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Hippiekinkster -> RE: Gaza/Israel situation (1/21/2009 9:41:43 PM)
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Ah, I see this BS notion of proportionality has popped up again.
Here's the legal justification for Israel's present actions, which can be found here.
http://www.jcpa.org/text/puzzle1.pdf
The discussion of International law as salient. (footnotes omitted, but available via link)
"1. Distinction and Proportionality
The rule of distinction, as noted previously, requires aiming attacks only at legitimate (e.g., military and support) targets. The rule of distinction includes elements of intent and expected result: so long as one aims at legitimate targets, the rule of distinction permits the attack, even if the attack is expected to cause collateral damage to civilians and even if, in retrospect, the attack was a mistake based on faulty intelligence.
Israel has aimed its strikes at locations from which rockets have been fired, at Palestinian combatants bearing weapons and transporting arms,68 Palestinian terrorist commanders, and support and command and control centers. Locations such as Interior Ministry buildings, from which Hamas directs some military activities,71 clearly make a contribution to Hamas’ military actions; they are therefore legitimate targets, even though they also have civilian functions.
The rule of proportionality operates in conjunction with the rule of distinction to limit collateral damage. While most kinds of collateral damage to civilian and other protected targets are permitted according to the rule of distinction, the rule of proportionality forbids collateral damage that is expected to be excessive in relation to the military need. Prosecutions for war crimes on the basis of disproportionate collateral damage are rare, and it is difficult to see how a credible claim can be made that any of Israel’s counter-strikes have created disproportionate collateral damage. Certainly, there is no record of any conviction of an attacker for excessive collateral damage in attacks like those carried out by Israel. Moreover, as with distinction, the rule of proportionality relies upon intent. If Israel plans a strike without expected excessive collateral damage, the rule of proportionality justifies it, even if, in retrospect, Israel erred in its damage estimates.
...
Perfidy and Civilian Shields
At the same time, it is clear that Palestinian actions in conducting military operations from within built-up civilian areas, thereby increasing Palestinian casualties, constitute war crimes. It is important to note that Israel is not required to refrain from attacking Palestinian combatants simply because they have chosen to hide behind civilians. As Article 28 of the Fourth Geneva Convention makes clear, the presence of civilians “may not be used to render certain points or areas immune from military operations.” The
article also makes Palestinian attempts to use civilian shields unlawful.
Additionally, the fact that Palestinian terrorists dress as civilians in carrying out attacks does not render them immune from attack - it simply makes them lawful targets that are also violating international law. International humanitarian law forbids perfidy, which, for example, means that it is forbidden to feign civilian status while actually being a combatant. The fact that Palestinian terrorists often dress as and pretend to be civilians while carrying out attacks makes it highly likely that many innocent Palestinian civilians will be accidentally killed. However, the war crimes here are Palestinian, and not Israeli.
3. Retorsion and Collective Punishment
In addition to regulating directly the use of force with the rules of distinction and proportionality, international humanitarian law also provides important rules regarding military acts such as blockades and the imposition of punishment. Israel’s actions abide by these rules as well.
Israel’s imposition of economic sanctions on the Gaza Strip, such as withholding fuel supplies and electricity, does not involve the use of military force and is therefore a perfectly legal means of responding to Palestinian attacks, despite the effects on
innocent Palestinian civilians. The use of economic and other non-military sanctions as a means of disciplining other international actors for their misbehavior is a practice known as “retorsion.” It is generally acknowledged that any country may engage in retorsion. Indeed, it is acknowledged that states may even go beyond retorsion to carry out non-belligerent reprisals, non-military acts that would otherwise be illegal (such as suspending flight agreements) as counter-measures.80 Since Israel is under no legal obligation to engage in trade of fuel or anything else with the Gaza Strip, or to maintain open borders with the Gaza Strip, it may withhold commercial items and seal its borders at its discretion, even if intended as “punishment” for Palestinian terrorism.
While international law bars “collective punishment,”81 none of Israel’s combat actions and retorsions may be considered collective punishment. The bar on collective punishment forbids the imposition of criminal-type penalties on individuals or groups on the basis of another’s guilt, or the commission of acts that would otherwise violate the rules of distinction and/or proportionality.82 None of Israel’s actions involve the imposition of criminal-type penalties or the violation of the rules of distinction and proportionality. It is striking that there has never been a prosecution for the war crime of collective punishment on the basis of economic sanctions. Indeed, many of the critics calling Israel’s withdrawal of economic aid “collective punishment” call, or have called, for the imposition of economic sanctions or the withdrawal of economic aid against Israel
and other countries or, at least, claim to have “no position on [the legality of] punitive economic sanctions and boycotts.”
Examples of retorsions are legion in international affairs. The U.S., for example, froze trade with Iran after the 1979 Revolution85 and with Uganda in 1978 following accusations of genocide. In 2000, fourteen European states suspended various diplomatic relations with Austria in protest of the participation of Jorg Haider in the government. Numerous states suspended trade and diplomatic relations with South Africa as punishment for apartheid practices. In none of these cases was the charge of “collective punishment” raised. “Punishing” a country with restrictions on international trade is not identical to carrying out “collective punishment” in the legal sense."
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