The Wall Street Journal
JANUARY 10, 2009 
Israel Is Committing War Crimes 
Hamas's violations are no justification for Israel's actions.

Israel's current assault on the Gaza Strip cannot be justified by self-defense. 
Rather, it involves serious violations of international law, including war 
crimes. Senior Israeli political and military leaders may bear personal 
liability for their offenses, and they could be prosecuted by an international 
tribunal, or by nations practicing universal jurisdiction over grave 
international crimes. Hamas fighters have also violated the laws of warfare, 
but their misdeeds do not justify Israel's acts.

The United Nations charter preserved the customary right of a state to 
retaliate against an "armed attack" from another state. The right has evolved 
to cover nonstate actors operating beyond the borders of the state claiming 
self-defense, and arguably would apply to Hamas. However, an armed attack 
involves serious violations of the peace. Minor border skirmishes are common, 
and if all were considered armed attacks, states could easily exploit them -- 
as surrounding facts are often murky and unverifiable -- to launch wars of 
aggression. That is exactly what Israel seems to be currently attempting.

Israel had not suffered an "armed attack" immediately prior to its bombardment 
of the Gaza Strip. Since firing the first Kassam rocket into Israel in 2002, 
Hamas and other Palestinian groups have loosed thousands of rockets and mortar 
shells into Israel, causing about two dozen Israeli deaths and widespread fear. 
As indiscriminate attacks on civilians, these were war crimes. During roughly 
the same period, Israeli forces killed about 2,700 Palestinians in Gaza by 
targeted killings, aerial bombings, in raids, etc., according to the Israeli 
human rights group B'Tselem.

But on June 19, 2008, Hamas and Israel commenced a six-month truce. Neither 
side complied perfectly. Israel refused to substantially ease the suffocating 
siege of Gaza imposed in June 2007. Hamas permitted sporadic rocket fire -- 
typically after Israel killed or seized Hamas members in the West Bank, where 
the truce did not apply. Either one or no Israelis were killed (reports differ) 
by rockets in the half year leading up to the current attack.

Israel then broke the truce on Nov. 4, raiding the Gaza Strip and killing a 
Palestinian. Hamas retaliated with rocket fire; Israel then killed five more 
Palestinians. In the following days, Hamas continued rocket fire -- yet still 
no Israelis died. Israel cannot claim self-defense against this escalation, 
because it was provoked by Israel's own violation.

An armed attack that is not justified by self-defense is a war of aggression. 
Under the Nuremberg Principles affirmed by U.N. Resolution 95, aggression is a 
crime against peace.

Israel has also failed to adequately discriminate between military and 
nonmilitary targets. Israel's American-made F-16s and Apache helicopters have 
destroyed mosques, the education and justice ministries, a university, prisons, 
courts and police stations. These institutions were part of Gaza's civilian 
infrastructure. And when nonmilitary institutions are targeted, civilians die. 
Many killed in the last week were young police recruits with no military roles. 
Civilian employees in the Hamas-led government deserve the protections of 
international law like all others. Hamas's ideology -- which employees may or 
may not share -- is abhorrent, but civilized nations do not kill people merely 
for what they think.

Deliberate attacks on civilians that lack strict military necessity are war 
crimes. Israel's current violations of international law extend a long pattern 
of abuse of the rights of Gaza Palestinians. Eighty percent of Gaza's 1.5 
million residents are Palestinian refugees who were forced from their homes or 
fled in fear of Jewish terrorist attacks in 1948. For 60 years, Israel has 
denied the internationally recognized rights of Palestinian refugees to return 
to their homes -- because they are not Jews.

Although Israel withdrew its settlers and soldiers from Gaza in 2005, it 
continues to tightly regulate Gaza's coast, airspace and borders. Thus, Israel 
remains an occupying power with a legal duty to protect Gaza's civilian 
population. But Israel's 18-month siege of the Gaza Strip preceding the current 
crisis violated this obligation egregiously. It brought economic activity to a 
near standstill, left children hungry and malnourished, and denied Palestinian 
students opportunities to study abroad.

Israel should be held accountable for its crimes, and the U.S. should stop 
abetting it with unconditional military and diplomatic support.

Mr. Bisharat is a professor at Hastings College of the Law in San Francisco.

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