Was Israel guilty of war crimes? Possibly, and this must be investigated, not just by the Israeli army, but by an outside factor.
It will be quite difficult to prove. As we all know, it is permitted to return fire when you are fired at, whatever the consequences. Regarding the incident at the hospital, and the UN compound, there was fire, and it is not clear whether the fire came from outside these sites or inside. However, in both cases the soldiers were entitled to respond by firing.
Houses were booby-trapped, with civilians inside. They were blown up, with the civilians inside as well. The Israeli army people were aware of such possibilities well in advance, and they took good care to cover themselves: 120 officers were detailed to units in order to see to it that civilians should be warned and get out. This actually worked in a number of places.
Humanitarian aid was allowed in, between 80 and 100 trucks a day, roughly three times the amount (30 trucks a day) allowed in before the fighting began. One driver was wounded in the course of this, and soldiers were accused of being responsible; the army responded that not its soldiers, but Hamas men were the culprits. Hard to say.
The soldiers had orders not to harm civilians, and these written orders were in the hands of commanders above a certain rank (lieutenant colonel, I believe, but I am not sure). Why then were so many civilians killed, almost half the number of the armed fighters? The answer was given in an interview with a platoon commander which was published in the press, who said, more or less, that he was responsible for the lives of his soldiers, and if there was fire directed against him, he would respond with all the weapons he had, rather than hold fire because of some doubt.
Hamas, by the way, normally wears a kind of uniform. But during the fighting they wore civilian cloths in order to hide from the Israelis. Therefore, suspicious men in civilian clothes were often considered Hamas fighters. Then there is the matter of phosphorous munitions. Again, we know that these are actually permitted, within limits. Whether these limits were observed or not is something for which one needs an investigation. I would conclude that Israel will probably be in a position to say that it, more or less, observed international law.
The problem, however, is not legal. The Israeli army may have been within international legal bounds. The failure was not legal; it was moral. An Israeli army should have said that even if it was fired at by fighters using civilians as a shield, the soldiers should have withheld fire if there was reason to think that as a result civilians would be killed. That would have meant more Israeli casualties, no doubt. It would also have meant fewer civilian casualties, and a clearer conscience. I am not talking theory. I have participated in war more than once (or twice), and I think that it is justified to endanger soldiers in order to protect civilians.
Israel is guilty, not of a crime, but of what one might call severe misbehavior, because it prevented journalists from entering Gaza from Israel during the armed action. It may have been justified in not permitting journalists to report on the whereabouts and plans of action of its armed forces during fighting, but that does not mean that it should have stopped journalists from going into Gaza. They would have reported, as journalists do, on the suffering of civilians, and on the destruction of property. They did it anyway, once it was all over. A democratic country does not go to those lengths to prevent media from covering its actions. It was both immoral and unintelligent for the Israeli army to do that.
The wounding of some journalists in a building, on the other hand, turned out to be fully justified: by an odd mistake, an Arab journalist was filmed by an Arab TV crew while talking, from the place where the journalists were staying, with great enthusiasm about the fact that a rocket had been fired from a floor below her. The Israeli response wounded some of the journalists on her floor a moment later. Journalists who report on fighting on site expose themselves to dangers.
The comparison between the killing of 600 civilians by Israeli forces in the course of a campaign against an armed force and the Holocaust would be funny if it were not so frighteningly indicative of antisemitic predispositions. It is now being subscribed to by the provincial government of Catalonia, and finds support among many so-called liberals in the West. The term is of course not being used regarding the genocide in Darfur, or the terrible slaughter in Congo, though some use it, as we all know, regarding abortions, and in some other equally inappropriate cases.
Was Hamas guilty of war crimes? Undoubtedly. They fired rockets at civilians, and whether they hit them or not does not matter. They had uniforms and they did not wear them. They used civilians as shields. Does anyone care? No, because one can always argue that Hamas is not the official armed force of a recognized political entity, and it is not a signatory to any conventions. Is it a terrorist organization? Terrorism is usually defined as armed action directed against civilians in order to achieve political aims. This is exactly what Hamas has been and is doing.
When Israel used a blockade to force Hamas to stop its attacks it did not use armed action, but unarmed pressure, stupid and morally unjustifiable as that was. Hamas is a terrorist organization, attacking civilians in order to annihilate a group as such, namely Israel and specifically Jews in Israel. So it is both a terrorist organization, and a potentially genocidal one. Israel is not a terrorist state, because it does not target civilians, but harms civilians in the course of armed action against armed men who desire to annihilate it.
I gave this detailed picture, from my own viewpoint, ignoring for a moment some overarching contextual issues. The Gaza action/war/fighting deepened mutual hatred, not just mutual suspicions. It weakened the Fayyad government in Ramallah. It weakened the Left in Israel. It did not destroy Hamas – nor was it meant to – and it is doubtful whether it achieved its stated aims of achieving a permanent truce and stopping the smuggling of arms, mainly Iranian rockets, into Gaza. The uneasy stalemate that is there at the moment of writing could have arguably been achieved after the air-strike and without the land invasion with its 600 civilian casualties. At least, if Hamas had rejected a cease-fire before the invasion, Israel would have had more of a morally sustainable case if it had then invaded.
I am not taking the side of Hamas, not at all (because Hamas, in my eyes, is an ideologically-driven totalitarian movement with clearly enunciated genocidal aims), but because I expect Israel to behave in a more civilized way than it did. That brings up the contention that radical Islamist players, such as the Iranian president, or the Hamas leaders, only threaten the elimination of Israel, but that this is mere talk. I am sorry to say that we have heard such arguments before. Genocide scholars are supposed to realize that when people continually say something, they may actually mean what they are saying, and that they will act on their convictions the moment they can. There are too many past cases that prove this to have to detail them.
Ahmadinajad threatened Israel with extinction not just once, but a number of times. So did Rafsanjani before him, so did Khamenei, so did an assortment of ayatollahs and Iranian media, so did Hamas leaders, so did a variety of Imams in Gaza mosques over the past twenty years, repeatedly. You cannot annihilate Israel without killing most of its Jewish, perhaps also Arab, citizens. Yes, there was one parallel statement by the Israeli Deputy Defense Minister, Matan Vilna’i (of Labor!), who threatened Gaza with a “holocaust.” He was immediately attacked by the Israeli press, and on the same day he had to apologize and retract. I have not heard of an Iranian press campaign forcing Khamenei or Ahmadinajad, or the Hamas leaders, to change their tune. And, genocide scholars know, of course, that Article II of the Convention makes incitement to genocide a part of the crime of genocide.
Where does all that leave us? It is clear to me that the two sides in this conflict will not be able, on their own, to reach a compromise, because radicals on both sides will make this impossible, and because the maximum concession of the one side will not meet the minimum requirement of the other. The immediate future only promises further radicalization. Hamas is unrepentant, the Palestinian population is furious, and an election may well bring Hamas to power on the West Bank as well. The upcoming elections in Israel will produce a right-wing, or a center-right, government, presumably led by Netanyahu, a man who is genuinely brilliant, genuinely extreme, genuinely irresponsible, and genuinely radically nationalistic. The solution, as far as I can see, is indicated in the e-mail text to which this is attached.
I don’t mind a change in the aims of the International Association of Genocide Scholars to include conflicts as well as genocidal events. But then, IAGS should get to work on the Congo, Kashmir, and Sri Lanka. The Israeli-Palestinian conflict, with all its complications, emotions, and impact, pales by comparison. Unless, of course, you get a special kick out of pure Israel-bashing, because you do not like the people there, for whatever reason. But in that case you should be reminded that that does not help the Palestinian people, who, on the West Bank, are subject to occupation, to violent Jewish settlers, and to a hopeless political situation – though, admittedly, their economic lot has improved over this part year. They need a political solution that will give them independence and a reasonable co-existence with their Israeli neighbors.