Now Israel Is Free To Declare Its Innocence
Before The International Court Of Justice
By William A. Cook
15 April, 2011
Thank God Judge Goldstone recanted his judgment on Israel and its IDF forces in the slaughter inflicted on Gaza during its Christmas invasion in 2008-2009; both are now innocent of wrongful intent to kill Palestinian civilians since the Israeli military courts investigated Goldstone's allegations and determined he was wrong. Now the good Judge has found, with the military court, that the Israeli government, that refused to cooperate with the United Nations investigation, did not intentionally send its forces to kill and destroy but only to kill and destroy Gaza ; that the civilians were killed is simply a sad consequence of war. How astute, how learned, how compassionate; how absurd, how facetious, how despicable.
Yet, good may come of this decision. Now Israel is free to declare its innocence before the International Court of Justice since it is Israel's investigation that can be presented as its case, with the good Judge as co-defendant. After all, isn't this exactly what the Israeli government has wanted from the start, a way to demonstrate to the world that its Army is the most moral on the planet, its government the most democratic, acting only to defend its people, its weaponry the most sophisticated state of the art precision ordinance available, and its actions always proportionate to the crimes it seeks to address? Knowing now what they did not know before Judge Goldstone recanted his report, the government of Israel has nothing to fear from the ICJ but the justice it so rightfully deserves. Certainly it makes no sense for Israel or the UN to do nothing now that the report has been brought into question. The world has castigated Israel because of the report, now it's Israel 's turn to seek revenge and put before the world how righteous and how legal its actions have been. How fortunate this turn of events.
And how opportune a moment since our United States Congress has once again jumped to the fore as defender of the beleaguered state of Israel by writing a letter to the UNHRC that it should expunge the report from history since it is biased against the Jewish state and this would help make amends. (“Congressional initiatives targeting Goldstone report” April 11, 2011 JTA)But why expunge it? Israel , after all, knows it did no wrong; it has done its own investigation and declared its innocence. What an opportunity to show the world that it has been maligned, that it has obeyed all international laws relative to individual rights, that as an occupying force under Geneva Conventions and the Charter of the UN it has observed all requisite responsibilities toward the people of Gaza, and finally that it had rights to invade that the international community must recognize since it was only defending itself.
Let us present this case as objectively as we can by using the words in the Israeli Gaza Operation Investigations: the means used to investigate, the difficulties that impeded the investigation, their presentation of the investigation concerning white phosphorus, and the conclusions drawn by the Military Advocate General, oh, and the convictions leveled on those found guilty. We'll follow that presentation with some eye witness accounts of the Gaza operation, the affect of white phosphorus and its legality, and the impact of DIME explosives on humans and the environment. A few photos of Israeli use of white phosphorus will accompany this article if possible.
Consider the facts as articulated by the Israeli Ministry of Foreign Affairs as it labeled Cast Lead as Hamas war against Israel . [My apologies; I'm interjecting a subjective comment on Israel 's calling Operation Cast Lead “Hamas' war against Israel .” In the 8 years preceding Cast Lead, Hamas or other resistance groups in Gaza, fired 6000 home made rockets at Israel, roughly 750 a year, or 62.5 per month or 2 per day. Twenty three people were killed. In that same period Israel killed more than 1000 Palestinian children and in Cast Lead killed an additional 352. A total of 1084 Israelis were killed between 2000 and 2008, but 6430 Palestinians were killed. Yet it was Hamas' war against Israel . One final observation: Israel's launch of one of its American supplied missiles that cost $300,000, a fraction of the 8.2 million per day we supply to Israel's military, a precision state of the art weapon that hit a home where the IDF ordered people to go, in less than one minute killed 21 members of the Samouni family, nine of them children.] (figures from ifamericansknew.org and see this author's article “Consider the Realities of Gaza ,” Counterpunch, Jan. 5, 2009 ). Back to our sources and let the reader be judge.
Gaza Operation Investigations: An Update Jan 2010 .
1. Israel 's investigative system has multiple layers of review to ensure impartiality and independence. These include the Military Advocate General's Corps (MAG), which determines whether to initiate criminal investigations and file charges against IDF soldiers. The Military Advocate General is legally independent from the military chain of command. Israel 's Attorney General provides civilian oversight, as any decision of the Military Advocate General on whether or not to investigate or indict may be subject to his review.
2. The Operation in Gaza: Factual and Legal Aspects , which addressed a range of factual and legal issues related to the Gaza Operation. The Operation in Gaza also set out the legal framework governing the use of force and the principles - including the principles of distinction and proportionality - that apply in such a conflict. It also described the IDF's efforts to ensure compliance with these principles during the Gaza Operation and the modus operandi of Hamas, in particular its abuses of civilian protections that created such acute operational dilemmas.
3. Describing the application of these mechanisms to the Gaza Operation, the Paper notes that the IDF to date has launched investigations of 150 separate incidents arising from the Gaza Operation. A number of these were opened at the IDF's own initiative. Others were opened in response to complaints and reports from Palestinian civilians, local and international non-governmental organisations, and U.N. and media reports.
183. The Gaza Operation presented complex challenges to Israel and the IDF. While the need and obligation to respond effectively to the thousands of Hamas rockets and mortars that had terrorized Israeli civilians for years was clear and acute, the strategies adopted by Hamas, and in particular its systematic entrenchment in the heart of civilian areas, created profound operational dilemmas. [ A second interruption if I may: consider the reality of the Palestinians' plight; they can go nowhere, they cannot escape through the Israeli gates, they can not flee by car, rail, air, boat or on foot, and they are caged in a steel enclosed land area blocked on the west by Israeli gunboats. They have no army, no air force, no navy; but they were training police to help provide order inside this cage of chaos, and Israel began its operation by killing 50 of the graduating class on December 27, 2008 .]
184. These challenges did not end with the close of operations. A key element of respecting the Law of Armed Conflict is a commitment genuinely to review military operations after the fact, and thoroughly investigate allegations of unlawful activity. Fulfilling this commitment in the context of Gaza is demanding, and requires serious efforts to obtain evidence from battleground situations and to make arrangements to enable residents of Gaza to give their accounts. It also requires an awareness that, in complex combat situations, errors of judgment, even with tragic results, do not necessarily mean that violations of the Law of Armed Conflict have occurred. [ Note that Israel refused to cooperate with the UNHRC investigation that became the Goldstone Report.]
187. Israel recognizes the importance of engaging in dialogue and sharing best practices on theconduct of investigative proceedings with other democratic states facingsimilar challenges and committed to upholding the rule of law.
Obviously this article cannot provide a complete rendering of the Israeli investigation and its conclusions regarding proper conduct under international law. However, one of the more telling concerns raised about the IDF was its use of white phosphorus. Here is the comment from the Israeli operation cast lead investigation on that subject. Section IV contains others.
IV. COMPLAINTS ALLEGING VIOLATIONS OF THE LAW
OF ARMED CONFLICT DURING THE GAZA OPERATION
89. Israel is aware of concerns raised regarding the Gaza Operation. As discussed in detail in The Operation in Gaza , and as outlined above, the deliberate strategy of Hamas to blend in with the civilian population made it difficult for the IDF to achieve the objective of the Gaza Operation – reducing the threat of deliberate attacks against Israeli civilians – while also avoiding harm to Palestinian civilians. To be sure, the IDF undertook strenuous efforts to minimise such harm. It intensively trained its personnel on the requirements of the Law of Armed Conflict. It delayed, diverted, or refrained from attacks to spare civilian life. It provided numerous and varied types of concrete warnings before launching attacks.
88 Nevertheless, Israel 's efforts to comply with the Law of Armed Conflict do not lessen its regret for the loss of innocent lives and damage to civilian property.
93. The unique difficulties involved in the investigation of alleged violations of the Law of Armed Conflict in the battlefield should not be ignored. They include: the inability to secure the scene for forensic and physical evidence, either during a battle or after, when the territory is under enemy control; the possible destruction of evidence during fighting and the possible manipulation of the scene by the enemy; the need to recall reserve soldiers back for questioning; the difficulty of accurately identifying the location of an incident, when it is described in local and unofficial terms and slang; and the need to locate the adversary's civilians as witnesses and overcome their natural suspicion and fear of reprisals by their authorities. 90
(v) The use of weaponry containing phosphorous
117. This investigation dealt with the use of weapons containing phosphorous by IDF forces during the Gaza Operation. The investigation focused on the different types and number of weapons containing phosphorous used during the Operation, the purposes for which they were used, the applicable professional instructions and rules of engagement, and the extent of compliance with those instructions and rules. Some of the findings of the special command investigation are detailed in The Operation in Gaza . 107
118. The Military Advocate General reviewed the entire record of the special command
investigation. With respect to exploding munitions containing white phosphorous, the
Military Advocate General concluded that the use of this weapon in the operation was consistent with Israel 's obligations under international law.
119. With respect to smoke projectiles, the Military Advocate General found that international law does not prohibit use of smoke projectiles containing phosphorous. Specifically, such projectiles are not “incendiary weapons,” within the meaning of the Protocol on 106 Id. ¶¶ 436-45. Prohibitions or Restrictions on the Use of Incendiary Weapons, 108 because they are not primarily designed to set fire or to burn. The Military Advocate General further determined that during the Gaza Operation, the IDF used such smoke projectiles for military purposes only, for instance to camouflage IDF armor forces from Hamas's antitank units by creating smoke screens.
120. The Military Advocate General found no grounds to take disciplinary or other measures for the IDF's use of weapons containing phosphorous, which involved no violation of the Law of Armed Conflict. Nevertheless, the Military Advocate General's opinion did not address a number of specific complaints that were received after the investigation concluded and which are being investigated separately. (vi)
Based on information from B'Tselem and Euromedrights.org, the determinations by the Israeli investigation resulted in the following charges: “ In the over two years since Operation Cast Lead, Israel and the Palestinian side have failed to conduct genuine investigations, and where appropriate, prosecutions. To-date one Israeli soldier has served 7.5 months in jail for the theft of a credit card and two others have received three month suspended sentences for using a Palestinian child as a human shield. These three convictions, and the ongoing trial of a fourth soldier, have been the only concrete judicial outcomes of Israeli Operation Cast Lead investigations. It is noted that neither these indictments nor the sentences handed down for the human shield conviction reflect the gravity of the actual crimes committed. It appears that the majority of other investigative procedures have been closed without charge. All alleged international crimes must be subject to genuine investigation, and, if appropriate, those responsible must be prosecuted in accordance with the requirements of international law. In light of the domestic authorities' failure to conduct such investigation, the International Criminal Court now constitutes the most appropriate forum, as recommended by the Human Rights Council on 25 March.(Euromedrights.org)
To date, no independent investigation apparatus, empowered also to investigate the responsibility of the political and military decision-makers, has been established. According to the report that the Foreign Ministry provided to the UN in July 2010, the Judge Advocate General's office ordered 47 Military Police investigations with respect to Operation Cast Lead. B'Tselem is aware of 20 Military Police investigation s of incidents in which a suspicion arose that soldiers in the field violated army regulations. Four soldiers have been prosecuted for three incidents that occurred during the operation. In the first case, a soldier was convicted of stealing a credit card and sentenced to seven and a half months' imprisonment, a conditional sentence of seven and a half months, and demotion from sergeant to private. In the second case, indictments were filed against two soldiers alleging they used a nine-year-old child as a human shield, ordering him to open suspected booby-trapped bags. The two soldiers were convicted and sentenced to a three-month suspended jail sentence and demotion in rank from staff sergeant to private. In the third case, an indictment was filed against a soldier for killing an anonymous person and conduct unbecoming a soldier. In three other cases, disciplinary proceedings were instituted against six officers. B'Tselem is aware of at least six cases in which the Attorney General decided not to indict the soldiers. (B'Tselem).
Now let us return to the arguments for a UN investigation that can provide the people of the world with deliberations that place the Israeli Operation Cast Lead before an International Court of Justice.
Hiyam Noir , in Palestine Free Voice, January 13, 2009 , reporting from Gaza observed
“Blankets of white clouds covered the skies over Gaza , including the refuge camps in Khan Younis, Beit Lahia and Gaza City . On Saturday Israeli F16 warplanes launched attacks using phosphorus bombs on the Block 2 section inside the densely populated Jabalya Refuge Camp. Many residents of Jabalya escaped the area covering their faces, searching for a safe shelter in the home of relatives and friends in the neighboring Beit Lahia from the Israelis "Cast Lead Operation". Gaza has always been the Israelis “testing ground” – from nerve agents used in Khan Younis in 2003, to Sonic Boom “phantom air raids”, and the use of DIME in the Israelis massacre called " Operation Summer Rain " over Gaza year 2006.”
In that same article, Noir notes, The Human Rights Watch senior analyst Marc Garlasco said in an interview on France Chanel 4 TV that .."Israeli artillery bursted fire of white phosphorous shells over Gaza City ."Garlasco said .."I have been standing at the border for the last few days ,watching Israeli artillery firing white phosphorus shells into refugee camps".
Press TV on 4 March 2011 reported that cancer cases in Gaza had increased by 30 per cent, and that there was a link between the occurrence of the disease and residence in areas that had been badly hit by Israeli bombing. Zekra Ajour from the Al-Dameer Association for Human Rights told the channel that Gaza had been a testing ground for illegal weapons.
In a separate article, Richard Lightbown argues that Israel 's use of white phosphorus and other toxic metals, and its suspected use of depleted uranium, in the war against the people of the Gaza Strip has put the whole of the Strip's population and its environment – air, soil, groundwater and possibly seawater – at risk of serious long-term injury and contamination. He also observes that The goldstone report mentions phosphorus in paragraph 896: Medical staff reported to the mission how even working in the areas where the phosphorus had been used made them feel sick, their lips would swell and they would become extremely thirsty and nauseous.
The toxicity of phosphorus is also recorded in a report by New York medical staff: 4
‘Oral ingestion of white phosphorus in humans has been demonstrated to result in pathologic changes to the liver and kidneys. The ingestion of a small quantity of white phosphorus can cause gastrointestinal complaints such as nausea, abdominal cramps, and vomiting. Individuals with a history of oral ingestion have been noted to pass phosphorus-laden stool ("smoking stool syndrome"). The accepted lethal dose is 1 mg/kg, although the ingestion of as little as 15 mg has resulted in death.'
Although an Israeli army spokesman told CNN on 7 January 2009 , “I can tell you with certainty that white phosphorus is absolutely not being used.” the chemical had been used by Israeli forces since the beginning of the war. 12 The Goldstone Report stated that Israeli sources later claimed their forces had stopped using white phosphorous on 7 January 2009 because of international concerns. This was also untrue as there is evidence that it had been used after that date. Goldstone declared the Israeli armed forces to have been “systematically reckless” in using white phosphorous in built-up areas (paragraphs 884, 886 and 890).
Lightbown also discusses DIME: “Evidence of the use of depleted uranium against Gaza is tenuous and Goldstone merely recorded in paragraph 907 that it had received allegations which it had not further investigated. Much of this evidence came from Action des citoyens pour le désarmement nucléaire (ACDN: Citizens Action for Nuclear Disarmament). Their report of July 2009 hypothesizes that the GBU-39 bunker-buster bomb is packed with 75 kilogram of depleted uranium. (A UNEP report also ambiguously refers to bunker-buster bombs containing depleted uranium.) The US delivery of 1,000 of these bombs to Israel arrived in early December 2008 shortly before the start of the war. The GBU-39 is considered one of the world's most precise bombs and Boeing, the manufacturer, claims that the bomb will penetrate three feet of steel-reinforced concrete. (UNEP suggests that it can penetrate reinforced concrete to depths ranging from 1.8 to over 6 metres.) Boeing's patent on the weapon mentions depleted uranium. 6
Certainly it makes good sense to have the Israeli investigation brought before the ICJ. What possible reason exists not to do this, from either the Israeli perspective or the UNHRC. The perspectives presented above demonstrate the necessity; truth requires it, justice demands it, and the dead cry out for it.
NOTE: The footnotes below are from Lightbown's article which can be accessed at www.redress.cc/palestine/lightbown200110314 . I would also note that the pictures that accompany or may accompany this article are from Dr. Arthur Billy's Memorial to the People of Gaza available at Youtube or as contained in an article titled “What does it profit a congressman to retain his office but suffer the loss of his soul?” A google search will give you access.
1. Kawther Salam, 29 December 2009 ; Abortions, Cancer, Diseases and… in Gaza ; Intifada-Palestine. www.intifada-palestine.com/2009/12/abortions-cancer-diseases-and-in-gaza/
2. BBCNews, 4 March 2010 ; Falluja Doctors Report Rise in Birth Defects. http://news.bbc.co.uk/2/hi/middle_east/8548707.stm
3. Rita Hindin, Doug Brugge and Bindu Panikkar; Teratogenicity of depleted uranium aerosols: A review from an epidemiological perspective; Environmental Health: A Global Access Science Source 2005, 4:17 doi:10.1186/1476-069X-4-17. www.ehjournal.net/content/4/1/17
4. Lisandro Irizarry, Mollie V Williams, Geri M Williams and José Eric Díaz-Alcalá, 21 October 2009; CBRNE - Incendiary Agents, White Phosphorus. http://emedicine.medscape.com/article/833585-overview
5. UNEP, 2007; Lebanon Post-Conflict Environmental Assessment, p 149.
6. ACDN, 4 July 2009 ; Report on the Use of Radioactive Weapons in the Gaza Strip during Operation Cast Lead. www.newweapons.org/files/ACDN%20Gaza%20report%20updated%204Jul2009%201.pdf
7. Dr Hana Chehata, 9 March 2010 ; Disturbing Findings of Toxic Uranium Levels in Gaza ; Middle East Monitor. http://preview.tinyurl.com/6cdf55k
8. Video accessed from http://blog.unwatch.org/?p=413
9. Palestinian Telegraph, 24 May 2009; Israel Used Depleted Uranium in Offensive on Gaza . www.paltelegraph.com/opinions/editorials/935-israel-used-depleted-uranium-in-offensive-on-gaza.html
10. Sister Rosalie Bertell; Depleted Uranium in the Human Body: Sr Rosalie Bertell, PhD. www.youtube.com/watch?v=WgQ79-oDX2o
12. Human Rights Watch, 10 January 2009 ; Q & A on Israel 's Use of White Phosphorus in Gaza . www.hrw.org/en/news/2009/01/10/q-israel-s-use-white-phosphorus-gaza
14. Sobhi Skaik, Nafiz Abu-Shaban, Nasser Abu-Shaban, Mario Barbieri, Maurizio Barbieri, Umberto Giani, Paola Manduca, 31 July 2010; Metals Detected by ICP/MS in Wound Tissue of War Injuries Without Fragments in Gaza. www.newweapons.org/files/1860524319368107_article.pdf
15. NWRC, 17 December 2009 ; Gaza Strip, soil has been contaminated due to bombings: population in danger. www.newweapons.org/files/pressrelease_nwrc_20091216_eng.pdf
16. NWRC, 17 March 2010 ; Metals Detected in Palestinian Children's Hair Suggest Environmental Contamination. http://www.newweapons.org/?q=node/112
17. James Brooks, 6 December 2006 ; US and Israel Targeting DNA in Gaza ? The DIME Bomb: Yet Another Genotoxic Weapon, Part II. Al-Jazeerah: Cross-Cultural Understanding. http://tinyurl.com/6kq6sd9
18. John F. Kalinich, et al, 15 February 2005 ; Embedded Weapons-Grade Tungsten Alloy Shrapnel Rapidly Induces Metastatic High-Grade Rhabdomysoarcomas in F344 Rats; ehponline.org www.afrri.usuhs.mil/www/outreach/pdf/tungsten_cancer.pdf
19. James Brooks, 5 December 2006 ; The DIME Bomb: Yet Another Genotoxic weapon, Part 1; Al-Jazeera. www.hartford-hwp.com/archives/27a/308.html
20. David Halpin, 14 August 2006 ; Are New weapons Being Used in Gaza and Lebanon ; Electronic Intifada. http://electronicintifada.net/v2/article5528.shtml
21. James Brooks, 5 December 2006 ; The DIME Bomb: Yet Another Genotoxic weapon, Part III; Al-Jazeera. www.thetruthseeker.co.uk/oldsite/article.asp?ID=5648
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