Israel Deploys Lawyers to Head Off War-Crimes Charges (Update2)

01.22.2009 | Bloomberg
By Gwen Ackerman

Jan. 22 (Bloomberg) — The Israeli army deployed more than military force in its Gaza Strip campaign: Along with tanks and soldiers, it used lawyers and leaflets in what it says was an effort to save civilian lives and bolster its case against accusations of war crimes.

Human Rights Watch, Amnesty International and B’tselem, the Israeli Center for Human Rights in the Occupied Territories, say Israeli actions in Gaza, where a 22-day war killed more than 1,300 Palestinians, should be investigated for possible war crimes.

While the organizations also say Hamas militants in Gaza violated international law by indiscriminately firing rockets at Israeli civilians, the war-crimes accusation is especially stinging in Israel, whose population is made up in part of survivors of the Nazi Holocaust or their descendants.

Such allegations aren’t new for Israel’s military. At least three top army officers have faced war-crimes charges in the past, in countries where such suits are allowed. This time, Israel involved attorneys at the outset of the campaign, as well as dropping 250,000 leaflets to warn civilians to flee areas it was attacking.

“These are some of the actions that Israel took to avoid civilian casualties, and that it can point to should war-crimes suits be filed,” said Major Avital Leibovitz, an army spokeswoman.

‘Intimately Involved’

The Gaza “campaign was a long time in the works, and we were intimately involved in the planning,” said Lieutenant Colonel David Benjamin of the Military Advocate Corps, which acts as the army’s legal adviser. “Approval of targets which can be attacked, methods of warfare — it all has gone through us.”

Lawyers were deployed within divisional commands to advise officers on the front lines which targets could be attacked under international law. Israeli officials say military necessity and objectives were weighed against the possibility of civilians getting hurt when targets were designated.

Aircraft dropped leaflets on dozens of occasions to warn civilians of bombing runs, and soldiers made 3,000 phone calls to urge civilians to leave areas facing attacks.

The army also used text messages to warn civilians their homes might be bombed, and the military has posted videos on YouTube showing warplanes diverting missiles fired at vehicles into open fields after civilians appeared in the target area.

Work to Do

Still, Israeli officials are preparing for a wave of international litigation. “I assume that following the Gaza events, we will have more intensive and focused work to do on these matters,” Attorney General Menachem Mazuz said Jan. 11.

Gaza is one of the most densely populated areas in the world, and much of the fighting took place in crowded neighborhoods. Almost half the Palestinians killed were civilians, according to the Gaza Health Ministry. Army officials say Israel killed more than 500 Hamas gunmen.

“Israel’s use of heavy artillery in residential areas of Gaza City violates the prohibition under the laws of war against indiscriminate attacks,” Human Rights Watch said in a Jan. 16 press release.

An e-mailed statement from the army spokesman’s office said the army “attacked targets used for terrorist activity and did not hesitate to strike those involved in terror even if they deliberately choose to operate from locations of religious or cultural significance.

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White Phosphorus

Human Rights Watch and Amnesty International accuse Israel of using white phosphorus shells, which can cause severe burns, in densely populated areas in Gaza. White phosphorus is permissible under international law to provide smoke screens, while the Geneva Convention bars the use of incendiary ammunition against civilian targets.

The Israeli army said in an e-mailed statement it “uses weapons in compliance with international law.” It also said it was setting up an investigation team “in order to remove any ambiguity.”

John Ging, a United Nations official in Gaza, said on Jan. 17 that Israel targeted five schools run by the UN Relief and Works Agency, killing more than 60 civilians. An Israeli army spokesman, speaking on customary condition of anonymity, said a preliminary investigation showed that soldiers returned fire after gunmen shot at them from either inside or in the vicinity of the schools.

Unilateral Cease-Fire

Israel declared a unilateral cease-fire on Jan. 17, ending its military campaign aimed at stopping cross-border rocket attacks and arms smuggling into Gaza. Thirteen Israelis died, nine in combat and four from rocket attacks, according to the army.

Pressing war-crimes allegations against Israel or Israeli citizens wouldn’t be easy. The country isn’t among the signatories — 108 countries, as of July — to the treaty that would allow charges against it in the International Criminal Court, located in The Hague. One reason is that the court’s statute doesn’t list terrorism as a crime, said Foreign Ministry legal adviser Daniel Taub.

“The actions of the state defending itself against terrorism could come before the court, but not the terrorism it is defending itself against,” he said. The U.S. isn’t a signatory to the treaty either.

Because of Israel’s legal stance toward the court, human- rights organizations would be left to file cases against commanders in such countries as the U.K. and Spain, where citizens can press charges against officers for crimes that didn’t take place on domestic territory.

Possible Arrest

Three years ago, the military warned Major General Doron Almog, former army chief of the Gaza Strip, not to deplane at London’s Heathrow Airport on concern he would be arrested.

Almog was Gaza commander when Israeli warplanes bombed an apartment building where Hamas commander Salah Shehadeh was residing, killing him and 14 others, nine of them children. The arrest warrant against Almog was issued in 2005 after a British law firm and the Gaza-based Palestinian Center for Human Rights filed charges for his alleged role. British police canceled the warrant a week later for procedural reasons, Israel said then.

In 2002, a case was brought in Belgium against former Prime Minister Ariel Sharon, accusing him of war crimes connected to massacres committed by an Israeli-allied militia during Israel’s 1982 invasion of Lebanon, when Sharon was defense minister. The case was brought by relatives of those killed.

Belgium’s Senate changed its war-crimes law in August 2003, abolishing the clause that had allowed the case to be brought. The case was never prosecuted. Sharon had a stroke in Jan. 2006 and has been in a coma since.

An arrest warrant against former army chief Moshe Yaalon by a New Zealand court for the same attack was dismissed for lack of evidence.

Israeli Defense Minister Ehud Barak has set up a team of intelligence and legal experts to collect evidence on military operations in Gaza that may be used to defend officers in the future, the Jerusalem Post said on Jan. 14. The Defense Ministry declined comment.

To contact the reporters on this story: Gwen Ackerman in Jerusalem at gackerman@bloomberg.net;