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OpEdNews Op Eds    H3'ed 4/7/18

In Wake of Gaza Massacre, Israeli Leaders Should Be Prosecuted for War Crimes

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Sarah Leah Whitson, Middle East and North Africa director of HRW, concurred, stating, "Israeli allegations of violence by some protesters do not change the fact that using lethal force is banned by international law except to meet an imminent threat to life."

Indeed, the UN Basic Principles on the Use of Force and Firearms by Law Enforcement specifies, "intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life."

"Senior Israeli leaders who unlawfully called for the use of live ammunition against Palestinian demonstrators who posed no imminent threat to life bear responsibility" for the deaths and injuries, HRW asserted in a statement. That includes Israel's prime minister, defense minister and chief of staff.

B'Tselem, which has called for Israeli soldiers to disobey patently illegal orders, described the legal duty to disobey unlawful orders: "It is also a criminal offense to obey patently illegal orders. Therefore, as long as soldiers in the field continue to receive orders to use live fire against unarmed civilians, they are duty-bound to refuse to comply."

Prosecute Israeli Leaders in International Criminal Court

Israeli leaders responsible for the deaths and injuries on March 30 should be prosecuted in the International Criminal Court (ICC).

Under the Fourth Geneva Convention, an occupying power has a legal duty to protect the occupied. Grave breaches of the convention constitute war crimes. They include willful killing; willfully causing great suffering or serious injury; intentionally directing attacks against the civilian population; and intentionally launching attacks with knowledge they will cause incidental loss of life or injury to civilians The IDF committed all of these grave breaches on March 30.

Furthermore, under international humanitarian law, the IDF failed to comply with the principles of distinction and proportionality. Distinction requires parties to a conflict to direct their attacks only against people taking part in the hostilities. Proportionality prohibits an attack if the damage to the civilian population will be greater than the military advantage anticipated from the attack. The IDF violated both of those principles on March 30.

An independent commission of inquiry convened by the UN Human Rights Council to investigate Israel's 2014 massacre in Gaza documented the deaths of 2,251 Palestinians, which included 1,462 civilian deaths and the injuring of 11,231 Palestinians. Six civilians and 67 soldiers were killed and 1,600 injured on the Israeli side. The commission concluded that Israel, and to a lesser extent, Palestinian armed groups, had likely committed violations of international humanitarian law and international human rights law, some constituting war crimes.

Currently, ICC prosecutor Fatou Bensouda is conducting a preliminary examination into the 2014 massacre. She should expand her inquiry to include the events of March 30, 2018.

US Vetoes Security Council Resolution Calling for Investigation

UN Secretary-General Antà ³nio Guterres and European Union diplomatic chief Federica Mogherini advocated independent investigations into the use of deadly force by the IDF at the border fence on March 30. But the day after the massacre, the United States vetoed a Security Council resolution that called for an "independent and transparent investigation" and affirmed the right of Palestinians to peaceful protest.

Avigdor Lieberman, Israel's defense minister, said the IDF soldiers "deserve a medal" for protecting the border. "As for a commission of inquiry -- there won't be one," he declared on Israeli Army Radio.

Israeli Prime Minister Benjamin Netanyahu praised his troops for "guarding the country's borders" and permitting "Israeli citizens to celebrate the [Passover] holiday peacefully," adding, "Well done to our soldiers."

Rabbi Alissa Wise, deputy director of Jewish Voice for Peace, noted in a statement, "The Israeli military evidently believes that any time Palestinians assert their basic rights in any way, they will be considered violent, and met with deadly violence."

Meanwhile, the Palestinian protests are slated to last until May 15, the day Palestinians commemorate the Nakba, or the "great catastrophe" of 1948-9, when Israel expelled 800,000 Palestinians from their lands to create Israel. Approximately 70 percent of the 1.3 million Gazans are refugees.

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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers, and a member of the National Advisory Board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. See  (more...)
 

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