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PLC bombing 'carried out unlawfully and wantonly'

Dec. 31, 2009 8:43 A.M. (Updated: Jan. 10, 2010 8:55 P.M.)
Part five of a series recounting the findings of South African jurist Richard Goldstone's UN Fact Finding Mission on the Gaza Conflict.

Bethlehem - Ma'an - The Palestinian Legislative Council (PLC) building in central Gaza City was, according to the Israeli military, attacked on 31 December 2008, the fifth day of its massive assault on the besieged coastal enclave.

Ahmad Bahar, then acting speaker of the PLC in Gaza, told Richard Goldstone's UN fact-finding mission that the parliament building was hit by three missiles launched from fighter planes.

Israel did not allege any Hamas military activity, such as launching of rockets, storage of weapons or planning of operations, was carried out in the building. Instead, it termed the area a "Hamas Government site," saying such locales "serve as a critical component of the terrorist groups' infrastructure in Gaza" and "constitute part of Hamas's mechanism of control."

Goldstone's report, however, rejected the analysis of Israeli officials that, because of the alleged nature of the Hamas government in Gaza, the distinction between civilian and military parts of the government infrastructure is no longer relevant in relation to Israel’s conflict with Hamas.

This analysis is accompanied, the report notes, in the statements of senior Israeli officials, by an explicit argument that Israel should "put pressure" on Hamas by targeting civilian infrastructure to attain its war aims.

"[T]his is a dangerous argument that should be vigorously rejected as incompatible with the cardinal principle of distinction. International humanitarian law prohibits attacks against targets that do not make an effective contribution to military action," the report states.

Israel's explanation was integrated and elaborated on by numerous statements made by current and former senior government officials to the media.

Major Avital Leibovich, a representative of the Israeli armed forces, argued that "anything affiliated with Hamas is a legitimate target." The deputy chief of staff, Maj. Gen. Dan Harel, told a meeting with heads of local authorities in southern Israel that:

"This operation is different from previous ones. We have set a high goal which we are aiming for. We are hitting not only terrorists and launchers, but also the whole Hamas government and all its wings. […] We are hitting government buildings, production factories, security wings and more. We are demanding governmental responsibility from Hamas and are not making distinctions between the various wings. After this operation there will not be one Hamas building left standing in Gaza, and we plan to change the rules of the game."

Israeli armed forces' spokesman Captain Benjamin Rutland stated: "Our definition is that anyone who is involved with terrorism within Hamas is a valid target. This ranges from the strictly military institutions and includes the political institutions that provide the logistical funding and human resources for the terrorist arm."

Matti Steinberg, a former senior adviser to the Israeli General Security Services, argued that "Hamas's civilian infrastructure is a very, very sensitive target. If you want to put pressure on them, this is how."

According to the Goldstone report, all these statements imply, in the view of their authors, "in order to be effective, military operations have to be directed not only against military targets but also against the non-military infrastructure."

"The Israeli Government's discussion of the 'targeting of Hamas terrorist infrastructure' asserts that, 'consistent with the principle of distinction, IDF forces attacked military targets directly connected to Hamas and other terrorist organizations' military activities against Israel."

This statement is followed by a list of examples of objectives, such as command posts of Al-Qassam Brigades, alleged weapons storage sites and training camps, rocket and mortar launch sites, and tunnels. The list also refers twice to a location identified as the office of Ismail Haniyeh, "head of the Hamas administration."

This list is followed, however, by a statement reiterating and elaborating the argument that there is really no distinction to be made between military and civilian objectives as far as government and public administration in Gaza are concerned.

"While Hamas operates ministries and is in charge of a variety of administrative and traditionally governmental functions in the Gaza Strip, it still remains a terrorist organization. Many of the ostensibly civilian elements of its regime are in reality active components of its terrorist and military efforts. Indeed, Hamas does not separate its civilian and military activities in the manner in which a legitimate government might. Instead, Hamas uses apparatuses under its control, including quasi-governmental institutions, to promote its terrorist activity," the statement says.

Goldstone's report states that "In assessing the Israeli strikes against the Legislative Council building," the commission "first of all notes that Hamas is an organization with distinct political, military and social welfare components.

"Since July 2007 Hamas has been the de facto government authority in Gaza. As recognized by the Israeli Government, the Hamas-led authorities in Gaza have been responsible for the civilian administration of Gaza. For instance, they employ civil servants and workers, run schools, hospitals, traffic police and the administration of justice.

"The fact that these institutions and the buildings housing them have been administered by authorities led by Hamas since July 2007, and no longer by a government composed of both Hamas and Fatah members has, in the view of the Mission, no bearing on the continued civilian character of these institutions."

Goldstone's team met with Gaza-based Legislative Council members belonging to Hamas, to Fatah and to the Popular Front for the Liberation of Palestine. While Hamas constitutes the de facto authority in Gaza, "the buildings attacked and destroyed served a public purpose that cannot be regarded as 'promoting Hamas terrorist activity,'" according to the report.

The report observes that there is nothing unique in the fact that in Gaza ministries and prisons are part of the government's "mechanism of control" and that the legislature's assembly hall and administrative buildings are a critical component of the government infrastructure.

"That is not, however, the test applied by international humanitarian law and accepted State practice to distinguish between civilian and military objects," the report notes, adding that international humanitarian law "recognizes a category of civilian objects which may nonetheless be targeted in the course of armed conflict to the extent that they have a 'dual use.'"

Examples often made for such dual-use objects, which serve both civilian and military purposes, are civilian infrastructures such as telecommunications, power-generating stations or bridges, in so far as they are used by the military in addition to their civilian use.

"There is no indication, nor any allegation of any such dual use of the Legislative Council building," according to the report.

"There is an absence of evidence or, indeed, any allegation from the Israeli Government and armed forces that the Legislative Council building, the Ministry of Justice or the Gaza main prison 'made an effective contribution to military action.' On the information available to it, the Mission finds that the attacks on these buildings constituted deliberate attacks on civilian objects in violation of the rule of customary international humanitarian law whereby attacks must be strictly limited to military objectives," the report adds.

"In the Mission's view these facts further indicate the commission of the grave breach of extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly, as defined in article 147 of the Fourth Geneva Convention."

The mission noted that such attacks "that are not directed against military (or dual use) objectives are violations of the laws of war, no matter how promising the attacker considers them from a strategic or political point of view."
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