by Mitchell Plitnick
Like many of us, I’ve been very busy on social media since Israel began its military operation in Gaza. I see a lot of ignorant nonsense there, and it’s not limited to the pro-Israel side. I also see a lot of shoddy thinking and ignorance of the facts. Since [...]]]>
by Mitchell Plitnick
Like many of us, I’ve been very busy on social media since Israel began its military operation in Gaza. I see a lot of ignorant nonsense there, and it’s not limited to the pro-Israel side. I also see a lot of shoddy thinking and ignorance of the facts. Since I had to study up a lot of this for my job as the Director of the US Office of B’Tselem, I thought I might set the record straight.
“War crimes”
Various memes make the rounds in discussions of war crimes. One that I found particularly laughable was “Even the UN says Hamas is committing war crimes but they say Israel only might be.” I’ve also seen defenses of Hamas’ firing of missiles at civilian targets in Israel based on Palestinians’ right of self-defense.
Here is the long and short of it: War crimes are defined as “Serious violations of international humanitarian law constitute war crimes.” That’s going to encompass pretty much every violation that might become a public issue in any conflict.
International law recognizes that civilians are going to be hurt, killed and dispossessed in war. The obligation of combatants is to do all they can to minimize the death and destruction if they do need to operate in areas where it is likely that civilians will be hurt.
As a result, when Israel proclaims its innocence of violating these laws, no matter how suspicious we may be, enforcers of international law cannot declare that war crimes have been committed without an investigation. Reasonable people who are not international lawyers can make assumptions, but the investigation needs to happen, and it is always possible, especially when the conflict involves an area as densely populated as Gaza, that it will turn out that the state in question did its best to avoid civilian casualties. High civilian casualty numbers are not proof, but they obviously raise suspicions.
On Hamas’ side, this is true as well, but Hamas makes no secret of its use of weapons which, by their very nature, cannot be used in a manner that can discriminate between civilian and military targets. So, while the UN or other bodies would still investigate and make a case before taking any action, Hamas is committing war crimes. It’s not unfair to say so.
In this case, however, Israel has declared that the homes of leading Hamas activists (and those of other factions) are legitimate targets. They have, in fact, willfully bombed such houses during these engagements as a result. Unlike the 2002 assassination of Salah Shehade, where Israel claimed (falsely, many say) to have believed Shehade to be alone in the building they bombed, Israel has made no such claims this time around. Therefore, it is also not unfair to say that Israel has committed war crimes in Gaza, even before an investigation.
If not for Iron Dome, there would have been many more Israeli casualties
This statement seems to make sense, but the numbers don’t back it up. A study done through July 14, when rocket fire into Israel was at its most intense, showed that the number of rockets being fired from Gaza was fewer than in Operation Cast Lead and the frequency of hits was about the same.
I’m all for Iron Dome. Any defensive system whose purpose is to protect civilians is something I consider an absolute positive, and I only wish more countries would invest in such systems, endeavoring to protect, rather than avenge, their civilians. The concern that iron Dome would make Israel even more reckless and grant it even more impunity does not seem to be borne out by its actions in the current onslaught. Those actions, brutal as they are, are no worse than what Israel did in 2008 and 2012 to Gaza or what it did in 2006 to Lebanon. So, yeah, please let’s see more Iron Domes in the world.
By the same token, however, it doesn’t seem like Iron Dome is actually protecting Israeli civilians nearly as much as the rockets’ lack of any sort of targeting ability.
Israel is committing genocide against the Palestinian people
Opponents of Israeli policies in the United States and in Israel itself have an uphill battle against an entrenched propagandistic view of the entire conflict. We do ourselves no favors by using bombastic, easily assailable language in making our arguments.
Genocide has a specific meaning in international law. It does not mean large scale killing. The Convention on the Prevention and Punishment of Genocide provides that definition:
Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
There is no evidence that this is what Israel is trying to do. Indeed, the best evidence that Israel is not doing this is the simple fact that the Palestinian population, in both the West Bank and Gaza, continues to grow, despite the occupation and all its concomitant hardships.
Would Israel like to find a way to get rid of the Palestinians in the West Bank and cut off Gaza? Sure, but that is not genocide, it is ethnic cleansing, and frankly, that’s bad enough. Israel has done that very gradually over the years, confiscating more and more land, forcing Palestinians into ever smaller enclaves and turning Gaza into one big open air prison.
Making claims that are contradicted by the facts, especially the weighty accusation of genocide, is irresponsible and self-defeating; it plays right into Israel’s propaganda hands.
Hamas is exercising legitimate self-defense
It is absolutely true that an occupied people has the right to resist its occupiers. It is also true that the unusual nature of Israel’s occupation makes it very difficult for guerrilla groups like Hamas, Islamic Jihad, the Popular Resistance Committees and others to take any violent action that would conform to international legal standards. As international legal expert Noura Erekat puts it: “Hamas has crude weapons technology that lacks any targeting capability. As such, Hamas rocket attacks ipso facto violate the principle of distinction because all of its attacks are indiscriminate. This is not contested.”
It is also true that Israel itself does not differentiate between attacks on its civilians and its soldiers. It views them as equally illegitimate and labels it all “terrorism,” even though legally, Israeli soldiers are combatants while on duty. Take, for example, the killing of IDF soldier Natanel Moshiashvili in 2012. The IDF statement about his death plainly states: “The IDF will not tolerate any attempt to harm Israeli civilians or IDF soldiers, and will operate against anyone who uses terror against the State of Israel.”
Nonetheless, the fact that Palestinians are mostly unable to strike exclusively at Israeli military targets does not mean that it is suddenly legal to use indiscriminate weapons or to target civilians. These are war crimes, and any credible investigation must investigate both sides while also taking into account the massive differences in capabilities and power of the two. Israel must also be scrutinized more closely because it has a far greater ability to discriminate between combatants and non-combatants than Hamas.
Hamas is using human shields
Saying something over and over again doesn’t make it true, but it does make a whole lot of people believe it. For instance, Israeli Prime Minister Benjamin Netanyahu willfully and repeatedly lied to the Israeli public and the world about Hamas’ complicity in the kidnap and murder of the three young Israeli settlers, which sparked this latest round. He kept saying he had proof that he never produced, and now the Israeli police are admitting what everyone who was actually paying attention at the time knew: this was an independent act of violence.
It’s the same with the human shield argument. Like genocide, the term “human shield” has a legal definition. According to the International Committee of the Red Cross, “… the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.” Again, as Erekat wrote: “International human rights organizations that have investigated these claims have determined that they are not true.” Erekat correctly cites reports from Amnesty International and Human Rights Watch, which focused on past engagements. There is also doubt being cast by journalists in Gaza today.
In fact, no evidence has ever been presented to support the accusation apart from the high number of civilian casualties and Israel’s word. On the other hand, Israel’s own High Court had to demand that Israel stop using human shields. That happened in 2005, but the practice continued.
In any case, even the presence of human shields does not absolve or mitigate Israel’s responsibility to minimize civilian casualties. Again quoting Erekat: “Even assuming that Israel’s claims were plausible, humanitarian law obligates Israel to avoid civilian casualties…In the over three weeks of its military operation, Israel has demolished 3,175 homes, at least a dozen with families inside; destroyed five hospitals and six clinics; partially damaged sixty-four mosques and two churches; partially to completely destroyed eight government ministries; injured 4,620; and killed over 700 Palestinians. At plain sight, these numbers indicate Israel’s egregious violations of humanitarian law, ones that amount to war crimes.”
Finally, one last point and one more citation of Noura Erekat. The claim that Israel is merely acting in self-defense fails on a number of counts. As I and others have been saying from the beginning, the Netanyahu government willfully and cynically used the murders of three Israelis as an excuse to provoke Hamas with mass arrests and widespread activities that included the deaths of nine Palestinian civilians before this operation started. That removes the self-defense argument from the start. But more than that, the Gaza Strip, despite it being emptied of settlements and soldiers, remains under Israeli control, and is thus occupied territory, contrary to Israel’s claims. Please check out Erekat’s excellent write-up of what this means for the right of self-defense. And please note, she never denies that Israel has a right to protect its own civilians, but that is not the same thing.
Photo: International and Palestinian volunteers accompanied Civil Defense and other rescue crews, as well as family members, into Shujaya, a neighborhood by the separation barrier in the east of Gaza City, in an attempt to locate survivors of overnight and ongoing shelling by the Israeli army on July 20. Credit: Joe Catron
]]>by Mitchell Plitnick
In a debate recorded by the Institute for Palestine Studies, human rights lawyer Noura Erekat squares off with Hussein Ibish, a senior fellow at the American Task Force on Palestine, about the current peace talks and the prospects of a two-state [...]]]>
by Mitchell Plitnick
In a debate recorded by the Institute for Palestine Studies, human rights lawyer Noura Erekat squares off with Hussein Ibish, a senior fellow at the American Task Force on Palestine, about the current peace talks and the prospects of a two-state solution. There was a lot in the exchange that was interesting, and it’s worth your viewing. But one point in particular caught my attention.
Both of them were asked this question: given the fact that the U.S.-brokered peace process has dragged on for twenty years with no end in sight, is it time to consider alternatives to the two-state solution? Each interlocutor answered according to their general bent, with Ibish stubbornly clinging to the two-state solution and Erekat advocating the consideration of a single, democratic state. Though the exchange was somewhat testy, it also proved interesting, and an important one to have, though I think the place it leads is not entirely satisfying to hardcore advocates of either position: a re-evaluation of solutions without being wedded to either one- or two-state formulations.
Ibish dismisses the notion of any alternative to the current process. For him, any alternative exists in a “counter-factual” world. There’s certainly plenty of substantiation for this view. Ibish is quite correct in saying that there is a global consensus around the current two-state formulation, and it would, at best, take years to develop an alternative solution. Indeed, any alternative is likely to be bitterly opposed by Israel, and the United States would very likely back that opposition, making Europe and the Arab League very reluctant to go in the other direction, even if they wanted to.
But Ibish’s blanket dismissal is, itself, counter-factual. At one time, the notion of a two-state solution was as unthinkable as a single democratic state is today. Further, as Ibish himself acknowledges, twenty years of efforts under the Oslo process have yielded precious little for the Palestinians (many, myself included, would contend the Palestinians are worse off today than they were twenty years ago), the United States is not capable of being an even-handed broker, settlement construction has only accelerated over the years and the disparity of power between the parties remains an enormous obstacle to peace. His only response to this is that two-states is the only option before us and anything else is “counter-factual,” which is only a barely diplomatic way of calling it naïve fantasy. That’s dismissive, it’s not a good argument.
Erekat, for her part, looks at the same factors and suggests that a different approach is needed. Whereas Ibish’s adherence to the current formulation is akin to that of a zealot, Erekat is open to alternatives. She considers the reasons Ibish cites in support of the two-state solution as proof of why this approach has failed. After all, she argues, considering all the international consensus and politics around this notion, if there has been no progress toward this goal for twenty years, what is there to do but consider alternatives?
Yet as glib as Ibish is in dismissing out of hand the idea that a new approach might be necessary, Erekat seems also to blithely dismiss the existing international consensus and how difficult it would be to reorient the global political sphere to a whole new solution, one which Israel would bitterly oppose. What emerges from the conversation is a disconnect with real politics in both directions.
The feeling was similar at J Street’s recent conference. There was an undeniable sense that the flagship two-state lobbying group has arrived in a big way. Joe Biden, Martin Indyk, Nancy Pelosi, and Tzipi Livni headed what was by far the organization’s most impressive list of speakers in its five-year history of national conferences. There were many other members of Congress who also spoke or attended the conference’s various functions. The organization has clearly acquired the clout it wanted, and the refrain at the conference that, as Ibish contended, the two-state solution is the only solution was repeated over and over to raucous cheers.
Yet the repetition itself suggested some level of desperation. There was also a palpable sense that the two-state solution is in dire jeopardy.
J Street’s president Jeremy Ben-Ami pointed out that under the current formulation, Palestinians would have to allow an international force to defend the fledgling state’s borders. As Erekat notes, this is a severe infringement on perhaps the most basic tenet of sovereignty, the right to self-defense. Ben-Ami also flatly stated that the Palestinians would have to accept the fact that no refugees would return within Israel’s finally established borders.
When I asked Ben-Ami if he was concerned that these might be terms Palestinians could not accept, he responded: “I think the ultimate deal will involve sacrifices and compromises. I don’t know what they will be but they will be hard to sell and all of us will have a tough selling job to do and we have to be ready to do that.” On the other hand, Yousef Munayyer, Executive Director of the Jersualem Fund told me: “As far as Palestinians are concerned, the right of return is a human right. In my view, human rights are not negotiable.” Munayyer’s view echoes that of most Palestinians from across the political spectrum. Many (though far from all) are willing to negotiate on implementation, but there seems to be an universal agreement among Palestinians that the right of return must be fully recognized. This issue is being unwisely glossed over by supporters of the current process.
Ibish also stated that he saw little downside to the current talks “unless they completely collapse.” I actually see a very different danger. Collapse would not be so bad. Unlike in 2000, when the Camp David II talks collapsed, there are few who expect these talks to succeed, and the agreement to bring any deal to a public referendum alleviates concerns that the leaders will give away too much. These were the factors that had the Palestinian Territories at the boiling point thirteen years ago. Collapse today will not bring about a strong response, it will merely bring the situation back to where it was before John Kerry put so much effort into restarting the talks.
No, the danger here is that an agreement will be struck between the parties that will pass in an Israeli referendum but will fail in a Palestinian one, a concern I explained in detail recently. Such an outcome will allow the Palestinian public to be painted as rejectionists, which will likely make even the meager pressures on Israel from Europe and the even thinner ones from the United States disappear completely, making any process, be it geared toward one state or two, impossible to move forward for years to come.
What’s needed now is a reassessment. The terms of the current two-state process will not work. Palestine is expected to become a state with Israeli enclaves carved deep into it, in the settlements of Ma’ale Adumin and Ariel; it is expected to sacrifice its right of self-defense; and it is expected to give up on what is perhaps its most emotionally meaningful national tenet: the refugees. I can’t imagine a serious observer of the Palestinian public considering this acceptable, and ramming such an arrangement down the throats of either side is a recipe for disaster, not peace.
But that shouldn’t mean that the two-state solution must be abandoned, nor that a one-state formulation needs to remain off the diplomatic table. The issue is not one or two states, but a formulation where two nations can co-exist. We need to reject the notion that the Palestinians can accept less than full sovereignty and a substantive redress of refugee rights. We also have to accept that Israeli Jews are not going to be prepared to become a minority again, and that neither Zionism nor Palestinian nationalism are going to simply be eliminated or fade away in a sea of pragmatism.
In 1993, intrepid Israeli and Palestinian leaders really did produce an unprecedented breakthrough that resulted in the Oslo Accords. Politics and the disparity of power turned the deal sour. That can be done differently today. Hanging on to twenty years of failure is unworkable, but change for the sake of change is not a game that can be played in Palestine-Israel. One-staters and two-staters have been at odds for too long. If people of good will on both sides can come together, that can create an international political and diplomatic momentum to reframe a solution that can actually work.
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