A Gaza exchange: Gazette guest columnists debate issues of international law

Last modified: Wednesday, August 20, 2014
EDITOR’S NOTE: Last week on this page, the Gazette published guest columns by Howard Friel of Northampton (Aug. 11) and Mordechai Kamel of Easthampton (Thursday). Friel is an author and Kamel is a retired surgeon who now practices public-interest law. Both addressed the conflict between Israel and Gaza. Today, we present a continued exchange between the two on this topic.

First, Friel had use of 300 words to reply to Kamel’s critique of his original essay. Then Kamel responded in the same length. Each then had one more chance to reply to those comments with 150 words. Last week’s columns remain available on GazetteNET by searching under the author’s name.

Howard Friel

Mordechai Kamel highlights a July 30 assertion by Israeli writer Amos Oz that Hamas had used civilians in Gaza as human shields, implying that Oz’s point legally and morally absolves Israel’s killing of civilians in Gaza. I note the letter to Israel’s attorney general, Yehuda Weinstein, signed on July 21 (and thus prior to Oz’s statement) by 10 Israel-based human and civil rights organizations, which asserted that “the level of injury to noncombatant civilians as a result of these [Israeli] strikes raise serious concern of severe violations of international humanitarian law, and specifically the laws of war.”

On Aug. 12, the Israel-based B’Tselem reported: “Airstrikes on homes formed a major part of the policy implemented by the Israeli military from the start of this bout of fighting in Gaza.” And: “Whoever authorized the strikes [on homes] must have known that they would result in many civilian fatalities, yet the bombardments continued day after day and even intensified.”

Given Israel’s policy of bombing homes in Gaza, is the massively disproportionate number of civilian casualties in Gaza the legal and moral responsibility of Hamas, even assuming Hamas’ own unlawful use of human shields? B’Tselem’s response: “Israel is wrong in shirking responsibility for the consequences of its actions and in laying them at Hamas’ door …. One party’s breach of the law does not give the other party carte blanche to do so.”

Furthermore, as a U.N. member state obliged to comply with the U.N. Charter, Israel invaded and bombed Gaza in violation of the charter’s most important rule — the prohibition of force. Under the Nuremberg precedent, violation of this rule is “the supreme international crime” which “contains within itself the accumulated evil of the whole” — a reference to the Nazi resort to armed invasions and the subsequent mass murder of Jews throughout Europe.

Mordechai Kamel

In Friel’s closing, he refers to the “Nuremberg precedent” as evidence that Israel has committed war crimes.  However, the Nuremberg Principle, VI(a) defines Crimes against Peace as “(i) Planning, preparation, initiation or waging of a war of aggression or .…”; Acts of aggression were defined by the UN General Assembly in Resolution 3314  on Dec. 1, 1974, as armed invasions or attacks, bombardments, blockades, armed violations of territory … and the employment of armed irregulars or mercenaries to carry out acts of aggression.

Israel’s invasion of Gaza was a response to “attacks, bombardments … armed violations of territory … and the employment of armed irregulars … to carry out acts of aggression” in Israel. Friel’s misuse of the Nuremberg principle ignores Hamas’ acts of aggression, while denying Israel the right of self-defense, when its citizens have been threatened daily over a prolonged period from an internationally recognized terrorist organization. 

Israeli organizations, like ACRI and B’Tselem, and Israeli citizens, should hold their democratically elected government to the highest standards of conduct in both civil rights and war. Israel may have placed too many civilians in harm’s way, but it was a war against irregular, un-uniformed forces embedded in, commanding and firing from civilian areas. Israel claims, and there is at present no reason to disbelieve that claim, that the Israeli Defense Forces went out of its way to avoid civilian casualties, which heartbreakingly occur in every war. 

Friel has singled out Israel for criticism, while ignoring the brutal wars that have been waged in Russia, Syria, Sudan and other parts of the world. The UN has used a double-standard to demonize Israel, while ignoring international human rights abuses by other nations. Both the UN World Conference Against Racism and the General Assembly have singled out Israel with “Zionism is Racism” resolutions. Such double-standards are blatantly unfair.

Friel responds

The U.N. General Assembly resolution that defines “aggression,” while citing the U.N. Charter, states that “the [U.N.] Security Council … shall determine the existence of any threat to the peace or act of aggression and shall … decide what measures shall be taken.” Israel by itself defined “aggression” and by itself decided to invade and bomb Gaza without Security Council authorization. If Israel can do this legally, as Kamel asserts, then any country can. But Israel cannot do this legally. Nor can any other country.

On Aug. 15, the UN reported that the Israeli military killed 1,417 civilians in Gaza (459 children and 239 women) with three Israeli civilians killed, and that Israel “totally destroyed” more than 8,800 housing units in Gaza, “severely damaged” 7,960 more and caused “major damage” to another 5,635. In addition, the Israeli military “entirely destroyed” 25 schools. Yet Kamel writes that Israel “went out of its way to avoid civilian casualties.”

Kamel responds

Article 51 of the UN Charter provides for the “right of individual or collective self-defense if an armed attack occurs ….” There is no justification for applying a double-standard by denying that right to Israel.

The death of civilians during war is terrible and heartbreaking. Israel may have made mistakes during the current conflict, but its actions do not warrant the almost universal condemnation it has received from a world that is silent in the face of atrocities in Chechnya, Sudan, Syria and other countries, that have claimed millions of civilian lives.

I wonder: What are the reasons that Israel is judged so differently from the rest of the world? Some say it’s because Israel is an ally of the U.S., but so are Pakistan, Iraq, Turkey and a host of other countries that kill civilians. There is one difference. Israel is a Jewish state. I believe that helps to explain the double standard.