Could Israelis Face War Crimes Charges Over Gaza?

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Mahmud Hams / AFP / Getty

A child's shoe in a classroom at the UN school that was hit by an Israeli strike on January 17, 2009.

Israel likes to believe that its Defense Force is the world's most "moral" army, and it insisted throughout the recent Gaza war that great care was always taken to avoid inflicting civilian casualties. It may surprise and rile many Israelis, then, that their government is trying to protect its citizens from war crimes charges that could be filed in foreign courts over the conduct of hostilities in Gaza. Fearful that Israeli commanders could be targeted for arrest while traveling abroad as private citizens on business or vacation, Attorney General Menachem Mazuz on Tuesday ordered the Israeli media to refrain from revealing the names of any military personnel who took part in the 22-day offensive. Officers involved in the operation who want to travel abroad are now required to first check in with the office of the Judge Advocate, which will determine if the soldier is on a foreign watch list that might lead to his arrest.

Israeli military experts insist that their forces are far more careful to avoid civilian casualties than, say, the U.S. military has been in Iraq and Afghanistan. Still, the high civilian casualty toll in Gaza has put the Israeli military's conduct of operations there under scrutiny, and one senior U.N. official has suggested Israel may have committed "crimes against humanity" in the course of its campaign against Hamas militants hiding among Gaza's civilian population. Palestinian medical sources claim that over 300 children and 100 women were among Gaza's 1,200 fatalities. And the United Nations, Amnesty International, the International Committee for the Red Cross (I.C.R.C.), Human Right Watch, as well as Israeli and Palestinian human rights groups have all been investigating allegations of conduct that violates the laws of war. (See pictures of Israel's ground offensive in Gaza)

Among the allegations being probed are claims that Israel targeted ambulances and medical crews, improperly used incendiary bombs such as white phosphorus in dense civilian areas (a claim also being internally investigated by the Israeli military), prevented the evacuation of wounded carrying white flags, and targeted schools, hospitals, supply convoys and a U.N. compound where over 1,000 civilians had taken shelter. Although Israel dropped thousands of leaflets and made phone calls to targeted buildings warning of impending bombardments, Palestinians argue that they had no safe places in which to take refuge amid Israel's fierce bombardment.

Legal experts doubt that Israelis could be hauled before the International Court of Justice in the Hague, because Israel, like the U.S., is not party to the treaty that created it, and also because the U.S. and European governments would likely prevent such a course of action. What worries authorities in Jerusalem is that many European countries are signatories to a Geneva Convention that allows their courts to arrest and prosecute individuals accused of committing war crimes in other countries. Such legal options, Israel fears, may be used to bring politically motivated charges against its citizens. The daily Yedioth Ahronoth reported Wednesday that Israel's Foreign and Justice ministries have begun drawing up lists of law firms in different European countries that could be enlisted to defend Israelis in any future cases.

Another influential newspaper, the leftist Haaretz, even urged Prime Minister Ehud Olmert to set up an independent inquiry into accusations of war crimes by the Israeli military in Gaza. "Has the IDF (the Israeli Defense Forces) crossed the line according to international law?" the paper wrote. "Was there no other way aside from such widespread killing and destruction?" The editorial argued that Israel needed its own inquiry because "We cannot wait until the world has its say, and perhaps takes legal steps of its own."

Any international inquiry into Israel's wartime behavior might be more palatable to Israelis if it also probed alleged violations of the Geneva Convention by Hamas. Before and during the conflict, Hamas had fired shot rockets into Israeli towns; inside Gaza, according to the Israeli army, the militants had used civilians as "human shields," and had stored weapons in schools, hospitals and mosques — all illegal under Geneva.

But regardless of whether any legal action follows, the probes add to the pall of bitterness hanging over an operation whose ambiguous outcome has left many Israelis questioning just what was achieved by their war in Gaza.

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