas of the world and people had nowhere to run to.
MS: That is the fault of the Israeli army. The fact that there were no ways to go. Was it that difficult to create a humanitarian corridor which will allow civilians who do not wish to be in the war area, war zone? OK, we did not choose the war zone, but we could have let the ones who wanted to flee go away.
RT: Was that responsibility of Israel? Or was that responsibility of the international community?
MS: Absolutely the responsibility of the state of Israel. We have control over all the borders of Gaza, the air, the sea and the land boarders. We could have opened a gate.
RT: But how do you tell the difference between civilians and Hamas fighters?
MS: The fact that civilians are Hamas supporters means nothing in the eyes of the law. People can choose to believe in evil things, they cannot be punished for that. And the fact is that in Israel’s eyes the whole civilian population was an enemy. It seems to me something horrendous that it was a strategy for the Israeli government and Israeli army to put a pressure on the civilian population.
RT: Put pressure on the civilian population to do what?
MS: The brilliant logic behind the strategy is that if you put enough pressure on the civilian population, they will in their turn, put pressure on the Hamas.
RT: Has the opposite not happened?
MS: Of course it did. We need another generation, another 30 years to reconcile with Palestinians because of that war. Children who saw Israeli soldiers and Israeli helicopters will not forget that.
RT: How much of this war was motivated by internal Israeli politics?
MS: I think a lot of it. I don't think in a fairly democratic society that is wrong. The fact that the Israeli government was under extreme pressure to do something about the attacks on Israeli south, it's part of democracy. The way the war was waged was influenced by the politicians’ desire to have a zero casualties on our side.
RT: Are you calling for an investigation of the Palestinians to see if Hamas committed war crimes?
MS: Definitely. I'm not a Palestinian and I leave it for the Palestinians to do their own internal reflections. But as a lawyer who deals with international law and as a human rights activist definitely I think the Hamas has a lot to answer for. Hamas leaders must be investigated and tried for their deeds.
RT: Who do you think should be held accountable for war crimes? Is it the Israeli army or the soldiers themselves? It seems unfair to hold soldiers responsible in a country where there's conscription and at the moment we have the situation in Europe where many army officers cannot fly out of Israel, cannot land in these countries because they're wanted by international courts.
MS: International criminal law is about individual responsibility. If Israel as a country or the Israeli army as a legal entity is valid internationally, it might be responsible in international law for operations and for all kinds of civil remedies but criminal law is all about personal responsibility. The fact that war criminals must bear the responsibility for their deeds is a part of the attempt to educate individuals around the world. You cannot hide behind the fact that you're a part of a big apparatus that committed war crimes. You cannot hide behind the idea that you've just obeyed commands which the Israeli and Jewish airs, this is something that makes me shiver.
RT: You personally refused to serve and as a result you spent three weeks in prison. Are you surprised that not more Israeli soldiers refused to serve now in Gaza?
MS: I'm surprised and not surprised. I'm surprised because I thought more Israelis will be listening more to their internal moral voice. I'm not surprised because I know my country and I know what kind of education people go through since kindergarten and how slowly feelings and emotions that are racist in their essence, are creeping into everyone of us.
RT: Do you think the courts in Israel are doing enough to hold soldiers and Israeli army?
MS: The Israeli law enforcing mechanism is not doing even 1 per cent of what it should be doing regarding violations of the humanitarian law. Nor in Gaza, neither in the West Bank. The prosecution is not prosecuting, and when it does, it does with a lot of problems, so the message is very clear – there's impunity.
RT: If we unpack what you are saying, the first principle – the principle of distinction. The Israelis have argued that it was Hamas's fault so many civilians were killed, that Hamas was using the civilian population as human shields. How do you respond to this kind of argument?
MS: Well the fact that one party violates international humanitarian law does not let the other party violate international law. Yes, if it's true, it must be investigated. These are allegations that I've never seen any proof for – but if it's true and Hamas militants had been hiding in the civilian population and waging their war from there then probably if targeted while engaging in combat then it was a legal attack by the Israeli defense forces if it operated according to principles of proportionality.
 Michael Sfrad |
War is a use of force and international relations and international law. You are not allowed – according to international law – to go to war because you dislike the government. Maybe the Israeli government does not like the Hamas government but also that the Hamas government might be a government of criminals. Still, that does not allow Israel to go to war unilaterally, without a decision by the Security Council, without the backing of international community.
RT: You talk about self-defense. But is not it self-defense for Israel after eight years after being fired at to then launch this operation in Gaza?
MS: I have no doubt that Israel has the right to use force. That's not the question. The question is what kind of force and what kind of ammunition and which targets to choose.
RT: Do you think Israel used illegal weapons?
MS: I think it did, but I do not have the evidence, I have press reports, I have testimonies that were collected by human rights organizations in Gaza from the victims, and I have my understanding of how the Israeli army operates. But that's not enough in order to be sure that it did happen or it didn't.
RT: You talk about distinction but the Israeli army was very particular in what it struck. It only struck certain buildings. A lot of Gaza in fact was not damaged at all by Israeli military efforts.
MS: I challenge the Israeli army to allow an investigation. If it's true that the Israeli army was following international law and I am wrong the fact is that up till now the Israeli army and the government of the state of Israel are not allowing a professional independent external investigation to be launched.
RT: Why do you believe that?
MS: Because they have something to hide, because they don't want anyone outside the Israeli army apparatus to look into the deeds of the army and I believe that this is in itself a violation of international law.
RT: You spoke earlier about proportionality. But Israelis would argue that it's not their fault that Gaza is one of the most densely populated areas of the world and people had nowhere to run to.
MS: That is the fault of the Israeli army. The fact that there were no ways to go. Was it that difficult to create a humanitarian corridor which will allow civilians who do not wish to be in the war area, war zone? OK, we did not choose the war zone, but we could have let the ones who wanted to flee go away.
RT: Was that responsibility of Israel? Or was that responsibility of the international community?
MS: Absolutely the responsibility of the state of Israel. We have control over all the borders of Gaza, the air, the sea and the land boarders. We could have opened a gate.
RT: But how do you tell the difference between civilians and Hamas fighters?
MS: The fact that civilians are Hamas supporters means nothing in the eyes of the law. People can choose to believe in evil things, they cannot be punished for that. And the fact is that in Israel’s eyes the whole civilian population was an enemy. It seems to me something horrendous that it was a strategy for the Israeli government and Israeli army to put a pressure on the civilian population.
RT: Put pressure on the civilian population to do what?
MS: The brilliant logic behind the strategy is that if you put enough pressure on the civilian population, they will in their turn, put pressure on the Hamas.
RT: Has the opposite not happened?
MS: Of course it did. We need another generation, another 30 years to reconcile with Palestinians because of that war. Children who saw Israeli soldiers and Israeli helicopters will not forget that.
RT: How much of this war was motivated by internal Israeli politics?
MS: I think a lot of it. I don't think in a fairly democratic society that is wrong. The fact that the Israeli government was under extreme pressure to do something about the attacks on Israeli south, it's part of democracy. The way the war was waged was influenced by the politicians’ desire to have a zero casualties on our side.
RT: Are you calling for an investigation of the Palestinians to see if Hamas committed war crimes?
MS: Definitely. I'm not a Palestinian and I leave it for the Palestinians to do their own internal reflections. But as a lawyer who deals with international law and as a human rights activist definitely I think the Hamas has a lot to answer for. Hamas leaders must be investigated and tried for their deeds.
RT: Who do you think should be held accountable for war crimes? Is it the Israeli army or the soldiers themselves? It seems unfair to hold soldiers responsible in a country where there's conscription and at the moment we have the situation in Europe where many army officers cannot fly out of Israel, cannot land in these countries because they're wanted by international courts.
MS: International criminal law is about individual responsibility. If Israel as a country or the Israeli army as a legal entity is valid internationally, it might be responsible in international law for operations and for all kinds of civil remedies but criminal law is all about personal responsibility. The fact that war criminals must bear the responsibility for their deeds is a part of the attempt to educate individuals around the world. You cannot hide behind the fact that you're a part of a big apparatus that committed war crimes. You cannot hide behind the idea that you've just obeyed commands which the Israeli and Jewish airs, this is something that makes me shiver.
RT: You personally refused to serve and as a result you spent three weeks in prison. Are you surprised that not more Israeli soldiers refused to serve now in Gaza?
MS: I'm surprised and not surprised. I'm surprised because I thought more Israelis will be listening more to their internal moral voice. I'm not surprised because I know my country and I know what kind of education people go through since kindergarten and how slowly feelings and emotions that are racist in their essence, are creeping into everyone of us.
RT: Do you think the courts in Israel are doing enough to hold soldiers and Israeli army?
MS: The Israeli law enforcing mechanism is not doing even 1 per cent of what it should be doing regarding violations of the humanitarian law. Nor in Gaza, neither in the West Bank. The prosecution is not prosecuting, and when it does, it does with a lot of problems, so the message is very clear – there's impunity.
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