As Israel’s military assault on Gaza nears the end of its third week, pressure is mounting from governments, the United Nations and human rights groups for alleged Israeli war crimes to be investigated and those responsible to be brought to justice.
Since the end of December almost 1,100 Palestinians have died and more than 4,400 have been injured, most of them civilians, including women and children.
Under the rules of war, as laid out in the Geneva conventions and their protocols, both Israel and Hamas are obliged at all times to distinguish between combatants and civilians, avoid force “disproportionate” to the military gain and take all feasible precautions to minimise harm to civilians.
While Israel claims it takes great care to avoid civilians, the sheer scale of Palestinian casualties has fuelled widespread accusations of excessive force.
“The one-sidedness of casualty figures is one measure of disproportion,” says Richard Falk, UN human rights envoy for the occupied Palestinian territories. Four Israeli civilians have been killed by Hamas rockets since the offensive began, with another nine Israeli soldiers also killed – four in a “friendly fire” incident .
Several specific incidents have also prompted calls for an independent war crimes investigation, including an attack last week on a UN-run school being used as a civilian shelter that killed more than 40 people.
In another incident described as “shocking” by the International Committee of the Red Cross, Israeli forces barred rescue workers for four days from evacuating wounded civilians.
Human rights groups also point to attacks on ambulances and rescue vehicles, and the indiscriminate use of heavy weapons that make civilian casualties inevitable. Amnesty International says Israeli soldiers, as well as Hamas, are also using Palestinians as a human shield.
Moreover, Israel’s definition of a legitimate military target appears to go way beyond what is permissible in international law to encompass anyone and anything suspected of supporting Hamas’s military or political apparatus.
“Military objectives” have included police stations, government buildings, mosques, the Islamic University and a money-changing office.
Prosecuting war crimes cases is problematic and past experience is not encouraging. Despite evidence presented by the UN and others, no Israeli citizen has ever been prosecuted for war crimes allegedly committed in previous military operations – in the occupied Palestinian territories or in its two invasions of Lebanon. Nor is it conceivable, at least in the near term, that Israel would put its own leaders on trial for conduct of a war overwhelmingly backed by Israeli citizens.
The creation of an ad hoc war crimes tribunal, or referral to the International Criminal Court in The Hague, is probably also a non-starter. Either would require authorisation by the UN Security Council, where the US, Israel’s staunchest ally, has a veto.
But some human rights experts believe public outrage at what is happening in Gaza could open the way for the trial abroad of suspected war criminals covered by universal jurisdiction.
That is because all countries have an obligation under international law to search out those accused of “grave” breaches of the rules of war and to put them on trial or extradite them to a country that will.
Although domestic legislation is patchy and universal jurisdiction powers are often subject to government discretion, there has been far greater readiness to use those powers since the 1998 arrest on torture charges of Augusto Pinochet, the former Chilean dictator.
“We’re in the early stages of a seismic shift in international law,” says Christopher Hall, senior legal adviser at Amnesty International in London. He notes that lawyers attached to Israel’s foreign ministry already analyse the risk of travel abroad for Israelis who could be targets for arrest once they lose their diplomatic immunity.
“It’s like walking across the street against a red light,” says Mr Hall. “The risk may be low but you’re going to think twice before committing a crime or travelling if you have committed one.”
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