It’s time for the United Nations to consider the morality of its Gaza Reconstruction Mechanism.
Military historians tell that the first rockets appeared on the battlefields of central Asia, in the Mongols’ 13th century invasions of the Chinese and the Eastern European fringe, as they burst from the steppes like a force of nature.
Adapting Chinese black powder fireworks, they added the innovation of hollow tubes that could travel over enemy lines, run out of burn-fuel, fall and burst. Seven hundred years of development brought the 1969 Moon landing, intercontinental ballistic missiles, and not incidentally, telemetry computing, which makes possible the GPS miracle in everyone’s pocket. In the 1960s, every high school in the United States had a model rocket club dedicated to the art of flight … the whizz and the bang of boyhood.
Two weeks ago, a small rocket, just over a metre in length, sailed from the north end of the Gaza Strip, flew for a few seconds, sputtered and fell to earth leaving a scorched patch of asphalt on a street outside the Israeli town of Sderot.
A crude affair
A crude affair, it lacked any guidance capability, or telemetry control, or significant destructive power and, like its 13th-century predecessors, was a “burn out and fall” style of rocket.
Photos of the impact site show Israeli policemen standing around what looks like crumpled light-weight metallic industrial tubing, broken in pieces, with the road surface blackened, but not otherwise damaged.
The Israeli army reported that 10 residents of Sderot were treated in hospital as a result, “for anxiety attacks”, suggesting an underlying public health problem of uncertain dimensions among the town’s nervous residents.
A Salafist group, the Grandsons of the Companions of the Prophet – an aspiring Islamic State franchise – at least some of whose members had only recently been rounded up by Hamas, Gaza’s governing authority, claimed responsibility in a statement in Arabic and Hebrew, openly mocking hardline Defence Minister Avigdor Liberman.
Well, as with our hobbyist model rocket clubs, one might conclude “Boys will be boys”, even in Gaza, the world’s largest open-air prison camp … now in its 11th cruel year of total blockade and crippling privation at the hands of Israel’s military machine.
Predictably, Israel retaliated within hours with artillery and air strikes and, over the next week, with pre-dawn waves of F-16 attacks against Gaza … wounding several residents while destroying private homes, agriculture, commercial and government buildings in densely populated urban areas … and sparking a fire in Gaza City that burned down a block in the al-Tufah neighbourhood.
Under Article 33 of the conventions, an occupying power may not inflict any mass punishment on occupied people and states plainly, in broad language, a simple test for the war crime ...
It was a minor miracle that there were not dozens dead. While the Israeli army cited Hamas’ “terror infrastructures” as their explicit targets, it acknowledged simultaneously that it can’t be expected to “…go after every little group in Gaza with a couple of dozen members that goes out one night and fires a rocket,” so instead will target and punish Hamas’ rule, as well as the citizens of Gaza, holding Hamas accountable as “… the sovereign in the Gaza Strip, which bears responsibility for every terror incident emanating from it”.
Right to strike?
A similar round of retaliatory strikes occurred in August following an earlier rocket launched by a different lone wolf from the north end of the Strip.
Western press reporting on the air strikes and their rationalisations gave a group-think nod of assent, as if to say, “Yes, of course, Israel is justified”, while passing silently over Israel’s admission of Hamas’ “sovereignty” short of statehood.
Yet it is important to situate the official Israeli position that it has a “right” to strike the governing authority of Gaza and its residents in retaliation for the offending acts of individuals within international law. All the elements of collective punishment are present in these air strikes and, thus, it constitutes a war crime by legal standards.
The Geneva Conventions of 1949 added collective punishments to its list of war crimes as a direct response to calculated attacks made by World War II occupying powers – notably, Nazi Germany and fascist Japan – against citizens to terrorise populations into obeying the occupier or as reprisal violence against innocent parties, meant to snuff out organised resistance to occupation.
The German SS relied on this tactic, infamously in the Warsaw Ghetto and at the Ardeatine Caves, when Nazis occupying Rome took revenge against Italian partisans by selecting 10 Romans for every SS policeman killed in a bombing, executing 335 Italians in a single massacre.
Yet collective punishment need not be so blatantly lethal or even so mathematically quid pro quo. Under Article 33 of the conventions, an occupying power may not inflict any mass punishment on occupied people and states plainly, in broad language, a simple test for the war crime:
Article 33. No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.
Pillage is prohibited.
Reprisals against protected persons and their property are prohibited.
Gazans, as an occupied population, fit the definition of “protected persons”.
The occupier’s duties
Further articles in Section III (“Occupied Territories”) of the Convention set forth the occupier’s duties, including maintenance of infrastructure for medical, health and hygiene, non-interference with food and necessities and the protection of private property from destruction.
In general, the Conventions constrain the occupying power from mistreating those under occupation in any way and generally imposing upon it the duty to care for occupied persons under military rule.
Zionism’s enablers and protectors love to argue that, because Palestinians have no state, Israel has not been at war with them all these years and that, as non-state actors and stateless citizens, Article 33 is irrelevant and, therefore, the Geneva Convention is inapplicable.
Zionism's enablers and protectors love to argue that, because Palestinians have no state, Israel has not been at war with them all these years and that, as non-state actors and stateless citizens, Article 33 is irrelevant and, therefore, the Geneva Convention is inapplicable.
Alternatively, if they grudgingly call Gaza a de facto state, it is only to claim that Israel does not occupy Gaza after its 2005 withdrawal from the Strip and that the total blockade and military control over Gaza and its residents do not constitute an occupation, thus, they are free from the onus of law placed on occupying armies.
In reality, Israel’s withdrawal from Gaza took place after years of resistance. Its former regime of military rule and Jewish settlement of Gaza has since been replaced by a de facto occupation through a complete blockade of land, sea and air, with total economic subjugation of the Strip.
All exchange of goods, food, medicine, energy, drinking water, travel and outside contact chokes down to a single checkpoint which can be closed on a whim. Gaza does not possess a “free” seaport, airport, or any freedom of travel, in or out, not directly controlled by the Israeli military. In other words, it is occupation by other means.
By international law, according to Rule 149 “Responsibility for Violations of International Humanitarian Law”, Israel’s explicit October admissions that it targeted Hamas, a governing entity, and the residents of Gaza, protected persons, in retaliation for acts by individuals they acknowledge are unconnected to Hamas (or, for that matter, to other Gazans), is simply and plainly a war crime.
Israel’s startling admission
As recognised by the applicable International Red Cross covenants, a state itself can only be held accountable for acts it carries out directly, or subrogates to others, or permits others to carry out. Any nexus connecting Hamas to the Grandsons is here absent.
Whether or not Israel recognises Hamas as a state entity, Hamas bears no responsibility for rogue actions by individuals striking at Israel and has, in fact, arrested and punished “lone wolf” attackers.
Moreover, Gaza’s residents bear no collective responsibility for individual acts. The standard here is clear and Israel’s startling admission should trigger prosecution.
This latest crime stands at the front of a long line of war crimes for which Israel must be brought to account. Since the late 1980s Israel has used reprisal attacks on the Palestinians of the West Bank and in Gaza as a means for enforcing its larger agenda of conquest, subjugation and annexation, in contravention of international law.
As a simple thought-experiment, imagine the inverse: individual Israelis have for many years acted with terrorist violence against Palestinian communities in the West Bank and Gaza.
Should the Israeli state apparatus, its military and cities, have been targeted by Palestinians in justifiable reprisal?
When Baruch Goldstein killed 29 worshipers at the Ibrahimi Mosque in occupied Hebron; or when 16-year-old Mohammed Abu Khdeir was kidnapped and burned to death by settlers in East Jerusalem; or when rampaging Hebron settlers in 2008 burned Palestinian homes; or when settlers in the autumn of 2013 cut down or burned more than 1,000 olive trees in Palestinian-owned groves, should each of these crimes have justified attacks on Israeli targets?
No one countenances the idea that Palestinians have a legal “right” to reprisal attacks. The Israeli state was expected in each case to apprehend the Jewish criminals and prosecute them. Hamas, in fact, had been active in doing just that by arresting members of the Grandsons only the month before.
Israel’s point in claiming it has the “right” to launch million-dollar F-16 sorties against Palestinian property, wounding Gazans, fails any legal test. Home-made $100 rockets from the 13th century hardly pose an existential threat. Israel’s disproportionate response seems once again intended to collectively punish Gazans for any vestige of resistance.
This may make Defence Minister Lieberman stand taller in the eyes of his right-wing constituency, yet simultaneously, his increased stature surely makes him the obvious target of who to put in the dock should international war crimes law ever be applied.
Stanley L Cohen is a lawyer and human rights activist who has done extensive work in the Middle East and Africa.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.