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Gaza police - legitimate targets or targeted civilians?

Jan. 1, 2010 10:57 P.M. (Updated: Jan. 10, 2010 9:15 P.M.)
Part six of a series recounting the findings of South African jurist Richard Goldstone's UN Fact Finding Mission on the Gaza Conflict.

Jerusalem — Ma'an — As Israel's massive air assault entered its sixth consecutive day on New Year's Day one year ago, some 410 Gazans were dead and as many as 2,000 injured.

Among 70 airstrikes on 40 targets on 1 January 2009 was a police command center in Rafah, the then-latest security site to be leveled. No one was hurt in that attack, but 248 members of the Gaza police were killed during Israel's overall assault. By late January 2009, more than one out of every six casualties was a member of the de facto government's security forces.

On the same day, Gaza police spokesperson Islam Shahwan announced to the media that police commanders had managed to hold three meetings at secret locations since the beginning of the assault.

Shahwan added that "an action plan has been put forward, and we have conducted an assessment of the situation and a general alert has been declared by the police and among the security forces in case of any emergency or a ground invasion. Police officers received clear orders from the leadership to face the enemy, if the Gaza Strip were to be invaded."

This statement has become key to supporters of what they view was Israel's right to target police during its assault. "Except for the statements of the police spokesperson, the Israel Government has presented no other basis on which a presumption can be made against the overall civilian nature of the police in Gaza," noted Richard Goldstone's UN fact-finding mission, which investigated the assault.

His team sought clarification from the police spokesperson, who responded that he had been correctly quoted, except that the instructions given at that meeting were to the effect that in the event of a ground invasion, and particularly if Israeli forces were to enter urban areas in Gaza, police were to continue their work of ensuring basic food stuffs reached the population, of directing the population to safe places, and of upholding public order in the face of the invasion.

Shahwan further stated that not a single policeman had been killed in combat during the armed operations, proving that the instructions had been strictly obeyed by the policemen, according to the final report of the UN Fact Finding Mission on the Gaza Conflict.

After an exhaustive explanation of its findings on the matter, the report concludes that the official's statement "cannot, on its own, justify the assertion that the police were part and parcel of the armed forces," noting that the remarks came days after the main attacks on police forces were carried out on 27 December 2008.

The general rule of international humanitarian law is that members of law-enforcement agencies are considered part of the civilian population, unless they have been incorporated into the armed forces of a party to the conflict.

"The obligation to distinguish at all times between the civilian population and combatants and to direct attacks only against military objectives (the principle of distinction) therefore generally prohibits attacks against members of the law-enforcement agencies," the Goldstone report states. "This principle is accepted by the Israeli Government."

According to the report, there are three situations in which direct attacks against members of police forces would not constitute a violation of the principle of distinction:

First, if the law-enforcement agency or the unit to which the policeman belongs has been "incorporated" into the armed forces, thus conferring combatant status upon its members. Second, if individual members of the law-enforcement agency are at the same time members of an armed group, they would be combatants. Thirdly, individual members of the law-enforcement agency, like any civilians, may not be targeted "unless and for such time as they take a direct part in hostilities."

Israel's position

Israel's position, described in a Foreign Ministry publication, "The operation in Gaza: Factual and legal aspects," is that "due to their military functions, these internal security forces were not accorded the immunity from attack generally granted to civilians."

It alleges that, in May 2006, Hamas formed the Executive Force as a loyal militia, “[drawing] this paramilitary force largely from its military wing, the Izz al-Din al-Qassam Brigades, and armed the members with anti-tank missiles, mortars, machine guns and grenades. The newly recruited commanders and subordinates were not obliged to give up their military wing affiliation, and continued to operate simultaneously in both functions."

Israel further alleges that after the June 2007 seizure of full control over Gaza, Hamas restructured the Executive Force and subdivided it into several units, including the police, who "assumed many traditional law enforcement functions." It goes on to say that its members, however, remained members of Hamas' military wing and their weaponry continued to include machine guns and anti-tank weapons. "[…] the former Executive Force continued to be closely integrated with — although not formally part of — the al-Qassam Brigades. […] many members of the internal security services also served directly in the al-Qassam Brigades."

Regarding the assault, Israel alleges that "Hamas intended to, and did, in fact, employ its internal security forces for military activities during the Gaza Operation." It further alleges that the "collective role of the Gaza 'police' as an integral part of Hamas armed forces is further evidenced by the fact that many Gaza 'policemen' were also members of the al-Qassam Brigades." To support this allegation, an Israeli government paper shows pictures of four men killed during the operations. Each is shown in two pictures purportedly downloaded from Palestinian websites, one identifying the man as a policeman, the other as a member of Al-Qassam Brigades, Hamas' military wing.

Finally, the paper refers to a report (in Hebrew) by the Orient Research Group Ltd., an Israeli organization commissioned by then Israeli Prime Minister Ehud Olmert to produce the study. According to its report, "more than nine out of every ten alleged 'civilian police' were found to be armed terrorist activists and combatants directly engaged in hostilities against Israel."

Gaza police's position

Israel's characterization of the Gaza internal security forces differs sharply from the tasks of the police as they are described on the official website of the Gaza Ministry of Interior, in orders to the police issued by the minister of interior, and in interviews with the director of police and the police spokesman conducted by Goldstone's inquiry.

Gaza police director Gen. Jamal Al-Jarrah, also known as Abu Obeidah, told the mission that "the role of the police is to solve problems of the population, combat drug trafficking, arrest criminals." He reported that they are equipped with Kalashnikov firearms and batons, as the authorities have not been able to obtain other equipment, such as tear gas and small guns.

The police orders and the ministry's website similarly describe the police as a law-enforcement agency. As to allegations that the police and Al-Qassam Brigades were "interchangeable," Gen. Jamal Al-Jarrah asserted that they were "absolutely not true."

According to the police spokesperson, during the assault their mandate was firstly to "protect the internal front," i.e., ensure that the relationship between the civilian population and the authorities stayed "intact." Secondly, police were to monitor the distribution of humanitarian goods to the civilian population. Thirdly, they were to continue regular law-enforcement duties, with a particular focus on combating looting and speculation on prices.

UN mission's findings and conclusions

The report commissioned by Olmert identified 345 men allegedly belonging to the Gaza internal security forces killed by Israeli attacks. It identifies 240 of the 345 alleged members as members of the police. This figure is very close to the number provided by the de facto government, which was 248 policeman killed during the war.

However, the UN report could not confirm the study's findings, as they "appear to be based merely on an equation of membership in Hamas (in itself alleged on the basis of unverifiable information) with membership in al-Qassam Brigades" in about half the cases.

Goldstone's report states that "there is insufficient information to conclude that the Gaza police as a whole had been "incorporated into the armed forces of the Gaza authorities. Accordingly, the policemen killed cannot be considered to have been combatants by virtue of their membership in the police."

For instance, many of those officers, including director of police Tawfiq Jabr who was killed on 27 December, were generally known as not being affiliated with Hamas. Several of the station commanders interviewed by the commission were also not Hamas affiliates but men who had joined the Palestinian Authority's police after the Oslo Accords allowed Palestinians to constitute their own law enforcement. They had thus served in the PA police in Gaza for more than 10 years before Hamas seized control in June 2007.

No matter what their affiliation, however, the commission examined whether the attacks on the police stations could be justified on the basis that there were, allegedly, members of Palestinian armed groups among the policemen.

"The question would thus be one of proportionality," the report states, as international law prohibits launching attacks "which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated."

The report allows for the possibility and "has earlier accepted that there may be individual members of the Gaza police that were at the same time members of al-Qassam Brigades or other Palestinian armed groups and thus combatants." However, it notes, even if the Israeli military had reliable information that some individual members of the police were also members of armed groups, "this did not deprive the whole police force of its status as a civilian law-enforcement agency."

In other words, even if Israel's targeting of the police were based on certain members' affiliation, the attacks were disproportionate, according to the report, which found that "the deliberate killing of 99 members of the police at the police headquarters and three police stations during the first minutes of the military operations, while they were engaged in civilian tasks inside civilian police facilities, constitutes an attack which failed to strike an acceptable balance between the direct military advantage anticipated (i.e. the killing of those policemen who may have been members of Palestinian armed groups) and the loss of civilian life (i.e. the other policemen killed and members of the public who would inevitably have been present or in the vicinity).

"The attacks on the Arafat City police headquarters and the Abbas Street police station, al-Tuffah police station and the Deir al-Balah investigative police station constituted disproportionate attacks in violation of customary international humanitarian law.

"From the facts available to it, the Mission further believes that there has been a violation of the inherent right to life of those members of the police killed in the attacks [of 27 December] who were not members of armed groups by depriving them arbitrarily of their life in violation of article 6 of the International Covenant on Civil and Political Rights."

Regarding specifically the attack on the police headquarters in Gaza, the report notes that in all likelihood, the policemen killed there "were neither engaged in any military activity at the time of the attacks nor carrying out preparations for combat."

At the other police stations, they "were engaged in a range of routine tasks, including questioning detainees and handling issues for members of the public who were present in police facilities in the middle of an ordinary day," the report notes, and "cannot be said to have been taking a direct part in hostilities. Thus, they did not lose their civilian immunity from direct attack as civilians on this ground."
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