Ensuring Accountability - Jessica Montell

Bitterlemons.org., February 23, 2009 - Only now that the fighting has stopped are we beginning to understand the full scale of the damage in the recent Israeli military operation in the Gaza Strip. While much remains to be learned, one conclusion is incontrovertible: the toll among the civilian population is immense....

The extensive harm to the civilian population is not, in and of itself, proof of violations of the laws of war. Such a judgment requires a legal rather than a purely moral reckoning, weighing this suffering in light of legal obligations like the need to distinguish between military and civilian objects and the requirement to use only the minimum force necessary to achieve military goals without causing disproportionate harm to the civilian population.

Determinations regarding distinction and proportionality in the middle of armed confrontations can sometimes be a complicated calculus. However, an initial overview of Operation Cast Lead raises grave suspicion that Israel did indeed breach international humanitarian law during the fighting. This suspicion relates not only to the conduct of individual soldiers, but also and perhaps primarily to policy decisions. For example, Israel by its own claim intentionally targeted civilian institutions like the Ministries of Housing and Labor and the Legislative Council solely because they were affiliated with Hamas. Israel also used massive firepower when striking legitimate targets such that large numbers of civilians were also killed.

The legal determination regarding Israel's behavior in Gaza depends also on an analysis of Hamas' behavior, and there are well-founded concerns that Hamas also violated the laws of war. This includes not only the deliberate firing of rockets at Israeli communities, which is clearly a grave breach of IHL, but also Hamas' conduct in the fighting inside Gaza: the hiding of weapons in mosques and other civilian areas and the extrajudicial executions of those suspected of aiding Israel. While one side's violations of the laws of war in no way grant license to the other side to do the same, they can mitigate or even shift legal culpability.

The only way to render a definitive judgment is to conduct a comprehensive, impartial and independent investigation. Such an investigation must include a commitment to hold accountable all those found to have committed grave breaches of the laws of war--these are in fact war crimes that carry individual criminal liability. Accountability is crucial--indeed, it is the bedrock of any legal system, for there can be no rights without a remedy when rights are violated....

Jessica Montell is executive director of B'Tselem: the Israeli Information Center for Human Rights in the Occupied Territories.