AUS DEM SPIEGEL
Ausgabe 5/2009

Inhuman Calculations Did Israel Commit War Crimes in Gaza?

By and in Jerusalem

Part 2: No Fear of Conviction


The principle of proportionality in war sounds like an inhuman calculation performed by cynical opportunists. But war is war.

Or is it? Is it possible to ignore moral criteria altogether? When former US President Bill Clinton had to decide whether to launch a particular rocket attack as part of the hunt for terrorist leader Osama bin Laden, he chose not to, because he had seen a children's swing on one of the reconnaissance photos. At the time, however, the United States was not officially at war with bin Laden. In a comparable situation, the human rights of the affected citizens must be respected -- and this is also the position taken by the Israeli Supreme Court in its rulings.

Under this line of argumentation, only truly blatant and obviously gratuitous killings of civilians in Gaza could be regarded as war crimes. This is an option under Germany's Code of Crimes against International Law, and it has already been tested in the case of charges against former US Defense Secretary Donald Rumsfeld for war crimes and torture at the prisons in Abu Ghraib and Guantanamo.

A German federal prosecutor dismissed the charges against Rumsfeld, arguing that it was to be expected that the United States would put possible war criminals on trial -- an argument that was as unconvincing then as it is today. Although the German Federal Supreme Court in the southwestern city of Karlsruhe would probably make a similar argument in the case of Israel, the German government still has the legal option of filing criminal charges against Israel in a German court -- which would in any case be an incalculable political risk. The reality is that no Israeli soldier can expect to be convicted of war crimes outside his country. "The obstacles to punishment," says Claus Kress, a Cologne-based professor of international law, "are very, very high."

Israeli Prime Minister Ehud Olmert said Sunday that soldiers need not fear prosecution for war crimes abroad. "The commanders and soldiers that were sent on the task in Gaza should know that they are safe from any tribunal and that the state of Israel will assist them in this issue and protect them as they protected us with their bodies during the military operation in Gaza," he said.

Kress, who is one of the authors of the German Code of Crimes against International Law, believes that prosecutors would find it very difficult to come up with evidence, especially in the killings of civilians in the Gaza Strip. For such evidence to hold up in court, says Kress, it would have to be clear that the bombing of civilian targets was in fact "blatantly disproportionate" from a military perspective. Prosecutors would also have to prove that the soldier responsible for a given bombing incident recognized that his or her actions had no military purpose.

In contrast, the Israelis can argue that they have imposed strict restrictions on their army, especially for their asymmetrical war against terrorists. Asa Kascher of the University of Tel Aviv calls the charges of supposed war crimes "nonsense." Kascher, a philosophy professor, wrote the code of ethics for the Israeli armed forces and developed a set of central questions for the war against terrorism. Under his guidelines, Israeli officers are first required to determine:

  • how immediate is the threat from a particular terrorist,
  • how "involved" the suspect is, i.e. whether the suspect is a sympathizer, an informer or a combatant,
  • how reliable the intelligence information about the location of terrorists is, and
  • what weapons, ammunition and explosives are deemed appropriate for a mission.

Israel takes great pains to avoid civilian casualties, claims Kascher. But he also says that it is impossible to fight terrorism without collateral damage. "If I were to categorically rule out killing a terrorist if he is holding a child," says the philosopher, "I could no longer defend myself."

Off the record, however, Israeli soldiers admit that the units involved in Operation Cast Lead faced fewer restrictions than in past operations. This, they say, was mainly the result of lessons learned in the 2006 Lebanon war, where many Israeli soldiers died after being lured into ambushes.

Israel is also suspected of having used ammunition that causes particularly horrible injuries. The International Atomic Energy Authority (IAEA) is looking into charges that Israel used ammunition that contained depleted uranium. The Israeli army itself is already investigating a claim that 20 white phosphorus grenades were fired, in violation of military regulations, into residential areas in the northern Gaza Strip. Doctors in Gaza are also reporting previously unknown symptoms in some of their patients, including people who showed no visible damage but had severe internal injuries. Such injuries could have been caused by micro-shrapnel from so-called Dense Inert Metal Explosive (DIME) bombs.

Last week Israeli officers were instructed to consult with the office of Israel's chief public prosecutor before traveling abroad. Now that many countries, especially in Europe, have enacted their own national legal codes regarding war crimes, they could face arrest abroad.

That was what happened to Major General Doron Almog in 2005. As the head of the Israeli military's Southern Command, Almog had signed off on various "targeted killings," including an operation on July 23, 2002, when 15 people died after a 1,000-kilo bomb was dropped over Gaza City. When Almog, now retired, flew to London, he discovered at the airport there that an arrest warrant for war crimes had been issued against him. The major general never left the aircraft, and returned to Israel without incident.

Translated from the German by Christopher Sultan

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