Category Archives: crimes against humanity

Proportionality in Gaza 2014

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. “

                         Article 51 of the Charter of the United Nations

 

The July 2014 Gaza conflict finally separated the moral wheat from the anti-semitic chaff.

Scenes of unbelievable vitriol directed against Jews exploded in many cities. In Belgium, a café owner welcomed dogs but refused Jews entry. In Morocco, a rabbi was beaten up because he was a Jew. In Sweden, a man displaying an Israeli flag had his windows smashed. In Paris, a mob of Muslim supporters barricaded Jews in their synagogue while trying to break down the entrance gate to get at them. All in the name of a “free “Palestine”…..

Whereas all these centres of demonstrated anti-semitic hate were quiet when Hamas rained down rockets on civilian centres in Israel, people with barely concealed hate for Jews went into paroxysms of anti-semitic speech and actions as Israel began to defend herself.

As in 2008-09 and in 2012, the chorus of anti-semities masquerading as anti-zionists chanted in unison about Israeli war crimes against “Palestinian” civilians and how the Israeli response was disproportionate. In England, while Sayeeda Warsi resigned her position in Parliament in protest against what she considered a soft British stand against a disproportionate Israeli response in Gaza, in Turkey, Erdogan declared that what the Jews were doing in Gaza was worse than the atrocities carried out by Hitler.

It would appear that almost everybody seemed to have ideas and suggestions as to how to augment the humanitarian component in the law of international armed conflict. This is all great stuff and thoroughly commendable. However, it is important to keep in mind the thought that wars are actually fought to be won. In war, people die.

Just wanting to see zero-casualty warfare is a contradiction in terms, no matter how many UN bodies and/or NGOs would like to say differently. War, almost by definition, entails human losses, suffering and pain. As long as it is waged, humanitarian considerations cannot be the sole legal arbiters of the conduct of hostilities.

This is not to be taken as an apology for war. Rather it is to be taken as a basis for examining the conduct of parties in armed conflict, where that basis and framework in law is applied equally to both sides.

In the case of Gaza 2014, the overt support provided Hamas by the media cover up of the activities of this terror group, is slowly beginning to unravel.

For the fools’ chorus banging on about Israeli war crimes and Israeli crimes against humanity, information is now getting out from Gazan journos free of retribution from Hamas, on just how cynical the terror group has been in manipulating the media and the jaundiced classes.

Two days ago, NDTV from India, visually documented a Hamas rocket set up and launch from a teeming civilian centre, metres from their hotel.

France 24’s Gallagher Fenwick live TV coverage from Gaza had to take an unscheduled break during a live cross to Paris as a rocket was fired overhead from just behind him. The next day he re-visits the site to show a wider angle shot of the launch site metres away from a 7 storey building flying the UN flag…..

Reporter Peter Stefanovic, of Australia’s own Nine Network’s news, stationed in Gaza, received a surge of abuse and threats when he tweeted that he had seen rockets fired into Israel from near his hotel, in a civilian area.

The Wall Street Journal’s reporter Nick Casey fell foul of Hamas by reporting that Shifa hospital was Hamas’s control centre.

French-Palestinian journalist Radjaa Abu Dagga wrote that he was forcibly blocked from leaving Gaza and detained and interrogated by members of Hamas’s al-Qassam Brigade at a room in Shifa hospital next to the emergency room.

A Finnish TV reporter who did not feel safe to give her name on TV for fear of repercussion verified that Hamas was indeed launching rockets from the car park of the al-Shifa hospital.

And, of course, Italian reporter Gabriele Barbati (now) famously tweeted: “Out of #Gaza far from #Hamas retaliation: misfired (Hamas) rocket killed children today in Shati. Witness: militants rushed and cleared ­debris.”

All this may help explain the PA’s new-found reluctance to pursue action against Israel in the ICC despite the urging of “Palestinian” “chief negotiator” Saeb Erekat and HRW chief, Kenneth Roth.

It could also be a result of a bleak warning by Shurat HaDin that in doing so, the “unity” government would itself face a “…tsunami of charges for human rights violations and war crimes…” if it cared to go down that path.

But rhetoric and threat aside, what is Israel’s position legally when it comes to possibly being arraigned for war crimes over use of disproportionate force against Hamas in Gaza?

The short answer is, it’s pretty good.

The law of international armed conflict (LOIAC ) can and does forbid some modes of behaviour, with a view to minimizing the losses, the suffering and the pain. But it can do so only when there are realistic alternatives to achieving the military goal of victory in war.

Not many would realistically refute the suggestion that, from the Hamas coup in 2007 to June 2014, Hamas rockets at civilian concentrations were ongoing provocation of the highest order. That much is clear.

Thus, in interpreting the law of international armed conflict, Israel’s efforts to avoid war were numerous and ongoing. In the end, on paper, Israel went to war because there were no longer any realistic alternatives to achieving safety for its citizens apart from a determined military response.

But what of the charge of disproportionate response?

In this case, people not sympathetic to the Israeli cause happily conflate some ideas, or outright make up others which complement their preferred narrative. It is true that many more Gazans (but not armed males??!!) than Israelis died in the conflict so far. Each Israeli death is unbearably painful, and the loss is lasting.

However, the doctrine of proportionality in international law is not about equality of death or civilian suffering, or even about [equality of] firepower.

Recently retired Chief Prosecutor, International Criminal Court, Luis Moreno-Ocampo, defined it thus:

“Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable does not constitute a war crime…. even when it is known that some civilian deaths or injuries will occur.

A crime occurs if there is an intentional attack directed against civilians (principle of distinction) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality).”

In this he is backed up by Professor Horst Fischer, Academic Director of the Institute for International Law of Peace and Armed Conflict in Germany who adds that:

“… attacks are prohibited if they cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that is excessive in relation to the anticipated concrete and direct military advantage of the attack. This creates a permanent obligation for military commanders to consider the results of the attack compared to the advantage anticipated.” (emphasis mine)


The Council on Foreign Relations notes that according to the doctrine of proportionality, “…a state is legally allowed to unilaterally defend itself …provided the response is proportional to the injury suffered. The response must also be immediate and necessary, refrain from targeting civilians, and require only enough force to reinstate the status quo ante.

Today, Israel has quickly reinstated the status quo ante to the extent that it has pulled out of Gaza once it destroyed the terror tunnels and severely incapacitated Hamas’ long range rocket launching capabilities. It has redeployed to the territorial border prior to the ground offensive and it has taken up defensive positions along the eastern border as a possible ceasefire is hammered out.

Its response to the rain of rockets was immediate and a necessary defensive measure in order to fulfill its obligations to its own citizens.

And unambiguously, Israel’s use of telephone calls and mass leaflet drops to civilians in combat areas to evacuate because of impending attack, its creation and use of the technique of the “roof knock” to warn civilians away from targeted military assets on the ground, and its ongoing demonstrated commitment to aborting attack missions after finding civilians used as human shields on rooftops, all stand up to any legal scrutiny in the ICC.

The same cannot be said of Hamas, nor does it exonerate the supportive actions of the PA in Ramallah who are part of the “unity government”.

In sum, proportionality weighs the military necessity of an action against the suffering that the action might cause to enemy civilians in the vicinity.

Israel has coordinated its documented air and artillery strikes with legal advice prior to each attack in accordance with the spirit and letter of international law and common understandings.

It will be difficult/impossible to prove otherwise in court.

And it will be difficult for Hamas/PA to deflect charges of gross misconduct and war crimes, by that same token.

By any reasonable definition/interpretation of international law, Israel remains legally within its rights in its adherence to principles central to jus ad bellum of right authority, right intention, reasonable hope, proportionality, and last resort.

NB I would add that with regards to the principle of “distinction”, where it is incumbent on belligerents to distinguish between combatants and civilians, Article 8(2)(b)(i) of the Rome Statute of the International Criminal Court which prohibits attack directed against civilians may not necessarily be proved against Israel in the tragedy of the boys on the beach in Gaza, as it is difficult to ascribe intention; and particularly in light of the fact that Israel has more than amply consistently demonstrated, throughout the conflict, intent  to avoid civilian casualties by all available means.

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Of Oppression and Hypocrisy

Below is a copy of the text given me by a colleague, of a remarkable speech given by Simon Deng at the 2011 Durban Conference. It is a speech as remarkable for its pathos and passion, as for it’s aversion to hypocrisy and oppression. Please consider passing this message along.

Address to the 2011
“Durban Conference” in New York City

These are the words of Simon Deng, a former Sudanese child slave to Arab masters, addressing the 2011 Durban Conference in New York.

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I want to thank the organizers of this conference, The Perils of Global Intolerance. It is a great honor for me and it is a privilege really to be among today’s distinguished speakers.

I came here as a friend of the State of Israel and the Jewish people. I came to protest this Durban conference which is based on a set of lies.

It is organized by nations who are themselves are guilty of the worst kind of oppression.

It will not help the victims of racism. It will only isolate and target the Jewish state. It is a tool of the enemies of Israel .

The UN has itself become a tool against Israel . For over 50 years, 82 percent of the UN General Assembly emergency meetings have been about condemning one state – Israel . Hitler couldn’t have been made happier!

The Durban Conference is an outrage. All honest and decent people will know that.

But friends, I come here today with a radical idea. I come to tell you that there are peoples who suffer from the UN’s anti-Israelism even more than the Israelis. I belong to one of those people.

Please hear me out.

By exaggerating Palestinian suffering, and by blaming the Jews for it, the UN has muffled the cries of those who suffer on a far larger scale.

For over fifty years the indigenous black population of Sudan — Christians and Muslims alike — have been the victims of the brutal, racist Arab Muslim regimes in Khartoum .

In South Sudan , my homeland, about 4 million innocent men, women and children were slaughtered from 1955 to 2005. Seven million were ethnically cleansed and they became the largest refugee group since World War II.

The UN is concerned about the so-called Palestinian refugees. They dedicated a separate agency only for them, and they are treated with a special privilege.

Meanwhile, my people, ethnically cleansed, murdered and enslaved, are relatively ignored. The UN refuses to tell the world the truth about the real causes of Sudan’s conflicts. Who knows really what is happening in Darfur? It is not a “tribal conflict.”

It is a conflict rooted in Arab colonialism well known in North Africa.

In Darfur, a region in the Western Sudan , everybody is Muslim.

Everybody is Muslim because the Arabs invaded the north of Africa and converted the indigenous people to Islam.

In the eyes of the Islamists in Khartoum , the Darfuris are not Muslim enough. And the Darfuris do not want to be Arabized. They love their own African languages and dress and customs.

The Arab response for refusing Islam is genocide! But nobody at the UN tells the truth about Darfur .

In the Nuba Mountains , another region of Sudan, genocide is taking place as I speak (sic). The Islamist regime in Khartoum is targeting the black Africans – Muslims and Christians. Nobody at the UN has told the truth about the Nuba Mountains ..

Do you hear the UN condemn Arab racism against blacks?

What you find on the pages of the New York Times, or in the record of the UN condemnations is “Israeli crimes”and “Palestinian suffering”.

My people have been driven off the front pages because of the exaggerations about Palestinian suffering.

What Israel does is portrayed as a Western sin. But the truth is that the real sin happens when the West abandons us: the victims of Arab/Islamic apartheid.

Chattel slavery was practiced for centuries in Sudan . It was revived as a tool of war in the early 90s by the very same Arabs who today shout from the rooftops about Jews and racism, apartheid and oppression.

Khartoum declared jihad against my people [for refusing Islam] and this jihad legitimized taking slaves as war booty.

Arab militias were sent to destroy Southern villages and were encouraged to take African women and children as slaves.

We believe that up to 200,000 were kidnapped, brought to the North and sold into slavery.

I am a living proof of this crime against humanity!

I don’t like talking about my experience as a slave, but I do it because it is important for the world to know that slavery exists even today.

I was only nine years old when an Arab neighbor named Abdullahi tricked me into following him to a boat. The boat wound up in Northern Sudan where he gave me as a gift to his family.

For three and a half years I was their slave going through something that no child should ever go through: brutal beatings and humiliations; working around the clock; sleeping on the ground with animals; eating the family’s left-overs. During those three years I was unable to say the word “no”.

All I could say was “yes,” “yes,” “yes.”

The United Nations knew about the enslavement of South Sudanese by the Arabs. Their own staff reported it. It took UNICEF – under pressure from the Jewish–led American Anti-Slavery Group — sixteen years to acknowledge what was happening. I want to publicly thank my friend Dr. Charles Jacobs for leading the anti-slavery fight.

But the Sudanese government and the Arab League pressured UNICEF, and UNICEF backtracked, and started to criticize those who worked to liberate Sudanese slaves. In 1998, Dr. Gaspar Biro, the courageous UN Special Rapporteur on Human Rights in Sudan who reported on slavery, resigned in protest of the UN’s actions.

My friends, today, tens of thousands of black South Sudanese still serve their masters in the North and the UN is silent about that. It would offend the OIC and the Arab League.

As a former slave and a victim of the worst sort of racism, allow me to explain why I think calling Israel a racist state is absolutely absurd and immoral.

I have been to Israel five times visiting the Sudanese refugees. Let me tell you how they ended up there.
These are Sudanese who fled Arab racism, hoping to find shelter in Egypt.

They were wrong.

When Egyptian security forces slaughtered twenty six black refugees in Cairo who were protesting Egyptian racism, the Sudanese realized that the Arab racism is the same in Khartoum or Cairo.

They needed shelter and they found it in Israel .

Dodging the bullets of the Egyptian border patrols and walking for very long distances, the refugees’ only hope was to reach Israel ‘s side of the fence, where they knew they would be safe.

Black Muslims from Darfur chose Israel above all the other Arab-Muslim states of the area. Do you know what this means!!!?? And the Arabs say Israel is racist!!!?

In Israel , black Sudanese, Christian and Muslim were welcomed and treated like human beings. Just go and ask them, like I have done. They told me that compared to the situation in Egypt , Israel is “heaven.”

Is Israel a racist state? To my people, the people who know racism – the answer is absolutely not.

Israel is a state of people who are the colors of the rainbow. Jews themselves come in all colors, even black. I met with Ethiopian Jews in Israel . Beautiful black Jews.

So, yes … I came here today to tell you that the people who suffer most from the UN anti-Israel policy are not the Israelis but all those people who the UN ignores in order to tell its big lie against Israel: we, the victims of Arab/Muslim abuse: women, ethnic minorities, religious minorities, homosexuals, in the Arab/Muslim world. These are the biggest victims of UN Israel hatred.

Look at the situation of the Copts in Egypt , the Christians in Iraq , and Nigeria , and Iran , the Hindus and Bahais who suffer from Islamic oppression. The Sikhs. We — a rainbow coalition of victims and targets of Jihadis — all suffer. We are ignored, we are abandoned. So that the big lie against the Jews can go forward.

In 2005, I visited one of the refugee camps in South Sudan . I met a twelve year old girl who told me about her dream. In her dream she wanted to go to school to become a doctor. And then, she wanted to visit Israel . I was shocked.

How could this refugee girl who spent most of her life in the North know about Israel ? When I asked why she wanted to visit Israel , she said: “This is our people.” I was never able to find an answer to my question.

On January 9 of 2011 South Sudan became an independent state. For South Sudanese, that means continuation of oppression, brutalization, demonization, Islamization, Arabization and enslavement.

In a similar manner to how they have oppressed us black Africans, the Arabs continue denying Jews their right for sovereignty in their homeland and the Durban III conference continues denying Israel legitimacy.

As a friend of Israel, I bring you the news that my President, the President of the Republic of South Sudan, Salva Kiir — publicly stated that the South Sudan Embassy in Israel will be built— not in Tel Aviv, but in Jerusalem, the eternal capital of the Jewish people.

I also want to assure you that my own new nation, and all of its peoples, will oppose racist forums like the Durban III. We will oppose it by simply continuing to tell the truth! Our truth!

My Jewish friends taught me something that I now want to say with you.

AM ISRAEL CHAI !

The people of Israel lives !

Thank you