December 30, 2008

On Sderot and Ashkelon

I will not minimize the very real suffering of the people living in Sderot (and now also Ashdod and Ashkelon) today. That suffering is not on the same scale as the suffering in Gaza, but it is still unqualifiably horrible.

These towns are on the receiving end of rocket fire, however innaccurate, and they have been so for many years. There are casualties, property damage, and years of psychological scars from stress and fear. The criminals responsible for the suffering in Sderot and Ashkelon ought to be tried at the Hague and sent to prison. That would be first and foremost Olmert, Barak and Livni.

It is an article of faith that Israel, however disproportionately, is defending itself against those crude projectiles Hamas is lobbing into its territory. This story is accepted by all the white powers, from the U.S. to Britain, Germany, etc. Even the states that criticize Israel assume that Israel has the right to defend itself. For example,
The Swiss Foreign Ministry acknowledged that Israel has a right to protect itself but condemned Saturday's attacks on Gaza City as "excessive," ( Xinhua )

(An Israeli woman wept at the scene of a
Palestinian rocket attack in the southern Israeli town of Sderot. Photo: David Silverman/Getty Images)

The mainstream media naturally repeats conventional political wisdom unthinkingly. More disheartening is the wide currency given this idea in the less gullible blogosphere, even among supporters of Palestinian rights.

Let's ignore for the moment the fact that Gaza is just one part of a larger Palestinian people and Israel is an occupying colonial power facing legitimate resistance. Let's pretend for the moment that the fiction that Gaza and Israel face each other as two quasi-states within the framework of international law holds. I make these assumption for the sake of argument only, because even under those assumptions that are favorable to Israel, Israel is the criminal and Hamas is legitimately defending itself.

Hamas and Israel agreed on a ceasefire in June 2008. Soon afterward, rockets continued to be fired at Israel. Hamas had difficulties controlling the territory, which wouldn't be surprising in the best of cases, but was especially understandable in view of the very difficult conditions under which Hamas acceded to power. Nevertheless, Hamas sought and succeeded in bringing the number of violations down to a trickle. As Hamas consolidated its power after the attempted Fatah putsch, violations decreased and clearly demonstrated Hamas's bona fide effort to keep the peace. This can be ascertained even from Zionist propaganda, The Hasbara site Elder of Zion keeps a calendar of projectiles lobbed at Israel. One sees clearly that after the first two weeks of the ceasefire the number of Palestinian violations drops precipitously in August and is near zero during September and October. The numbers flare up exactly on November 4, 2008, and for a very good reason:

On that day Israel violated the ceasefire with an air attack coupled with a land invasion. Here is the detailed report from the PCHR office in Gaza: approximately 20:30 on Tuesday, 4 November, an IOF infantry unit moved almost 400 meters into Wadi al-Salqa village, east of Deir al-Balah in the central Gaza Strip. IOF troops raided a house belonging to Mofeed Suleiman al-Rumaili. They held the family hostage in one room, and used the house as a military base. Additional IOF troops besieged a house belonging to Hassan Suleiman al-Humiadi, using a megaphone to order the twenty three residents to leave the building.

Clashes subsequently erupted between the IOF troops and members of the ‘Izziddin al-Qassam Brigades (the armed wing of Hamas). Three members of the ‘Izziddin al-Qassam Brigades were injured, one of them seriously. IOF subsequently sent reinforcements into the area, supported by aircrafts. At approximately 22:30, an IOF aircraft fired a missile at members of the ‘Izziddin al-Qassam Brigades, killing Mazen Nazmi Abu Sa’da (32). In the early hours of Wednesday, 5 November, IOF destroyed al-Humaidi’s house, razed 2.5 donumms of agricultural land, and also arrested six members of the family, including four women.

In Khan Yunis, at approximately midnight on Wednesday, 5 November, an IOF aircraft fired two missiles at four members of the ‘Izziddin al-Qassam Brigades in the east of al-Qarara village, near the border between the Gaza Strip and Israel. The four members of the Brigades were killed...Approximately an hour later, IOF aircrafts fired two missiles at another group of the ‘Izziddin al-Qassam Brigades in Street No. 2 in the east of al-Qarara village. A member of the ‘Izziddin al-Qassam Brigades was killed. (PCHR Gaza)
Israel claimed that this invasion "did not constitute a violation of the cease fire". I kid you not. As you probably remember, November 4th was elections day in the U.S., so the operation was carefully planned to achieve minimum headlines. This was achieved, as practically all news of the incursion start with the Hamas reaction, see a compilation at From Occupied Palestine, with Love.

Hence, fact number one. Hamas kept its side of the bargain as good as one can expect from a government operating under so much stress and with so little resources. Improving the safety of residents in Sderot and Ashkelon would have required simply helping Hamas improve its governance. That wouldn't have been too difficult had the goal of Israel and its Western backers not been the very opposite.

Second, during the cease fire, Israel implemented a siege as well as a naval blockade of Gaza. Sieges and blockades are acts of war under international law. The best witness to that is Israel itself. In 1967 Nassser closed the Tiran straits to Israeli ships. "Citing international law, Israel considered the closure of the straits to be illegal, and it had stated it would consider such a blockade a Casus Belli" (wikipedia).

Note that Israel considered the closure of the Tiran straits a casus belli, even though the practical disruption of its economy as a result of that closure was negligible. Hence, although Nasser's closure was probably illegal, Israel's military response was disproportionate and illegal for certain. This is not the case in Gaza. As all witnesses agree, the siege of Gaza is causing huge suffering and deprivation. There can be no doubt that this is an act of war both in principle and materially and that the Hamas government has every right to resort to force in order to ease the suffering of the population.

To recoup, since the truce of June become effective, Israel violated it in two major ways, first by a devastating siege, and second by a direct military assault inside Gaza.

The government of Gaza had therefore every right to resort to military force in order to bring Israel to end its aggression. The right of Gaza, taken as a sovereign entity, to act militarily in self defense against Israel should be easy to defend within the strictures of international law.

The question remains whether the lobbing of Qassam rockets towards Israeli cities is legitimate as a tactic. For that, one has to answer whether firing Qassams is a) necessary to achieve the goal of convincing Israel to cease its aggression. b) proportionate to the level of aggression that it it is attempting to respond to, and c) not breaching humanitarian law that prohibits certain acts categorically.

As regarding a), necessity, answering yes is not too difficult. Firing Qassam rockets is practically the only military capacity that Gaza has. Therefore Gaza cannot materially apply military force against Israel except by using Qassams. Hence, firing Qassams is necessary if using military force itself is necessary. There is clear indication that military force is necessary and effective in getting Israel to observe the peace. Israel only agreed to withdraw from Gaza as a result of Hamas's previous armed struggle. Israel only agreed to the truce in June 2008 as a result of previous use of Qassam rockets in response to Israeli attacks. There is 60 years of evidence that getting Israel to respect borders requires the application of military force, and since Qassams are the only available military force, getting Israel to respect borders requires the use of Qassams.

As regarding b), proportionality, the case is in no need for arguments. The damage caused by Qassam rockets is so small in comparison of the damage in property and life cause by Israeli attacks as well as by the siege, that Hamas could significantly escalate the harm it causes Israel and still be well within the requirements for proportionality.

c), prohibited acts, presents a greater difficulty. Prima facie, international humanitarian law prohibits attacks on civilians. This prohibition clearly applies to Qassam rockets lobbied at Sderot and Ashkelon. However, accrording to customary international law, it is legal to “respond to an adversary's illegitimate attacks on its civilian population by carrying out reprisal measures against the adversary's civilian objects.” This is the doctrine of "belligerant reprisals." Here is what Finkelstein's says about it:
Now, under international law,…that’s technically called belligerent reprisals–namely, if you target our civilians, we’re going to target yours until you stop…If you check the ICRC, International Committee on the Red Cross, it’s the standard handbook on humanitarian law. It states that there is a large number of countries which accept the principle that belligerent reprisals are illegal. that is you can never target civilians… however it says, it is not a customary rule of international law. In fact the official position of the US and the UK is that civilian reprisals are legal. (Finkelstein by Joel Suarez) (my emphasis )
A siege is an act of war, and the victims of the siege of Gaza are primarily civilians. As such the siege of Gaza has been widely decried as causing a humanitarian crisis and being a breach of humanitarian law. U.N. Rapporteur Richard Falk called it "a crime against humanity." It follows that the government of Gaza is legally, under customary international law, allowed to respond to this attack on its civilian population by attacks on civilian targets in Israel. (and that before even considering the direct bombing of civilian targets in Gaza.)

Hence, it seems to me that all the requirements for legal defensive military response are met and the use of Qassam rockets by Hamas does not constitute a breach of international law and therefore does does not constitute a crime.

That of course does not mean that seeking to kill civilians in Ashkelon and Sderot is moral or the right thing for Hamas to do. It would have been both less morally problematic and more effective if Hamas could successfully target more military targets, or at least Tel-Aviv instead of Sderot. But I will as always avoid passing judgment on what people ought to morally do in extreme situations such as those faced by the people of Gaza, especially since this situation is the result of deliberate common policy of Israel, Western governments, and Arab autocracies. Accountability should be demanded first from those who create hell before it is demanded from those who are forced to live in it.

Perhaps this is an example of the inadequacies of international law. As Finklestein notes, many states would like to see the right to belligerent reprisals expunged from international law. If that were possible, it would be a great improvement. But one need to think carefully about what stands in the way of such a development. Is it sensible to demand that countries value the lives of their assailant's civilians when that assailant shows no respect for their civilians, and while international bodies smack their lips but provide no effective assistance? Belligerent reprisals are a morally problematic response to an immediate war crime. The sensible road to criminalizing belligerent reprisals passes through guaranteeing effective mechanisms for redress against international war crimes in the first place. A functioning international criminal court and a Security Council that punishes Israel for its chronic violations of humanitarian law would go a long way toward making the firing of Qassam rockets into a clear and unambiguous war crime. That is however because they would also make it unnecessary.

This analysis is not intended to minimize the very real suffering of the people living in Sderot (and now also Ashdod and Ashkelon). That suffering is not at the same scale as the suffering of people in Gaza, but it is unqualifiably horrible. These towns are populated by the dispensable non-Ashkenazi people that Zionist leaders sent to border towns intentionally in order to make them hostages in any cross border violence. The sad truth is that Israeli politicians (and affluent Israelis in general) couldn't care less about Sderot and Ashkelon. On the contrary, the pain of their residents are a convenient tool for inflaming the passions, winning elections and justifying aggression, when even Zionist commentators agree that the best way to provide safety for Sderot is to negotiate with Hamas and let Gazans live.

I would like to see the criminals responsible for the current suffering in Sderot and Ashkelon tried at the Hague and sent to prison. That would be first and foremost Olmert, Barak and Livni.

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