Numerous observers have charged Israel with committing war crimes during the war. Without downplaying that aspect, I think it is important to understand the 1,300 Palestinian casualties, including 400 children as well as many, many women, versus 13 Israeli casualties, as typical of a particular kind of “police action” that Western colonial powers and Western “ethno-cratic settler regimes” like ours in the U.S., Canada, Australia, Serbia and particularly apartheid South Africa, have historically undertaken to convince resisting native populations that unless they stop resisting they will suffer unbearable death and deprivation. Not just in 1947 and 1948, but also in Lebanon in 1982 and 2006, Israel used similar tactics.It's very important to understand that much of what Israel does is motivated by the classic colonial problematic - 'what the hell do we do with the natives!' (but with some very modern twists). Indeed this really has to be emphasised more, because it helps frame the actions structurally, and is frankly more convincing than reducing everything to individual 'electoral moves'.
Causing horrific civilian deaths is often perfectly defensible under the laws of war, which favor conventional over unconventional forces in asymmetric warfare. The outright “crimes,” like the My Lai massacre, Abu Ghraib, or Russian massacres in Afghanistan and then in Chechnya, are less important for the civilian victims than the daily tactics of air assault, bombardment, and brutal door-to-door sweeps, meant to draw fire from the resisters that will justify leveling houses and the people in them.
I think the second paragraph is absolutely right - and something that the left really has to emphasise. Although there may well have been Israeli war crimes, the greatest 'crime' of all - this particular assault and the attendant loss of life, but also Israel's long history of oppressing the Palestinians - is effaced by the highly specific focus on certain actions and events (I know I keep banging on about this). Indeed, without even going back to the wider context, the initial assault - and the massacres it occasioned - can quite plausibly be argued to be legal.
[As an aside - there was some recent news about Barak threatening a "disproportionate" response in Gaza, but this is silly. As I've often said, we have to ask 'proportionate in relation to what?' whenever we talk about proportionality. In the case of Gaza, the assault need be proportionate to the number of lives lost. Instead things get much more nebulous - especially because a lot of the war on terror legal argument - because what is the 'proportionate' response to a continuing threat? Bear in mind that lots of legal commentators accept the initial invasion of Afghanistan as a legitimate example of self-defence as against the continuing threat of terrorism, in other words, the proportionate response to a continuing threat was the invasion of a country and the overthrow of its government (transformative self-defence); applying that logic to the Gaza situation, it may be quite difficult to think what exactly a disproportionate response would look like].
As Kennedy notes, the law also embeds a certain model of warfare (again I talk about this a lot but I think it's important; if any of you have the time read this, although I'm not always enamoured with postcolonial stuff, this particular essay is fairly awesome) , which tends to support technologically advanced, centralised militaries as against more diffuse forms of combat (this maps perfectly onto the 'two-track' system of international criminal justice Zolo talks about) - viz. the rules are rules of imperial war. So, we might want to talk about war criminals - I'm uncertain about this and I think it brings its own problems - but we certainly need to criticise the law too, because it's hugely deficient.
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