To the National Association of Democratic Lawyers

OPEN LETTER

I refer to your recent call for South Africa to end diplomatic relations with Israel because of what you termed Israel’s flagrant breaches of international humanitarian law (The Citizen July 15)

While I am sure that, based on information available to you, your motivation is completely sincere; I suggest with respect, that much of the information available from mainstream media is out of context and inadequate for arriving at a sound judicial decision. Because your call was made on behalf of an association of distinguished lawyers and not as politicians, I believe that you will be anxious to receive and weigh any additional evidence, of which you were not aware at the time of making your decision.

For example, a view worth considering which cannot be found in mainstream media was expressed by no less than the Editor-in-Chief, of the Arab Times, Ahmed Al-Jarallah. Referring to the present conflict in Lebanon, He wrote, “Unfortunately we must admit that in such a war the only way to get rid of “these irregular phenomena” is what Israel is doing. The operations of Israel in Gaza and Lebanon are in the interest of people of Arab countries and the international community”. Open-minded persons wishing to gain a wider perspective on events can read the complete article

See http://www.arabtimesonline.com/arabtimes/opinion/view.asp?msgID=1242

To those who have already made up their minds and prefer to adhere to preconceived opinions, I suggest that you not waste time reading further. However to those open legal minds to whom a sense of justice and truth are important, I respectfully ask you to please consider the following.

Civilian populations

When considering flagrant breaches of humanitarian law, it is important to distinguish between cause and effect. One cannot ignore the regular, cynical and grossly illegal practice by Palestinian terrorists and Hizbulla of hiding behind civilians and even launching rockets from civilian houses.

From the legal point of view, this inhuman practice is in flagrant breach of article 51.7 of the protocol additional to the Geneva Conventions , which specifically states. “The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. This reinforces Art. 28 of the Fourth Geneva convention, which expressly states "The presence of a protected person may not be used to render certain points or areas immune from military operations."

This illegal practice has been deliberately used from day one. In Jenin for example, terrorists operated among civilians, including children serving as human shields. They continue to do so in Gaza and in Lebanon, taking advantage of the reluctance of the Israeli army to act like the Russians did in Grozny, where they fiercely attacked areas crowded with civilians. See Time special report

See http://www.time.com/time/daily/special/photo/grozny/index.html

As jurists you cannot but agree that in terms of international law, the terrorists are wholly responsible for what happens to the civilian population where they hide out.

Proportionality

Article 51 of the 1977 protocol not only prohibits indiscriminate attacks on civilians it also specifically prohibits such attacks even by way of reprisals. This obviously applies to suicide bombings; especially those which are planned to kill and maim as many civilians as possible including infants, invalids and the elderly. So too does this section prohibit the more than one thousand rockets deliberately aimed from Gaza and Lebanon at civilian populations. 1,119 people have been killed and about 7,000 injured by Palestinian violence and terrorism since September 2000.

In Sderot, for example, a town suffering multiple daily rocket attacks it has only been by the grace of the almighty that casualties have not been greater; certainly not due to lack of intent to kill and maim as many civilians as possible. One missile landed just 15 minutes after an area had been filled with hundreds of children. I trust that as fair-minded jurists, you would describe these acts as flagrant breaches of international humanitarian law.

In making your judgment I ask you to take into account the "intent and "malice aforethought" of the people who fire these rockets deliberately into populated areas. May I hope that, with your judicial outlook you will declare that such deliberate attempts to kill, even when they don’t achieve their objectives, are heinous offences, deserving severest condemnation.

By contrast Israel aims its missiles at specific hostile targets, taking pains to minimize collateral damage and holds critical internal enquiries whenever uninvolved persons are hurt unintentionally. This approach is in full compliance with the provision of the additional Protocol of 1977, which permits attacks causing incidental loss of civilian life, injury to civilians, or damage to civilian objects if it is not excessive in relation to the anticipated concrete and direct military advantage of the attack.

Whenever Israel reacts to these murderous attacks a knee-jerk chorus repeats the mantra that Israel’s reaction is disproportionate. Again, may I ask you, as jurists, to please advise what you would consider a proportionate response to 1,000 missiles deliberately aimed at civilian populations from behind human shields, the objective of the response being to discourage future attacks?

Prisoners

Then there is the irrational direct comparison made by opinion makers who should know better, between kidnapped Israeli soldiers and Palestinians in Israeli jails. They ignore the all-important difference that families of Palestinian prisoners in Israel know where their loved ones are. They visit them and communicate by telephone. By contrast, the Palestinians and Hizbullah are in deliberate flagrant violation of Art. 30 of the Fourth Geneva Convention, which requires that protected persons, including prisoners, shall have every facility for making application to the Protecting Powers, the International Committee of the Red Cross Society of the country where they may be, as well as to any organization that might assist them.

In open defiance of this elementary humane law, the kidnappers deliberately keep the families of captives in a state of unbearable anxiety by holding them incommunicado; emulating the late Yassir Arafat. In an exquisite refinement of torture in 1993, Arafat acknowledged that he knew the fate of missing in action soldier Zachary Baumel and handed one half of Baumel's identity tag to Yitzchak Rabin, with a firm promise that more information about Baumel and other MIA's would be forthcoming. He never kept that promise.

May one hope that as members of The National Association of Democratic Lawyers, with emphasis on DEMOCRATIC LAWYERS, you will be moved to demand that, at the very least, the kidnappers allow the captured soldiers to be visited by the Red Cross or other neutral persons and to telephone to their families in the presence of the neutral party.