By Laura Zuber
Impunity Watch Senior Desk Officer, Middle East

JERUSALEM, Israel – On March 3, Israeli Defense Forces (IDF) withdrew its ground troops from Gaza.  However, Israeli soldiers remained close to Gazan border and a senior Israeli official was quoted as saying there would be a two-day interval in the combat during the visit of the US Secretary of State, Condoleezza Rice.  While Hamas claimed victory over Israel, Prime Minister Olmert stated that the operation in Gaza was not over and that Israel remains “in the midst of a combat action.”

On March 4, the US Secretary of State will visit the region to encourage peace talks between Israeli Prime Minister Olmert and Palestinian President Abbas.  However, on March 2, Abbas stated that he withdrew from the talks in protest to the Israeli operations in Gaza.  Abbas’s statements on March 3 seem to suggest that he is willing to mediate cease-fire talks between Israel and Hamas.

The withdrawal marked the end of a six day operation, beginning on February 27.  According to B’Tselem, an Israeli human rights organization, the operation resulted in the deaths of 106 Palestinians and 3 Israelis.  The Israeli chief of staff’s states that 90 percent of Palestinians killed were militants.  However, B’Tselem reports that 54 Palestinians killed did not take part in the hostilities.  Of those 54 Palestinians, B’Tselem states that 25 were minors.  Of the Israeli deaths, one was a civilian, killed by a rocket in Sderot, and two were soldiers.

Both B’Tselem and Amnesty International raised concerns that the Israeli military “used excessive and disproportionate force” and that it failed to discriminate between combatants and civilians.  Malcolm Smart, director of Amnesty International’s Middle East and North Africa Programme, stated that the strikes went “beyond lawful measures which Israeli forces may take in response to rocket attacks by Palestinian armed groups.”  B’Tselem wrote if the strikes used indiscriminate and disproportionate force, they “may constitute a breach of the laws of war.”

Following the withdrawal of Israel’s ground troops, Defense Minister Ehud Barak met with a team of legal experts to discuss the legality of alternative methods to respond to the Palestinian rocket fire.  The meeting included Justice Minister Daniel Friedmann, Attorney-General Menahem Mazuz, IDF Military Advocate General Brig.-Gen. Avichai Mandelblit, Deputy Attorney-General Shai Nitzan and the members of the Defense Ministry’s Legal Adviser’s office.

One issue that Israel faces when responding the rocket threat from Gaza is that many times the rockets are fired from civilian homes or heavily residential areas.  According to Yedioth News, it is Israel’s policy not to target Gaza’s densely populated areas and this policy is a weak point in stopping the barrage of rockets.  The purpose of the Barak’s meeting was to pose several different options in addressing the rocket threat and to hear the expert’s opinion on their legality.

Some options that were suggested include:

• Use of artillery fire targeting rocket launching cells in densely populated areas.  However, artillery fire was used in the past and its practice greatly decreased following several incidences where civilians were killed.
• A series of alerts aimed at areas used for rocket fire to warn civilians to evacuate the area.  Only after the warnings are issued may live fire be used to target buildings where rockets are launched.
• Simply destroying, usually by bulldozer, buildings used by militants groups to launch rockets.
• Power cuts to Gaza and the restriction of fuel supply.

Barak stated that while its methods may be limited by legal constraints, Israel must find a way to respond to the rocket strikes.

There are differing views as to who bears the responsibility for the civilian causalities.  Israel’s Foreign Ministry placed the blame on Hamas.  It claimed that “the deliberate placing of military targets in the heart of civilian areas is a serious violation of humanitarian law, and those who chose to locate such targets in these areas must bear responsibility for the injury to civilians which the decision engenders.”

However, others argue that despite the fact that the enemy may violate the laws of armed conflict and target civilians this does not mean that Israel is no longer obligated to refrain from causing deliberate or disproportional harm to civilians.  Amnesty International stated that no party should attack civilians; however, “unlawful attacks by one side cannot justify violations by the other.”

For more information, please see:
The Guardian – Olmert Warns of More Fighting Soon as Israel Pulls Troops out of Gaza – 4 March 2008

Ha’aretz – Barak Seeks Legal Okay to Move Gazan Civilians from Homes – 4 March 2008

Ha’aretz – Rights Group: Close to Half of Palestinians Fatalities in IDF Operation were Civilians – 4 March 2008

Wall Street Journal – Israeli Troops Withdraw from Gaza as Leaders Face Difficult Decisions -4 March 2008

Amnesty International – Children and Civilian Bystanders in Gaza Death Toll – 3 March 2008

Jerusalem Post – Barak Checks Legality of Options Against Rocket Fire – 3 March 2008

Yedioth News – Defense, Legal Experts Debate Legality of Strikes in Populated Areas – 3 March 2008