How Vulnerable Is Israel To War Crimes Charges?


For now at least, the Fatah party leadership of the Palestinian Authority under Mahmoud Abbas has given up on direct bilateral negotiations with Israel, and is seeking other means to advance the Palestinian national cause. Apparently this involves joining the International Criminal Court and charging Israel with war crimes or other violations of international law. (The United Nations has just approved the Palestinian application for ICC membership to begin April 1.)

So how vulnerable is Israel to such charges?

Most of the following is gleaned from events I’ve attended on the legality and ethics of the Israel Defense Forces during last summer’s Gaza war.

The lawful conduct of warfare requires that armed force only be applied toward a legitimate military objective, causing a minimum of civilian casualties and property damage. This was especially difficult in the Gaza Strip, where Hamas embedded their forces and weaponry in heavily-populated areas, and where its combatants generally did not wear uniforms.

The deaths of innocents per se is not unlawful, said Lt. Col. (ret.) Avinoam Sharon at Congregation Ansche Chesed on the Upper West Side in September. But he added that it is criminal to target non-combatant civilians.  Sharon served as an IDF military attorney before coming to New York to pursue doctoral studies in Talmud and Jewish Law at the Jewish Theological Seminary.

“If the Palestinians can prove Israel intentionally targeted civilians, it’s a slam dunk,” concurred Rabbi Arik Ascherman, the director of Rabbis for Human Rights, speaking at a parlor meeting in a Tribecca apartment, in November. “But this is hard to prove.”

“International law is what the wicked don’t obey and the righteous don’t enforce,” Sharon said, quoting Abba Eban, Israel’s eloquent premier diplomat in the 1960s and early ’70s. But times have changed, Sharon added. Today we have the International Criminal Court, established in the Hague in 2002 to prosecute crimes against humanity, genocide and war crimes.

Dr. Moshe Halbertal — a professor of law at New York University and of Jewish philosophy at the Hebrew University — spoke at the Jewish Theological Seminary on Nov. 20. He is especially authoritative as one of the authors of the IDF code of ethics.

For example, both Ascherman and Halbertal were troubled by the wiping out of an extended family in their home to eliminate one Hamas operative in their midst. In fact, Halbertal urged that Israel rethink the practice of targeting terrorist leaders in their homes, because of the likelihood of killing many non-combatants in such operations.

Still, Halbertal derided as inaccurate repeated statements in the media that Israel’s response to Hamas was “disproportionate”; he explained that they were not properly applying the legal principle of “Proportionality.” It is not about some simplistic calculation that Israel was wrong to kill 2,100 Gazans unless Hamas killed at least a few hundred Israelis.

What would be disproportionate according to the law, he explained, is if a large number of civilians were killed in order to achieve a relatively small military purpose. Which is why destroying a family or an entire building to kill one Hamas leader is disproportionate.

Both Ascherman and Halbertal also questioned use of the “Hannibal Directive,” focussing massive force to prevent the capture of an IDF soldier. This occurred when Lt. Hadar Goldin was believed to be captured, and massive artillery was called in. Ascherman claims that this cost “180” Palestinian lives.

Halbertal said the Hannibal Directive was first applied during the fighting in Lebanon, when IDF units blocked off roads and intersections where Hezbollah fighters were likely to flee with a captive. But in the more heavily-populated confines of the Gaza Strip, and with time of the essence, the most expedient use of force meant artillery, which is the least “surgical” choice for avoiding collateral losses, and therefore could be indictable as a war crime.

So while the assault on Gaza, as such — in response to Hamas rockets and the attack tunnels — should not properly be regarded as criminal, there still are areas of legal vulnerability for Israel.

Not discussed was an entirely different legal angle the Palestinians may pursue, based upon Article 49 paragraph 6 of the Fourth Geneva Convention, regarding the protection of civilians: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

Israel contends that this citation only refers to the coerced movement of civilians into occupied territories, such as Jews and others transported to the ghettos and concentration camps of Eastern Europe, the historical circumstance that actually prompted this provision of international law. However, most of the world interprets this as prohibiting the permanent settlement of Israelis into any lands taken during the 1967 Six Day War, absent a negotiated peace agreement indicating otherwise.

Imagine the impact if Israel's control over the West Bank and East Jerusalem is judged illegal by an internationally-established court of law!  

Ralph Seliger is a long-time editor and writer, mostly on Israeli and Jewish political and cultural issues, from a left-Zionist perspective. He is currently administrator of the Partners for Progressive Israel Blog.