HRW non-in depth examination of war crimes in the Gaza conflict of 2014 Part 4 of 5

Rafah, August 3^rd, 10:45 am; when common sense is another victim of a war crime

There is no major dispute between the IDF and HRW as to what has happened outside the Preparatory 'A' Boys' School in Rafah, on August 3^rd, at 10:45 am. A motorcycle chased by an Israeli drone was hit by a missile, probably a Spike missile. This happened across the street from the open front gate of that school, where children and adults were buying ice cream and sweets from food vendors. As a result 12 were killed, among them 8 children, and around 30 were wounded. According to Israel there were three members of Islamic Jihad on that motorbike. HRW does not dispute that, instead they argue that it was an unlawful attack because it was a disproportionate willful attack.  Here, again, a serious actuation is made, without supporting evidence, based on another incomplete investigation. But even before that they needlessly undermine their own credibility. Out of the 3,000 or so people sheltering in that school, these dead and wounded make less of a percentage than the dead and wounded of the Jabalya tragedy. But this is completely irrelevant to this case, since this is a totally different situation. As Mark Regev, the Israeli foreign ministry spokesperson pointed out at the time, it was not an attack on the school, rather on a motorcycle operating in the vicinity of that school.  And the testimonies gathered by HRW confirm that. The very testimonies that captured the horror of this situation, also verify the Israeli government line. Moammar Shaqlaih is a 32 years old volunteer who helped mediate a dispute between one of the directors of the school and another volunteer at the front gate, he says: "I was 20 meters away from the explosion when it happened. I didn't see it happen because my back was to the street. I ran towards the explosion, and I was completely shocked. Kids who had been buying ice cream were lying in the street, their bodies were bleeding everywhere. It was horrific….We brought the dead and the wounded inside the school…" The second male volunteer, described as a, 45 years old volunteer that choose to remain anonymous, also describes the motorcycle and the attack as taking place in the street, outside the school. "In the street there were three people on a motorcycle. The motorcycle slowed down, exactly in front of the gate of the school, I could see it. The minute the cycle slowed down, the missile hit." He too had to step outside to see what happened. The testimony of Saber al Hams, the ice-cream vendor who left early is taking place entirely in the street. There he sold ice-cream for about an hour. Along that street he walked away, and run back again once he heard the explosion. And in the street he saw the horrific site of the dead bodies. He was never inside that school. These testimonies confirm what Mark Regev had said. This was not an attack on a UN run school. It was an attack on a motorcycle that rode nearby. The idea that this is an attack on a school is an outcome of false impression. This false impression was initially created by the news media. By the time the news crews got there the dead and wounded had already been moved into the school. Since around that time the ambulances came to take them away, the news crews entering the school saw the casualties been taken outside and into the ambulances. This created the impression that the school itself was attacked, and that is what the world saw. But for some reason HRW chose to sustain this false impression. First with the main headline that suggests all three schools were attacked, then with the secondary headline, containing just the school's name. Yes, the two places, the site of the attack and the school were close, close enough to make those who were at the school at the time witnesses, but not victims or survivors. The two separate places are not one and the same. This false impression undermines the credibility of HRW account regarding the events outside the UN run school in Rafah, but it also puts Israel's defenders in a bind. Because percentage wise, these 42 dead and wounded, are probably close to 100% of the people standing around the sweets and ice cream vendors, if not all of them.  For the purpose of making serious s accusation against Israel, this false impression is completely unnecessary. They could have made a stronger case without it, if it wasn't for the other holes in this account.  The faults in this one are far more serious than everything reviewed so far.

Here, HRW is announcing a guilty verdict against Israel that is based on several failures of the common sense type, and one omission that is simply too big to be overlooked. HRW's first argument introduces itself as a common sense question, "why couldn't the drone takeout the motorcycle before or after it slowed down in front of that school?" There are common sense answers to this question. The first has to do with the laws of nature and science. The drone could not have hit the motorcycle before it slowed down in front of that school from the simple reason that fast moving objects are more difficult to hit. The idea that the drone, could have taken out motorcycle, "after," makes even less sense. Taking it after it resumed speed, requires the drone to hover around and wait until the motorcycle riders decide to resume the chase.  Why would they do that? This would also make the drone vulnerable to fire from the ground. And what if slowing down was a part of getaway trick - some kind of an escape maneuver? If the three men on that motorcycle posed a military threat, a fact HRW reluctantly accepted, then the drone operator could not have afford to let them get away. Elementary reason shows that there was no after option either.

In their second failure of the common sense type HRW's emphasized the fact the drone's alleged missile, a Spike anti-tank missile, uses an optical guidance system. This they say suggests the drone operator had a clear view of the food vendors and the children gathering around them. And therefore could have seen the civilians and aborted. No it doesn't. A clear view requires a clear field of view with no obstacles. As HRW keeps emphasizing the Gaza Strip is an urban environment. Videos that came from that street shortly after the attack, (some of them from the above mentioned news crews), show a street that is wide to some extant but with its share of buildings and tall trees. To argue responsibly that the operators of the drone and its missile could see the children around the food vendors, an accuser must identify the course taken by the missile as it chased the motorcycle. And show that along that course its guidance system had the alleged clear view. HRW did not even address this necessity. Another key requirement they did not address was whether or not aborting that launch was possible. If this was indeed a Spike missile then its operator had only 30 seconds to choose a different target for it. The school was clearly not an option. And neither were the surrounding buildings, where people were living in. As this IDF video shows, a successful abortion of missile strike requires identifying the civilians, and a large enough available clearing. A grossly incomplete investigation is a good enough reason not to file criminal charges of any type. You do not need to be a lawyer to know that. But the faults of this account don't stop here.

    

HRW next fallacy is the following description of the Spike missile, allegedly fired from the drone. "Spike missiles can create casualty-producing fragments up to 20 meters from impact, which was well within the distance of the school's front gate." This statement is simply wrong. It is not the missile that produces the wide distribution of the fragments, it's the warhead. Without identifying the warhead this charge cannot be made. Identifying the warhead is needed for another important reason. It is needed in order to explain an inconstancy in the account. According to the nameless 45 years old volunteer, one of three men on the motorcycle survived the attack. Now, how could a man sitting next to an explosion that is able to kill people 10 or 20 meters away survive it? It is quite possible that the science of physics can explain this, but such an explanation is not provided. Until this is resolved an alternative explanation has the same level of credibility as HRW's accusation. As agreed by both the IDF and HRW, the occupants of the motorcycle were members of an armed group. As such there is high probability that they carried bombs and explosives with them. In almost all cases of bombs used by armed Palestinian forces, the bombs included large amounts of debris and fragments added in order to maximize the harm to civilians. As the evidence and testimonies gathered by HRW tell us most of the casualties in this horrific tragedy were caused by fragments that went deep inside their bodies. (Read the testimony of the volunteer Moammar Shaqliah). Therefore the alternative explanation suggests that it was not the Spike missile or its warhead that caused the large number of casualties outside the school's gate. Instead, it was a secondary explosion from an explosive device carried by the occupants of that motorcycle that caused this tragedy. The gap between the two explosions may have been too short to be detected by the nearby crowd, but it was enough to allow one of the riders of that motorcycle to survive the two explosions. The large amount of fragments added to all Palestinian made bombs is what brought about the horrific deaths and injuries of 42 victims of this explosion. Only a further investigation can determine if this explanation is the correct one. Until then it has the same merit as the explanation offered by HRW.

HRW had challenged the taking out of a legitimate military target with arguments that supposed to be those of common sense. This makes their glaring omission of another common sense question, far bigger, alarmingly bigger. It is a very simple question, what were those kids doing out there in the first place? It’s a war zone outside that shelter. If they wanted ice cream and sweets so bad, there were plenty of adults who could step outside and buy it for them. This is such a disturbingly unusual behavior in times of crisis any reasonable person would have noticed it. Children are not supposed to be outside in a war zone for the same reason they are not supposed to do this when a hurricane or a tsunami is approaching. It is simply and obviously too dangerous. If we are to accept HRW's version of events at face value, we will have to accept the unlikely occurrence of a horrific set of coincidences. When a set of highly rare, unusual, and bewildering behaviors, took place in a monstrously perfect sequence needed to bring about this horror. First we have the food vendors. For some reason these guys decided to risk their lives and businesses, and open shop in the middle of a war. Yes they started during a cease fire, one of many that kept collapsing, the danger they were under was imminent. Food vendor like these guys had no way of knowing where and when the war will fall on them. This is a very unusual decision, which the average business person is unlikely to make. This is made worse by the testimony of the surviving ice cream sales man Saber al Hams, who said that the vendors kept on selling their ice cream and sweets after the cease fire had collapsed. More unusual is the behavior of the parents. Apparently not even a single parent, out of hundreds, protested.  Hundreds of parents inside that shelter and none were concerned?  All are apathetic to their children safety? Does this sound likely to anyone? A third group with a similar bewildering behavior are those of the staff and volunteers that operated this UN run school. Judging from HRW account non-of of them said a thing either.

Each of those behaviors is an extremely unlikely conduct in its own right. Normal food vendors do not open shop at a war zone during war time, especially after a cease fire had collapsed. Normal parents do not let their kids step outside of their shelter, no matter what the danger is. And responsible staff workers and volunteers will keep them inside and sent away such un-normal vendors. Each of these behaviors is extremely unusual, and extremely rare, if not totally unlikely. And for these three separate highly unusual counter safety behaviors, to occur at the same place at the same time, is so unlikely it is outright suspicious.  Made worse by another suspicion coincident; that of all the places the motorcycle riders could choose to slow down at, they did it in front of this school, the sight of an already implausible set of bad coincidences. The more likely explanation is that this was prearranged at some point earlier, as an escape route. An escape route, were those kids were the equivalent of smoke screen, a cover of protection for the escaping motorcycle riders. Prearrange by militant elements that took control of that school and kept the parents and staff from interfering by either deceit, force, or both. All they had to do was to keep the vendors outside the gate, tempting the kids to stay out of the shelter, beyond the end of the cease fire, and long enough for that motorcycle to arrive.

This suspicion is reinforced by another suspicious coincidence. This is what 23 years-old Azhar Odwan said about the reason she became a volunteer: "I started to work as a volunteer because I felt a need for more women volunteers. The women sheltering inside the school need to be able to talk to women, not only men." More women volunteers were needed because the women there had only men to talk to. An all men hiring policy is very strange hiring policy for an organization that belongs to the United Nations. But it is quite common among religious fundamentalist organizations in the Middle East. One such organization that is highly active in the Gaza Strip is Islamic Jihad. And according to the IDF, the riders of the motorcycle belonged to that organization. So we have here a motorcycle ridden by people Israel's says belongs to Islamic Jihad, which slows down near a UN run school, with a hiring policy of volunteers that follows the religious philosophy of that very same organization. This is a suspicious coincidence in its own right. Add the two together and the alarm will turn on even for the skeptic.

 

For those who are not yet convinced that something very suspicious was happening at that school prior to the attack, here is a question. What was the getaway vehicle doing there? Here is what the nameless 45 years-old volunteer told HRW: "There were two guys killed on that motorcycle and the third one was taken away by a car immediately." Only a getaway car in a standby could take him away immediately.  And any good escape maneuver, no matter how cynical, needs a good diversion or a good cover. Something both Hamas and Islamic Jihad are more than capable of arranging.

There are two options in understanding the events of that day as they are described in this account. We can take HRW account at face value and accept that nothing unusual or worth investigating took place at the Preparatory 'A' Boys' School in Rafah, on August 3^rd, prior to 10:45 am. This means accepting as a fact that Palestinian parents are grossly careless and apathetic to their children's safety. This is actually something many right-wingers will agree with, loudly and obnoxiously. Or accept as highly likely the possibility that one of the armed Palestinian groups had taken control over that school, used it and abused it for their own needs; including sacrificing children in order to save three of their men.

There is no choice to be made here. Just listen to the witnesses.

This is how the ice cream salesman Saber al Hams, describes how unusual their presence was: "The place was full of people. Actually the rest of the street that day was calm, because there had been a ceasefire, but then it collapsed, so people didn't go out." However it is the beginning of his testimony that is the most revealing. "I felt that day it was not busy enough. And it was not picking up, so we only stayed for an hour. I left at around 10:30 am…" Simply put, it made no business sense for the vendors to be there. Most of the kids in that shelter simply did not go outside to buy ice cream and sweets. What kind of kids do not go out to get ice cream and sweets? Only one kind, the ones forbidden to do so by their parents! And be certain it was not easy for them. Here is how Azhar Odwan describes the conditions inside the school's compound, "the playground is always full of people, especially kids. Given that its summer in Gaza, and the humidity…" The parents in that UN shelter kept their children from stepping outside and buying ice – cream even under the unbearable conditions of the heat and humidity of the Gazan summer. In the complex and tense situation that had existed inside that school there are going to be a few parents that will cave in to their children bagging, and a few others that will be deceived by their kids. It is unavoidable, but it does not change the fact that the parents at the Preparatory 'A' Boys' School in Rafah behaved admirably, more precisely - parentally; and kept their kids from harm's way.

Their typically normal behavior as parents, in the highly un-normal circumstances of war and crisis, strengthen the already strong suspicion that something extremely wrong was taking place.  And they are not the only ones to do so. As the testimonies of two male volunteers tell us, those of Moammar Shaqliah and the nameless 45 years old volunteer, some kind of an altercation took place at that front gate. It was an altercation between one of the organizers of this UN run school and a third volunteer. It was so heated these two witnesses/ volunteers had to mediate.  There is no way of knowing from this HRW account what the debate was about. But anything short of immediate concern for the safety of children outside the gate would have been a huge dereliction of duty by this UN staffer. There is no way to confirm it with this data, but it is a strong likelihood that the UN staff also behaved normally and responsibly. And the reason he and the rest of his staff could not get that gate close is because they were not in charge of it at the time. Think of the picture of this mediation. We have here 3 volunteers vs one UN staffer. What kind of objective mediation they could offer, if any, is not all that important; since whatever the mediation there was, it was sufficient to keep the gate open long enough for the motorcycle to arrive. And bring about this devastating tragedy.

And for those who will oppose the idea that any of these volunteers is capable of such brutality I bring the full testament of the nameless 45 years old volunteer. And I recommend reading it, over and over again.

"On the black day, I was at the gate of the school trying to resolve a dispute between one of the managers and a volunteer. Suddenly the sound of a drone became really loud – it was unusual and very aggravating. I looked up to the sky and we all stopped talking. I was still at the gate, when one of the displaced families asked me to get them another gallon of water. The families get only one gallon per day, and to get an extra gallon would be a big procedure, so I was just turning around to go talk to another supervisor inside the school. I was 15 meters from the gate, in the middle of the court yard, there's a basic football (soccer) field there, a playground. That's where I was when the explosion happened.

In the street there were three people on a motorcycle. The motorcycle slowed down, exactly in front of the gate of the school, I could see it. The minute the cycle slowed down, the missile hit. I didn't see anything suspicious about them. There was a big fire, lots of smoke. As usual there were ice-cream sellers at the school gate; four or five carts are always there. The children always buy from them. As soon as the smoke cleared I run towards the street, but I was so nervous, I was not sure there would be another strike. Everyone else was running the opposite way, into the school. I was in such confusion about whether to go forwards or to run back.

I saw dead bodies all over the place, and wounded, mainly children, and the ice-cream sellers. One of the ice-cream sellers, Abu Harb, his body took most of the shrapnel. He was an older man. He was always there with his cart. There were two guys killed on the motorcycle and the third one was taken by car immediately – I don't know where he went."

Just listen to this guy:

First, he wants to be anonymous. Why? Who is he hiding from? With a testimony critical only of Israel, he clearly has no reason to fear Hamas or Islamic Jihad. This means that he is hiding from Israel. Only members of armed Palestinian organizations such as Hamas and Islamic Jihad have a reason to hide from Israel.

Second, he is the only one who thinks this was not unusual for the ice-cream vendors to be there. There are always there, he says, which is probably true. But war is not always there, the last time war took place there was on the eve of 2010. And that is why over 3,000 souls in that shelter actively disagreed with him.

Third, he is the only witness to mention the drone. He found its present unusual and aggravating, but not frightening enough to get people inside and close shut the gate.

Forth, he was able to notice the motorcycle while been preoccupied by a family asking for another gallon of water. And that is when he was 15 meters inside the school, which is a distance 25 or 35 meters away from the motorcycle. Surrounded by the school's confines and the distracting commotion of hundreds of people, (as described by the female volunteer Azhar Odwan); he was able to notice that motorcycle coming, slowing down, been hit by the missile, exploding, and one of its occupants surviving and taken away by a getaway car. That is the kind of attention to details we would usually find in a person waiting for that motorcycle to arrive.

Fifth, while all the other witnesses were devastated by the site of dying children his attentions was focused on that motorcycle. All he could offer them was this one sentence, "I saw dead bodies all over the place, and wounded, mainly children, and the ice-cream sellers. Abu Harb, his body took most of the shrapnel. He was an older man. He was always there with his cart." Not a single child that was dying or wounded caught his attention or broke his heart, and that is cold, very cold. The kind of cold bloodedness we would expect from a person able to sacrifice children for his own needs. In his testimony the nameless 45 years old volunteer exhibits all the properties needed for someone who participates in such a brutal escape maneuver. Besides helping keep the gate open, he acts like someone who is waiting for that motorcycle to arrive. And he is totally indifferent to the suffering of the children around him. Apparently, when many others were carrying the dead and wounded into the school's compound, he was the one who was too shocked and confused to do the same. But one of the casualties did catch his attention, the elderly ice-cream vendor Abu Harb. He was focused to notice that Abu Harb body took most of fragments from the explosion.

The allegation made in this review of HRW account, suggests that Palestinian militants, probably Islamic Jihad, orchestrated this situation in order to bail their friends on the runaway motorcycle. An escape maneuver like this, were children are nothing more than expandable pawns, requires the presence of someone like nameless 45 to co-ordinate and supervise. Well, here he is. He is waiting for that motorcycle to arrive even when he is distracted away from the front gate. He is indifferent to the suffering of children he himself put in danger by keeping the front gate open, even after the cease fire had collapsed and an enemy drone has been sited. His presence is no longer a matter of another unexplained coincident. This is incrimination. We have in front of us cold blooded humanitarian volunteer that seeks anonymity. Who just happened to positioned himself just where it is necessary, to monitor the escape maneuver of the motorcycle's occupants. 

The fact that only one of the casualties caught his attention, the elderly ice-cream vendor Abu – Harb, does not exonerate him from any charges. It only increases the level of the incrimination. Abu – Harb represents the most disturbing and monstrous part in this revealed outrage. He is a very peculiar ice – cream vendor, and not in a nice way. Besides been one of the ice-cream vendors who stayed, thus keeping the children in danger, he has a strange name. Abu Harb is an Arabic name that usually means father of war. This is not the kind of a name we would associate with selling ice-cream. If his name or nick name was Abu Boora, father of ice-cream, or Abu Mahroot, father of cone, as in ice-cream cone, that would have made sense. But father of war, is the kind of name usually associated with members of armed organizations and their sympathizers. In a culture where Jihad, holly war, is a common first name, the likelihood of someone being called Abu – Harb, may not be a small one. But if that is the case, it is another co-incident to add to the list; maybe not the most glaring, but disturbing enough. According to the testimonies gathered he took most of the hits from that explosion. This means that he was the closest to it when it happened. It also means that he was the farthest from the school's front gate. Why would he do that? Why would he sell his ice-cream far from this school? His market is inside that school. With business been tough, he should be doing the opposite, getting as close as possible to that school, shouting, singing, promising cold refreshing ice-cream. Instead he is in the worse possible location, battling his competitors over the handful of kids that did come out. Business wise this is pointless, counterproductive. But if he was a part of that escape maneuver, then his behavior would have made perfect sense. For the organizers of this diabolical escape maneuver to guarantee its success they had to make sure the operators of the drone and its missile are able to see those kids. As the IDF video of aborted missile strikes shows, it is the visual verification of the presence of civilians that leads to these cancellations. And the best way to ensure that is to get at least some of those kids as close as possible to the arriving motorcycle.  This requires perfect timing and co-ordination. In the clear division of labor that emerges here, the volunteers at the gate and the motorcycle riders had to work on the co-ordination and timing part of it, while Abu Harb's job was to make it perfect. Obviously, he failed, and a cold blooded gamble with children's lives became a war crime. A war crime performed by Islamic Jihad against their own people.  And quite possibly, people from their very city and neighborhoods.

It is a war crime that violates international law on several levels. International law forbids the use of human shields. It also requires all parties to a conflict to give special protection for children.  From a moralistic point of view, using children as human shields is especially outrages and monstrous. The problem is that international law's main focus is on war crimes aimed against an enemy population, not when it is self-inflicted.  When international law does face such situations, it refers to them as extraordinary. Best example is the Khmer Rouge trials, known as the 'Extra Ordinary Chambers in the Courts of Cambodia'.  This war crime may not require extra ordinary chambers, but it does require attention.  It shows that civilians need the same legal protection from their own forces as they do from enemy forces.

Having established the fact, that Islamic Jihad has committed this war crime, a war crime against their people, a new question rises. Does this conclusion, means Israel is innocent? After all, the Israeli missile was an instrument of death in this crime.

If an international judicial authority does decide to launch criminal proceedings against Israel and the IDF regarding this war crime; justice demands of them to take a series of actions first. The first among them is to take on the issues HRW investigators had avoided. Completing their investigation and proving that the operators of the Israeli missile could see those children and had the ability to abort its flight. That means also been able to identify in time an accessible vacant area where the missile could have exploded at safely. They also must verify that no secondary explosions took place; that no bombs or other explosive devices were carried on that motorcycle.

      

And once this judicial authority believes it has all the necessary information needed to actually file charges against Israel and the IDF, they must first file charges against those who share the greater part of the blame, Islamic Jihad and its group of volunteers that operated that day at the Preparatory 'A' Boys' School in Rafah.  Why them, and not those who sent the instrument of death? Think of the following analogy.  A group of kids is playing in the open. At some point a smaller group of adults is joining them. They are not complete strangers to those kids, so the two groups interact friendlily; especially when the adults have more fun staff to offer those kids. A fancy new football (soccer) that looks awesome when kicked skywards, a baseball with a bat to match, a few throwing balls to toss around, and a couple of skateboards. And of course the accompanying snacks and sweets. With these they lead those children to a different playground, the nearby highway.  At this time of the day it is still empty, silent, a tempting playground in its own right. But as the games continue, and the kids are distracted by their entertaining toys, this time of the day is about to end. And from behind the hill, that of which the empty highway goes over, rush hour traffic is coming in full speed. The outcome is as unavoidable as it is horrific. With wounded and dying children scattered all around.  The question is who would you blame for their deaths and injuries? The adults who lead them there and placed them in lethal jeopardy, or the drivers driving the instruments of death?

This analogy applies perfectly to the crime committed by Islamic Jihad outside the Preparatory 'A' Boys' School in Rafah; on August 3^rd 2014. Ask yourselves two simple questions, If there were no civilians and children outside that school, would that motorcycle have slowed down in front of its front gate? And if there was no motorcycle trying to escape an Israeli drone, would that gate had remain open after the collapse of the cease fire? The answer to both questions is NO, and without those two actions this horrific incident would not have taken place.  The IDF operators of the missile may or may not have had a choice in their actions. If they did it was during a very narrow window of time, much like the car drivers in the analogy. The motorcycle riders and those who kept the gate open definitely did have other choices. And like the adults in the analogy they are the ones that brought the kids into a place of lethal jeopardy.  Therefore their share of the blame is both bigger and definite. And justice demands that they be the first to be prosecuted.  Because prosecuting the least responsible party to a crime while leaving out completely the chief instigator and facilitator of the crime, is a definition of injustice.

 

However the work of justice does not ends here. There is one more party to this monstrous war crime that has to face criminal charges, one whose responsibility is also greater than that of the IDF. This party is made up of those helping the main perpetrators of this crime avoid justice. These are HRW's authors, and researches of this abysmal account. 


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HRW non-in depth examination of war crimes in the Gaza conflict of 2014 Part 3 of 5

      

Jabalya girls' school and the 100% demand

The tragedy in the Jabalya girls' school took place on July 30^th at 4:40am. In that incident 20 civilians were killed, among them 3 children. Based on all accounts, including that of Israel, the cause of these deaths and injuries were Israeli artillery shells. These shells were clearly identified as 155mm shells, and Israel is the only party in this specific conflict to use them. This time we do have a clear identification of the munition involved. And since the IDF had acknowledged firing them, there is no dispute here in the first place.  Therefore on the face of it Israel is clearly guilty. Only on the face of it; the details suggest this is not the whole picture. This is not where it ends, and this is not where it begins. It begins with the fact that during the battle in the outskirts of Jabalya, circumstances were those weapons were needed, kept on coming. There, as elsewhere in the Gaza Strip, fighters from Hamas and other armed Palestinian organizations were hiding behind barricaded positions scattered in a dense urban environment. This is a situation where every corner is a natural opportunity for an ambush, and where many were used for that purpose. From such fortified hideouts the Palestinian fighters fired mortars and anti-tank missiles at the Israeli forces, as well as long range missiles against Israeli population centers. These were threats infantry unit could not remove by themselves, therefore needing the assistance of the artillery.  As long as these threats had existed, these forces could not carry out their mission, and protect the Israeli civilians targeted by the Hamas rockets and missiles. This general description of the battlefield conditions is an undisputable fact. Both the IDF and HRW acknowledge the fact that heavy fighting took place. And heavy fighting by its very nature is not one-sided. If only one side in a fire exchange has the heavy weapons, the fighting ends quickly. The question as to whether these were the circumstances in this specific case is caught in the predictable dispute between the versions of each side.

In this case HRW's investigators rely a lot on a UN investigation as published by the NYT. The tone of that article is more accusatory towards Israel. But it also provides more details about that incident. As with the Beit Hanoun tragedy we have here a dispute between two versions. Israel, saying that its forces fired at enemy mortars positions firing from a distance of about 180 meters, (200 yards), from that school. And the version of the Palestinian witnesses; claiming not to have seen any such activity. But the details undermine the credibility of their testimony. Not of the witnesses themselves, even though one of them chose to be anonymous, but certainly of their testimonies. First it was dark, as NYT says "predawn", 4:40am. Second, it was noisy, extremely so, violently so. The hell of war was ongoing outside that shelter. As the witnesses told the NYT, "In the hours before the strike, explosions and shelling kept many people awake." In a situation such as this the surrounding conditions undermine the credibility of the accounts given by eyewitness and ear-witness alike. It is too dark to notice activity outside their shelter, and too noisy to clearly differentiate between the various sources of noise. It is simply too confusing to differentiate between the sounds of explosions, or the launching of projectiles, such as mortars, rockets, and missiles. Clearly identifying their distance from the shelter will also be impaired. In these kinds of circumstances confusion is unavoidable. Again it is a part of the very nature of a heated battle. The lack of such confusion, if indeed there was none, is so unusual it is the one that requires explanation or corroboration.  We get more than a glimpse of that intensity and confusion from these two IDF video, showing the Nahal brigade fighting in the outskirts of Jabalya on July the 29^th. 

As for the Israeli version, this one enjoys a support rising from the details provided by both the HRW's account and the account published by the NYT. According to HRW the UN run school and its surroundings were hit by ten 155mm shells, which included smoke and illumination shells, along with high explosive shells. The uses of illumination shells in the darkness of predawn hours help identify and differentiate the intended target from the surrounding area. Smoke shells prevent enemy spotters from aiming their artillery fire, such as mortars. These are the kind of tools the IDF had to use if its version is the correct one, and it did fire on enemy mortar positions. If Israel was firing indiscriminately, why bother including them in the artillery round? True, the UN investigators, mentioned in the NYT article, did not find any evidence of close infantry combat in the immediate vicinity of that school. But no such claim was made by the Israeli side in the first place.

The NYT brings the testimony of villa owner Abdel Latif Al – Seifi who said, "It was clear that they were not aiming at a specific house, but fired lots and it fell where it fell." His testimony is disputed by the map of the hit sites provided by the NYT itself. There we see two clusters on the opposite sides of this school. The central point of each cluster is outside the school at a distance very close to 200 yards. Just as the Israeli version claims.

But the strongest support for the Israeli version comes from the fact that Israel did go into a great length to minimize civilian casualties. A warning missile known as "knock on roof procedure" was sent at 2am, giving people time to prepare. The laminations shells lit the dark skies in order to better identify the actual target; and better aim the artillery away from that school. And from that artillery round only 3 out of 10 shells landed at the school's compound, and only one of them was carrying live munition, (see the NYT list, specifying where each shell hit). As the nameless witness told HRW, the bombardment was short, 3 – 5 minutes. The conclusion is simple and undisputable. Israel did what it could to keep the sheltering civilians from harm. Sent a warning ahead of time, illuminated the skies, kept its own bombardment short by using a handful of shells, and successfully kept most of them away from that school, especially the live ones. And these are just the measures we can learn about from the witnesses' accounts.

However, the most important evidence in support of this claim is the fact that Israel and the IDF were successful in this effort. This was not a 100% success, but very close to that standard. As HRW kept emphasizing, 3,200 people were sheltering in that school. And out of them only 20 were killed, (21 according to the NYT). 'Only', because 20 out of 3,200 is 0.625%, less than 1% killed, over 99% survived, extremely close to 100%. Effort wise, this should be considered, and is, a success. Adding the number of wounded, (45 according Mike Cole, a UN official quoted in the NYT, and 100 according to the Guardian), does not change the fact that most of the civilians sheltering in this school were unharmed, more than 90%. The only way this can be considered a failure is if the standard for success is 100%.  If so, those who set this standard should have the integrity to publicly say so in the first place. If this is not the standard, then the conclusion is unavoidable, the IDF operation in the immediate vicinity of the Jabalya girls' school was successful in minimizing the civilian casualties. Such a success, over 99% survival rate, cannot be achieved without an effort. A huge effort made by the attacking side to minimize civilian casualties. And why bother to go through all that effort, unless there is a real military target nearby?

Nonetheless, people were killed. And the question, could Israel have done more in order to save lives is proper and appropriate. When the value of life is at the core of your convictions, that question is always proper. To the opposing sides in this dispute, this question places each of them in a different position. For the IDF it is a requisite of professionalism and ethics, studying the details of the events in order to do better the next time. Fulfill the military objectives with less impact on civilian lives, less harm, fewer deaths, getting even closer to 100%. For Israel's critics and detractors it is about finding that one detail from which charges of war crimes and/or violations of international law can be built. An integral part of that process, for both sides, is taking into account what the IDF couldn't have done. And as powerful as the IDF is there are a few things it couldn’t do. According to the NYT and its witnesses most of the killing was caused by the only live shell to land in that compound. This one hit the courtyard were men were praying underneath eucalyptus trees. In predawn darkness, underneath the canopy of eucalyptus trees, the briefly lit lamination shells cannot help detect such a gathering. Therefore, these deaths, tragic as they are; the IDF could not have prevented.

According to both HRW and the NYT, another part of the school that was hit, was the second story of a classrooms' building. This place also took a lot of casualties. Judging from the pictures provided by both publications, something came crashing down throw the roof. Not exploding, crashing down. These are most likely the smoke shells or the lamination shells reported by the two accounts. As mentioned above only one shell with live munition fell in that school compound, and that was at the courtyard, not the buildings. Now, unless someone can prove, without a shadow of a doubt, that with commonly known and available means, there are ways to affect their trajectory without compromising their efficiency, efficiency needed among other things to keep the more lethal live shells away from school's buildings; unless someone can do that, this is another tragedy Israel could not have prevented. Israel also could not have prevented the harm caused by the window's broken glass, and the shrapnel that came through. This is typical collateral damage situation, the most obvious and most famous example of it.

A second tier of exclusions has to do with what the Palestinian armed groups and UN personal could and couldn't do in order to protect the lives of the unarmed. However, the role of the Palestinian armed groups is pointless to discuss, since there is a dispute as to whether they were there at the time. As for the UN role, here there is plenty to discuss. It is seemingly outrageous that their personal placed the women and children at the second floor, and allowed the men to gather outside in the courtyard. These are the most vulnerable places to collateral damage and spillovers from the ongoing fighting outside the shelter. The most protected places of course are the first floor and the basement, (if there is one), protected among other things by the second floor. Actually they really had no other choice. They had 3,200 people to take care off, with 24 rooms available; it is an average of over one hundred souls per room. Cramped is an understatement.  What made it all far worse is the fact that it is midsummer near the sea. Heat and humidity are at their highest, producing unbearable conditions even for smaller gathering of people, let alone 3,200.  And the nights offer very little relief. The sound medical decision was to place the women and children in the cooler upper floors; and to allow the men to enjoy the somewhat more breathable air outside. Knowing that, remembering that is to understand why they too had to operate under unenviable constraints. But even under these limitations the UN personal could have done more to help the people it was supposed to protect. For example, they could have prevented the windows' glass from breaking by simply crisscrossing them with duct tape.  If a single Palestinian woman could get enough duct tape to keep the windows in her home from braking so could the UN with its truckloads of supplies coming through the Erez Crossing and Kerem Shalom. And they could have done more. In Israel, one of reasons the number of civilian casualties is lower is because of a long of list of emergency procedures that are taken by civilians and civil authorities when an immediate threat is looming. There is no reference for these kinds of procedures in the accounts published by the NYT and HRW. According to the testimony of Suleiman Hassan Abd el-Dayam, as published in the HRW's account, it was up to him and his extended family to take safety precautions once the warning shell came at 2 am; precautions that were largely improvised. There is no mention in his testimony of any UN activity regarding their immediate safety concerns. No special procedure is mention, and no UN personal came to look after them. And that in a time span of at least 2 hours. As mentioned above the warning shot was at 2 am, and the brief bombardment begun at 4.40 am. According to another witness, the nameless staff worker, most of the injuries from glass and shrapnel he saw were to the heads and faces. This is something that can be prevented or minimized by covering the faces and staying away from the windows. We can see that in these American tornado drills, a natural disaster that can produce similar injuries. 

Interestingly, someone there did do something right. The statistics tell us that only 3 children were killed in that tragedy, a remarkably low figure. This tells us that someone was able to keep most of the children away from the more vulnerable parts of this school's buildings. Who was this person, and what she, he, or they did, the accounts of HRW and the NYT do not convey. But evidently someone was able to save lives in spite of all the difficulties mentioned above. Politics aside, whoever this person is, she, he, or they, deserves our praise. This heroism and ingenuity shows that something could have been done; and that puts to shame the entire UN's organization responsible for the people sheltering in the Jabalya girls' school. 

We, the mere readers and observers, must understand the difficulties of saving lives in such a precarious situation. With or without emotional involvement in the Israeli Palestinian conflict, and no matter which side we empathy with. We must all internalize that for lives of the unarmed and helpless to be saved during a violent, chaotic conflict, all must do their part; all must do their part! And even then there is no guarantee that all will survive. But if one side does the maximum and the other the minimum, more will needlessly die. And here the maximum was not done by the UN personal. And while one may choose dispute the fact that the IDF had done the maximum in order to save the lives of Palestinian civilians, there is no other way to explain the result. Carelessness with massively lethal weapons does not produce a 99% survival rate. If people are lucky, around 70% will survive. If they are not lucky less than 20% will live to carry that horror with them for the rest of their lives. A 99% survival rate can only be achieved if the attacking side goes into a great length to protect those 3,200 lives. This is a matter of a huge effort backed by a long experience. Without these two such a success could not have been achieved. Unless; again; the standard for success is that of 100% survival rate. And since Israel did the maximum and the UN did not, any charge of war crime will have very little to work with.

If the details of the evidences and testimonies speak in favor of Israel why does HRW find Israel guilty? According to them it is international law.  The dispute between the two versions they set aside, even though it is clear which of the versions they are in favor of. Instead they focused on a legal argument that says that the munition used, 155mm artillery shells, is simply too crude to be used in such densely populated urban environment. It has an error range of 25 meters and the spread of the fragments produced by its explosion has a radius of 300 meters. This is not an argument based on international law. This is an argument based on an interpretation of international law, a bad one. But first of all, there are some elementary flaws in the logic of this argument. If the weapon is that crude, and it is crude, that only enhances the magnitude of the IDF success in protecting the lives of the 3,200 people sheltering in the Jabalya girl's school. 99% survival rate is not the product of luck, especially when the weapons involved are crude. But for HRW the survival rate is not a criterion. Crudeness is their only criterion. This leads to a more serious flew of this interpretation. What if those same deaths, this same tragedy, had been inflicted by a more accurate, less crude of a weapon? Would they have been legal then? And since the survival rate is not a concern, will a greater number of deaths produced by a non-crude weapon be also legal?  These are unavoidable logical outcomes of their interpretation. Intentionally or unintentionally their interpretation dumps both the living and the dead and reduces them to mere props in the drama that preceded the accusations. Under HRW's interpretation of international law, even a far higher death rate, where survival rate can be less than 20%, would have been legal. If lives are valuable, the crudeness of weapons is important, but also how there are been used. The most accurate of weapons can be mishandled with frightening results. And evidently a crude weapon such as 155mm artillery shell can be used with such a care, 99% will survive, 90% will be unharmed. Of course HRW and other human rights activists can argue that even the hypothetical scenario introduced here constitute a war crime; since the number of civilians killed is far higher from what we would expect from a more accurate type of a weapon. But that means reintroducing the survival rate as a criterion. And if it is implemented on a more accurate weapon, it should also be implemented on a crude weapon. And the same logic that says it is a war crime when an accurate weapon produces a higher than expected death toll; must also say that when a crude and powerful weapon brings about a distinctly low number of deaths, it is not a war crime.

HRW's interpretation of international law does not only abuse Palestinian lives. It does the same to Israeli lives. There is no questioned that it is easier to avoid civilian harm with more accurate weapons. But such weapons are not always capable in taking out the legitimate military target. A fortified bunker is one example that requires the use of 155mm artillery shells. Another one is a mortar position that is defended by snipers, and various booby traps around it. Giving soldiers the cover they need when uncovering a tunnel that threatens other Israeli soldiers, and probably civilians, is another example. In prohibiting this weapon HRW creates legally secured, freehand regions for armed Palestinian groups to operate from. All they have to do is to be very close to large concentrations of civilians, such as these UN run schools, and target from there both Israeli soldiers and civilians, with no fear of consequences. This interpretation of international law is a non-starter, implementing it only leads to frightening absurd that international law cannot live with.

What international law actually says about situations such as this is more complex than that interpretation. But it is not much different than the analysis presented in this review. The ICRC (the international committee of the Red Cross) has a database that explains international law in simple yet through manner. The rules in this database show how in the Jabalya girls' school incident, Israel had in fact acted in accordance with international law:

Rule 15: minimizing civilian casualties. Remember the 99% survival rate I keep mentioning. It is a requisite of international law. 

Rule 20: advance warning. Even HRW acknowledge this was done.

Rule 17: target selection. This is summarized as follows, "Each party to the conflict must take all feasible precautions in the choice of means and methods of warfare with a view to avoiding, and in any event minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects." As mentioned in this review, Israel gave an advance warning, illuminated the skies, kept most of its lethal ammunition away from that shelter's compound, and kept the bombardment short. As the map provided by the NYT shows, most of the strike sites are outside of the school's compound. One is on its border, and only one inside. The strike sites themselves are clustered outside that compound, and the largest gaps between the strike sites are located on the school compound itself. This shows an effort to differentiate between that school and its immediate environs. With such close proximity, of less than 200 yards, this is extremely challenging; nonetheless, there isn't a single clustering of strike sites inside that compound. The two clustering show were the intended targets were located - outside. With no clustering inside the compound that school was clearly not targeted, selected out of the targets list, and differentiated from its immediate surroundings. And with 99% survival rate among the sheltering population, the minimizing requirement was also met.

What HRW was trying to do was probably based on the misuse of rules 12, 13 and 71. Rule 12 defines the principle of definition of indiscriminate attack. There are basically three such definitions. From them the third concern, rule 12c, is the one relevant to this discussion. Rule 12c defines as follows an important aspect of indiscriminate attack, "which employ method or means of combat, the effect of which cannot be limited as required by international humanitarian law." According to HRW the effects of high explosive 155mm artillery shell cannot be limited to the military objective because of the error rang and the range of the dispersal of fragments, see above. The error range argument is disputed by the HRW account of the incident. As they describe it, not a single live shell hit the well-recognized, more easily identified, buildings of this school compound. Those were the places where most of the civilians were sheltering, and the IDF, as required by international law, kept all live munitions from hitting them.

As for the protection from the impact of fragments, these are not chemical weapons, not biological weapons, and not thermo-nuclear weapons. With commonly available means civilians and local authorities have the ability of protecting themselves from this threat. All that is needed is for something to halt the fragments as they spread. This can be done by the walls of buildings, with their windows reinforced with duct tape, of course. Sandbags are another known means of protection against fragments.  And there are also pre arrange shelters, and safety procedures, such as escorting the populace to the more secure parts of the buildings, and more. Since the attacking side is not located on the ground with those civilians it cannot provide those means. This is simple logic, and logic is how international law expects rule 12c to be implemented, see the explanation in ICRC database. This is reinforced by rule 22 which stipulates, "The parties to the conflict must take all feasible precautions to protect the civilian population and civilian objects under their control against the effect of attack." Whether or not this part of international law applies to a neutral party such as the UN is a matter of interpretation. What this does show is that as far as international law is concern, there is a limit as to how much responsibility can be placed on the attacking side. This is a limit that does not exclude the attacking side from doing what is feasible from its end in order to minimize civilian harm, but it shows that the defending side is not expected to do nothing. With 99% survival rate the IDF met the demand of international law. Whether the authorities on the ground had done the same is unclear, if not disputed.

Israel's adherents to international law also include abiding by rule 12c.  The advance warning, gives civilians and local authorities time to prepare and implement their means of protection against the effects of an attack. Therefore the advance warning, known as 'knock on roof,' is not just an implementation of rule 15, which specify such an action, it is also an implementation of rule 12c.

Rule 13 deals with a situation called area bombardment, when a large area is bombarded from the air or by artillery. In situations such as these there is a need to make a distinction between military and civilian objects in that area. But there is no clear description in international law of what is the distance that can make a clear distinction possible. One possible reason for that are the technologies available. Accuracy is a product of technologies; they can determine our ability to make such distinctions. And if such a clarification was to exist based on the technologies of the past, it would constitute a license for murder under the current technologies. On the other hand ignoring this requirement altogether is a license to use human shields. The former is a violation rule 1, the principle of distinction between civilians and combatants. As well as rule 89, that forbids murder. The latter is a violation of rule 97, which forbids the use of human shields. It says, "...using the presence (or movement) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations." While the international community avoided these two traps by not clarifying this criterion. HRW fell right into it, adopting an interpretation that makes the use of human shields legal. Israel on the other hand tried to implement this rule, in spite of the challenging circumstances. A short bombardment lessened the chances of live shells hitting known concentration of civilians – the buildings. And the clustering of strike sites outside that school show that a distinction between the school, and targets less than 200 yards away from it, was made.

Rule 71 forbids the uses in populated areas of weapons that are by nature indiscriminate. However, artillery of 155mm shells is not listed as one of them. And those that are listed do not enjoy a sufficient consensus in the international community.  Since the IDF was able to use this weapon discriminately, and save the lives of thousands of Palestinian civilians, Israel did obey this rule.

HRW remaining legal argument is that Israel did not provide any evidence or information confirming its claim. The claim of attacking enemy mortar positions located 200 yards from that school. Israel is not obligated to give that kind of information to HRW, or to any other human rights organization. This does not constitute a proof of guilt. Moreover, this is an incomplete argument. In order to prove that Israel did not attack military positions near that school compound, they must also demonstrate that Israel did not behave as a party that is attacking closely located military positions. But this part of the argument was not even taken. Instead this was done by this review. And what this review had showed is that from their own information and that of the NYT, the IDF did behave as a military force attacking mortar positions close to this UN compound. Smoke shells to blind the spotters, lamination shells to better detect the targets and avoid hitting the shelter and other civilian objects, clustering of strike sites outside that school – at proximity of 200 yards or less. Along with the successful effort to minimize civilian harm, the facts, evidences, and testimonies that they have gathered, show that the IDF did act as if it is attacking adjoining mortar positions. Now, why would someone who is not attacking military positions act as if it does? Why bother going throw all that meticulous effort, to differentiate between targets, minimizing civilian harm, and abiding by international law, in order to attack something that has no military value?  Along with its misuse and misinterpretation of international law, this account is another incomplete investigation.

There is no question that the case being made here is disturbing. Even neutrals will have problems with it. And there is nothing wrong with that, it is a perfectly human emotion, one that is based on empathy for dead and wounded, and their families.  It is certainly, and understandably disturbing to accept that those 20 deaths will be left unanswered for, with no sense of justice. It is perfectly normal not to feel right about it. It is a part of our natural repulsion from war. Something we must always encourage. It is also understandably difficult to accept this review critique of HRW. After all, why would a respected human rights organization act as such a counter-productive force in the cause of human rights? Why would it be a force that undermines the very integrity of the practice of international law, and advocates interpretations that put more lives at risk, rather than protecting them?

Sadly it is easier to answer the second tormenting question, than it is to answer the first one; painfully easy. As mentioned in the opening segment of this review, a strange pattern had been evolving among human rights critique of Israel's military actions, especially with regards to HRW. It is a pattern where the dilemma of modern warfare is absent; a dilemma where decisions of life vs life must be taken on a constant basis. When you ignore this dilemma you also disconnect yourself from its cause, from the reason it exists, the value of human life. Only people committed to the value of life will be torn by the need to make life vs life decisions. When one is ignoring the existence of such dilemmas in times of war, one immediately disconnects oneself from the cause of these dilemmas, the value of life; all lives. Whatever the criterion implemented may be? It will not be the value of life. This may not have been their intention, but once they made that decision this is where Human Rights Watch ended up at. On a slippery slope that lead to an unavoidable collision with everything that is based on the value of human life. This includes Israel's action as evidenced in the accounts given by them and the NYT, and international law itself. Both are guided by that concern. And when they adopted and advocated an interpretation of international law that legalizes the deaths of more civilians from both sides, they collided with the value of life itself. It is a downward course; once taken it can only get worse.

Providing a sense of justice to those who had died is more difficult. These are men, women, and children, unarmed civilians who had no businesses dying in the first place. Life must matter, that is the guideline we follow if we believe in the value of life. However, punishing Israel for the life it failed to save, means punishing Israel for the life it did save, and protected, close to 3,200 of them. And it is stating the obvious that punishing someone for saving lives is the exact opposite of adopting the value of life. Such a course of action will not only be contradictory to the value of human life, it will be contradictory to international law, which encourages the minimizing of the death and suffering that all wars inflict on unarmed civilians. Worse than that, such an action will be nothing more than political retribution. It will not be a part of a peace process, or a human rights process. It will simply be a part of the conflict, a part of the process that includes wars and deaths in its dynamics. Needless to say, justice for the dead will not be served by more deaths. No one will benefit, especially not those who needs it the most; the most vulnerable parts of the society, the unarmed civilians.  Seeking their wellbeing does not require political retribution. It certainly does not require the misuse and abuse of international law, as preformed here by HRW. As said here before, all it requires is for all to do their part - even if they hate each other. What we all must understand is that clearing the IDF from wrongdoing is not a license for the IDF to kill civilians. It is not a reason for the scrutiny to stop, and it is not meant to be that. This is a matter all sides of the debate must internalize. If we wish to contribute to the saving of innocent lives, then this scrutiny must continue. But for it to be productive it must also include the Palestinian side, the various agencies of the UN working on the ground, and the human rights organizations reviewing the actions of the combatants.  Only this way more will be saved should war comes knocking the next time. The down side of this course of action is that it will give us a glimpse of that tormenting filling when lives vs lives decisions must be taken. But without going through this torment we won't be able save anyone. Worse than that, we might contribute to the suffering and misery of many more.

Is that justice? It is in the sense that preventing needless deaths prevents injustice. But the politically motivated critics will undoubtedly disagree strongly.  The bottom line is simple as it is painful, as we do more and more to save life, and succeed in it; we are left with those only the end of the conflict can save. Peace, that lofty, elusive goal, which few believe it can be achieved.  The idea that we should leave some of the lives needed to be saved for the peace process, is something many will find infuriating. The argument, this is war and people die in it, is an argument we must never surrender to. Whatever measure of humanity we can bring to this monstrosity called war, we should and we must. But when such efforts and concerns are crushed by the reality of war, the course of action must never be the undermining of the ideal of human rights. This is precisely what HRW is offering in their interpretation of international law, as presented here. This is a choice between the unbearable and the immoral. An interpretation of International Law that allows the use of human shields, and prevents a country from properly and effectively defends its citizens, is immoral. It neglects the human rights of both Palestinians and Israelis. Unbearable, is the filling we all have when we come face to face with those we cannot save; those who perished in spite of all our efforts, and those of others. This is not a splendid place to be. The reality needed to be changed here is not a splendid one, far from it. But when we choose an immoral path, what good are we to anyone? If, however, we choose the unbearable path; its unbearableness might be the push we need, all of us, regardless of our political and ideological convictions, to bring about this elusive peace. This is not the most noble motive for peace making, but what has the noble lofty ideals had done for peace making so far? All they did was to become hollow words, with no relevance and credibility to either party. Much like this conflict, peace makers, and human rights activists carry their own open wounds with them. But they are not supposed to inflict them. When they do that, they have no right to preach to others on these issues. More than that, they do not have the credibility to do so. Their word has lost its value. And all the good causes, of peace and human rights, become even more unattainable.

     

I am not asking anyone to cheer the IDF over this horrific tragedy, not of those who support Israel, and not of those who oppose it. People died; there is no room for cheering. Like it or not; there is also no room for condemnation.  The IDF did set out to save lives, and lived where saved. The choice is yours, the readers, carry the open wounds of this conflict with you, or inflict them on unto others, from both sides. Accept the unbearable conclusion that the deaths of these 21 victims could not have been prevented by the IDF. Or share your cause with an ethically bankrupt human rights organization. The second choice will make you fill great with yourself. It will reward you with compliments made up from all the words and phrases that exist in the lexicon of human rights activism. But should this path get implemented… it will require you to be deaf and blind to the suffering of more people, from both sides; people who otherwise could have been saved and protected by international law and those who follow it, like the IDF.  And if this tares you apart, sends your emotions into turmoil, well…, that is good! This means that the value of life is alive within you, powerfully so.



NEXT

Rafah, August 3^rd, 10:45 am; when common sense is another victim of a war crime

START

Palestinian propaganda, up close

The picture above is one of the more famous instruments of Palestinian propaganda. It is found on many Palestinian and pro – Palestinian sites, and had reached iconic levels even at leftwing circles. It was taken in 2002 during 'Operation Defensive Shield.' This was Israel's largest counter-terrorism operation, which ended nearly a year and a half of mass murder attacks on Israeli civilians.

It's suppose to be an Israeli soldier abusing a Palestinian family. According to the picture he is doing that from a kneeling position with a snipers rifle in his hand. Now, just the basics: In order to abuse someone the victims has to be completely helpless, and under total control of the abuser. And how does an abuser suppose to achieve that from a kneeling position?

He cannot – that simple, no one can. Basic anatomy of all assault crimes, the abuser keeps the victim close to the ground or the wall, never the other way around. If the soldier intended to abuse someone he would be standing. Instead he is kneeling with a sniper rifle in his hands. Why? Because he is a sniper, he is kneeling because that is what snipers do. When they are in the kneeling position snipers become smaller targets to the snipers of the other side.

So why is this soldier kneeling in the middle of a Palestinian street?

Simple, there are Palestinian snipers on the other side, away from the area captured by the photo.

And what do civilians do when a shootout is about to begin?

Get the hell out!

And that is exactly what the mother with the two children is doing. Look how she holds the hand of younger child. She is a responsible person. The rifle isn't even pointed at her. Look closely, it is pointed away from them.

Yes those two girls are afraid. Or do they?

The older one looks apprehensive, but also curious, peeping from behind her sister's back. The younger one is either surprised or was in a middle of a sentence when the photo was taken. One thing is clear, no one is afraid from the kneeling soldier, not the girls, not the mother. And one of the reasons they are not afraid of him is because there are not being abused by him. They simply passed by this sniper while getting away from a possible fire fight; a fire fight that probably didn't happen, since at the time most Palestinian gunmen preferred to leave and avoid confrontation.

Now it seems this photo did not serve the Palestinian propaganda machine as intended. So it was photoshoped. The mother was removed all together. And the soldier's rifle was rotated so it can point at the girls. But in the process it positioned the soldier in an unnatural way. No one can stand like that and maintain balance, especially with a rifle in the hand and weight on the back. Maybe an acrobat can, but with an effort.

Eye on a Crazy Planet: Anti-Israel wierdo pretends to be Jewish to shield himself from accusations of anti-Semitism

Eye on a Crazy Planet: Anti-Israel wierdo pretends to be Jewish to shield himself from accusations of anti-Semitism

Judge Richard Goldstone defends his career as a judge during South Africa's apartheid

With the help of a sympathetic interviewer he does it very well, highlighting what has made him a hero in South Africa. Israel isn’t mentioned.

Richard Goldstone @ Yahoo! Video

This is why attacking his record from that era had achieved nothing.

Richard Goldstone’s contradicting company

Judge Richard Goldstone told Israeli television that the UN is indeed biased against Israel. This gesture towards Israel is contrasted by the anti-Israel bias of the other members of his commission. This became obvious first with professor Christine Chinkin who signed a public letter that was published in the 'Times of London,' which condemned Israel for war crimes, while the war was ongoing. It described Israel’s defense of its citizens as uncalled for, even though Israel refrained from action during eight months of constant bombardment of its population centers in the south by Hamas. The last to surface was Colonel Desmond Travers, the mission’s only military expert. A retired officer of the Irish army, he served in numerous peacekeeping duties including UNIFIL. As was revealed by Dore Gold and retired Lt. Colonel Jonathan Dahoah Halevi, this former peacekeeper accused Israel in advance of deliberately killing civilians in Gaza, and as many as possible according to him. He refused to accept any Israeli evidence submitted to the commission. He claimed that such evidence is unreliable even though he could not prove it. He also accused Israel of deliberately killing Irish soldiers serving in UNIFIL: "taken out and deliberately shot". This accusation is so far unique to him, since an Internet search found no other mention of this charge. Whatever the reasons for his prejudgment, he is clearly not objective and is hostile towards Israel.

The remaining member of the commission, Hina Jilani, is a lawyer with the Pakistani Supreme Court and veteran human rights and women’s rights campaigner in her country. While it is possible that she is capable of objectivity towards Israel, such objectivity will be by Pakistani standards. In Pakistan, Israel is as reviled as much as India, and religious tension begets mass terrorism and violence. It is unlikely that one would find people there who would speak on behalf India or Israel. By contrast, in Israel there are many advocates of the Palestinian cause, but nobody would expect an Israeli to be an objective judge in a case involving an Arab or Muslim country.

It is apparent that people who have anti-Israel bias surround Judge Goldstone. It is most evident when we look at the other members of his commission, but that is not where this ends. Have a look at the ‘Institute for Criminal Investigations’ or ICI, where he serves along with Colonel Desmond Travers and Hina Jilani. This is a consultative body to the ‘International Criminal Court’ in the Hague, and one of its distinguished members is professor Cherif Bassiouni of DePaul University, a colleague of Goldstone from the Yugoslavia years. (In Yugoslavia, he served as chairman of the Security Council's commission to investigate war crimes from 1992-1994 with Goldstone, who was the chief prosecutor.) Like Judge Goldstone, Professor Bassiouni is a heavyweight in the human rights community, and was nominated for the Nobel Prize for peace in 1999. He is also a cosignatory of the public letter condemning Israel of war crimes in advance, along with Christine Chinkin and Richard Falk. Falk, the UNHRC Special Rapporteur on Conditions in the Occupied Palestinian Territories, is the best and most extreme example of the UN anti-Israel bias, see YouTube link below.

Another association to look at is that of like-minded people. Distinguished persons like Arye Neier, whose views regarding the role of international law and human rights in this post 9/11 world have some common themes with those of judge Goldstone. This became evident at the ‘Empire and Liberty Project’ event at the ‘Carnegie Council on Ethics in International Affairs,’ in March 2004, which they both attended.

Aryeh Neier is a former senior member in the ACLU and cofounder of ‘Human Rights Watch’, where he was the vice chairman for 12 years. Currently he is the head of the ‘Open Society’ and president of the ‘Soros Foundation,’ which forms another complete circle, because organizations funded by George Soros are advancing ‘The Goldstone Report’ in Washington DC. (Heather Ryan of the ‘Open Society’ also serves in the ICI along with Goldstone and the others mentioned above.)

Aryeh Neier has no evident anti-Israel obsession, but whenever ‘Human Rights Watch’ was criticized for mistreating Israel he was there to defend, whether over Lebanon or Gaza. Even when it came from the cofounder of ‘Human Rights Watch’, Robert L. Bernstein. Bernstein`s criticism, pointed to Israel being an open society where human rights and human rights awareness can be advanced through open dialogue and education. He pointed to the need to deny moral equivalency to tyrannies that will only use it to justify and excuse their suppression of human rights in their countries.

Neier's response was to point out who is the lawyer among the two, (he is), and who is just a book vendor/publisher. He also made the bewildering suggestion that the United States was an open society during the days of slavery and racial segregation. This skewed view of history, skewed to the right by the way, has no bearing on the issue at hand because it belongs to the category of countries mistreating their own people and has nothing to do with the current dilemmas facing Israel and other democracies, that need to balance their security with concern to the civilian population in enemy-held territory.

Arye Neier belittled the concern over the exaggerated emphasis on Israel, as "dismissing democracy with a slap on the hand," a view echoed by Judge Goldstone in the interview he gave to Christiane Amanpour in her current-affairs program on CNN in September 30^th 2009, and a false representation of Bernstein criticism. Not surprisingly, Neier is one of the defenders of the Goldstone report.

The ‘Empire and Liberty project’ at the Carnegie Council was aimed at confronting the new threats to human rights in this new era. No small challenge indeed and one that must never be trifled with. Before 9/11 human rights organizations focused on how governments treat the individual. After 9/11 a third factor entered the equation, the terrorist organizations, whose faith and practices are aimed at abolishing human rights completely, but whose members deserve protection of their human rights against the governments fighting them. Measures such as Guantanamo Bay, and ‘The Patriot Act’ represent serious human rights dilemmas, whether we agree with them or not. These are dilemmas, which the state of Israel and its judiciary are all too familiar with. And undeniably many governments around the world do use the war on terror as an excuse to put the squeeze on their citizens' liberties. This requires the human rights community and its experts to be prosecutors, defenders, judges, legislators, and counsel to all of them. However, at the Carnegie Council in March 2004, none of its distinguished participants rose to the occasion. Judge Richard Goldstone and Arye Neier had two dominating themes in their message: “promotion of democracy only through international law” and “democracy compliance,” an uncomfortable combination of words from a democratically concerned point of view.

But what is most noticeable is what wasn’t in their remarks. The first was a lack of alternative to the much criticized Guantanamo Bay and ‘The Patriot Act’. This is not some vague omission unique to these two men at that one long-ago event. This is a characteristic of the entire camp of critics of the Bush administration human rights policies during the war on terror. As a result of this deficiency the Obama administration cannot close Guantanamo Bay, and had even extended ‘The Patriot Act’; all because during Bush’s two terms in office none of his critics had ever searched for alternatives. This now leaves the Obama administration improvising from scratch.

What is of great concern to Israel, government and citizenry, is the lack of reference to the corruption of international law. And what can be more corrupt than a human rights council dominated by the worst human rights abusers? This is something that had existed in 2004 as well. Neier resolved this concern by the suggesting that the governments that had entered into the agreements that produced international law would take care of that, governments, which earlier in that conference were criticized on those very issues.

Neier also described suicide bombings as an act of desperation, saying that therefore nothing can be done about them. This ‘no we cannot’ approach is false; suicide bombing is the product of brainwashing and pressure. Worse than that, his faulty reasoning comes from Palestinian propaganda intended to justify the horrific wave of suicide bombings Israelis were subjected to from 2001 to 2004. Here it rationalizes his do-nothing approach. But what is really shocking is Neier’s view on the preemptive use of force as a part of the right to self-defense. While he acknowledges that the current international law allows it, he would prefer a more restrictive approach, allowing military intervention only when an attack is imminent or when there is genocide. If preemptive military intervention fails there may not be enough time for plan B when the threat is imminent, which may lead the side trying to prevent an attack to take more desperate measures that can inflict greater harm on civilians. And if genocide had just begun, then by the time a military intervention begins to take effect, there will be at least several hundred individuals for whom this will be too late, much, much too late.

This Goldstone-Neier approach of focus on governments carries another troubling risk, the risk of losing sight of who else is confronting one of those governments alongside the human rights organizations. It can be someone like Moazzem Begg, a former Taliban fighter; released from Guantanamo Bay, who is currently advancing fundamentalist ideologies in Great Britain. And Amnesty International UK branch had no problems collaborating with him. (This makes me wonder whether Ravi Nair of the above-mentioned ICI who used to work with Amnesty International in London, shares this focus on government approach. This by no means suggests he has anything to do with that particular episode.)

Debating Dore Gold at Brandeis University on November 5, 2009, Goldstone tried to defend the membership of Christine Chinkin in the commission, despite the fact that she had prejudged the issue by signing a declaration against alleged Israeli "war crimes. He claimed that the situation was obvious based on the reports of Al-Jazeera, which he took to be an unbiased news source. That is perhaps because, as he stated, Al-Jazeera is a respected news medium in his own country of South-Africa. However, both Al-Jazeera and South-Africa are not known for their sympathy towards Israel. And if he truly respects Al-Jazeera, that suggests that his ability to identify bias in the news he receives is severely jeopardized, and the same thing can apply to his relationships with other members of his commission, as well as the ICI.

None of this suggests that Judge Richard Goldstone is not as Zionist as he claims to be. As senior Israeli journalist Yaron London has said several times, there is nothing in Goldstone’s record to suggest otherwise. The question that does arise however is more fundamental than that. Is it even possible in such conditions, such surroundings, in such atmosphere of hostility, for a human being, any human being, to maintain objectivity, and if so how much of it?

Why would Judge Richard Goldstone acquit Israel of his own charges?

Think of how he repeatedly described his report, as legally non-binding, of having no legal value whatsoever. If so, then what was the fact-finding mission all about, and on the same note, why file criminal charges against Israeli officials if the person behind the report keeps saying it has no legal merit? Does he know it won’t withstand any decent scrutiny?

There is also his reference to the repressive nature of Hamas, which he made at the Brandeis debate: “I was afraid to enter Gaza. I had nightmares that Hamas would kidnap me and that the Israelis would rejoice.” There is some worthy criticism of nasty and dishonorable segments of the Israeli society, which do exist, but there is also awareness on his part of the repressive nature of Hamas. Such repression, as in any tyranny, has the ability to get to witnesses and influence their testimony in more ways than one, something that he, as a South-African who spent most of his life and professional carrier under its repressive Apartheid regime, would know about. Yet what did he do about it? Apparently there was nothing he could do: “We got completely unsatisfactory response from Hamas… We asked them where the rockets are fired from, the answer from Hamas, we don’t know it’s the military wing. We asked them about Gilad Shalit, answer, don’t bother us that’s the military wing. Very shrewdly adopted this divorce when one hand don’t know what the other hand on the same body can do.” If they could not get a response from the armed wing of Hamas on those basic questions or any other account of their conduct, how could they tell if they were not influencing the witnesses?

Another possible reason the ‘Goldstone Report’ has no legal value is that the charge “disproportionate use of force” is not at all clear, as demonstrated by Judge Goldstone's tormented response to a question on that very issue, even though he claimed otherwise:

“Proportionality has nothing to do with comparing what one side uses and the other side uses, its got nothing to do, proportionality is what proportionate to the military advantage sought and the number of innocent civilians killed. Let me give you a simple example, if there is an ammunition factory in the middle of Austria(?) and a 1000 pound bomb can take out that ammunition factory, which is a military target, and 100 civilians are killed or a 2,000 bomb can do the same to the military factory and kill 5000, the first is proportionate, not a war crime, the second disproportionate, a war crime. …

…What would be a proportionate response? It’s a question that gave me many, many hours of sleepless nights. What is proportionate response to asymmetric situation? It may well be, is a commando operation, that may be, but that cost lives, it is a political question that the Israeli government and the Israeli military would have to tell you. A proportionate response may be to bomb the place were Israeli intelligence has information where the rockets are stored, as long as its proportionate to the military aim. But if it’s disproportionate, bombs, white phosphorus, flechettes are used, and anti-personal munitions that are designed to kill people; and not to destroy buildings, and not to destroy rockets and ammunition. It is not something we have to decide fortunately. We have to decide what action was proportionate what action was disproportionate.”

The opening sentence in this transcript contradicts the accusing letter published in the ‘Times of London,’ which was signed by his two colleagues Christine Chinkin and Cherif Bassiouni, which accused Israel of war crimes by comparing "what one side uses and the other side uses."

The example Goldstone gave gives Israel the license to level an entire neighborhood from the air if enemy combatants and weaponry are barricaded in it.

The criterion “as long as it’s proportionate to the military aim” is how the judiciary in Israel, military and civilian, is reviewing such operations; it is a case-by-case examination, comparing and examining thoroughly numerous factors in each operation. He finally settled on a weapons-based criterion, a criterion subject to manipulation, since a case can be made for and against any weapon, and a good propagandist can argue for the nuclear bomb and against the use of non-lethal weapons.

Judge Goldstone's confusion is due to many factors. The first is that this is truly a tormenting experience; it is not easy to decide what is disproportionate and what is not disproportionate, the moral and ethical dilemmas tear apart any decent person, and he is a decent person. The second reason, is that as his own answer demonstrates “disproportionate use of force” is a loose term, much like “amount to a war crime” and “self-hating Jew.” It is an open rubric where everyone can put in whatever they want. The other reason, is that, unlike former Chief Supreme Court justice Aharon Barak, he does not have a lot of experience with the chaos of war situations. Israel has accumulated nearly 60 years of experience with such torturing dilemmas, and the UN?

Finally, there is his ‘focus on government approach’, which means that prior to the events in Gaza he gave little-to-no attention to these dilemmas, and as a result he has no clearly constructed criterion of his own. And when there is no professional criterion to apply, other, more political and ideological criteria take its place, such as the hostility of the other members of his commission towards Israel.

Related links:

Richard Goldstone and Dore Gold discuss the U.N. Gaza Report at Brandeis, use the word ‘proportionate’ at the automated transcript option and listen.

Understanding the Goldstone Report

Jay Adler: On post Colonial Ideology
Goldstone inaccuracies on Elders of Zion

IDF replay to the Goldstone Report, PDF format

Alan Dershowitz: The case against the Goldstone Report

NGO-Monitor: Goldstone Report: 575 pages of NGO “cut and paste”

Fisking Goldstone: What Happened to this man?

Stephanie Gutmann: In rebuking Israel and letting Hamas off the hook, the UN's Goldstone Report is a gift to world terrorism

More Goldstone (Travers) contradictions (via Harry’s Place)

Richard Falk on 'Al Jazeera English' talks like a Palestinian ultra nationalist.