Interview with Franklin Lamb: Self Defense or War Crime? (Part I)

By International Lawyers Sans Frontiers

Part I: What Law Applies?

Interviewer’s Note: On December 27, 2008, Israel launched a devastating 22 day and night bombardment of the Gaza strip. The assault left, amidst an estimated 600,000 tons of concrete rubble, some 1,740 dead (this figure includes more than 350 ‘forgotten’ stillbirths and trauma-caused abortions in Gaza during the 22 days of terror), a figure that increases as the severely injured continue to die. A majority of the victims were civilians, including nearly 900 (again including the stillborn) children, approximately 5,500 severely wounded, and more than one third of the 1.5 million population was displaced while more than 14,000 homes were completely destroyed. Approximately 92,000 Palestinians are still homeless with more than 16,000 living as many as 20 to a small tent without latrines, as supplies remain blocked at the borders.

Single-limb fractures and the walking wounded are not included in the above figures, according to renowned British surgeon Dr. Swee Ang, currently conducting an on-the-ground medical investigation in Gaza. Dr. Swee and her medical colleagues estimate that of the severely injured, 1,600 will suffer permanent disabilities. These include amputations, spinal cord injuries, head injuries, and large burns with crippling contractures.

Also bombed were 68 government buildings and 31 NGO complexes, buildings all of which were completely or partially destroyed. Property damage and loss of livelihood has been estimated at close to 2 billion dollars.

On February 4, 2009, the Government of France strongly protested Israel’s refusal to allow in donated filtration equipment for drinking water, given that much of Gaza’s population have not had clean drinking water for weeks. As the massive human and material destruction continues to be documented by journalists, investigators and relief workers, the international pressure for accountability increases.

Faced with nearly unprecedented international outrage and condemnation, due to massive civilian casualties, the government of Israel continues to claim that its actions constituted self defense and that its attack on Gaza fully comply with the requirements of International law. To defend its actions, which it insists were “totally legal under international law” Israel has organized a bevy of international lawyers and ‘experts’ to support its claims, including Alan Derchowitz, Justus Reid Weiner, Avi Bell as well as others working from, or in cooperation with, Israeli government funded outlets such as the Jerusalem Center for Public Affairs or the Israeli Defense, Foreign Affairs and Information Ministries.

International Lawyers Sans Frontiers and Hokok, the International Coalition against Impunity, asked American international lawyer and researcher, Dr. Franklin Lamb, of the Sabra-Shatila Foundation, currently based in Beirut, to comment on Israeli claims. In the following interview Lamb offers his brief analysis of the conduct of Israel and Hamas, against a backdrop of continuing on-the-ground investigations in Gaza. Dr. Lamb was interviewed at UNESCO Palace in Beirut. A transcript follows.

International Lawyers Sans Frontiers: Good morning Dr. Lamb. Before we begin could you clarify one matter for us? You drafted the December 10, 2008 Hokok filing against Israel at the International Criminal Court in The Hague. What is the status of that Case and what is going on at the ICC? One hears conflicting reports.

Franklin Lamb: Thank you and it’s my pleasure to join you. Yes, you are quite correct in thinking some Court staff has sent conflicting signals recently. But that is ok because all of us, the whole international community, are learning about this new court and its very important potential. It is a much needed and long overdue judicial institution seeking to limit State impunity for humanitarian crimes while broaden universal jurisdiction so that no one is above the law.

The HOKOK submission was made under Article 15 of the Rome Statute which allows Non Governmental Organizations and individuals to bring to the Office of the Prosecution of the International Criminal Court (ICC) information of war crimes and crimes against humanity. It also permits these groups to petition for an investigation which could lead to the Court initiating a case, issuing arrest warrants and conducting a trial. It is encouraging to note that according to the Office of the Prosecutor at the ICC dozens of Submissions and Communications have been submitted to the Court with respect to Gaza. I believe this is an important recognition by individuals and organizations around the World that justice must be pursued for the Palestinians slaughtered in Gaza.

Current developments with the December 2008 filing include this week’s submission from the HOKOK and Sabra-Shatila Foundation’s just completed compilation of some 800 documents relating to Israeli violations of International Humanitarian Law in Gaza. The case Appendix includes evidence not just since December 27, 2008, but going back 18 months since Israeli began its blockade and siege of Gaza. We view the recent violence as a continuation of the assault of Gaza which began shortly after Hamas won the 2006 elections.

With respect to the recent 22-day and night bombardment of Gaza we, along with journalists, NGO’s and independent researchers, continue to gather and document evidence of serial war crimes allegedly committed by Israeli troops and the Israeli command structure including some fifteen political leaders.

We have submitted detailed evidence, including European laboratory analyses, that Israel has used white phosphorus in densely populated civilian areas. This accusation, which comes from many sources, has been widely supported by NGO’S and journalists on the ground. The media and NGO role is critical with respect to documentation of the actual events on the ground as it was in Lebanon, 2006. The fact that the media was barred from performing its role in Gaza has aided Israeli efforts to hide war crimes.

Who can bring a case to the International Criminal Court?

The first barrier to be cleared before the ICC Office of the Prosecutor launches an official investigation is the matter of the Courts Jurisdiction. When we petitioned the ICC we were cautioned by the ICC chief prosecutor Mr Moreno-Ocampo, that his office was unsure how far it would be able to take the case on the path through Investigation to Trial because the ICC perhaps had no res (subject matter) or impersonum (personal) jurisdiction over Israel, a non-signatory to the Rome Statute which established the court.

States that are party to the treaty recognizing the jurisdiction of the Court can refer cases of crimes committed by their citizens or on their territory and it is clear that the International Criminal Court can investigate if asked by the U.N. Security Council as in the case of Darfur. We calculated that our American administration would veto such a Security Council request as a gift to Israel. Israel has never recognized ICC jurisdiction, withdrawing its signature to the Rome Statute in 2003, and because only states can recognize the court, it was unclear if the Palestinians can do so.

Our jurisdictional reply to the ICC is that yes, they will have jurisdiction because Palestine, through its government, the Palestinian Authority would shortly formally accept the jurisdiction of the International Criminal Court as 108 countries have done. Indeed, this occurred on Jan. 21 when Ali Khashan, the Palestinian Authority’s justice minister submitted a Declaration of Acceptance of Jurisdiction letter to the Court stating that his government recognized the court’s jurisdiction for the purpose of investigating and prosecuting acts committed in the territory of Palestine since 1 July 2002.

Lawyers for Israel have objected, but tellingly, Israel is preparing for potential legal action, barring the media from publishing pictures of officers’ faces and their names for fear of investigations. Last week, Israel’s Cabinet promised legal and financial support for any officers facing trial, despite the difficulty of prosecuting Israelis.

One avenue would be for Israel to agree to investigate its commanders and prosecute any crimes discovered. That would remove any case from the orbit of the international court. So far that appears unlikely, given Israel’s repeated denials of war crimes in Gaza but on the other hand they may indeed use this approach as a hoped for shield to the ICC taking the case.

Israeli governmental lawyers are concerned that a Palestinian state that ratified the Rome treaty would then be able to refer alleged Israeli war crimes to the court without the current legal wrangling. The case could also lead to snowballing international recognition of a Palestinian state by countries eager to see Israel prosecuted.

A coalition of Israeli human rights groups has urged the country’s attorney-general to open an independent investigation into allegations of war crimes by troops, advising their government that to do so could head off international court cases. These groups, including the anti-settlement organization B’Tselem, has advised the Israeli authorities that the list of Israeli war crimes is very long and Israel is much better off conducting its own trials. B’Tselem showed Israeli authorities evidence of dozens of cases of Israeli forces firing into civilian areas, denying medical aid to the wounded and preventing Palestinian ambulances from reaching them and they have documented more than 20 cases of Israeli soldiers firing at women and children carrying white flags or with their arms raised.

We and others are arguing the International Criminal Court can take jurisdiction because the government of Palestine, the Palestinian Authority is the de facto state in the area where the crimes were committed and Hamas is the local branch, as it were, of that Sovereign. It is also instructive to bear in mind that the overwhelming number of members of the United Nations recognizes the state of Palestine with 97 granting full diplomatic recognition and 13 countries granting something less.

Consequently we advised the ICC that the de facto and de jure government of Palestine is the Palestinian National Authority for purposes of the Rome Statute. There is some precedent for the Palestinian jurisdictional initiative with the case of the Ivory Coast, the first non-state party to accept the ICC’s jurisdiction over alleged war crimes on its territory. In 2005 it lodged a declaration with the court accepting the ICC’s jurisdiction over crimes committed there since September 2002. We think Palestine can do the same thing.

We also believe that Israel is esstopped from denying the sovereignty of Palestine for this purpose given that they have consistently claimed since its ‘withdrawal’ from Gaza in 2005, that they have no international legal responsibility for Gaza or any of its residents.

The jurisdictional issue has ramifications for the Palestinian case for statehood. If the court rejects the case, it may deepen the legal black abyss that Palestinians find themselves in while they remain ’stateless’. The Palestinian Justice Ministry argues that the Palestinian Authority possesses the fundamentals of a state and has met all conditions required to be considered as a sovereign State. This compelling argument underlines some of Israel’s worst fears about a Palestinian state on its borders. A Palestinian state that ratified the Rome treaty would then be able to refer alleged Israeli war crimes to the court without the current legal wrangling. The case could also lead to near universal international recognition of a Palestinian state by countries eager to see Israel held to account for its crimes.

Intl. Lawyers w/o Frontiers: Thank you. With respect to applying International Law in the Gaza conflict, exactly what international law applies to the Hamas-Israel war in Gaza?

FL: The armed conflict between Hamas and Israel is governed by international treaty law as well as the rules of international customary law, the latter being that body of law which is so widely applied by States that is rises to the level of universally binding norms.

The treaty law is Common Article 3 of the Geneva Conventions of 1949, to which Israel is a party. Article 3 sets forth minimum standards for all parties to a conflict between a state party such as Israel and a non-state party such as Hamas. The customary rules are based on established state practice, which has the imprimatur of the United Nations, and is binding on all parties to an armed conflict, whether they are state actors such as Israel or non-state actors such as Hamas, or in the case of the July 2006 war in Lebanon, Hezbollah.

All feasible precautions must be taken

International humanitarian law, as it is sometimes called, is designed specifically to protect civilians and other noncombatants from the hazards of armed conflict. The key customary rules require that parties that engage in hostilities must at all times distinguish between combatants and noncombatants. Civilians may never be the object of attacks; rather warring parties are required to take all feasible precautions to minimize harm to civilians and civilian objects. All parties must absolutely refrain from attacks that would disproportionately harm the civilian population or that fail to discriminate between combatants and civilians.

Common Article 3 of the Geneva Convention provides a number of fundamental protections for noncombatants in Gaza, which include those who are no longer taking part in hostilities, such as captured combatants, and those who have surrendered or are unable to fight because of wounds for example.

It is prohibited for Israel or Hamas to use any type of violence against such persons including outrages against their personal dignity and degrading or humiliating treatment.

Contrary to what the Israeli Ministry of Foreign Affairs have argued, the Commentary of the International Committee of the Red Cross notes that the determination of the existence of an armed conflict between states in which the Conventions apply does not depend on a formal declaration of war or recognition of a state of hostilities. Rather, the factual existence of armed conflict between two states party automatically brings the Conventions into operation. Thus virtually any hostilities between Israel and Palestinians would fall within the full Geneva Conventions. In any case, the standards of customary international law applicable to Israel and Hamas are similar in international and non-international conflicts.

Intl. Lawyers w/o Frontiers: Was Hamas’ capture of Israeli soldier Gilat in 2006 lawful?

FL: Yes it was. The targeting and capture of enemy soldiers is allowed under international humanitarian law and Gilat capture, like that of the two Israeli soldiers on July 12, 2006 in Lebanon near Aita Shaub was a legitimate military mission. To label these captures as ‘kidnappings’ as some in the main stream media have done, is a misuse of a term normally related to the unlawful abduction of children or sometimes even girlfriends. However, the subsequent use of captives who are no longer involved in the conflict, for example to work prisoner exchanges, constitutes hostage-taking and is forbidden under international law, by both Common Article 3 and customary international law, and this action becomes a war crime. We have seen this practice expanded widely since 1967 by Israel who in effect currently holds close to 10,000 Palestinians from various parts of Palestine and some still from Lebanon, Syria, Jordan and other Arab countries, with the de facto status being hostage and the Israeli advertised de jure status claiming they are legitimate prisoners.

Intl. Lawyers w/o Frontiers: Is Israel entitled to use military force against the population of Gaza in order to pressure Hamas to release a captured Israeli soldier?

FL: Absolutely not, contrary to the claims of the Military Law unit of the Israeli army, lawful attacks are only those where the targets by their nature, location, purpose or use make an effective contribution to military action, and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers “a definite military advantage.” Israeli attacks directed at civilian morale in Gaza do not meet this test, since they are not contributing to military action and are thus war crimes.

Israeli lawyers are arguing that military attacks on Gazan civilian morale could exert pressure on Hamas to pursue a particular course of action but under international humanitarian law that is illegal. It is simply terrorism, i.e. the deliberate attacking of civilians. Moreover, international law explicitly prohibits attacks of which the primary purpose is to intimidate or instill terror in the civilian population whether the Israeli practice of retorsion or perfidy.

Intl. Lawyers w/o Frontiers: Is Israel’s intent, declared to US envoy George Mitchell to keep Gaza sealed until captured Israel soldier Gilad Shalit is returned, permitted by international humanitarian law?

FL: No. Israel has been closing Gaza Strip border crossings ever since Hamas won the 2006 parliamentary elections. It furthered tightened the blockade on Gaza after Hamas took control of the enclave in 2007.

Because Israeli forces maintain a continuing presence and exercise control, Israel is effectively the occupying power under the Fourth Geneva Convention of 1949. This convention sets out obligations of the occupying power regarding the protection of the civilian population from the consequences of war and from mistreatment by the occupying power. The occupying power must ensure particular protection for the humanitarian needs of the population, such as the functioning of civilian hospitals and the provision of food, medical supplies and other humanitarian assistance.

Sealing, blockading, and holding Gaza hostage until a captured Israeli soldier is returned constitutes a war crime.

Intl. Lawyers w/o Frontiers: What is the international legal status of Hamas in relation to the conflict?

FL: Hamas is an organized political group based in Gaza, representing many of Gaza’s inhabitants. As you know it won the 2006 election which according to former President Jimmy Carter, whose Carter Center, monitored the campaign and balloting, was entirely fair and democratic. Hamas, again like Hezbollah, has a military and a civilian organization. Moreover, it actually constitutes the government by virtual of the 2006 election.

Accordingly, and as a party to the conflict with Israel, Hamas is bound to conduct hostilities in compliance with both international customary law and Common Article 3, which applies to conflicts that are not interstate but between a state and a non-state actor. As is explicitly stated in Common Article 3, and made clear by the commentaries of the International Committee of the Red Cross, the application of the provisions of Common Article 3, as well as international customary law, to Hamas does not affect its legal status.

Intl. Lawyers w/o Frontiers: What about Israel’s right of self-defense which it claims it is lawfully exercising through Article 52 of the UN Charter?

FL: I think you are referring to Article 51 of Chapter 7 of the UN Charter. Article 51 provides for the right of countries to engage in military action in self-defense, including collective self-defense (i.e. under an alliance).

The Israeli government claims an inherent right to self-defense referenced by Article 51 of the UN Charter and it is true that Article 51 carves out an exception to the general UN Charter prohibition against the use of force by one Member State against another.

However, lawyers working for Israel tend to misapply Article 51 which states that:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense 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. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.

Israel was obliged to take its problem with Hamas to the UN.

Moreover, hard liners in the Israeli government and their lawyers argue that Gaza is not an independent sovereign and therefore is owed no duty at all including immunity from armed attack from other states under the law of jus ad bellum. However, given that this primitive notion is ridiculed by the international legal community and is repugnant to most UN Member States, Israel has relied on the Article 51 right of self defense and its international lobby has pushed this argument effectively with the widely broadcast mantra “Israel has a right to defend itself”.

The problem with this Israeli argument is that the Article 51 right is qualified by the same rules of proportionality, target distinctions and discriminations discussed above so it does not excuse Israel’s frenzy of killing and destruction. In point of fact, many consider that the launching of rockets into Israel by Hamas, like the Warsaw ghetto uprising of 1943, constitutes a legitimate response to impending extermination and are a desperate bid for survival.

Disproportionate ’Self Defense’

In any event, investigators are finding that there was a disproportionate response. Areas were attacked that have no military gain whatsoever–an area like the Islamic University or the U.N. school or the U.N. agency or numerous NGO offices.

These constitute disproportionate attacks, which are a very clear violation and constitute war crimes. The Israeli attacks are disproportionate on two levels: disproportionate in terms of the amount of response that we see from the Hamas rocket fire and disproportionate in terms of the number of causalities. But disproportionate actually also refers to the actual nature of the attack itself. These attacks are done with seemingly little military gain and often times when there is clear evidence that the stated target is a civilian site. An apartment building, for example; a mosque where there are children, a school yard and then the evidence that some civilians were simply lined up and shot—or killed when they were carrying white flags, dropping white phosphorus on civilians in densely populated neighborhoods. These, if proven, are war crimes and not UN Charter Article 51 self defense.

Intl. Lawyers w/o Frontiers: Genocide. An emotional term increasingly applied to Israel’s strategy against the Palestinians. Is what Israel is doing in Gaza Genocide?

FL: What Israel has been doing in Gaza and Palestine comes very close to genocide according to the provisions of the Genocide Convention (1948), reiterated in the Rome Charter of the International Criminal Court (2002), which includes: (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.

Article 2 of the genocide Convention stipulates that any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.

An important aspect of genocide is that one has to talk about intent. So we must examine if a given government entity has an intent to completely eradicate a population. The litmus test is intent. If one considers the past six decades of racist statements and declarations coming from Israeli leaders, Zionist ideologues, members of the Knesset, the Grand Rabbi of Israel and the anti-Arab and Islamophobic brochures distributed to Israeli soldiers attacking Gaza by Religious leaders, and some IDF Commanders, the intent becomes fairly clear.

I personally agree with Professors Richard Falk, Francis Boyle, Noam Chomski, James Petras, and a growing number of others who have seriously examined the Question of Palestine and have concluded that a case is to be made for bringing Israel to account under the 1948 Genocide Convention.

Intl. Lawyers w/o Frontiers: Which targets could Israel and Hamas legally attack under international law?

FL: Two fundamental tenets of international law, directly applicable to targeting by both sides Gaza, are “civilian immunity” and the principle of “distinction.” Israel and Hamas have the duty to distinguish at all times between combatants and never to target the latter. To target civilians amounts to a war crime.

It is also forbidden for Israel or Hamas to direct attacks against “civilian objects,” such as homes and apartments, places of worship, hospitals, schools or cultural monuments, unless they are being used for military purposes and make an “effective” contribution to military action and whose destruction, capture or neutralization offers a “definite military advantage.” If there is doubt about the nature of a “civilian object” it must be presumed to be civilian. Those attacking “civilian objects” have a heavy burden of proof regarding establishing a “definite military advantage”. Even when a target is serving a military purpose, precautions must always be taken to protect civilians.

Intl. Lawyers w/o Frontiers: Did Israel and Hamas violate these laws?

FL: Yes, and in a very disparate fashion. The mere fact that an object has civilian uses does not necessarily render it immune from attack. It, too can be targeted if it makes an “effective” contribution to the enemy’s military activities and its destruction, capture or neutralization offers a “definite military advantage” to the attacking side in the prevailing circumstances at the time of attack. However, such “dual use” objects might also be protected by the principle of proportionality.

One example from the July 2006 war comes to mind. Israel accused Hezbollah of targeting civilians during its retaliatory firing of rockets into northern Israel and there may be some truth to this but it has still not been fully proved given that on-the-ground investigations by Human Rights watch and researcher like Jonathon Cook reveal that Hezbollah had in several locations what turned out to be accurate intelligence showing that Israeli military bases or installations were purposely placed near civilian neighborhoods and were used as ‘human shields’. Hamas has a similar burden depending on its ’self-defense’ or ‘retaliation’ defense. More study is required on this issue and one illegal act does not excuse another illegal act but early surveys from on-the-ground investigations show that Israel violated these rules something like 11,000 Israeli “civilian object” violations for each rocket Hamas fired whether or not in “self-defense” during the 22 days of around the clock bombardment.

(Read: Interview with Franklin Lamb: Self Defense or War Crime? (Part II)

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