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By DANIEL WICKHAM
February 7 2013

The ceasefire between Hamas and Israel has lasted longer than most people expected. But the truce remains unstable, with violations on both sides, and few believe it will guarantee anything more than a short-term peace for the region.

We must, however, work to avoid a repeat of last year’s tragic events. The first step is to piece together the events that helped escalate the conflict and then establish the causes.

Israel’s operation in Gaza last November began when the Israeli Air Force broke an Egyptian-mediated ceasefire by assassinating the leader of Hamas’ military wing, Ahmed Jabari.

The resulting conflict left at least 158 Palestinians and 6 Israelis dead.

Of the Palestinian casualties, UN investigations show that 103 were civilians and 30 were children, whilst four of the Israeli dead were civilians.

In early November, nearly two weeks of calm were ended when an unarmed Palestinian man was killed approaching the Israeli border. The following day, militants in Gaza launched a rocket attack on Southern Israel and let off a bomb along the border, injuring three soldiers.

Then on Saturday November 10th, four soldiers were wounded when an Israeli Defence Force (IDF) jeep was attacked by militants. Israeli forces retaliated with tank fire, killing four civilians and wounding 25.

Militant groups responded by firing over 100 rockets and mortars into Southern Israel until Egypt brokered a ceasefire, only for it to be broken with the commencement of Israel’s Operation Pillar of Defence.

The notion that Hamas and other terrorist groups are guilty of war crimes is widely accepted. Their targeting of Israeli civilians is a heinous crime, in complete violation of international law – as has been documented by Human Rights Watch.

It should be noted, however, that the main barrage of rocket attacks against Israel occurred after several days of tit-for-tat violence between the two sides.

The first of these incidents, ending almost two weeks of calm, was the killing of an allegedly mentally unfit Palestinian man by Israeli soldiers. Ignoring warnings to stop as he approached the Israeli border, the unarmed man was still on Palestinian territory when he was shot dead.

This act – firing into foreign territory – could qualify as an attack against ‘the territory of another State‘, which, according to the Rome Statute of the International Criminal Court, constitutes an act of aggression.

According to UN Resolution 3314, which defines aggression, such acts are illegal even if the party on the receiving end is not a UN member.

The International Committee of the Red Cross, the only institution explicitly named as a controlling authority in international law, has made clear that regardless of questions of Palestinian statehood, Israel must abide by international humanitarian law in the occupied territories. It calls on Israel to refrain from using disproportionate force.

Shooting dead an unarmed man, in foreign territory – a man who posed no evident threat to the security of Israel – may qualify as disproportionate.

Three days after this incident, a 12-year-old Palestinian boy was shot dead by Israeli soldiers in Gaza, caught in the crossfire during a gunfight with militants. The Israeli soldiers involved were on an incursion into Gaza when they came under fire.

According to the International Criminal Court, “the invasion by the armed forces of a State of the territory of another state” is an act of unlawful aggression.

This begs the question – did the militants break international law by opening fire? It could be argued that, confronted by what may amount to foreign aggression, Gazans simply exercised their right to self defence. Article 51 of the UN charter and UN Resolution 2649would appear to legitimise violent resistance in the face of invasions and occupation.

This is no way justifies the Palestinian response, but it does pose an important question: when Palestinians attack Israeli forces in the occupied territories, are they breaking the law?

The standard line of Western governments has been to condemn Palestinian terror while ignoring the illegality of Israeli actions. One particularly obvious violation of international law by Israel was the “launching (of) attack(s) in the knowledge that (it will) cause incidental loss of life or injury to civilians.”

According to the Rome Statute, this qualifies as a war crime.

None of this in any way mitigates the crimes of Hamas or other groups. Terror is terror, regardless of its causes. But helping to understand the causes of the conflict is crucial to finding a solution. If there is no justice, there will be no peace. And the first step towards that peace is honest debate.

Originally published by Left Foot Forward 

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