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Hamas's violations are no justification for Israel's actions.
Israel's current assault on the Gaza Strip cannot be justified
by self-defense. Rather, it involves serious violations of
international law, including war crimes. Senior Israeli
political and military leaders may bear personal liability for
their offenses, and they could be prosecuted by an international
tribunal, or by nations practicing universal jurisdiction over
grave international crimes. Hamas fighters have also violated
the laws of warfare, but their misdeeds do not justify Israel's
acts.
The United Nations charter preserved the customary right of a
state to retaliate against an "armed attack" from another state.
The right has evolved to cover nonstate actors operating beyond
the borders of the state claiming self-defense, and arguably
would apply to Hamas. However, an armed attack involves serious
violations of the peace. Minor border skirmishes are common, and
if all were considered armed attacks, states could easily
exploit them -- as surrounding facts are often murky and
unverifiable -- to launch wars of aggression. That is exactly
what Israel seems to be currently attempting.
Israel had not suffered an "armed attack" immediately prior to
its bombardment of the Gaza Strip. Since firing the first Kassam
rocket into Israel in 2002, Hamas and other Palestinian groups
have loosed thousands of rockets and mortar shells into Israel,
causing about two dozen Israeli deaths and widespread fear. As
indiscriminate attacks on civilians, these were war crimes.
During roughly the same period, Israeli forces killed about
2,700 Palestinians in Gaza by targeted killings, aerial
bombings, in raids, etc., according to the Israeli human rights
group B'Tselem.
But on June 19, 2008, Hamas and Israel commenced a six-month
truce. Neither side complied perfectly. Israel refused to
substantially ease the suffocating siege of Gaza imposed in June
2007. Hamas permitted sporadic rocket fire -- typically after
Israel killed or seized Hamas members in the West Bank, where
the truce did not apply. Either one or no Israelis were killed
(reports differ) by rockets in the half year leading up to the
current attack.
Israel then broke the truce on Nov. 4, raiding the Gaza Strip
and killing a Palestinian. Hamas retaliated with rocket fire;
Israel then killed five more Palestinians. In the following
days, Hamas continued rocket fire -- yet still no Israelis died.
Israel cannot claim self-defense against this escalation,
because it was provoked by Israel's own violation.
An armed attack that is not justified by self-defense is a war
of aggression. Under the Nuremberg Principles affirmed by U.N.
Resolution 95, aggression is a crime against peace.
Israel has also failed to adequately discriminate between
military and nonmilitary targets. Israel's American-made F-16s
and Apache helicopters have destroyed mosques, the education and
justice ministries, a university, prisons, courts and police
stations. These institutions were part of Gaza's civilian
infrastructure. And when nonmilitary institutions are targeted,
civilians die. Many killed in the last week were young police
recruits with no military roles. Civilian employees in the
Hamas-led government deserve the protections of international
law like all others. Hamas's ideology -- which employees may or
may not share -- is abhorrent, but civilized nations do not kill
people merely for what they think.
Deliberate attacks on civilians that lack strict military
necessity are war crimes. Israel's current violations of
international law extend a long pattern of abuse of the rights
of Gaza Palestinians. Eighty percent of Gaza's 1.5 million
residents are Palestinian refugees who were forced from their
homes or fled in fear of Jewish terrorist attacks in 1948. For
60 years, Israel has denied the internationally recognized
rights of Palestinian refugees to return to their homes --
because they are not Jews.
Although Israel withdrew its settlers and soldiers from Gaza in
2005, it continues to tightly regulate Gaza's coast, airspace
and borders. Thus, Israel remains an occupying power with a
legal duty to protect Gaza's civilian population. But Israel's
18-month siege of the Gaza Strip preceding the current crisis
violated this obligation egregiously. It brought economic
activity to a near standstill, left children hungry and
malnourished, and denied Palestinian students opportunities to
study abroad.
Israel should be held accountable for its crimes, and the U.S.
should stop abetting it with unconditional military and
diplomatic support.
Mr. Bisharat is a professor at Hastings College of the Law in
San Francisco.
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