A week or so ago, everyone’s friend, Alan Dershowitz published a propaganda piece called “Finally, a Hamas Leader Admits That Israel Killed Mostly Combatants In Gaza“.

I looked at this “news” when it first started doing the rounds at the beginning of November. You can find the original article here. I checked the translation and debated the content with several people but never went any further since it kind of ran out of steam. Now that Dersh has picked it up, it might be wise to dismantle the lies more publicly.

Figures from B’Tselem, the UN Fact Finding Mission and other NGOs put the death toll of the Gaza massacre at approximately 1400, with 1000 of those deaths being civilians. The official IDF figures are 1166 dead with 295 being civilians. Part of the disparity comes from the classification of Gaza’s police force, but I will come on to that in a moment.

So what has Dersh in a flap? In the interview, Fathi Hammad (a senior member of Hamas) says the following (taken from Dersh’s article):

“It has been said that the people were harmed by the war, but is Hamas not part of the people? It is a fact that on the first day of the war Israel struck police headquarters and killed 250 members of Hamas and the various factions, in addition to the 200-300 operatives from the [Izz al-Din] al-Qassam Brigades. In addition, 150 security personnel were killed, and the rest were from people. (The original text of the interview in Arabic, as reprinted in the Hamas newspaper Felesteen, can be found on the website of the Meir Amit Intelligence and Terrorism Information Center. It was also reported by Agence France Presse)

“Aha!” exclaims the “Professor”. It is the policy of Israel to categorise the Gaza police force as combatants, rather than civilians. In the eyes of Monsieur Dershowitz, this is the proof he needs.

So let’s take a look at where his “arguments” predictably fall to pieces;

First of all, it is widely known in Palestine, and especially in Gaza, that many of Gaza’s police are policemen by day, militants by night. As far as I’m aware, this isn’t challenged by anyone who is serious.

Secondly, and as is often the case for Israel, it finds itself running up against International Humanitarian Law. To see why, we need to ask and answer an important question:

Gaza’s Police: Civilian or Combatant?

Gaza’s police force is wholly distinct from Hamas’ armed wing, the ‘Izz al-Din al-Qassam Brigades (operationally and otherwise). They have the same uniforms and pretty much the same chain of command that existed under Fatah. Indeed, the commander of the police, Tawfiq Jabr, who was killed by Israel on the first day of the massacre, was a Fatah man, a career policeman who had supervised the arrest of Hamas operatives during the Oslo period.

The conflict with Gaza is an International Armed Conflict, and Gaza is occupied territory. As such the occupying powers are subject to the Geneva Conventions. It is clear under these provisions that Gaza’s police are civilians as they do not class as combatants under either the Geneva Conventions  or under Art. 50 of Additional Protocol I. In fact, an argument could easily be made that even members of the ‘Izz al-Din al-Qassam Brigades also fail to meet the criteria for combatant status.

At the beginning of 2009, the BBC ran an article entitled “Gaza Conflict: Who is a Civilian” in which ”The IDF says it has intelligence that members of the police force often “moonlight” with rocket squads, but has given no details about the specific sites or individuals targeted.” Although I have only anecdotal proof (and the statement from Hammad) from speaking with Palestinians, it seems entirely probable that some members of Gaza’s police, at least on occasion, engage in militant activity at night, whether with Hamas or other factions. It is also clear from the perspective of International Humanitarian Law that civilians become legitimate targets if, and only if they are taking a direct part in hostilities. According to the ICRC commentary on AP I, hostile acts are “acts which by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces.”

In the targeted killings case, the Israeli Supreme Court stated that in addition to attacks against Israel’s armed forces, the term “hostile acts” ”applies also to hostilities against the civilian population of the state.” This is a common sense view that I agree with. So it is clear that a Hamas fighter, in taking up arms with the intention of attacking Israel is committing a hostile act and is a legitimate target.

There are, as always, important caveats. Only the members of the police who engage in hostile acts are legitimate targets, not the police force as a whole. Israel has the legal obligation to distinguish. Other police officers would continue to be civilians and should be counted as such when assessing disproportionate loss of civilian life.

Additionally, civilians who commit hostile acts lose their protection (and become legitimate targets) only “for such time” as they take a direct part in hostilities. In other words, while a policeman is undertaking his civilian role, discharging his civilian duties, he is classed as (and protected as) a civilian. If he directly participates in hostilities, he becomes a combatant only during his participation in said acts. This provision (the temporality clause) is provided under 51(3) of Additional Protocol I. Israel is not a signatory to AP I and the Israeli government takes the view that this provision is not part of customary international law. The Israeli Supreme Court (again, in the Targeted Killings case) ruled that this provision is part of customary international law, and as such is binding upon Israel.

Conclusion

So unfortunately for the “Professor”, International Humanitarian Law is quite clear. The policeman that were killed during the Gaza massacre were in their civilian roles, discharging their civilian duties. They were not directly participating in hostilities: they were civilians.

The figures still stand. 1400 dead, 1000 civilians.