Moving beyond assumptions about the conflict in Gaza



Over 1300 Palestinians in Gaza, including hundreds of civilians, were killed in during the three week Israeli army operation that ended last month. Such civilian killings did not represent such a radical departure, sadly, from the life Palestinians have endured under Israeli occupation since 1967. On January 21, 2008, U.N. Special Rapporteur John Dugard reported that, from 2006-07, 359 of the 668 Palestinians killed by the Israeli army in Gaza were civilians. And due to the embargo on Gaza – now nineteen months old – which has severely limited the availability of fuel, food, clean water, and other supplies, the situation in Gaza was desperate even before Operation “Cast Lead.”

Of course, there have also been attempts at justification for the recent killings. As law students, we should independently educate ourselves as to the accuracy of these legal claims. We have all heard the argument that self-defense against rocket attacks justifies the military operations that have been taken against the Palestinians. But the legality of self-defense requires satisfaction of certain requirements including necessity, immediacy and proportionality.

Whether these requirements, each having a precise legal meaning, are met in a given situation must be determined by a factual inquiry. For example, Hamas responded with rocket attacks after an Israeli military incursion into Gaza in November, 2008. Before that incursion, the cease-fire had generally been holding (see, “UNRWA chief: Gaza on brink of humanitarian catastrophe”, 11 November 2008). This would seem to weaken a claim that military force, rather than observance of the cease-fire, was needed to cease the rocket attacks.

At the same time, it must be noted that the legality of Palestinian resistance is also governed by the laws of self-defense. Under international law, a people may defend itself against an occupier. Israel declared that its occupation of Gaza ended with the dismantlement of Israeli settlements in 2005. But occupation is a legal term synonymous with “effective control” of an area-and Israel retains full control of Gazan air space, Gazan fishing waters, and all border crossings in and out of Gaza save one (which is controlled by Egypt).

Moreover, even when self-defense is justified under international law, all parties must obey international humanitarian law in exercising this right. The customary international norm requiring distinction between civilian and military targets prohibits attacks which an attacker expects or should expect will kill or injure civilians in a degree “excessive in relation to the concrete and direct military advantage anticipated.” These legal requirements are callous, in my opinion; they undervalue human life by weighing it against military advantage. Yet even these basic requirements appear to have been violated in the operation against Gaza.

Claims that Hamas has used human shields or fired rockets indiscriminately must be independently investigated. So, too, must reports that Israel indiscriminately attacked civilians including medical personnel and used weapons such as phosphorous and Dense Inert Metal Explosive (DIME) in a prohibited manner against civilians. A finding that Hamas committed war crimes would not exempt Israel from any war crimes it committed, and vise versa.

Legal arguments are not the only kind made in support of Israel. I have heard the claim that Israel’s actions were justified because it belongs to an inherently moral class of states. This claim is as puzzling as a finding of legality of a person’s actions based on a premise that she is law-abiding. Such logic is even more puzzling in the context of state action, as a state is a product of diverse actors with different motives. States may act morally or immorally in specific situations, but it is dangerous to think they can be broadly characterized as inherently moral or amoral without inquiry into their actions.

Still, this claim of morality highlights a basic assumption often made about the conflict: that Hamas wants to destroy Israel. Though Cambridge University Arab media expert Khaled Hroub has refuted this claim by analyzing Hamas’s actual platform for election in 2005, the assumption persists (see “A ‘New Hamas’ through Its New Documents”, Journal of Palestine Studies, Vol. 35, no. 4, p. 6). This presumption makes us conclude that civilian Palestinian deaths must be entirely attributable to Hamas’s use of human shields, since it is evil and irrational.

Such a conclusion, however, does not match the facts. In one incident in the recent operation, the Israeli army evacuated many civilians to a house, then proceeded to shell it the next day – while the civilians still inside. At least thirty of them died. The Israeli army targeted fifty-seven UN buildings, some of them schools and hospitals. And in Israeli army operations in the occupied territories, Israeli human rights organization B’Tselem has reported on repeated use of Palestinian human shields by the Israeli army itself over the past seven years.

It seems many of the stated justifications for the ongoing occupation and violence against Palestinians are underpinned by unexamined beliefs that the Palestinians are somehow less than human, irrational, and evil. Before I traveled to Bethlehem in the West Bank last May, I wondered what it would take for Palestinians to adopt more widespread, visible civil disobedience tactics. I believed that if Palestinians could imitate the strategies of Martin Luther King, they might undermine American assumptions that Palestinians were violent terrorists. Americans might then educate themselves about the occupation and Palestinians’ right to self-determination. Luckily, I didn’t express this opinion to any Palestinians once I arrived. Though I have no doubt people would have responded patiently, I would have embarrassed myself.

When I arrived, I saw that Palestinians already engage in widespread peaceful protest. For example, there are frequent outdoor prayer gatherings against the occupation in various cities and villages of the West Bank. These peaceful protests are invisible largely because international media sources choose not to report them. The Palestinians persist in peaceful demonstrations of resistance fully aware that the international community rarely learns of them and that they are instead widely viewed as terrorists.

The death toll of the recent operation in Gaza was so rapid and terrifying and its timing – just prior to the Israeli elections and American inauguration – so cynical, that persons who had until that point been quietly opposed to the occupation were posed a stark question: If you are not required to take a stand now, then when? Included among those who felt compelled to speak out were Jewish voices, many of whom have been speaking out for years against attacks on the Palestinian people. Like peaceful forms of Palestinian resistance, their voices don’t receive much mainstream press in the US, but they are no less courageous for that fact.

I hope you, too, will consider traveling to Palestine to meet actual Palestinians and see how they live behind the wall. As all entry and exit into their territories is controlled by Israel, they have few opportunities to interact with outsiders and help counter the stereotypes that persist about them.HLS Justice for Palestine will be sponsoring a panel of professors who will be focusing on the background to the conflict in Gaza and some of the legal issues involved next Tuesday, February 10.

Shannon Erwin is a 2L and co-chair of HLS Justice for Palestine

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