In 2002, after a smaller bomb failed to murder Salah Shehadeh, then Hamas military commander in Gaza, the IAF dropped a 2,000 pound bomb on a residential apartment building killing him and his entire family: 13 civilians in all along with tens of seriously wounded.
The Israeli NGO Yesh Gvul charged the IDF officers who planned and executed the attack with violations of Israeli and international law and filed a case with the Israeli Supreme Court. In response, the Court asked the government to create a public commission to examine the charges. The case languished for several years while various governments dithered about naming members of the commission. Yesh Gvul went back to court and it finally commanded the government to create the board, which Ehud Olmert did in 2008. He originally appointed Brig. Gen. Tzvi Inbar to chair the body, to whom he added Gen. Yitzhak Eitan and senior Shabak officer, Yitzhak Dar. After Inbar’s death, Bibi Netanyahu appointed retired Judge Tovah Sternberg-Cahan to head the board. I’ll leave it to you to judge whether this was a truly independent and fair investigation.
It’s only taken three years, but the group has finally figured out how to successfully white-wash the crime (English version) in its final report. The thinking is so perverse, the language so bureaucratically chilling and morally vacuous, that it’s worth quoting extensively from the Walla artcle (which also quotes the lanugage of the report):
Nine years after the assassination of Salah Shehadeh, a special commission found it unnecessary to take personal action against those [IDF officers] involved in the operation. With that, the commission found that the murder of 13 civilians was “disproportionate and derived from an intelligence failure.”
The commission…determined that there was no legitimate suspicion of commission of a criminal act connected with the operation…It found the operation was a “legitimate preventive attack” and that killing Shehadeh was an “urgent and meaningful.”
It attributed the intelligence “failure” to ‘errors of evaluation’ and ‘mistakes of judgment’ in gathering information and distributing it to various elements involved in the operation.
Those IDF officers charged with involvement in the incident explained the “gap” by noting the need for urgent action once it was determined that Shehadeh was vulnerable to attack. The commission responded that such reasoning “explained the failure but didn’t justify it,” whatever that means:
The intelligence failure emanated from various reasons which attached more important to killing the target and less weight to ‘endangering’ civilians as a result of this attack…This accompanying result [killing civilians] was unintentional and unexpected. It did not derived from a disrespect for human life or [depraved] indifference to human life. Those involved displayed a sensitivity to the issue of [harm] to those uninvolved. Those engaged in the operation testified to the commission that had they known the severity of the outcome beforehand and with enough time to do so, they would’ve cancelled it.
The board specifically commended then deputy chief of staff , Gabi Ashkenazi, for opposing the killing using the operational plan that had been approved. Even those who opposed the operation acceded to their superiors and participated in the killing.
The commission advised the IDF how to proceed in future when devising similar plans:
Proportionality is an important principle from which one derives that an attack of this sort is not legitimate if the danger of excessive harm to civilians exceeds the military value of the target.
However, it even permitted a loophole from this protocol by admitting that there may be instances in which pressures of time, place and opportunity which apply to pre-emptive strikes:
In such instances it is permitted to deviate or restrict adherence to such principles except insofar as they might damage principles of law and the precedents of the Supreme Court.
The board’s report approved the continuation of the IDF’s policy of targeted killing:
Despite the result in this case, pre-emptive attacks are a legitimate tool in the war against murderous terror as long as they adhere to the principles of justice and the ethical-moral values that serve as the foundation of Israeli and international justice.
Yesh Gvul has announced that it will appeal to the Supreme Court and ask for the appointment of an official government commission of inquiry.
A few comments on the passages above: any IDF officer who testified that army intelligence didn’t know civilians were in that apartment building or didn’t know civilians would be killed in the attack was lying. The bomb dropped was specifically designed to destroy the entire building (as it did). The IDF knew of Shehadeh’s every movement, and certainly monitored his stay in his own home along with the presence of any resident in the building. To say they didn’t know who was there is simply preposterous. I expect the military to lie. But I don’t expect judges to accept such lies wholeheartedly. But unfortunately this is customary in many national security cases.
But why should we be surprised? Israel’s Occupation itself is built on a lie. A lie which many Israelis willingly accept and benefit from in their everyday lives. Should it surprise us that Israeli officers would lie in order to protect the honor of the IDF and the state it defends?
It’s also important to note that at the time of the assassination the leading Fatah and Hamas figures, Marwan Barghouti and Sheikh Yassine, had agreed to a formal unilateral ceasefire with Israel. The latter’s agreement to the declaration came only two hours before the assassination of Shehadeh. Israel’s claim all along was that militants controlled the PA and any agreement that omitted them wouldn’t be worth the paper on which it was written. To that, the Palestinians responded by enlisting the very “terror” groups needed to ensure the success of the ceasefire. Their declaration was unilateral and unequivocal. Newspaper articles were being prepared for publication in the Washington Post and Haaretz to herald this constructive development.
Israel’s answer was a 2,000 pound bomb on Salah Shehadeh’s home, thus destroying one of the most promising attempts of the era to negotiate peaceful terms between Israel and the Palestinians. This is how the military-intelligence apparatus deals with opportunities for peace. It wrecks them. Deliberately. And then takes whatever small amount of heat may come its way. The heat is worth the danger of serious peace negotiations, which would rock the status quo the IDF finds so comfortable.
International law is predicated on giving an opportunity to nation states to first adjudicate violations that occur on their territory or at the hands of their representatives. Israel’s attempt to do so has failed. This leaves the International Criminal Court and other international bodies with no recourse but to agree to accept jurisdiction over this matter. Israel engaged in a shameful whitewash that has excused all military personnel of any culpability. But the world community must not let Israel’s military to escape with impunity.
let me quote from an article written by Philip B. Heymann Harvard law Professor and Gabriella Blum assistant professor.
Law and Policy of Targeted Killing†
I. Introduction
Imagine that the U.S. intelligence services obtain reliable
information that a known individual is plotting a terrorist attack against the United States. The individual is outside the United States, in a country where law and order are weak and unreliable. U.S. officials can request
that country to arrest the individual, but they fear that by the time the individual is located, arrested, and extradited the terror plot would be too advanced, or would already have taken place. It is also doubtful that the
host government is either able or willing to perform the arrest. Moreover, even if it did arrest the suspected terrorist, it might decide to release him
shortly thereafter, exposing the U.S. to a renewed risk. Should the United States be allowed to kill the suspected terrorist in the foreign territory, without first capturing, arresting, and trying him? More than any other counterterrorism tactic, targeted killing operations display the tension between addressing terrorism as a crime and
addressing it as war. The right of a government to use deadly force against a citizen is constrained by both domestic criminal law and international human rights norms that seek to protect the individual’s right to life and
liberty. In law enforcement, individuals are punished for their individual guilt. In wartime, governments may use deadly force against combatants of an enemy party, in which case the peacetime constraints are relaxed. But
in war, the enemy combatants belong to another identifiable party and are killed not because they are guilty, but because they are potentially lethal agents of that hostile party. Moreover, soldiers are easily identified by the
uniform they wear. Once in the uniform of an enemy state, any soldier, by commitment and allegiance, is a potential threat and thus a legitimate target, regardless of the degree of threat the soldier is actually posing at any
particular moment: the relaxing, unarmed soldier, the sleeping soldier, the retreating soldier—all are legitimate military targets and subject to intentional targeting. No advance warning is necessary, no attempt to arrest
or capture is required, and no effort to minimize casualties among enemy forces is demanded by law.
http://www.harvardnsj.com/wp-content/uploads/2010/06/Vol-1_Blum-Heymann_Final.pdf
Based on their interpretation Israel’s action are not against the International law and do not constitute a crime. and i guess that considering the fact that both are Law professors they know what they are talking about.
Just FYI, the acceptable number of uninvolved casualties for the US armed forces is 30. In Israel it’s way less then that.
You didn’t read my post or at least not carefully enough. The Hamas military wing HAD AGREED TO A CEASEFIRE. They weren’t “plotting terrorist attacks” against anyone. Why, pray tell, did the IDF choose this specific moment to kill him? Not to derail the ceasefire proposal–surely not. So your comment is off the rails right fr. the beginning.
And no, he was not a soldier, not in uniform, not in the midst of a war, and not even a citizen of a state let alone a soldier of one. And so yes, the killing was a violation of international law & does constitute a crime. Israel’s refusal to address this crime in a serious manner will cause it to end in The Hague where it belongs as Israel’s Supreme Court seems impotent in dealing w. the issue.
I’ve never in my life seen any such number & strongly doubt it has any validity or truth.
That must be why Israel has killed thousands of Palestinian civilians over the yrs.
Eh, if you honestly believe that once a ceasefire is agreed to, all relevant parties abandon their work and stop making aggressive plans – you are extremely naive.
In fact, when a ceasefire takes place, that gives both sides in a conflict more time to delve into the details of their moves rather than having to quickly respond to enemy aggressions.
That isn’t to say that Hamas wouldn’t have honored the ceasefire (they did), but that doesn’t at all mean their military wing was sitting idly and counting sheep.
Richard, you have passed the BAR exam and didn’t tell anyone ? your conclusion that he wasn’t a terrorist are naive at best.
Since Harvard is a US based school let us see what another US school states about weather or not terrorists should be treated as enemy combatants and why, this time the Navel was collage:
TERRORISTS AS ENEMY COMBATANTS
An Analysis of How the United States Applies the Law of Armed Conflict in the Global War on Terrorism Historically, terrorists have been regarded as bandits and held criminally responsible for their unlawful acts under domestic law. However, after the attacks on the World Trade Center and Pentagon in September 2001, the U.S. decided to engage transnational terrorists in armed conflict. As enemy combatants, terrorists may be lawfully killed by virtue of their membership in the enemy group rather than their individual conduct.
http://www.fas.org/man/eprint/reid.pdf
You are not trying to say that President Obama is a war criminal right ? after all he’s the one approving all the attacks in Pakistan, Afghanistan, Iraq etc.
The number 30 was given lately by a pentagon official during a senate hearing. I’m sure that you can submit a public information request and you shall receive an answer, Just FYI the secretary of defense is authorizing by signature any attack which they suspect will result in such a high number of uninvolved casualties.
as for the ceasefire reported by A. Alder in Haaretz. you would need to do better then that to convince me. as to the way this reporter report news (and does not include his own interpretation) please read the following paragraph:
“A few months ago reported here that a survey of Hebrew University’s Truman Institute shows that most of the settlers support the use of legal means to thwart the government’s decision to evacuate settlements. More than a fifth of respondents marked the answer: “They resist the evacuation by all possible means, including firearms. ” Following the comment of a reader, it should be pointed out, that the phrase “includes firearms” was a broad interpretation – too wide – to the expression “any means”.
http://www.haaretz.co.il/hasite/spages/1188421.html
Akiva Alder is extremely creative in his reporting, and should not be treated as a credible source for today date, let alone the willingness of the Hamas to sign a cease fire.
And this is President Obama opinion on Targeted Killings:
“I don’t believe in assassinations, but Osama bin Laden has declared war on us, killed 3,000 people, and under existing law, including international law, when you’ve got a military target like bin Laden, you take him out. And if you have 20 minutes, you do it swiftly and surely.[13]”
http://en.wikipedia.org/wiki/Targeted_killing#Under_U.S._law
And since when have I ever based my moral code or compass on that of Barack Obama? Don’t you realize that one of the premises of this blog is a critique of the barrenness of his Middle East policy at least as it pertains to the I-P conflict?? His views of targeted killing as on so many things are wrong & I’m not afraid to say so.
Oh, now i get it
the entire critique is based on the Richard version of the international law, and not on the law itself.
I can’t debate your version however we can debate the law itself.
P.S you didn’t answer the question, is Obama a war criminal. If i recall correctly you called many Israelis War Criminal for commencing the same acts Obama authorizes almost on a daily basis.
Nice try. There are no serious scholars of international law who argue that Israel’s targeted killings are justified. By “serious” I exclude jokers like Alan Dershowitz & Martin Kramer. Almost everyone else agrees with me. So do yr best to attribute these views to me personally, but it won’t work.
Obama a war criminal? When you agree to bring Bibi to the docket in the Hague then I’ll agree to bring Obama. I’m much more interested in getting a few IDF generals and defense ministers there before we go after prime ministers or presidents. And George Bush’s sins on this score are far worse than Obama’s. First let’s get Bush in the Hague & then we can worry about Obama.
Richard thank you for explaining that your principal have names attached to them.
one set of rules for Bush, another for Obama, very little respect to the facts.
Obama faithful to his statement which i quoted above ordered more Targeted Killings attacks within one year after taking office then Bush did while being the president. Yet you think that Bush should be prosecuted (so do some Israeli’s) but Obama should be spare.
http://www.examiner.com/alameda-county-progressive-in-san-francisco/obama-orders-more-drone-attacks-since-taking-office-than-bush-did-3-years
either people live by their principals and equally implement them across the board, or they have no back bone, and known as hypocrites.
as for your statement about the scholars, please name few.
I never said that. I said that first Bush deserves to go to the Hague. Pls. don’t attribute views to me which I don’t hold nor statements I didn’t make. I don’t measure Bush’s actions basis solely on targeted killing. I base them on the totality of his miserable record of lying to the American people about WMD, declaring 2 wars at least one of which was totally unnecessary & a disaster leading to the deaths of over 4,000 Americans, torturing prisoners, extraordinary rendition, targeted killings. Bush’s crimes are long & varied. Obama’s crimes are a much shorter list.
Richard, yet you didn’t answer my question, and it was rather a simple one. In your opinion is President Obama a war criminal ? You are accusing many Israelis for being war criminals for carrying the same actions president Obama approves. so either Your President is a war criminal or you just have a special place in your heart for Israeli politicians and generals.
There are twenty Israeli generals and ministers whose crimes are far more deserving of immediate attention at the Hague. Let’s cart them off to jail along with a few Palestinian militants who committed mass killings against Israeli civilians & then we’ll deal with Obama.
And stop harrassing me w. repetitive admonishments that I haven’t answered yr questions. I hate commenters who finger-wag & carry on demanding that their questions be addressed.
What I don’t understand is why you think conditioning is relevant. Do you want to let all thieves and rapists loose until every single murderer is caught? Why does anyone need to “agree” to have one person tried so you’d “agree” to have another?
Someone’s done something wrong? They need to be tried.
And your priorities are your own and irrelevant to the severity of various unlawful actions.
My point was to point out the hypocrisy of his position since he’s more than happy to see MY President in the Hague but says nothing about Israelis who belong there as well.
Obama is probably a war criminal. Israeli leaders are probably war criminals. Bush is probably a war criminal. Some of these war criminals are worse than others, but they all deserve their day in court.
This technique of bringing up American war crimes when Israel is criticized as some sort of defense is several years old now. It’s very strange to me, because I am used to someone like Noam Chomsky making the same kinds of comparisons as a condemnation of both. I suppose the idea is that any American with jingoistic tendencies might be reluctant to criticize Israeli crimes if it is pointed out that America is also guilty of some crimes, but it won’t work on anyone with a principled objection to war crimes no matter who commits them.
Donald,
I thank you for your response.
with yours i can debate and i can tell you that according to the international law neither the US president nor the Israeli PM and their subordinates are war criminals, and the reasons for that are listed by the Harvard Scholars who’s work is linked above.
with Richards statements and logic i can’t argue as he has a set of rules and regulations for every person, and for some reason is not willing to admit that Obama is guilty at the same exact things he’s blaming the Israeli Politicians.
It really is not a tactic not a way to pass the blame, i just think that is you are living by principles you should implement them across the board.
I think Richard You are the hypocrite not me.
as you stated in the post linked below you are just no willing to call Obama a war criminal for whatever reason, and you are applying one set of morals towards Obama and another towards the Israei generals etc.
do your readers a big favor, don’t try and insult their intelligence with you evasive maneuvers.
https://www.richardsilverstein.com/2010/10/04/barak-appoints-idf-deputy-chief-of-staff-who-violated-supreme-court-ruling-on-targeted-killings-and-advocated-gender-segregation-on-jerusalem-light-rail/
I don’t throw around epithets like “war criminal” as lightly as you. You want to put words in my mouth. I refuse to allow you to do so. Before someone is a war criminal they must be tried & convicted. The level of evidence is much clearer to my mind for defense ministers, generals & Palestinian mass murderers than a president or even a prime minister. As a good prosecutor, I’d rather start lower on the food chain than the very top in order to enforce the notion of accountability. Then you can work yr way up fr. there. If you can get convictions for those I named then you can pursue others later.
I think you’re the one who’s being insulting & I don’t appreciate the tone or content of yr comment. This will be the last comment you or I make on this particular subject.
I don’t think he believes either of them are war criminals, and he was actually trying to point out the hypocrisy of YOUR position…
Once in the uniform of an enemy state, any soldier, by commitment and allegiance, is a potential threat and thus a legitimate target, regardless of the degree of threat the soldier is actually posing at any
particular moment: the relaxing, unarmed soldier, the sleeping soldier, the retreating soldier—all are legitimate military targets and subject to intentional targeting. No advance warning is necessary, no attempt to arrest
or capture is required, and no effort to minimize casualties among enemy forces is demanded by law.
This sounds exactly like a justification for suicide bombings in Israel, since a large number of Israelis are full-time or part time soldiers. Is that what you want to convey?
@ Tree
there are two main differences:
1. You are referring to soldiers on reserve duties, those are treated as soldiers during the limited time they are on active duty. while released from active duty in the reserve they are not consider soldiers by the International law.
2. the suicide attacks inside Israel never targeted a specific target, and the whereabouts of active duty soldiers within the casualties is always random. that is why those attacks consider a war crime. the attack in which Hamas kidnapped Gilad Shalit, does not consider a war crime because the target was a well known military target.
Ilan,
Just to make sure I get your reasoning – Are we to understand that according to your interpretation of International law, suicide bombings are illegal only because uniformed soldiers are not the MAIN target?
Are you really expecting an answer ?
The excerpt you posted says no such thing. It notes the distinction between law enforcement and warfare, and the tension displayed by targeted killing operations, but stops short of elevating warfare to a legitimate tool of counter-terrorism.
It’s certainly convenient to call anti-terrorism measures a “war” and be able to deploy a powerful military and do away with those legal niceties, human rights and all that liberal tree-hugging do-gooders stuff, that only ever get in the way. That’s not even to speak of the monster profits reaped by the associated corporations, arms manufacturers as well as human resource companies like Blackwater/Xe or Halliburton/KBR.
But mere convenience legalises nothing, nor does the fact that, no thanks to Obama’s stonewalling, nobody from the Bush administration will be held accountable for either the illegal Iraq war or the human rights atrocities committed in the name of the “War on Terror”.
The attack on Shehadeh wasn’t pre-emptive. He was not about to attack anyone when he was killed. At most the assassination was “preventive”, but there is no such thing as “preventive self-defence”. Is this a translation error or a comprehension problem on the part of the board?
They used the term “preventive” but I took the meaning to be pre emptive since they were arguing that he had killed already & would likely kill again.