ORG.NO 993 965 847
OSLO- PARIS – BRUSSELS - GAZA – LEBANON
A STATEMENT ISSUED BY THE INTERNATIONAL COALITION AGAINST WAR CRIMINALS ISSUED ON 30/7/2009 IN RESPONSE TO THE REPORT OF THE ISRAELI FOREIGN MINISTRY ON THE WAR ON GAZA.
the Israeli Foreign Ministry Issued a report consists of 174 pages in which the Ministry refutes legally the real issues of the military operation(the poured bullets) where the report's preamble indicates that the Israeli army is still engaged to conduct comprehensive field and criminal investigations due to several complaints concerning the conduct of his forces during the process of (the poured bullets), stressing that the General Deputy for military affairs will examine these complaints to be examined lately by the Attorney General of the State, as well as they could be submitted to the Israeli Supreme Court as the Supreme Court of justice.
· Hence , The International Coalition Against War Criminals(ICAWC) confirms the following:
The report does not mention from its start until its end the decision of granting immunity made by the Israeli cabinet at its meeting on 25/1/2009, concerning providing legal protection to all those who are involved in the attack on Gaza, like officers, soldiers and civilian leaders where the Israeli cabinet declared: (the State of Israel will fully support all those who acted on behalf of it, and the soldiers and commanders who were sent to the task in Gaza must realize that they are protected from any prosecution, and the State of Israel will help them in this case, and would defend them as they defended us with their bodies through the operation of poured bullets) and this is contrary to the credibility of any claim to make any investigation.
The International Coalition Against War Criminalsbelieves that the Israeli military deputy and the general prosecutor of the State of Israel are not qualified to investigate any complaint related to the war on Gaza, where they ( based on the independent investigations of the Alliance) are wanted to attend before the international justice court as main partners in the war crimes committed in Gaza where they ratified and approved and were informed of violations.
The International Coalition Against War Criminalsbelieves that the Supreme Court of Israel and in the course of 61 years of occupation proved that it was not eligible for the adjudication toward the Palestinian grievances, as it is out of 142000 petitions and complaints presented by the Palestinians has been judged in favor 353 petitions which were individual cases.
The report of the Israeli Foreign Ministry has been emerged from the assumption that Israel has the right and duty to impose a military operation against Gaza Strip, adding that southern Israel has been subjected between the years 2000-2008 to more than 12000 rockets and mortars, including that more than three thousand were shelled only in the year 2008 , while the Palestinian factions are still capturing the Israeli soldier Gilad Shalit without preparing a visit to him by the Red Cross.
· The International Coalition Against War Criminals assists here ,impartially, that it does not support any violation against the international law by any party, and every violator of the international law must be subjected to questioning, but the Israeli report mentioned some points and forgot others including the following:
Israel also fired Between 2000-2008 more than 500000 projectiles and missiles against Gaza Strip and more than 25 million bullets of various kinds, while in the last days of the year 2008 , Israel dropped more than half a million kilograms of explosives .
- Israel is also holding more than ten of thousands of Palestinians, including women and children in difficult circumstances, there are hundreds of human rights reports criticizing the methods of detention in Israel and their contrary to the international law
The number available to the Coalition and based on investigations of experts in the coalition is only 982 rockets and mortars in 2008, fired from the Palestinian areas against Israel and this does not justify the harm to civilians the Israeli side, but Israel should be subjected to a legal process that evaluates for the legal status of its south where:
Israel says that this area is a basic part of the state of Israel ,but the international law and another point of view say that:
the Palestinian National Authority's signature on Oslo agreement with Israel, Is not or a final solution or final agreement for the demarcation of borders and as long as there is no final agreement between the parties ,the demarcation will be the international law's duty and to which the Supreme Court of Justice related in its resolution on the wall where the Court said that as long as no final agreement on the border ,the only reference will be the partition resolution, which divides the land into a Jewish state and an Arab state , and according to the partition resolution, all the towns touched by the Palestinian rockets are in the Arab State and the Coalition argues here that Israel had committed an offensive crime by transferring its civilian population to fired areas and settling them a land of another people while this is against the rules of the international law and plunged the Israelis at the height of a political-military conflict through a serious violation of the rights of its citizens. During an inspection visit by the Israeli Defense Minister Ehud Barak to Ashdod after shelling it by the Palestinians rockets he said, " we settled you here because we know that the civilian settlements are more important than military settlements to Israel's security, the Coalition argues that all this does not absolve the Palestinian factions of responsibility for the harm of the Israeli civilians .
The report noted that all soldiers, officers and commanders were being trained in accordance with the rules of the international humanitarian law and most probably the coalition suspects this for many reasons, the most prominent reason poses that the Israeli army for more than fifty years was the subject of constant criticism from all human rights organizations in the world and there were violations also inconsistent with any values of the international humanitarian law , the most important of which including:
Rabbis inciting the army to commit violations against the population of Gaza:
The investigation revealed by the Israeli press reported that the soldiers aged between 18 and 21 years old (the regular army)were subjected before entering Gaza Strip and since the start of the military campaign to incitement by the rabbis, telling them that they may kill children, women and do destruction of houses over the heads of their dwellers without significant intervention from the army commanders to stop the campaign of incitement that is contrary to the international law, and one of the soldiers asked the rabbis who came to teach them to send their opinions to there commanders to be applied in the war and they promised (the rabbis) to do so and did not fail their promise where a journalist report revealed that the rabbi "Mordechai Eliyahu," who is described as a big religious commander in the National Religious Movement in Israel had sent a letter to the Prime Minister Ehud Olmert and to all the leaders of "Israel ",and he mentioned the story of the massacre, which " Shechem son of Hamor, was exposed to "which appeared in the Book of Genesis, as evidence of the biblical texts that allows the Jews to practice the collective punishment policy towards their enemies and in accordance with the ethics of war.
Eliyahu, who served in the past as the big eastern rabbi of Israel, in his letter: "The same criterion can be applied in Gaza Strip; as they bear the responsibility for all its inhabitants, they did nothing to halt the firing of Qassam rockets."
He called Olmert to launch a military campaign against Gaza without mercy, saying that "attacks on innocent Palestinian citizens is legal."
At the time, in which he allows the cause of collective punishment on the residents of Gaza to punish the individuals for their errors, Eliyahu affirms the sanctity of endangering the lives of Jews in Sderot or the lives of soldiers, for fear of injuring or killing the noncombatants Palestinian living in Gaza.
In the context of these inflammatory opinions also, the newspaper "Haaretz" mentioned the advisory opinion of Rabbi "Yisrael Rosen" - President of the Institute of Tzomet and one of the main rabies of Israel , which has already been issued in the twenty-sixth of March last year that "a great judgment should be applied on each one who bears the hatred of Israel inside himself. "
According to the advisory opinion of Rosen that "the rule of the Torah provides for the killing of men, children and even babies and women and the elderly, and even crush the animals."
Even if one million of them were killed.
The chief rabbi of Safed "shlomo Eliyahu" said, "If we kill 100 while they don't stop, it was necessary to kill 1ooo of them, and if we killed 1000 and they did not stop we would kill 10 thousands of them, and we must continue to kill them even if a million of them dead, and continue to murder and no matter how long does it take. "
Eliyahu added, "Psalms say: I will continue to pursue my enemies and apprehend them and will not stop until I eliminate them."
And a number of rabbis also endorsed on the religious edict permitting the Israeli army shelling the residential areas in the Gaza Strip, pointing out that the army shell the areas from which rockets in Gaza are launched, but only after giving the population a time for evacuation. "Among the rabbis who endorsed the proposal, the Chief Rabbi of the ultra-Orthodox party(Shas), the rabbi Ovadia Yosef.
As it was stated by Rabbi "Avi Rontski" that the Torah permits the bombing of the Palestinian homes from the air on the heads of their owners, and it is not enough to shell only the locations of bombarded rocket fire, the fact is imposes to shell the active persons in their beds and in their homes. During his visit to the soldiers in training sites. The Chairman of the rabbis of settlements in the West Bank Rabbi Dov Lior said " it is permissible to kill the Palestinian civilians", and he was shared in opinion by the President of the Municipal Council of the City of Jerusalem.
That was the language through which rabbis instigated the young soldiers before the start of the military operation, in consequence, a campaign of interaction began in the Israeli society after these Comments. According to a study issued by the Department of Social Sciences at the University of Bar Elon in Israel "More than 90% of those who describe themselves as religious men believe that if a contrary occurred between the steps taken by the Israeli government and between the view of the rabbis, the opinion of the rabbis has to be applied . As the study noted that" more than 95% of the religious soldiers confirmed that they do not have to obey military orders issued to them without being consistent with the religious opinions issued by rabbis and religious authorities.
Despite this, there has been no formal action from the leadership of the Israeli army while the rabbis visits were done with the consent of the chief of staff according to the law and the approval of the unit commander, in addition to that, the Israeli army appointed a rabbi to each unit without any censorship of the statements issued by him, which led to the creation of hatred by the officers and the soldiers reflected on the their actions later in the operation and before it. The Experts in the alliance believe that the actions of the rabbis were tantamount to war crimes and everyone involved should be tried, as well as the alliance sees the failure to prevent the rabbis deeds by the Israeli government is considered as a full effective participation in inciting the killing of civilians and a war crime and constitutes and a direct violation to the clear and explicit elements of war crimes which were adopted by the Assembly of States Parties in the Rome Statute of the International Criminal Court in its first session held in New York during the period from 3 to 10 September 2002, and in particular those contained in Article 8.
The actions of the soldiers before the operation:
The young soldiers who were exposed to a campaign of incitement began to act on the basis of hatred and the necessity of ethnic eradication , so they brought some kinds of clothing to the military bases incite to kill children. The investigations revealed that they were wearing them during the war, even though the Army laws do not allow to bring along any kind of clothing without a previous permission by the unit commander, and the investigation revealed that these clothes were prepared in factories and printing houses belong to the Israeli army and at the expense of the budget of the units, and contained very dangerous words and constitute bases for the crime of war committed by the Israeli army as it had a prior knowledge of what is being conveyed between the soldiers and the serious words contained in the clothing.
The report addressed the Israeli violation to the cease-fire truce by a simple manner, claiming that the Palestinian factions had penetrated the truce without considering the facts. Here , The International Coalition Against War Criminals would like to demonstrate the following:
During the truce period, Israel carried out 162 violations of the truce, the dangerous and the most famous was on November 4, 2008 where the Israeli forces carried out a raid that killed six members of Hamas militants. Hamas also considered that Israel was not abide by the truce in terms of ending the siege imposed on Gaza Strip. After November 4 attack tension escalated and Hamas responded by firing homemade rockets at southern Israel, the mutual strikes did not calm in the period which followed. Before the truce agreement expires with the Palestinian factions on December 19, 2008,the Palestinian and Israeli human rights centers published an inventory of the Israeli violations of the truce, the information of this inventory proved by the coalition confirmed that there were162 cases of violation in Gaza strip, ranging from killing 22 Palestinians, including civilians and injuring 62, including nine fishermen and farmers and the arrest of 38 people. In the West Bank, the number of the Israeli violations reached to 1260, where 21were killed including militants and civilians and 245 Palestinians were wounded, most were injured during demonstrations against the separation barrier, while the Israeli occupation forces arrested 1111 of the Palestinians there. From their part, the International Solidarity Foundation for Human rights organizations in Nablus in a report published on December 20, 2008, mentioned that the Israeli forces killed more than 50 Palestinians in West Bank and Gaza during the truce period, and pointed out that Israel has committed many violations of the agreement including the arrest of 1586 Palestinians, mostly from the West bank and demolished more than 60 houses and protest tents for the Palestinian citizens, mostly in the cities of the West bank. The Foundation also documented the repeated attacks on the Palestinian journalists and the confiscation of land and escalating the pace of settlements and the establishment of military checkpoints and cut cities and other practices deemed incompatible with the treaties of human rights organizations.
The report made abundantly clear that Israel had opened crossings for humanitarian needs during the war, ignoring what happened during the preparation of the operation ,and the coalition rejects categorically restricting the operation in 22 days but that the operation was preceded by the preparation and arrangement and all that entered by Israel during the war did not fulfill 10% of the people's needs and the alliance here demonstrates the circumstances of the closure before the military operation:
The restrictions on the movement of people and goods to and from Gaza are not economic sanctions as the Israeli government claimed as they were not also siege or isolating , according to the items used by Israeli responsible , but the closure was imposed for the purposes of collective punishment, and therefore the closure imposed by Israel and is still illegal according to the international law and those who are responsible for enforcing it deserve to trial ,and in accordance with the international law, the closure imposed can not be compared to economic sanctions such as those applied against sovereign States or to military blockade to occupy a certain area or to prevent accessing weapons, it was clear and obvious and declared that the purpose of imposing a closure on Gaza Strip, as well as the conditions of such imposition indicate that the purpose is the pressure on the civilian population in the Gaza Strip in order to influence the behavior of the gunmen who rule over them in multiple ways and may be mostly against their will and that means punishing civilians protected under the rules of the international law on real acts committed by the Palestinian resistance and pushing this dangerous for the civilian population in military / political conflict while they did nothing.
· There is no an obvious target for the siege: the siege is defined as the process of encircling a certain area to forcing it to surrender and the target of the embargo since the beginning of history was always the imposition of surrender, and through Nuremberg trials , it was approved by the International Tribunal that the siege can not be legitimate unless the blockade was imposed on enemy territory forcing them to surrender and the brochure of the U.S. military field army in 1956 which explain in details the laws of war gave a similar definition of the siege , so to regard any process as siege, the ultimate aim must be to force the other side to surrender, and the international law tolerates some damage of civilians in time of the blockade when the embargo has a clear military objective to be achieved and when this done, the siege must be ended and be compensated for the consequences of civilians ,and the Israeli closure around Gaza Strip was not aiming at getting the other side to surrender ,and the Israeli government announced in more than one occasion to the international community that it has no intention to reoccupy Gaza, but the restrictions imposed by Israel on Gaza did not include the humanitarian protection of the civilians, as has been clearly defined in the Guide of the law of armed conflict issued by the British Ministry of Defense, which stipulated the protection of civilians and never starving them during the siege, and compensate them for any damage and rid them of the results , beside this there are restrictions established by the international law requires that the embargo targets the military units, primarily for a certain period to get them to surrender, and Israel did the opposite by using the civilians as a pressure on the fighters who were not willing to surrender as much as Israel's willing to make them as policeman protect its borders as a condition for not harming them and Israel did not compensate civilians for any harm caused to them and refuses to do so and passed a law prohibiting civilians from demanding the courts to seek redress. shortly, the Coalition sees that Israel had used the protected civilians as a pressure on Hamas and plunged them into the furnace of the conflict in which Israel can not Extinguish it militarily, and caused them a long-term suffering which is difficult to remove its spots , while it did that through flagrant violation of the basic international law, which prohibits collective punishment and causing damage to the protected civilians and the ICAWC therefore considers that all who participated in this closure are required to appear before the courts on charges of crimes against humanity like the starvation and intimidation of civil society and the alliance will subsequently prepare a blacklist of all those who participated in the closure to be prosecuted .
It is impossible to consider the actions carried out by Israel against Gaza Strip as a siege or isolating, but it reached to a higher degree of segregation, while the blockade and isolation are similar to each other that both are aiming to deprive the opponent of the supply for combating operations in time of conflict as defined by the Additional Protocols of the Red Cross issued on June 8, 1977 and the subsequent definitions in the Geneva Conventions of 12 August, and also which is applied on the isolation is applied on the embargo to impose surrender on the other side through various means, including to prevent the enemy from obtaining weapons that would strengthen its ability according to the international law ,but The Israeli closure targeted the civilian goods, food and not the military supplies, and it did not allow one day for the Palestinians even in the best periods of calm between the parties to passing such necessary needs, beside this it originally do not control the means of smuggling of arms ,in which the Israeli Mafia shares of 40% of the value of arms inside Gaza and exchange them for drugs through corrupt Israeli officers of the army and there are many evidences of this. The withholding of food, is not a necessity but a flagrant violation so that there is no possibility of 0% to use the milk which was prevented by Israel for military purposes and the closure imposed by Israel cannot be considered as economic sanctions as Israel tried to claim in more than one occasion. The Israeli army has identified the amount and the type of food allowed to the people of Gaza such as fresh meat "once every month" and followed a policy announced by Israel's defense ministry in a press statement as follows :(our supplying of food to Gaza Strip is not distinguished as a humanitarian nature and does not allow giving them food quantities exceeding the humanistic needs), a strange logic gets the men of law into a whirlpool never considered previously by the international law . Since the Israeli announcement through the Ministry of Foreign Affairs on September 19, 2007 which considered Gaza strip as enemy ,Israel tried to convince the world that it imposed sanctions on Gaza While ICAWC finds that all that is done by the Israeli government and what it is doing not in line with the legal definition of the rule of sanctions or even the requirements of imposing sanctions unilaterally, as the basis to impose sanctions on countries and entities is the task of the international organizations decision of one country against another to impose the ban and prevent access to blood and the definition of the sanctions agreed norm in international law it is the decision in such cases is not taken by one country against another by imposing a siege, while this decision according the international law concerning the definition of sanctions ,is taken by the group of nations which cut off trade or impose certain measures on another country or entity possesses the characteristics of the state to achieve a specific aim by change the behavior of such State or entity and the UN Charter allows the Security Council or a regional organization composed of several countries to impose such sanctions as Article 41 of the Charter which mentions economic alternatives to be used instead of a war to compel a country to certain conduct , and the use of the measures contained in Article 41 of the Charter of the United Nations is not considered legal unless the UN Security Council approved that the target State or entity make a threat in according to Article 39 of the Charter itself, which means that what Israel committed did not receive basic approval of the Security Council or even the regional organization, Israel excess of by its part, and took steps at the international level where the Israeli Foreign Ministry by informing all world countries that trade with Gaza, that it would not allow to complete the commercial transactions for security reasons in a letter sent in August to the Ministries of Foreign Affairs which have relations with Israel and Israel offered in separate letters some alternatives to what was agreed upon ,the thing that is considered the experts of the coalition as a secret intention to destroy the structure and composition of the economic community of Gaza Strip .
· The closure did not have a clear goal more than punishing the population even the actions carried out by Israel towards the population of Gaza are not implied within the unilateral sanctions policy which are originally unlawful, Israel has practiced the sanctions on the population through the control of the borders and not by the decisions of the suspension of the economic activities according to International custom and went in June to make the behavior strange as Israel controls the customs and tariffs of the Gaza Strip by deleting the customs code used to delivering the commercial goods reaching Gaza, effectively this made it difficult to define any material destined for Gaza, even the humanitarian aid needed definition access by the special coordinator for the areas in the Israel's defense ministry , while the reported investigations clarified that the fastest of these accesses was permitted after 5 months . The population received and more than time, humanitarian aids which have expired or have been exposed to the sun or wind or rain as a result of the long wait in the Israeli ports and cost companies and the humanitarian organizations millions of dollars of in the ports and all their prices were reflected on the agenda of purchasing for the citizens of Gaza, where the price of one kilo of flour reached to ten dollars in a community in which about 750000 people below the poverty line, not exceeding one thousand dollars as annual income mostly from aids and the rest of society lives in Gaza not exceeding 3600 dollars a year and a simple calculation ,the income per capita in Gaza, is not enough to buy flour throughout the year.
The absolute control of Israel on Gaza Strip imposes on it the responsibilities of the occupation and therefore the alliance sees that the Israeli government had violated by deliberate , planned and realization all Geneva Conventions concerned with the Protection of Civilian Persons in time of war issued on August 12, 1949, and had violated also the Fourth Geneva Convention articles (18 ) (21) (55) (56) (57) (59) (63), while The International Coalition Against War Criminals(ICAWC) accuses the Israeli Government of violating the First Protocol of the Geneva Convention issued in 1977, Article 69, as well as it deliberately violated the following international Laws:
- The right to life of the population of Gaza, contained in Article 6 of the International Convention related to the civil and Political Rights.(ICCPR)
-The right of the freedom movement of the population of Gaza contained in Article 12 of the International Convention on Economic and Social rights (ICESR).
- the right of the people of Gaza to get clean water contained in Article 25 of The Universal Declaration of Human Rights.
- The right of the people of Gaza in health contained in Article 12 of the International Convention on Civil and Political Rights (ICCPR).
-The right of the people of Gaza in a decent living conditions contained in Article 11 of the International Convention on Economic and Social (ICESR
-The right of the people of Gaza in protection against hunger contained in Article 11 b of the International Convention on Economic and Social (ICESR).
Israel has violated as an occupying power in Gaza the due rights of the protection of children contained in the International Convention on the Rights of the Child.
The International Coalition Against War Criminals considers, regardless of the status of Israel, that Israel would have applied the international principle which states: (All the competing sides and all contracting Parties must allow and facilitate the speedy passage to supplies convoys), and according to this item, even if this aid directed to the civilians from the competing party) as contained in the additional protocol to the Geneva Conventions on August 12, 1949 on the protection of victims from the international armed conflicts, and added on June 8, 1977 for the first Protocol in Article 70 (2) on the needs of applying these laws in areas which are not under the occupation and also Article 70 (5), which requires cooperation with the international aid programs in areas which are not under occupation .This obligation applies to all States whose geographical locations form the passage of the humanitarian goods from their territories. These countries are not entitled to reject the passage of the aid according to the protocol Comments in footnote 23, paragraphs (2824) (2825), but Israel violated also these rules.
· The comprehensive domination imposed by Israel on the movement of people, goods and food to and from Gaza does not fit and not in line with the legal definition of the embargo or isolation or sanctions. Israel controls Gaza Strip and its borders since 1967,and reduced gradually over the years the movement into and out of Gaza Strip , then closed the border in a final closure in June 2007 to punish the civilian population living in Gaza Strip in response to the behavior of the gunmen and the Palestinian resistance there. The International Coalition Against War Criminals believes that the ban is still in place until the moment of preparing the report of violating and flagrant disregard of the international humanitarian law which prohibits collective punishment, according to the Fourth Geneva Convention, Article 33 and what contained in the first protocol Article 75 (2) (d) and the prohibition of collective punishment, outside the context of the occupation as stated in the first protocol Article 75 (1).
The report concentrated in all its paragraphs in an attempt to create an excuse to harm the civilian population Gaza Strip, saying that Hamas had used residents as human shields and that the army tried to warn the population through hundreds of thousands of leaflets from the air and telephones and radio, saying that the warnings were issued for the population is originally legal form, and here the coalition would like clarify the following:
The Israeli army has asked people to go to the center of cities while they were not able to go meters away from their homes due to the severity of the indiscriminate shelling, and more than international official said that there was not a safe place in Gaza.
The places where the international agencies informed Israel as safe places had been hit without mercy.
The Report spoke at length, citing flawed decisions of the Criminal Court Yugoslavia's issue without mentioning the rest of the decision about the special cases of civilians ,and the coalition here aims to explain the following:
The normative framework:
- war activities are subjected to special provisions. Under these provisions, which recognized the fighting, as well as military needs, which are concerned with the interests of humanity from the intention to provide as much as possible to protect the rights of civilians who are caught in the war. It Can be found in the provisions of the fighting four central principles, are of critical importance in protecting the interests of humanity: the principle of the military necessity, the principle of recognition, the principle proportionality of and the principle of preventing unnecessary suffering.
The principle of military necessity:
- the provisions of the fighting allow to harm the interests of humanity only if the prejudice to serve the military need, any weakening of the enemy, or to make fighting stops. The weakening of the enemy's military forces alone can be considered as a legitimate military need, and not everything that would affect the war effort to the enemy.
The principle of recognition:
the principle of recognition is an expression of the principle of military necessity, requires recognizing during the fighting between insurgents and military objectives and between civilians and civilian targets. This principle prohibits to direct attacks against civilians and civilian targets. Derived from this principle an important base, whereby as long as civilians are not fighters, they are protected against every attack. Any attacks that do not distinguish between combatants and civilians and between military targets and civilians target, are prohibited. There are additional rules that reflect this principle: the prohibition of the use of means or methods of combat that could not distinguish between the objectives, the prohibition of considering military targets as one group and as one objective, the duty to clarify the nature of the target before the attack and the duty to warn as much as possible, in order to enable civilians to stay away from the target of the attacks.
The principle of proportionality:
It is not enough to select military bases as a target of the attack. The principle of proportionality asserts the prohibition of any military activity that might lead to the loss of facilities for people's life, touch the lives of humans, damage to civilian objects or all of these together, and be inflated of , and compared to the expected military advantage, principle of proportionality must be applied by considering means to ensure not damaging the facilities of people's life or property as a result of the attack while that exceeding the expected military advantage of the attack. If the collateral damage of the attack is exaggerated in, they must stop the attack.
- In accordance with the customary international law, the civilian is anyone who is not a fighter, so , who is a the fighter? This group includes, of course, members of the army in which includes persons who meet the conditions specified in item 1 of the Regulations annexed to the Treaty of the Lahai Convention IV -1907. These regulations asserts the following:
The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
i. To be commanded by a person responsible for his subordinates;
ii. To have a fixed distinctive emblem recognizable at a distance;
iii. To carry arms openly; and
iv. To conduct their operations in accordance with the laws and customs of war.
In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination "army."
Members of the armed struggle organizations who are not members of the Army and who do not meet the conditions specified in Item 1 of The Hague Regulations are not combatants but civilians. However, the international judiciary recognized the reality in which civilians, in armed conflicts, participate in the fighting on the one hand, and enjoys the immunity available to them as civilians on the other hand. Accordingly, the customary international judiciary determines that the Civil directly involved in hostile activity does not have at the same time the right of protection.
"Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities".
Accordingly, there is nothing in international justice determines that all members of the organization of the armed struggle would lose the protection given to them as civilians, and that what was determined in the International Tribunal concerning the war crimes in the former Yugoslavia. ICTY states that:
"The Trial Chamber finds that it is the specific situation of the victim at the moment the crime was committed that must be taken into account in determining his or her protection under Common Article 3. The Trial Chamber considers that relevant factors in this respect include the activity, whether or not the victim was carrying weapons, clothing, age and gender of the victims at the time of the crime. While membership of the armed forces can be a strong indication that the victim is directly participating in the hostilities, it is not an indicator which in and of itself is sufficient to establish this. Whether a person did or did not enjoy protection of Common Article 3 has to be determined on a case-by-case basis.
The International Coalition Against War Criminals Sees that it is not the right of officers and soldiers change the civilian character of civilians in Gaza and in response to the report, the coalition shows the following:
When do we consider that the conditions of the exception that tend to cancel the civil protection are available? The International Committee of the Red Cross, which conducted a thorough research about the international humanitarian Jurisdiction, and came to the conclusion that there is no clear and homogeneous definition for this exception. Accordingly, the Coalition offers three components that must be available in order to deprive the civil protection:
- the first compound is involved in hostilities. Under the prevailing view, "hostilities" are all those acts designed by their nature of causing harm to the army:
"Hostile acts should be understood to be acts which by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces"
•The acts aimed at harming civilians are combined under theses deeds.
• the second compound is the direct participation in hostilities. Item 51 (3) of Protocol I indicates civilians taking direct part in hostilities (which protection is cancelled in the face of the attack), as opposed to civilians involved indirectly in hostilities. Under the item orders, still enjoy protection in the face of attack. In the absence of clear definition to the literary aspect of the word "direct" , the specialists and the courts chose to "advance from case to case, by reducing the area of dispute.
Concerning what is considered direct or indirect participation, the text of the official interpretation of the protocols confirms the flowing:
"Undoubtedly there is room here for some margin of judgment: to restrict this concept to combat and active military operations would be too narrow, while extending it to the entire war effort would be too broad, as in modern warfare the whole population participates in the war effort to some extent, albeit indirectly.
Concerning the nature of "direct" participation in hostile activities
However, the term should not be understood too broadly. Not every activity carried out within a state at war is a hostile act.
It Has been referred to the process of determining the direct participation of civilians in fighting, giving considerable weight to the relationship between the activity in which the civilians share and the resultant damage to the enemy's army. The Internal American Committee for Human Rights determined that direct participation in hostilities should include an act of violence, constitutes an immediate and real threat to the enemy.
"All these activities, however, must be proved to be directly related to hostilities or, in other words to represent a direct threat to the enemy"
• As stated in the official explanation of the protocols to International Committee of the Red Cross, (Additional Protocols):
"Direct participation in hostilities implies a direct causal relationship between the activity engaged in and the harm done to the enemy at the time and the place where the activity takes place.
The third compound is a composite of time. As mentioned, under the Exception, the protection of civil is cancelled while he becomes a legitimate target only for the period of time in which he has a direct involvement in hostilities.
There are five directions to determine whether the time element in the equation mentioned above: directing the actions, as long as any civilian is committing a deed at a particular moment which is considered as a direct participation in hostilities, so he will be a legitimate target for attack. Under the second direction, the fighter civilian will be a target since the first moment in which he shared in fighting for the first time as long as he did not separate himself in a indistinguishable manner. The third direction, the membership, it is indicated that as long as the civilian is member in an organization of fighters, he is considered a legitimate target. The fourth direction, incorporating between the test of direct participation and the membership direction, and reducing the group of citizens who lose their protection and to be just of group members in the military wing of the organization of struggle, dealing with the other members of the organization shall be subjected to a direct contribution to test the direct participation in fighting. The fifth direction deals with the test of the threat inherent in the act, which constitutes the logic of attacking the combatant civilian. While this is not real and serious threat, it is prohibited to attack the civilian and must activate the means of enforcing the law against the attacker .
• The coalition states here that in case of doubt in talking about civilian or combatant, the international justice entitlement to be considers the suspected as civilian., As decided by the ICTY on this case
"A person shall be considered to be a civilian for as long as there is a doubt as to his or her real status. The Commentary to Additional Protocol I explains that the presumption of civilian status concerns 'persons who have not committed hostile acts, but whose status seems doubtful because of the circumstances. They should be considered to be civilians until further information is available, and should therefore not be attacked'".
"In case of doubt as to the status of a person, that person shall be considered to be a civilian."
It should be emphasized that the responsibility to prove that the citizen who has lost the protection granted to him and turned into a legitimate target for attack and a target for assassination, is a big responsibility and not a simple question:
"[W]hen there is a situation of doubt, a careful assessment has to be made under the conditions and restraints governing a particular situation as to whether there are sufficient indications to warrant an attack. One cannot automatically attack anyone who might appear dubious."
The civil targets are those targets which are not military ones. This rule also recognized by the laws. Item 52 (2) of Protocol I states that:
"Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which 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."
The official interpretation of the additional protocols reported by the Red Cross states the following:
"A closer look at the various criteria used reveals that the first refers to objects which, by their ' nature', make an effective contribution to military action. This category comprises all objects directly used by the armed forces: weapons, equipment, transports, fortifications, depots, buildings occupied by armed forces, staff headquarters, communication centers etc.
Item 52 (3) of Protocol I concerning the case of doubt of the nature of the attack, the clause states that
"In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used".
The Israeli Government has embarked in its report for the same harm to civilians and trying again to give incomplete definitions of the international law to justify the war crime in Gaza. The coalition categorically rejects the definitions contained in the report stating that it is an undiminished circumvent by Israel towards the law and its definition.
The report contained some pictures of the Palestinian police pretending proud as Israel vigilantes of them as if they were a military Army, and alliance here would like to confirm that the police is a civilian foundation and applied to them as what it applied to civilians ,where:
During the days of the military operation "the poured bullets," the State of Israel attacked in knowledge the buildings of the authority and which are the symbol of power to Hamas. Among these buildings which were attacked: the Legislative Council building, the Ministry of Justice, Ministry of Communications and the Ministry of Information. There are 98 government building and 31 offices belonging to the non-governmental organizations completely destroyed or partially damaged during the military operation. The military spokesman said in a statement on Thursday in 1/1/2009: "The air forces had attacked tonight (Thursday), the Legislative Council building and the Ministry of Justice in the governmental headquarters in the city of Gaza .The Strategic attack on the objectives of the Authority, which are part of Hamas' authority, is a direct response to the continued fire of terrorism by Hamas towards the towns in the south of the country.”
It should be noted here that the rocket attacks from Hamas and other Palestinian organizations and within two years, killed 9 Israeli soldiers and wounded 13 while 40 people die every year in Israel and more than 1000 injured as a result of traffic accidents according to the Ministry of Transportation in Israel.
Also, quoted from Maj. Avital Leibovich, Head of the international media department in the Office of the military spokesman on behalf of the Israeli army as saying
"Anything affiliated with Hamas is a legitimate target".
This policy is also contrary to the fundamental principles of the customary international law, the principle of military necessity and the principle of recognition. These principles, as explained above, require a distinction between military targets and civilian targets and to prevent the attack is intended on civilian targets. In general, the institutions of Hamas authority are not as military targets, if they do not meet the criteria specified in section 52 (2) of Protocol I. There is a little doubt that the partial or total demolition of a specific building which forms a symbol of authority or a governmental building gives a definite military advantage to Israel, as it does not contribute by nature as an effective contribution to military activities against the State of Israel. As mentioned, the exception which allows targeting the military objectives is an expression of the test of military necessity, under which it is allowed to harm civilian objects only if this prejudice was to serve the military need and as the weakening of the enemy, or to end the fighting.
As mentioned above, not all the attempts to harm the enemy's war efforts meet the test of military need. The report of the Committee of the Prosecutor's Office in the ICTY, which examined the legal NATO raids on Yugoslavia, including the bombing of a television station in Belgrade, demonstrated that as long as the raid targeted a sector in the military media infrastructure, so it met the test of military need, but if the target was to harm the morals of the Yugoslav population and undermining the support the authority of Mluchowits only, it would not satisfy the military need:
“… Disrupting government propaganda may help to undermine the morale of the population and the armed forces, but justifying an attack on a civilian facility on such grounds alone may not meet the "effective contribution to military action" and "definite military advantage" criteria required by the Additional Protocols (see paras. 35-36, above). The ICRC Commentary on the Additional Protocols interprets the expression "definite military advantage anticipated" to exclude "an attack which only offers potential or indeterminate advantages" and interprets the expression "concrete and direct" as intended to show that the advantage concerned should be substantial and relatively close rather than hardly perceptible and likely to appear only in the long term (ICRC Commentary on the Additional Protocols of 8 June 1977, para. 2209). While stopping such propaganda may serve to demoralize the Yugoslav population and undermine the government’s political support, it is unlikely that either of these purposes would offer the "concrete and direct" military advantage necessary to make them a legitimate military objective.
Concerning the houses, mosques and hospitals that were attacked, the State of Israel claimed that they have been used as locations for members of Hamas hiding. Under Israel's claim: This use is getting the protection of civilian targets away and turn them to legitimate objectives of the attack. the customary law that has emerged in this context recognizes that the civil goal is protected from any attack unless it formed, at that period, a military target. This rule has been summarized as the following:
"It is clear that, in case of doubt, a careful assessment has to be made under the conditions and restraints governing a particular situation as to whether there are sufficient indications to warrant an attack. It can not automatically be assumed that any object that appears dubious may be subject to lawful attack. This is also consistent with the requirement to take all feasible precautions in attack, in particular the obligation to verify that objects to be attacked are military objectives liable to attack and not civilian objects (see Rule 16)".
The Mere presence of combatants among the civilian population does not take away the civilian nature of the population and deprives them from the protection they deserve, as decided by the ICTY :
"The population against whom the attack is directed is considered civilian if it is predominantly civilian"
"the Appeals Chamber finds that the jurisprudence of the International Tribunal in this regard is clear: the presence of individual combatants within the population attacked does not necessarily change the fact that the ultimate character of the population remains, for legal purposes, a civilian one
So, the same logic, which stands at the basis of the exception for the removal of the civilian protection, applied also over the exception of the removal of protection for a civilian target, and therefore the restrictions and the careful duties are required to ascertain the availability of the exclusion clauses applied in this case too.
Attacking the symbols of the authority power and the governmental buildings allegedly that they are parts of the authority of Hamas, is illegal. This lack of legality refers to the immunity granted to the civilians and these goals, the absence of conditions that tend their immunity granted to them in accordance with the customary international justice, and the fact that the attacks are not proportional , whether due to the extensive human casualties and the significant damage caused to the property and civilian infrastructure, as well as by the inadequacy of the weapon that was used to carry out the attacks - air strikes and artillery - and the lack of its relativity.
The Attacks that do not distinguish between combatants and military objectives and between civilians and civilian objects, constitute serious violations of the customary international law and constitute war crimes that carried out against the civilian population and can also be considered as crimes against humanity, if implemented as a part of a widespread or systematic attack against the population of civilians, and by a pre knowledge of the existence of the attack. As stated above, the Israeli attacks on the police stations and on the buildings of the authority is the result of an advanced planning and policy between the Israeli government and the military level ,which has also been made in a systematic and widespread way(i.e., includes a large number of deeds). Accordingly, the attack on the police can be considered a war crime under section 8 (2) (a) (1) and / or 8 (2) (b) (1) of the Treaty of Rome, and a crime against humanity under Article 7 (1) of the treaty itself whose theme is the intended killing of the civilians or attacking civilians who are not involved in combat. The attack on the buildings of the authority can be considered as a war crime under section 8 (2) (a) (4) and / or 8 (2) (b) (2) and / or 8 (2) (b) (13) of the Treaty whose theme concentrates on the destruction big property without military need or the intended attack on targets which are not military. It should be emphasized that the attack on the police and buildings of the authority exceeds the maximum test for item 8 (1) of the Treaty of Rome which calls to provide a plan, policy or widespread practice of works. In this context, in spite of the fact that the State of Israel is not a party to the Treaty of Rome, items 7 and 8 and their themes of war crimes and crimes against humanity reflect mainly the customary international judgment , and thus apply to the acts and / or failures which are contrary to their orders.
persons who carried out war crimes and crimes against humanity bear personal responsibility (except if they have the protections of legally aspects recognized). The personal liability is biased on two grounds: the direct responsibility in the case of an effective implementation of international crimes, aiming at indicating command responsibility) or superior responsibility) against civilian and military leaders for international crimes carried out by their followers. For Establishing of criminal responsibility ,there must be a system of relations of subjection between officer or the responsible and the actual doer (the actual control test), and that the officer knows or should know of the crimes. In the operation of (Poured bullets), these items are available at all in the pre-planning and the policy was decided and announced as mentioned above in all aspects of directing attacks on the police and on the buildings of the Authority, which are not legitimate targets of attack. It is noteworthy that the specific demands by the military officer are applicable to the political leader who is actually a part of a series of military powers, such as Israeli Defense Minister and Prime Minister.
Israel has conducted an investigation and has acquitted its soldiers and officers after an earlier granted immunity ,while in its report today says that it would conduct an investigation concerning the attack on the UN facilities and the use of WP, and defends in the same report and issues a pre judgment that the Palestinian militants used the international buildings and fired missiles, and also says in the report that The leaflets warned the population , where they were the cause of terror for the population , and in trying to find a justification for the touching of the ambulances, the report says it has opened several criminal investigations. The coalition knows that the population made several complaints after the theft of their property and credit cards by soldiers, and therefore the international coalition against war criminals, finds that:
- The Israeli report is an attempt to pre-empt the UN report.
- Israel should cooperate with the international commissions of inquiry and open the way for NGOs to conduct an extensive investigation in Gaza Strip.
The coalition do not wish to comment on in individual incidents cited in the report as the incidents of Aldaya family and Dr. Abu-Aiesh because cameras quoted the horror of those crimes.
the coalition calls the Israeli government to allow theØ investigation department of the coalition to questioning soldiers and officers about the military operation and that who is mentioned in the report such as the report of the Israeli Foreign ministry will not fear questioning or independent investigation.
INTERNATIONAL COALITION AGAINST WAR CRIMINALS ( ICAWC)