The NGO Front in the Gaza War: Exploitation of International Law
NGO Monitor
January 21, 2009
[For annotated version
www.ngo-monitor.org/article/the_ngo_front_exploitation_of_international_law

The exploitation of international legal rhetoric is a major weapon in the
political war to delegitmize Israeli anti-terror operations. Under this
strategy, crystallized at the NGO Forum of the UN's 2001 Durban Conference,
the terminology of international humanitarian (IHL) and human rights law is
selectively applied to charge Israel with "violations of law," "crimes
against humanity," "war crimes," "disproportionate force" and
"indiscriminate attacks." In contrast, the violation of Gilad Shalit's human
rights and Hamas' use of human shields are ignored. NGOs use the legal
language to increase the credibility and seriousness of the charges, and in
the Gaza conflict, many are already calling for international
"investigations" and "lawfare" (i.e. filing lawsuits against Israeli
officials in different countries) based on these accusations. Hamas,
Hezbollah, and the PLO have reaped significant political benefits from this
strategy in their conflicts with Israel. This NGO Monitor report analyzes
common NGO legal claims:

NGO silence on Gilad Shalit's rights under international law is a
significant moral failing by these self-proclaimed defenders of human rights
and international law. Held hostage by Hamas since June 2006, Shalit is
entitled to the rights and protections of prisoners of war guaranteed in the
Third Geneva Convention, including the right to unfettered access to the Red
Cross. Hamas flouts international law and very few NGOs call it to account
or demanded enforcement of Shalit's rights.
Hamas exploits schools, mosques, hospitals and cultural centers to carry out
its attacks in flagrant violation of article 51 of the Fourth Geneva
Convention. This factor is minimized or ignored by numerous NGOs, and the
emphasis is placed on Israel to avoid civilian casualties. But international
law is clear: in cases of human shields, civilian deaths that result are
clearly the responsibility of Hamas and not Israel.

Under international law, the test for proportionality is whether civilian
harm is "clearly excessive in relation to the concrete and direct overall
military advantage anticipated." Casualty ratios are not relevant, and this
standard does not require equivalency in weaponry.

NGO claims that Israel deliberately targets civilians or does not attempt to
distinguish between civilian and military targets are entirely without
foundation. The NGOs leveling these charges do not possess military
expertise, detailed information on the dispersal of weapons by Hamas, and
they are not privy to Israeli targeting decisions. Such information is
essential in order to make a credible evaluation of Israeli military
responses to the thousands of rocket attacks by Hamas.

The NGO charge of "collective punishment" is false both legally and
factually. "Collective punishment" refers to the imposition of criminal
penalties, not economic sanctions. Israel is in compliance with article 23
of the Fourth Geneva Convention and allows access for humanitarian supplies
well in excess of its legal obligations while under attack.

Calls for "war crimes" investigations and lawsuits are part of the NGO
anti-Israel lawfare strategy, in order to harass Israeli officials with
civil lawsuits and criminal investigations and to promote a negative media
image of Israel. Rather than obtaining "justice" for victims, these cases
are intended to punish Israel for its anti-terror methods, to prevent future
operations, to interfere with Israel's diplomatic relations, and to advance
boycotts and other aspects of the Durban strategy.

Claim: The fate of Gilad Shalit is an unimportant international legal
issue.

Analysis: The refusal of the NGO community to demand Red Cross access to
Gilad Shalit is a significant moral failure. International humanitarian law
was enacted to guarantee the rights and protections of prisoners of war.
The Third Geneva Convention lays out these rights unequivocally: the right
to humane treatment (article 13); the right to have knowledge of a POW's
location (article 23); the right to send and receive letters and cards on a
monthly basis (article 71); the right to unfettered access to the Red Cross
(article 126), and others. Hamas has flouted each of these provisions and
the NGO silence causes considerable damage to international humanitarian law
and universal human rights.

Claim: The use of human shields by Hamas is irrelevant to Israel's
compliance with IHL

Analysis: These NGO claims misstate the law as it applies to Israel and
deliberately ignore violations by Hamas. Under article 51(7) of the First
Protocol of the Geneva Conventions, civilians "shall not be used to render
certain points or areas immune from military operations, in particular in
attempts to shield military objectives from attacks or to shield, favour or
impede military operations." Hamas is in direct violation of this rule,
yet few if any NGOs mention it. Regardless of Hamas' abuse of article 51,
under article 28 of the Fourth Geneva Convention, "the presence of a
protected person may not be used to render certain points or areas immune
from military operations." Therefore, Israel is not prohibited from
attacking a military target simply because there are civilians present.
The documentary and video proof of Hamas's exploitation of schools, mosques,
hospitals and cultural centers to carry out its attacks is overwhelming, and
responsibility for any civilian deaths that follow belongs to Hamas.[1]

Claim: NGOs such as Oxfam, Gisha, and B'Tselem, claim Israel has used
"disproportionate force" highlighting the number of Palestinians killed
especially children with emotive "testimonies" and anecdotes from Gazans in
their reports. These claims frequently compare Palestinian casualties with
Israeli casualties.

Analysis: While every civilian death is regrettable, casualty ratios are
not relevant to the standard for evaluating proportionality. Pursuant to
article 2(b)(iv) of the Rome Statute of the International Criminal Court, an
attack is "disproportionate" if it causes damage or loss of civilian life
"which would be clearly excessive in relation to the concrete and direct
overall military advantage anticipated" and as Israel's former UN
Ambassador, Dore Gold notes, Israel "is not required to calibrate its use of
force precisely according to the size and range of the weaponry used against
it." "Just war" theorist Michael Walzer has also remarked that the concept
of proportionality cannot be applied "speculatively." He points out that
the test of proportionality is in relation to the future expected military
advantage, not in relation to past events or civilian deaths from previous
attacks. In his view, those leveling the charge of "disproportionate" do so
only when it is "simply violence they don't like, or it is violence
committed by people they don't like." Therefore, "Israel's Gaza war was
called 'disproportionate' on day one, before anyone knew very much about how
many people had been killed or who they were."

Claim: Human Rights Watch, Palestinian Center for Human Rights, Amnesty, Al
Mezan, and others accuse Israel of "indiscriminate attacks" against Gazan
civilians.

Analysis: The claim that Israel deliberately targets civilians or does not
attempt to distinguish between civilian and military targets is entirely
unfounded. The IDF has legal advisors embedded with combat units making
analyses prior to any military action. Many attacks have been aborted when
it was deemed the potential harm to civilians was too great. Moreover, the
NGOs leveling these charges do not possess military expertise, detailed
information on the dispersal of weapons by Hamas, and they are not privy to
Israeli targeting decisions. Such information is essential in order to make
a credible evaluation of Israeli military responses to the thousands of
rocket attacks by Hamas.

Claim: Amnesty International accuses Israel of "unlawfully" killing "scores
of unarmed civilians, as well as police personnel who were not directly
participating in the hostilities".

Analysis: Amnesty has no basis relabelling Hamas operatives as "civilian"
police officers and presents no evidence supporting its claim that these men
were not "directly participating in the hostilities". In fact, a
Hamas-linked website claims that these men were members of Hamas' Izz Al-Din
Al-Qassam brigade.

Claim: Israel is engaging in "collective punishment"

Analysis: Restriction on the flow of goods in a war environment does not
constitute "collective punishment" under international law and this charge
is not only false legally, but factually as well. "Collective punishment"
refers to the imposition of criminal penalties and does not refer to the
legal act of retorsion (e.g. sanctions, blockades). In fact, pursuant to
article 23[2] of the Geneva Convention (which sets standards for the
provision of limited humanitarian aid), Israel has no obligation to provide
any goods, even minimal humanitarian supplies, if it is "satisfied" that
such goods will be diverted or supply of such goods will aid Hamas in its
war effort. As numerous credible accounts have reported, Hamas has diverted
supplies from Gaza's civilian population. Although Israel is under no legal
obligation and despite the diversion as well as attacks on the Israeli
border crossings, including the April 9 attack on the Nahal Oz fuel depot
and the May 22 truck bomb attack at the Erez crossing, Israel continues to
provide thousands of tons of humanitarian supplies to Gaza. This is above
and beyond any obligation under international law, and the claim of
"collective punishment" is entirely unjustified.

Claim: NGOs ignore and even imply Israel should violate its international
legal obligations to fight terrorism

Analysis: Israel has numerous binding obligations to fight terrorism under
international law. These include Security Council Resolution 1373 (2001)
made pursuant to Chapter VII of the UN Charter requiring Israel to:

"prevent and suppress the financing of terrorist acts";
"criminalize the wilful provision or collection, by any means, directly or
indirectly, of funds" used to carry out terror attacks
"refrain from providing any form of support, active or passive, to entities
or persons involved in terrorist acts";
"deny safe haven to those who finance, plan, support, or commit terrorist
acts, or provide safe havens";
"prevent those who finance, plan, facilitate or commit terrorist acts from
using their respective territories for those purposes against other States
or their citizens";
"prevent the movement of terrorists or terrorist groups by effective border
controls and controls on issuance of identity papers and travel documents."

The NGO statements on Gaza overwhelmingly ignore this obligation and seek to
place "human rights" duties upon Israel that stand in direct conflict with
Israel's legal obligations - in essence, demanding Israel violate
international law.

Claim: Many NGOs have called for "war crimes investigations" and lawsuits
against Israel for its operations in Gaza

Analysis: These calls are part of the lawfare strategy, adopted at the 2001
Durban Conference, used to harass Israeli officials with civil lawsuits and
criminal investigations for "war crimes" or "crimes against humanity" by
exploiting universal jurisdiction statutes in Europe and North America.
These cases are a means for NGOs to punish Israel for its anti-terror
methods; to prevent future operations; and to promote a negative media image
of Israel. They are also a means of interfering with Israel's diplomatic
relations. Leaders in this movement include the Palestinian Center for
Human Rights (PCHR), Al Haq, the International Federation of Human Rights
(France (FIDH)) and the Center for Constitutional Rights. PCHR is already
issuing calls to bring suit for the killing during Operation Cast Lead of
Shiekh Nizar Rayan, one of the leading architects of Hamas atrocities, and
who sent his son out on a suicide bombing mission in 2001. To date, these
cases have been dismissed at the preliminary stages. See NGO Monitor's
monograph, NGO "Lawfare": Exploitation of Courts in the Arab-Israeli
Conflict, for more information on this issue.

Conclusion:

The exploitation of international law by NGOs as seen in the Gaza conflict,
according to Washington attorneys David Rivkin and Lee Casey, reflects an
effort to "criminaliz[e] traditional warfare" rather than promote universal
human rights.
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Notes:
[1] This concept is analogous to the "felony murder" rule where the
perpetrator of a crime will be held liable for murder if an innocent
bystander is killed by a police officer or other law enforcement agent while
attempting to apprehend the felon.

[2] Article 23 provides that
Each High Contracting Party shall allow the free passage of all consignments
of medical and hospital stores and objects necessary for religious worship
intended only for civilians of another High Contracting Party, even if the
latter is its adversary. It shall likewise permit the free passage of all
consignments of essential foodstuffs, clothing and tonics intended for
children under fifteen, expectant mothers and maternity cases.

The obligation of a High Contracting Party to allow the free passage of the
consignments indicated in the preceding paragraph is subject to the
condition that this Party is satisfied that there are no serious reasons for
fearing:

(a) that the consignments may be diverted from their destination,

(b) that the control may not be effective, or

(c) that a definite advantage may accrue to the military efforts or economy
of the enemy through the substitution of the above-mentioned consignments
for goods which would otherwise be provided or produced by the enemy or
through the release of such material, services or facilities as would
otherwise be required for the production of such goods.

The Power which allows the passage of the consignments indicated in the
first paragraph of this Article may ma permission conditional on the
distribution to the persons benefited thereby being made under the local
supervision of the Protecting Powers.

Such consignments shall be forwarded as rapidly as possible, and the Power
which permits their free passage shall have the right to prescribe the
technical arrangements under which such passage is allowed.