Phosphorus and Stone: Operation Cast Lead, Israeli Military Courts, and International Law as Denial-Maintenance

Phosphorus and Stone

Operation Cast Lead, Israeli Military Courts, and International Law as Denial-Maintenance

Reem Bahdi


Almost seventy years after the Universal Declaration of Human Rights, the birth of Israel, and the beginning of the Palestinian naqba (all in 1948) it is now clear that international law has fallen short of its promise to alleviate suffering, hold transgressors to account, and to encourage peace in the Middle East. Even John Humphrey, a drafter of the Universal Declaration of Human Rights, came to despair the efficacy of international law in Israel and Palestine. “He went there thinking that the proper application of the rule of law and respect for human rights could resolve the situation and came back thinking nothing could (since the debate was not a rational one)” (Hobbins 2006). Taking Humphrey’s despair over international law’s ability to guide behaviour in Israel and Palestine as its starting point and drawing on Stanley Cohen’s landmark book, States of Denial: Knowing about Atrocities and Suffering, this chapter argues that international law has fed into a process of denial maintenance in Israel, creating the backdrop against which Israeli leaders deny Palestinian suffering.

Between December 2008 and January 2009, international law and the Israeli military came face to face in two sites: Israel launched a sophisticated military attack against the Gaza Strip known as “Operation Cast Lead,” while simultaneously rounding up, trying, and sentencing Palestinian children for throwing stones against the wall —a structure built by Israel to contain the Palestinians and separate them from their land (ICJ 2004). Israel’s response to these events reveals a selective stance towards international law that is driven by denial of Palestinian suffering. The international system, with its emphasis on domestic implementation and state sovereignty, has largely tolerated this selectivity. However, the recent United Nations General Assembly decision to upgrade Palestine’s status to “non-member observer state” might yet offer space to recover international law’s potential by once again placing the question of Palestinian standing before the International Criminal Court (ICC) on the international agenda. If Palestinians are granted the standing that has hitherto been denied them to raise arguments about Israeli violations of international law at the ICC, conditions that challenge denial can be cultivated.

Phosphorus and Stone

On 27 December 2008, Israel launched a devastating sea, air, and land raid against the Gaza Strip. Code named “Operation Cast Lead,” this raid was, by any account, an experiment in military prowess as the Israeli military employed sophisticated, lethal weapons in its attacks on the Gaza Strip (UNHRC 2009). The New York Times quoted a former Israeli national security advisor who explained that a disproportionate assault was intended to send the message that the Israeli leadership would not show restraint.

The Palestinians in Gaza got the message on the first day, when Israeli warplanes struck numerous targets simultaneously in the middle of a Saturday morning. Some 200 people were killed instantly, shocking Hamas and indeed all of Gaza, especially because Israel’s anti-rocket attacks in previous years had been more measured (Bronner 2009).

Before the operation ended on 18 January 2009, thousands of Palestinians were killed or wounded; Palestinian infrastructure, including factories, schools, and hospitals were hit or destroyed; the economy was crippled; and the environment irreparably compromised. Human rights groups, military experts, the medical profession, and the United Nations criticised Israel in particular for its military methods (Hass 2000; UNHRC 2009; Irizarry 2011; Human Rights Watch 2009; Ruru and Russell 2011).

The Israeli Defence Forces’ (IDF) use of white phosphorus generated specific attention because of the chemical’s deleterious effects on morbidity, mortality, mental health, and the environment. White phosphorus burns through skin and, once embedded, is deeply absorbed by the body, which can result in damage to the heart, liver, and kidneys (Irizarry 2011). Much of the white phosphorus dropped on populated Palestinian centres during Operation Cast Lead remained active and, like unexploded landmines, continued to present dangers to the population after active hostilities had officially ended (Ruru and Russell 2011). Observers, including authors of The United Nations Fact Finding Mission on the Gaza Conflict Report, commonly known as the Goldstone Report, faulted the Israel army for deploying the chemical on a civilian population that has no means of escape (UNHRC 2009: para. 48; Human Rights Watch 2009). Often described as an open air prison, the Gaza Strip is surrounded by Israeli military posts, surveillance towers, walls, and barbed fences, leaving the civilian population no place to run or hide from a military attack (Collins 2012: 90; Schlaim 2009).

While the Gaza Strip bore the brunt of Israel’s military campaign between December 2008 and January 2009, the IDF also remained active in the West Bank. In the shadow of Operation Cast Lead, the Israeli army raided several West Bank towns and villages, rounding up and imprisoning Palestinian children. The majority of these children were charged with the crime of throwing stones. (ICJ 2009). In the early hours of 20 January 2009, for example, the IDF arrested seven boys (three 12 year olds, two 13 year olds, one 15 year old, and one 17 year old) from the village of Toura al-Gharbeiah, who were alleged to have thrown stones at the wall (Defence for Children International 2009a). According to Defence for Children International–Palestine Section, the boys were harshly interrogated, detained, and ultimately sentenced by an Israeli military court. Presided over by Israeli military judges, these courts are not bound by the same substantive or procedural norms applicable to other Israeli courts and are reserved largely for Palestinians, including Palestinian children, alleged to pose a security risk to Israel (Hajjar 2005; Weill 2007; Baumgarten-Sharon 2011; Delegation of British Lawyers 2012).

A study of 853 children charged by Israeli authorities solely with throwing stones between 2005 and 2010 found that 18 were 12 to 13 years old and 255 were 14 to 15 years old at the time of arrest; 60 per cent received sentences that included up to two months in jail, while 15 per cent received more than 6 months and 1 per cent served over a year. Only one was acquitted (B’Tselem 2011a). Defence for Children International (DCI) reports that Israeli military courts sentence approximately 700 children per year, most frequently for stone-throwing (DCI 2009a). “Since 2000, according to the Palestinian Ministry for Prisoner Affairs, more than 6,500 children have been arrested, mostly for hurling rocks” (McGirk 2009: 1). Noticing an increase in the number of children arrested by the IDF in the wake of Operation Cast Lead, DCI issued a press release on 17 January 2009 observing “that the number of children brought to the Israeli Military Courts in pre-trial hearings in the first two weeks of January was twice as high as numbers in 2008” (DCI 2009b).

Israel’s attitude towards the use of phosphorus as a military weapon compared with its attitude towards stone throwing is striking. When confronted with international criticism over its use of phosphorous in Gaza, the IDF, largely ignoring the risks phosphorus posed to populated civilian centres, insisted that international law sanctioned its use (Cantora 2010). Accordingly, Israeli leaders have vigorously resisted suggestions that their use of phosphorus, despite the harm it causes and the risks associated with it, should give rise to state responsibility or culpability on the part of individual soldiers (Pfeffer 2009, 2010). Simultaneously, Israeli leaders insist that Palestinian youth should be harshly punished for throwing stones. Defined by Israeli law as an act that threatens the security of the state of Israel, stone throwing by Palestinians, including youth, can carry a sentence of up to twenty years (Delegation of British Lawyers 2012).

Several factors belie the claim that phosphorus is justified while stone throwing should be criminalised. These factors include: the nature of phosphorus (a toxic chemical) versus stone (a non-toxic substance); the targets on which phosphorus versus stone are directed (entire populated centres versus individuals who may be in armoured vehicles or inanimate objects such as the wall); the manner of launching phosphorus (dropped from airplanes using missiles) versus stone (by hand or slingshot); the nature of the harm caused by phosphorus (death or severe health and environmental impacts from use alone) versus stone (fear depending on the circumstances or harm if hits certain body parts or certain parts of a moving vehicle); and the scale of short-, medium-, and long-term harm caused by phosphorus (widespread, it affects entire populated centres and like landmines can remain unexploded, but active beyond conflict) versus stone (contained in impact and duration). A delegation of British lawyers—relying on information supplied by Israeli authorities—uncovered only two deaths in 2011 from stone throwing (Delegation of British Lawyers 2012: para. 46). Without minimising the loss, these deaths highlight the divergent value attached to Palestinian and Israeli lives by Israeli authorities. In the Israeli narrative, phosphorus in the hands of the IDF is imagined as an inherently defensive and essentially benign chemical that can be justified against civilian populations, while stone, in the hands of Palestinian youth, is posited as inherently offensive, fundamentally dangerous, and a threat to Israeli state security. The definitive factor in Israel’s response through law is not the nature of the risk but the identity of the target and the victim. In the process of justifying phosphorus and criminalising stone, Palestinian suffering is erased.

Studying denial across space and time, Stanley Cohen concludes that the erasure of long term suffering of the “other” is the quintessential mark of denial. More sophisticated, nuanced, and entrenched than outright lying, or blatant attempts to deceive others, denial involves deceiving oneself in the quest to convince others. Cohen demonstrates that self-deception, because it exists in the twilight between knowledge and acknowledgment, renders denial difficult to counter as denial leads individuals and whole societies to tolerate and eventually normalise the suffering of others. The next section of this chapter identifies the intersecting ways in which Israeli approaches to international law are structured around Cohen’s three main modes of denial—factual, interpretive, and implicatory—to silence or deflect responsibility for Palestinian suffering.

Factual or Literal Denial

The most rudimentary form of denial, factual or literal denial, involves the suppression of facts (Cohen 2001: 7). The ability to suppress or confuse facts remains an important instrument of denial around the world even in the information era. Three foundational principles of international law have historically facilitated control of facts about Palestinian life by Israeli authorities: control of Palestinian physical space through the laws of occupation and the use of military orders; the general right of a state to restrict entry into its territory; and, the primacy given self-investigation, self-reporting, and dialogue in response to violations of international human rights and humanitarian law.

In 1967, citing their authority as an occupying power under the Geneva Conventions, Israeli military commanders proclaimed the West Bank and Gaza Strip military zones. Since then, Israel has regulated the movement of not only Palestinians but any individual wanting to move to or from the Gaza Strip using a permit system operated by a complex system of exclusion that includes, for example, geographic zones that separate Israeli settlements from Palestinian towns and villages in the West Bank and, until recently, the Gaza Strip; identity cards; apartheid roads; and checkpoints (United Nations Office for the Coordination of Humanitarian Affairs 2011). Given the permit system, travel to and from Gaza proves difficult, and at times, impossible even during periods of relative military calm. Permits notwithstanding, the IDF routinely declares roads to the Gaza Strip and, consequently, the Strip itself, closed military zones. Such declarations are often, although not exclusively, made in anticipation of a military assault on the Strip (IDF 2012b).

Similarly, Israel restricts public access to its military courts through a permit system. Although military courts operate within the West Bank— including at Ofer, the military court site just outside Ramallah, one of Palestine’s largest towns—they are deemed military zones. Because the West Bank is itself designated as a military zone, military courts constitute military zones within a military zone. Anyone who seeks entry to a military court hearing, including family members of detainees and the lawyers who represent them, requires explicit permission from and coordination with Israeli authorities to access the military court site and, in some instances, the West Bank itself (Hajjar 2005).

Access to Palestinian space and information about that space is also controlled by Israel through other means. Citing state sovereignty, the fundamental principle of international law, and the corollary right to regulate who enters its territory, Israeli authorities have refused to allow United Nations officials, including members of the Fact Finding Mission on the Gaza Conflict and the United Nations Special Rapporteurs mandated to report on the human rights of Palestinians, access to Palestine via Israel proper (UNISPAL 2011; UNHRC 2011b). While the Gaza Strip is physically closed so that residents generally cannot leave and visitors cannot enter, the Israeli government’s website invites “visitors” to see the Gaza Strip differently from the critical reports offered by civil society and aid organisations that raise alarms about a mounting humanitarian crisis and growing dignity deficit in Gaza. The IDF tweets about the amount of food and necessities delivered to Gaza daily, while the IDF website indicates that “every day, Israel sends approximately 6,000 tons of goods into the Gaza Strip,” implying that there is no cause for concern over economic devastation. The website also points to the opening of a luxury hotel to bolster the suggestion that there is no humanitarian crisis in Gaza (IDF 2012a). The IDF website ignores reports by human rights groups, military experts, doctors, scientists, and international organisations highlighting the human suffering and destruction of infrastructure in Gaza that has been occasioned by the economic embargo imposed on the Gaza Strip since Operation Cast Lead. The website also fails to mention the Israeli government’s “red line” report which aims to justify the economic embargo imposed upon the Gaza mathematically by calculating the calories Gazans would need before they starved (Gisha 2012; IDF 2012b). Similarly, the Israeli Ministry of Foreign Affairs webpage describing the Israeli court system mentions military courts only with reference to jurisdiction over Israeli soldiers (IMFA 2012).

Israeli officials also harness the well-established international legal principles of self-monitoring and dialogue to limit discussion of Palestinian human rights. Israeli authorities manoeuvre the international human rights treaty body system, which relies disproportionately on self-reporting, largely by ignoring questions of Palestinian human rights. Israel’s reports before United Nations human rights treaty bodies, though extraordinarily long and detailed, make virtually no mention of Palestinians. Israel’s latest report to the United Nations’ Committee on the Rights of the Child, for example, ignores any obligations that Israel might have flowing from its conduct in and control over the West Bank and Gaza Strip and adopts, at least implicitly, the Israeli government’s argument that it is not formally bound by the norms of international human rights law in the West Bank or Gaza Strip (UNCRC 2002).

Israeli authorities have had some success limiting facts about life in Palestine. Despite the central role that military courts play in cementing Israeli occupation and notwithstanding the plethora of “rule of law” projects in the West Bank, Israeli military courts have largely escaped diplomatic and academic scrutiny. Lisa Hajjar’s Courting Conflict, published in 2005, remains one of the few extensive studies of the military courts.

Significant international attention was refocused on Israel’s treatment of Palestinians following Operation Cast Lead and the Goldstone Report; however, many of the facts and conclusions presented in the report have been questioned or confused following a campaign by critics to dilute its impact both on international public opinion and within the United Nations system (Klein 2011a). Israel and the Palestinian Authority were left to further investigate the incidents and concerns raised in the report and to implement the report’s recommendations. Israel refused to cooperate with the Goldstone mission but released its own reports which largely dismiss any allegations of wrongdoing based on information that remained entirely within Israeli control and that was never made available to the fact-finding team and hence never tested by an independent third party. The lack of meaningful follow-up on the report by the international community gave Israeli officials the opportunity to create the impression that they had seriously engaged with the Goldstone process (Klein 2011b; Lobel 2011).

Israeli officials celebrated a newspaper article written by Richard Gold-stone, which revisited the Goldstone Report’s conclusion that Israel had deliberately attacked certain civilian sites (Goldstone 2011). Gabriela Shalev, a former Israeli ambassador to the United Nations, for example, reportedly concluded that Goldstone had exonerated Israeli military tactics: “[I]f we have to defend ourselves against terror organisations again, we will be able to say there is no way to deal with this terror other than the same way we did in Cast Lead” (Montell 2011: 1). Israel put forward Goldstone’s newspaper article as a proof that Israel had abided by its international legal obligations although Goldstone’s article did not make such a claim and the reports’ remaining principle authors stood by the original conclusions (Jilani et. al. 2011; Reynolds and Kearney 2012).

However, Israeli authorities have not stemmed the tide of information about Israeli activities in the Gaza Strip and military courts. Though journalists were banned by Israel from entering Gaza during Operation Cast Lead (Freedom House 2012), Al Jazeera managed to remain on the ground and ordinary people employed social media to tell the world what was happening. Some journalists and human rights advocates remain committed to exposing human rights violations in the region and the IDF’s attack on a Turkish flotilla intended to break the blockade of Gaza rekindled international interest in the growing humanitarian crisis in the Gaza. Sometimes the most scathing analysis comes from former Israeli soldiers and scholars. Oxford Professor Avi Schlaim, for example, wrote a commentary for the Guardian in the middle of Operation Cast Lead that led him to question Israel’s very legitimacy (Schlaim 2009).

Similarly, media reports documenting the injustices perpetuated by Israeli military courts have appeared recently in various countries and some states have instructed their diplomatic officials to monitor decision-making at the courts (Weill 2007; Delegation of British Lawyers 2012; Lyons 2011). Burdened by financial and logistical constraints, civil society organisations have nonetheless managed to gather and present shadow reports to United Nations human rights treaty bodies. Moreover, Israeli scholars, former politicians, journalists, soldiers, and human rights organisations have played an important role in disseminating facts so that wilful blindness becomes more difficult to maintain, bald claims of false ignorance are exposed, and silence proves impossible (Hass 2000; Schlaim 2009; Morris 2001; Pappé 1999; Breaking the Silence 2012a; B’Tselem 2011b; Benvenisti 1996).

Interpretive Denial

If denial were simply a matter of confronting facts, then it could not be sustained in the face of documentation. But denial often proves more tenacious than documentation. Factual denial is thus often augmented with other forms of denial that acknowledge facts but still deflect responsibility for them. Cohen’s second denial technique, interpretive denial, acknowledges “the raw facts (something happened)” (Cohen 2001: 7). But, the facts are given a different meaning from what seems apparent to others as “the observer disputes the cognitive meaning given to events and reallocates it to another class of events.” Interpretive denial often borrows legitimacy from law and legal argumentation. Deniers often advance controversial, selective, or dubious legal arguments to rationalise their denial. Cohen uses the phrase “magic legalism” to describe this type of interpretive denial. Magic legalism dictates that “this is the law, the law has been respected and applied, therefore nothing is wrong” (2001: 108). He notes that “[m]any such legalistic moves are wonderfully plausible as long as common sense is suspended” (108).

International law represents a particularly fruitful site to examine the nature and state of interpretive denial in official Israeli discourse. Despite Israel’s longstanding claim that the international system singles the country out for censure, Israeli authorities engage international legal doctrine and bodies more than other countries. The Israeli Supreme Court frequently refers to international law (Kretzmer 2002) and the Israeli government routinely offers its own international legal analysis of events and obligations (IMFA 2009). Given Israel’s effective control of the Gaza Strip, the specialised laws of belligerent occupation still apply and, in any event, all military conflicts engage some aspect of international norms governing the use of force (Weill 2007; UNHRC 2009). Israel offers arguments about the general application of international law to its conduct and specific arguments about the legality of particular events in which it is implicated. Israeli leaders justified their decisions throughout Operation Cast Lead with reference to international law (IMFA 2010).