Myth: Israel’s attacks against Hamas are illegal since Israel is still occupying Gaza through its control of Gaza’s borders and airspace, and it is therefore bound to protect the civilian population under the Fourth Geneva Convention.
Israel has control over Gaza’s air space and sea coast, and its forces enter the area at will. As the occupying power, Israel has the responsibility under the Fourth Geneva Convention to see to the welfare of the civilian population of the Gaza Strip. (Rashid Khalidi, What You Don’t Know About Gaza , New York Times Op-Ed, Jan. 8, 2009)
The foremost document in defining the existence of an occupation has been the 1949 Fourth Geneva Convention “Relative to the Protection of Civilian Persons in Time of War.” Article 6 of the Fourth Geneva Convention explicitly states that “the Occupying Power shall be bound for the duration of the occupation to the extent that such Power exercises the functions of government in such territory....” If no Israeli military government is exercising its authority or any of “the functions of government” in the Gaza Strip, then there is no occupation. (Legal Acrobatics: The Palestinian Claim that Gaza is Still “Occupied” Even After Israel Withdraws, Amb. Dore Gold, JCPA, 26 August 2005)
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. (Article 43, Laws and Customs of War on Land (Hague IV); October 18, 1907)
Myth: Since more Palestinians than Israelis have been killed in the fighting this means Israel is acting “disproportionately” or has even committed “war crimes.”
• [Israel] is causing a huge and disproportionate civilian casualty level in Gaza. (Christiane Amanpour CNN, Jan. 4, 2009)
• WAR CRIMES The targeting of civilians, whether by Hamas or by Israel, is potentially a war crime. Every human life is precious. But the numbers speak for themselves: Nearly 700 Palestinians, most of them civilians, have been killed since the conflict broke out at the end of last year. In contrast, there have been around a dozen Israelis killed, many of them soldiers. (Rashid Khalidi, What You Don’t Know About Gaza , New York Times Op-Ed, Jan. 8, 2009)
Taking this further, counting the number of dead hardly determines right and wrong. For example, again looking at the Pacific Theatre in World War 2, over 2.7 million Japanese were killed, including 580,000 civilians, as against only 106,000 Americans, the vast majority combatants. Does it then follow that Japan was in the right and America was in the wrong? Again, clearly the answer is no. Just having more dead on your side does not make you right.
Proportionality in the sense used by Rashid Khalidi and Christiane Amanpour is meaningless.
Myth: Israel’s actions are illegal since International Law requires proportionality.
International law ... calls for the element of proportionality. When you have conflict between nations or between countries, there is a sense of proportionality. You cannot go and kill and injure 3,000 Palestinians when you have four Israelis killed on the other side. That is immoral, that is illegal. And that is not right. And it should be stopped. (Dr. Riyad Mansour, Palestinian ambassador to the United Nations, CNN, Jan 3, 2009)
What has to be “proportional” (the term is not actually used in the relevant conventions) is the military value of the target versus the risk to civilians.
In particular, Article 51 of Protocol 1 Additional to the Geneva Conventions of 1977 prohibits as indiscriminate:
5(b) An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
Myth: Hamas has no choice but to place weapons and fighters in populated areas since the Gaza Strip is so crowded that is all there is.
[Hamas has] no other choice. Gaza is the size of Detroit. And 1.5 million live here where there are no places for them to fire from them but from among the population. Taghreed El-Khodary, New York Times Gaza reporter, on CNN, Jan. 1, 2009)
Beyond this, placing your own civilians around or near a military target to act as “human shields” is prohibited by the Fourth Geneva Convention:
Art. 28. The presence of a protected person may not be used to render certain points or areas immune from military operations.
(A) ... endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives;
(b) Avoid locating military objectives within or near densely populated areas;
(c) Take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.
- They have made no effort to remove civilians from the vicinity of military objectives.
- On the contrary, they systematically hide fighters and weapons in schools, in mosques and private homes, and they fire missiles and mortars at Israeli civilians from these places.
- Unlike Israel, Hamas has made no effort to provide bomb shelters for the use of Palestinian civilians. While Hamas has imported huge amounts of cement, it has been used to build bunkers and tunnels for its leaders and fighters.
On the other hand, Israel’s requirement since the early 1990’s that all new homes have a secure reinforced room, and its building of (often rudimentary) bomb shelters in communities near Gaza have helped to minimize casualties to Israeli civilians, though at a cost of over $1 Billion dollars.
It is ironic that Israel is charged with disproportionality for successfully protecting its civilians by following international law.
Myth: Israel violated the ceasefire with Hamas in November, and is thus to blame for the conflict.
• Lifting the blockade, along with a cessation of rocket fire, was one of the key terms of the June cease-fire between Israel and Hamas. This accord led to a reduction in rockets fired from Gaza from hundreds in May and June to a total of less than 20 in the subsequent four months (according to Israeli government figures). The cease-fire broke down when Israeli forces launched major air and ground attacks in early November; six Hamas operatives were reported killed. (Rashid Khalidi, What You Don’t Know About Gaza , New York Times Op-Ed, Jan. 8, 2009)
• Mustafa Barghouti, Palestinian Legislator (video clip): ... The reality and the truth is that the side that broke this truce and this ceasefire was Israel. Two months before it ended, Israel started attacking Rafah, started attacking Khan Yunis ...
Rick Sanchez: And you know what we did? I’ve checked with some of the folks here at our international desk, and I went to them and asked, What was he talking about, and do we have any information on that? Which they confirmed, two months ago -- this is back in November -- there was an attack. It was an Israeli raid that took out six people. (CNN, Dec. 31, 2008)
The article in its lead paragraphs reported that:
Palestinian militants fired three homemade rockets into southern Israel yesterday, threatening to unravel a cease-fire days after it began, and Israel responded by closing vital border crossings into Gaza.
Despite what it called a “gross violation” of the truce, Israel refrained from military action and said it would send an envoy soon to Egypt to work on the next stage of a broader cease-fire agreement: a prisoner swap that would bring home an Israeli soldier held by Hamas for more than two years.
(Most of this data is from The Six Months of the Lull Arrangement, a detailed report by the Intelligence and Terrorism Information Center, an Israeli NGO.)
From the start of the ceasefire at 6 AM on June 19 till the incident on November 4th, the following attacks were launched against Israel from Gaza in direct violation of the agreement:
- 18 mortars were fired at Israel in this period, beginning on the night of June 23.
- 20 rockets were fired, beginning on June 24, when 3 rockets hit the Israeli town of Sderot.
- On July 6 farmers working in the fields of Nahal Oz were attacked by light arms fire from Gaza.
- On the night of August 15 Palestinians fired across the border at Israeli soldiers near the Karni crossing.
- On October 31 an IDF patrol spotted Palestinians planting an explosive device near the security fence in the area of the Sufa crossing. As the patrol approached the fence the Palestinians fired two anti-tank missiles.
There were two Palestinian attempts to infiltrate from Gaza into Israel apparently to abduct Israelis. Both were major violations of the ceasefire.
The first came to light on Sept. 28, when Israeli personnel arrested Jamal Atallah Sabah Abu Duabe. The 21-year-old Rafah resident had used a tunnel to enter Egypt and from there planned to slip across the border into Israel. Investigation revealed that Abu Duabe was a member of Hamas’s Izz al-Din al-Qassam Brigades, and that he planned to lure Israeli soldiers near the border by pretending to be a drug smuggler, capture them, and then sedate them with sleeping pills in order to abduct them directly into Gaza through a preexisting tunnel. For more details click here and here.
The second abduction plan was aborted on the night of Nov 4, thanks to a warning from Israeli Intelligence. Hamas had dug another tunnel into Israel and was apparently about to execute an abduction plan when IDF soldiers penetrated about 250 meters into Gaza to the entrance of the tunnel, hidden under a house. Inside the house were a number of armed Hamas members, who opened fire. The Israelis fired back and the house exploded – in total 6 or 7 Hamas operatives were killed and several were wounded. Among those killed were Mazen Sa’adeh, a Hamas brigade commander, and Mazen Nazimi Abbas, a commander in the Hamas special forces unit. For more details click here.
It was when Israel aborted this imminent Hamas attack that the group and other Palestinian groups in Gaza escalated their violations of the ceasefire by beginning to once again barrage Israel with rockets and mortars.
Note that contrary to Khalidi, Israeli figures do not show that Palestinian violations of the ceasefire during the first four months amounted to “less than 20" rockets.”
Considering this long list of Palestinian attacks, charging that Israel broke the ceasefire in November is simply surreal.
Myth: Israel violated the ceasefire by not lifting its blockade of Gaza.
• Negotiation is a much more effective way to deal with rockets and other forms of violence. This might have been able to happen had Israel fulfilled the terms of the June cease-fire and lifted its blockade of the Gaza Strip. (Rashid Khalidi, What You Don’t Know About Gaza , New York Times Op-Ed, Jan. 8, 2009)
• Mustafa Barghouti, Palestinian Legislator: ... [Israel] never lifted the blockade on Gaza. Gaza remains without fuel, without electricity, with bread, without medications, without any medical equipment for people who are dying in Gaza -- 262 people died, 6 people because of no access to medical care. So Israel broke the ceasefire. (CNN, Dec. 31, 2008)
To quote from the ITIC report on the “Lull Agreement":
On June 22, after four days of calm, Israel reopened the Karni and Sufa crossings to enable regular deliveries of consumer goods and fuel to the Gaza Strip. They were closed shortly thereafter, following the first violation of the arrangement, when rockets were fired at Sderot on June 24. However, when calm was restored, the crossings remained open for long periods of time. On August 17 the Kerem Shalom crossing was also opened for the delivery of goods, to a certain degree replacing the Sufa crossing, after repairs had been completed (the Kerem Shalom crossing was closed on April 19 when the IDF prevented a combined mass casualty attack in the region, as a result of which the crossing was almost completely demolished).
Before November 4, large quantities of food, fuel, construction material and other necessities for renewing the Gaza Strip’s economic activity were delivered through the Karni and Sufa crossings. A daily average of 80-90 trucks passed through the crossings, similar to the situation before they were closed following the April 19 attack on the Kerem Shalom crossing. Changes were made in the types of good which could be delivered, permitting the entry of iron, cement and other vital raw materials into the Gaza Strip.
... Israel, before November 4, refrained from initiating action in the Gaza Strip but responded to rocket and mortar shell attacks by closing the crossings for short periods of time (hours to days). After November 4 the crossings were closed for long periods in response to the continued attacks against Israel. (Rearranged from p 11- 12)
Myth: Israel is using excessively large bombs in populated neighborhoods and is therefore to blame for any Palestinian civilian killed in the present fighting.
Fact: Because Hamas has violated international law by intentionally placing military facilities in densely populated civilian areas (see Article 58 of Protocol 1 Additional to the Geneva Conventions of 1977 cited above), Israel is using relatively small laser-guided bombs in order to minimize any collateral damage. But many of the Palestinian civilian injuries have likely been caused not by Israeli bombs but by Palestinian rockets and bombs which explode after Israel targets the places where they are stored or manufactured, such as mosques and other civilian structures. Numerous videos have been posted of Israeli bombing runs which clearly show the Israeli bomb causing a relatively small initial explosion followed by much larger secondary explosions. Some of the videos also show Palestinian missiles and other projectiles flying in all directions.
It is difficult to see how Palestinians injured by Palestinian bombs and missiles can be blamed on Israel.
