Charge the Real War Criminals

The organizers of the Gaza-bound flotilla that Israel intercepted last Monday morning accused Israel of "war crimes," blaming it for the deaths that occurred aboard one of the six ships. Yet Israel acted within international law. It may enforce international sanctions when Hamas continues to import weapons for use against civilians. It may board ships in international waters if they refuse to stop. Its soldiers may fire if met with deadly force.

There were war crimes committed last Monday, however: They were committed by those who organized and sponsored the flotilla itself. International law forbids using civilians to achieve a military purpose. It prohibits using civilians as human shields. It outlaws launching an attack when it is clear that doing so will cause excessive civilian casualties. And it denies protected status to civilians who choose to become combatants.

The flotilla advertised itself as a humanitarian mission, but it is clear that at least some passengers set out to "break the blockade" as their primary goal. That is a military aim, not a civilian one. Indeed, when Israel made clear it would allow the flotilla to deliver humanitarian cargo at the nearby Israeli port of Ashdod, the organizers refused. They continued onward, with hundreds of civilians aboard, to provoke a military confrontation.

It is likely, given that five of the six ships yielded to Israeli forces, that at least some of the civilians did not intend to start a fight. They may have believed their mission was truly a humanitarian one, with a strong political message. The organizers used these civilians as human shields, whose presence would either deter Israel or embarrass it. And they knowingly placed these civilians at risk when they attacked the boarding party. 

Some of the civilians knew very well their purpose was a military one. That is certainly true of the passengers who brought weapons on board and attacked the Israeli soldiers. It is also true of those who joined the flotilla to break the blockade rather than to deliver aid. Those passengers -- some of whom have ties to terrorist groups -- became illegal combatants who broke international law by disguising themselves among civilians.

International treaties like the Fourth Geneva Convention were crafted to prevent exactly the kind of clash the leaders of the Gaza flotilla sought. Though the terror groups who sponsored the flotilla, and the activists who joined it, are not parties to these treaties, they are bound by their provisions as customary international law. And Turkey, which supported the flotilla, bears indirect responsibility for war crimes the flotilla committed.

The question is why no one -- not the U.S., not even Israel -- has accused the organizers and patrons of the flotilla of war crimes. Perhaps there is little chance such charges would be taken up by the U.N. Security Council, which rushed into action against Israel, though it still has not condemned North Korea for killing 46 South Korean sailors in an unprovoked attack at sea last month. Yet the case is very strong, and it ought to be made.

Israel seems to have prepared a legal defense, but not a legal attack. One of the first videos available on the Israel Defense Force's YouTube channel after the event, for example, was a justification of the use of force to stop ships from reaching Hamas-controlled Gaza. That is where the debate remains -- whether Israel was right or wrong. The Obama administration, regrettably, supports international calls for an investigation.

Instead, the U.S. and Israel ought to go on the legal offensive. We should accuse the Gaza flotilla and its sponsors -- certainly Hamas, and perhaps Turkey -- of war crimes. We should lay out the case, clearly and concisely, that the Gaza flotilla used civilians for a military purpose, and that at least some passengers forfeited their protected status as non-combatants. We should demand that the world's leaders condemn these violations.

Addressing the war crimes committed by the Gaza flotilla and its supporters would put them on the defensive and shift the debate. It would also restore the critical distinction between soldier and civilian that world leaders have labored for more than a century to enforce, and which terrorists are determined to destroy. For the good of the U.S., Israel, and the entire free world, we must point accusations of war crimes where they belong.

Joel B. Pollak is graduate of Harvard Law School and the Republican nominee for U.S. Congress in the 9th district of Illinois.
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