War Crimes in Gaza - Operation Cast Lead in International Law

CRIMES AGAINST HUMANITY
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RUTGERS UNIVERSITY
SCHOOL OF ARTS AND SCIENCES
April 2012
WAR CRIMES IN GAZA:

Operation Cast Lead in International Law
Joseph S. Amditis
PROFESSOR LENNOX S. HINDS
CRIMES AGAINST HUMANITY
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WAR CRIMES IN GAZA:

Joseph S. Amditis
TABLE OF CONTENTS
I. II. III. IV. INTRODUCTION.................................................................................1 HISTORICAL BACKGROUND..............................................................1 LEGAL STATUS OF GAZA..................................................................3 OPERATION CAST LEAD....................................................................6 a. Palestinian Legislative Council Elections.................................6 b. Israels Blockade in Gaza..........................................................7 c. Israels Claim of Self-Defense...................................................8 d. U.N. Security Council Calls for Ceasefire...............................11 INTERNATIONAL HUMANITARIAN LAW VIOLATIONS......................11 a. Distinction and Discrimination................................................11 b. Use of Illegal Weapons and Force...........................................13 LIABILITY AND JURISDICTION.........................................................16 a. Offences Against the Peace and Security of Mankind.............16 b. Commentary on Gaza Invasion................................................18 c. Liability Under International Law...........................................19 d. Obstacles to Justice..................................................................20 RECENT DEVELOPMENTS (2009-PRESENT).....................................21 CONCLUSION...................................................................................22
V. VI.
VII. VIII.
PROFESSOR LENNOX S. HINDS
APRIL 2012
WAR CRIMES IN GAZA:

Joseph S. Amditis* I. INTRODUCTION
In December of 2008, Israel launched a full-scale attack on the Gaza Strip.1 Beginning with an air strike on December 27, Israel continued its offensive against Gaza for approximately 22 days, resulting in over 5,000 casualties.2 After conducting over 2,360 air strikes and several ground assaults initiated on January 3, 2009, the fighting finally came to an end on January 18. The offensive, known as Operation Cast Lead, raised questions concerning the legality of the manner and magnitude of Israels use of force against Gaza. The Israeli government claims that Operation Cast Lead was a valid exercise of Israels sovereign right to self-defense and was necessary to stop continuous rocket attacks fired into Israel from Gaza.3 This article will focus on the events of Operation Cast Lead and the preceding socio-political relationship between Israel and the Occupied Territories, the allegations of war crimes against Israel as they apply to customary international law, and the possibility of recourse through the international community. II. HISTORICAL BACKGROUND
In order to more fully understand the intricate nature of the ongoing IsraelPalestine conflict and, more specifically, Israels recent invasion of the Gaza Strip, it is crucial to examine the political, international, and historical developments between the parties involved. It would be nave to assume that the exchanges between Israel and the surrounding territories occurred in a political vacuum, and even more so to assume that only one side is to blame for problems occurring in the region. Complicated international relationships like those in the Middle East are the products of much larger and more complex global conditions that can hardly be attributed to a single entity or event. As such, it is imperative that the events leading up to the invasion are examined in order to place it in the proper context. The Gaza Strip was originally part of the British Mandate for Palestine, along with the areas currently known as Israel, the West Bank and Jordan.4 The primary objective for the League of Nations Mandate system was to ensure that parts of the recently defunct Ottoman Empire, which had been in control of the Middle East since the
* Undergraduate Student, Rutgers University, School of Arts and Sciences, Author. Milena Sterio, The Gaza Strip: Israel, Its Foreign Policy, and the Goldstone Report, 43 W. RES. J. INTL L. 229, (2010) [hereinafter THE GAZA STRIP AND THE GOLDSTONE REPORT]. 2 Ibid. 3 George E. Bisharat et al., Israels Invasion of Gaza in International Law, 38 DENV. J. INTL L. & POLY 41, (2009). 4 Id., at 47.
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16th century, would be administered until such time as they are able to stand alone.5 The League of Nations sought to establish an independent Palestinian Arab state as a national home for the Jewish people, and Transjordan, an emirate governed semiautonomously from Britain by the Hashemite family.6 The partition plan for Gaza, however, was never realized. In 1948, after the first Arab-Israeli war, the Egyptian administration gained control of the Gaza Strip and the surrounding occupied territories and the Mandate ended at midnight on May 14th.7 After a short period of Egyptian occupation, Palestine and the former Transjordan territories (the West Bank, Golan Heights, and the Sinai Peninsula) were taken over by the Israeli military after the Six-Day War in June of 1967.8 Due to the ambiguous occupational status of Gaza and the surrounding territories, Israel claimed that, in taking control of the area, it had not overtaken a sovereign state. Therefore, according to international law, Gaza and the West Bank were merely administered and not occupied by Israel. Most of the international community, however, rejected Israels administrative claims. Several international organizations and treaties soon confirmed its status as an occupying power, including the International Court of Justice,9 the Oslo Accords,10 the U.N. Security Council,11 the U.N. General Assembly,12 the U.S. State Department,13 and even Israels own Supreme Court.14 In November of 1967, the United Nations Security Council passed Resolution 242, calling for the withdrawal of Israeli armed forces from

See THE COVENANT OF THE LEAGUE OF NATIONS AND MANDATE FOR PALESTINE, Encyclopedia Judaica, ART. 22 Vol. 11, p. 862, Keter Publishing House, Jerusalem, (1972). 6 PALESTINE ROYAL COMMISSION REPORT PRESENTED BY THE SECRETARY OF STATE FOR THE COLONIES TO PARLIAMENT BY COMMAND OF HIS MAJESTY, July 1937, CMD. 5479, His Majestys Stationery Office, London (1937). 7 Charles D. Smith, Palestine and the Arab-Israeli Conflict: A History With Documents, Bedford/St. Martins: Boston. (2004). 8 See Bisharat, supra note 3 at 47. 9 See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 166 (July 9). 10 See PALESTINIAN LIBERATION ORGANIZATION NEGOTIATIONS AFFAIRS DEPARTMENT, THE ISRAEL DISENGAGEMENT PLAN: GAZA STILL OCCUPIED (Sept. 2005) (citing Agreement on Preparatory Powers and Responsibilities [August 9, 1994], ART. XIII, 4-5). 11 See U.N. Security Council Resolution 1544, U.N. DOC. S/RES/1544 (November 22, 1967). 12 G.A. Res. 58/292, U.N. DOC. A/RES/58/292 (May 17, 2004), cited in PALESTINE LIBERATION ORGANIZATION NEGOTIATIONS AFFAIRS DEPARTMENT supra note 10. 13 PALESTINE LIBERATION ORGANIZATION NEGOTIATIONS AFFAIRS DEPARTMENT supra note 10 (citing U.S. DEPARTMENT OF STATE, Country Report on Human Rights Practices: Israel and the Occupied Territories 2003 (Feb. 24, 2004). 14 See PALESTINE LIBERATION ORGANIZATION NEGOTIATIONS AFFAIRS DEPARTMENT supra note 10 (citing Ayub, et al. v. Minister of Defense, et al. 606 Il. H.C. 78; Adjuri v. IDF Commander, 7015 Il. H.C. 02, 7019 Il. H.C. 02 (2002); and Council v. Commander of the IDF Forces in the West Bank, 2056 Il. H.C. 04 (2004).
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OPERATION CAST LEAD IN INTERNATIONAL LAW
the territories occupied in the recent conflict and the termination of all claims or states of belligerency.15 Despite the demands for withdrawal within Resolution 242, the Israeli Occupation of the Gaza Strip continued. Limited governing authority was given to the Palestinian Liberation Organization after the Oslo negotiations and the signing of the Declaration of Principles on Interim Self-Government Arrangements in 1993.16 The agreements, however, were in direct contrast with Resolution 242, and the claims or states of belligerency by Israel continued until 2005.17 III. LEGAL STATUS OF GAZA
In 1980, the U.N. Security Council released Draft Resolution 13911 concerning the rights of Palestinians, and voted to determine whether or not to recognize Palestines right to self-determination and the establishment of an independent State in Palestine.18 Clearly, the United Nations, as an international peacekeeping organization, recognized that the question of Palestine is the core of the conflict in the Middle East19 and was concerned about the continuing deterioration of the situation in the Middle East, and deeply deplor[ed] Israels persistence in its occupation of the Palestinian and other Arab territories.20 The results of the vote, however, do not seem to resonate with the language and intended purpose of the draft resolution. Of the sixteen parties to the vote, ten voted in favor of the resolution, five abstained, and only one voted against. Although the United States cast the only vote against adoption, the resolution still failed to pass, since only one negative vote from a permanent member of the Council is required to prevent adoption of a proposal.21

U.N. Security Council Resolution 242, U.N. DOC. S/RES/242 (22 November 1967) [hereinafter Resolution 242]. 16 See Declaration of Principles of Interim Self-Government Arrangements, 32 International Legal Materials (1993), at 557-650 [hereinafter Self-Government Arrangements]. 17 ISRAEL MINISTRY OF FOREIGN AFFAIRS, The Disengagement Plan: General Outline (April 2004) [hereinafter Disengagement Plan]; see also ISRAEL MINISTRY OF FOREIGN AFFAIRS, Revised Disengagement Plan, 3 (June 2004) [hereinafter Revised Disengagement Plan] (According to the Israeli Government, Upon completion of this process, there shall no longer be any permanent presence of Israel security forces or Israeli civilians in the areas of the Gaza Strip... As a result, there will be no basis for claiming that the Gaza Strip is occupied territory.). 18 See U.N. Security Council Draft Resolution 13911, U.N. DOC. S/13911 1(a), 28 April 1980 [hereinafter Draft Resolution 13911] (The Security Council... Affirms that the Palestine people, in accordance with the Charter of the United Nations, should be enabled to exercise its inalienable national right of self-determination, including the right to establish an independent State in Palestine.). 19 Id. at 4. 20 Id. at 6. 21 See CHARTER OF THE UNITED NATIONS, ART. 27, as amended in 1965 (before that date, ART. 27(2) and (3) had specified the affirmative votes of seven members. The change was meant to address the increase in the size of the Security Council from 11 to 15 members.).
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In order for a territory to be considered occupied certain conditions must be met. These conditions have been established and refined through international doctrine and the actions of international tribunals throughout history. Article 42 of the Hague Regulations of 1907 describes the test of effective control to determine the occupational status of a territory. According to the effective control test, a [T]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority is established and can be exercised.22 Despite the language of the Hague effective control test, however, occupational status is not relinquished due to a lack of direct military presence.23 According to the Nuremberg Tribunal, effective control is maintained as long as the occupier is able to re-enter the occupied territory at will to regain control of the region.24 These occupational requirements are met and have been confirmed by Israels own statements and admissions regarding the continued exercise of control and supreme jurisdiction of Gazas airspace, naval waters,25 transportation of people and goods,26 telecommunication networks, electricity, sewage systems, and population registry,27 and lastly by Israels frequent military operations within the boundaries of Gaza itself.28 Others in the international community have also corroborated the status of Israels control over Gaza.29 Therefore, it follows that, as an occupying power, Israel is required to adhere to the obligations and responsibilities set forth in the international treaties and agreements concerning the treatment of the occupied peoples.30 The aforementioned treaties and agreements require that an occupier take all steps in his power to reestablish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.31 Likewise, all occupied civilian personnel are designated as protected persons under the Fourth Geneva Convention
See CONVENTION RESPECTING THE LAWS AND CUSTOMS OF WAR ON LAND (HAGUE IV), ART. 42, October 18, 1907, 36 Stat. 2277, T.S. 539 [hereinafter HAGUE IV]. 23 See THE GAZA STRIP AND THE GOLDSTONE REPORT, supra note 1, at 233. 24 U.S. v. Wilhelm List, et al. (Hostages Trial), 15 I.L.R. 646 (Nuremberg Military Tribunal 1948). 25 See BTSELEM, The Gaza Strip: Israels Control of the Airspace and Territorial Waters of the Gaza Strip (2011) [hereinafter Airspace and Territorial Waters of Gaza]. 26 See Bisharat, supra note 3, at 50. 27 HUMAN RIGHTS WATCH, Gaza: Israels Fuel and Power Cuts Violate Laws of War, Civilians Should Not Be Penalized for Rocket Attacks by Armed Groups (October 29, 2007). 28 See Revised Disengagement Plan, supra note 17 at 3 (stating that Israel will continue to guard and monitor the external land perimeter of the Gaza Strip, will continue to maintain exclusive authority in Gaza airspace, and will continue to exercise security activity in the sea off the coast of the Gaza Strip.). 29 U.N. HUMAN RIGHTS COUNCIL, Report of the Special Rapporteur on the Situation of Human Rights in the Palestine Territories Occupied Since 1967, 8, U.N. DOC. A/HRC/2/5 (Sept. 5, 2006) (U.N. Special Rapporteur John Dugard said that statements made by the government of Israel that the withdrawal ended the occupation are grossly inaccurate.). 30 See CONVENTION REGARDING THE LAWS AND CUSTOMS OF WAR ON LAND (HAGUE II), ART. 43, July 29, 1899, 32 Stat. 1903 T.S. 403 [hereinafter HAGUE II]; see also CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIMES OF WAR, August 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GENEVA CONVENTION IV]. 31 Id. at HAGUE II, ART. 43.
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and, as such, are entitled to special protections from mistreatment and are to be provided with adequate food, medical necessities and treatment, education for children, and additional humanitarian relief should the enduring conditions and supplies drop below certain thresholds.32 Israel, however, continues to maintain that the Israeli government does not occupy the Gaza Strip, and the acts of violence by Hamas33 therefore constitute live fire attacks of a significant scale carried out by a well-armed and organized militia.34 These acts, in conjunction with the incidents of increased violence during the al-Aksa Intifada,35 have resulted in an attempt by Israel to shift the legal status of its military operations in Gaza from a law enforcement model to a model similar to that of an armed conflict short of war.36 Presumably, this shift can be seen as an attempt to justify the aforementioned increases in violence and aggressive tactics used by Israeli security forces during Israels responses to confrontations with Palestinians in the Occupied Territories.37 In addition, human rights groups, such as Amnesty International, have expressed concerns over Israels excessive use of lethal force in response to Palestinian demonstrators and the supply of weapons from the United States that allows the scale of violence to remain at such a high level.38 The United States, along with virtually all other countries, are prohibited from providing military assistance to states that are suspected to be using said assistance to violate international humanitarian law.39 Furthermore, whether or not Israel classifies its relationship with Gaza as occupational or international is irrelevant in terms of the responsibilities that Israel has towards the civilians in the area.40 By allowing this semantic discrepancy to continue, Israel is able to maintain effective control of the area, while using its military and security forces in a manner that denotes international conflict, which leaves the people of the Gaza Strip vulnerable to increased violence and destruction. While some have accepted
Id. at GENEVA CONVENTION IV, at Arts. 3, 49, 50, 55, and 60 (ART. 3 is common to all four Geneva Conventions and is often referred to as Common Article 3.). 33 "Hamas" is the acronym of the "Harakat al-Muqawama al-Islamiya" the "Movement of Islamic Resistance," and also means "enthusiasm" or "zeal" in Arabic. Hamas party members were elected to a majority in the Palestinian Legislative Council in 2006, and took over complete governing authority in Gaza in June 2007 in bitter fighting with its principal rival party, Fatah, see Bisharat, supra note 3, at 42. 34 Id. at 53. 35 Id. at 52. 36 Ibid. 37 Id. at 53. 38 AMNESTY INTERNATIONAL, Imported Arms Used in Israel and the Occupied Territories With Excessive Force Resulting in Unlawful Killings and Unwarranted Injuries, Appendix, AI Index: MDE/15/65/00, Nov. 17, 2000 (stating All states have a duty to refrain from the supply of arms and military assistance to states where there is a clear risk that the arms or other assistance would be used for violations of international human rights or humanitarian law.). 39 22 U.S.C. 32 2304(a)(2), MILITARY, SECURITY, AND FINANCIAL ASSISTANCE, MILITARY ASSISTANCE AND SALES. 40 Susan Power, War, Invasion, Occupation? A Problem of Status on the Gaza Strip, 12 TRIN. C. L. REV. 25, 36 (2009).
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Israels application of international law to justify military actions in Gaza, it must be noted that any occupying power, especially one with such vast military strength, has both the reasons and the means to present or manufacture circumstances that seem to support its position concerning the conflict. Without sufficient means to defend themselves, or to acquire assistance from the international community, the people of Gaza are forced to go up against an almost unprecedented military power and face countless civilian deaths in the process.41 IV. OPERATION CAST LEAD
In December of 2008, Israel began a large-scale military attack on the Gaza Strip known as Operation Cast Lead. Beginning with an aerial assault,42 Israel claimed that the attack was self-defense in response to ongoing violence and rocket attacks from Hamas, the dominant Islamic political party that governs the Gaza Strip.43 The violence continued for three weeks, claiming the lives of approximately 1,300 Palestinians, and causing an additional 5,000 casualties throughout the region.44 A ground invasion45 that began on January 3, 2009 continued to fuel the toll of death and destruction, bringing the number of dead Palestinians to 1,440 as of February 2009, with 431 of those victims identified as children, and 114 women.46 Other counts of the number of Gazans injured during the fighting (not including the more than 3,700 deaths that resulted from lack of medical care or maternity care) reach 5,380, 1,872 of whom are children, and 800 women.47 a. Palestinian Legislative Council Elections The Palestinian Authority (PA) is a political entity created by the Oslo Accords, which were the result of negotiations between Israel and the Palestine Liberation Organization (PLO), which exercises limited administrative powers over the Palestinian
See Bisharat, supra note 3, at 55-56. Rory McCarthy & Ewen MacAskill, Israel Pounds Hamas in Gaza: Government Buildings Destroyed in Latest Air Strikes: Hospitals Overflow with Casualties as Civilian Death Toll Mounts, THE GUARDIAN, Dec. 30, 2008 (Israel has continued bombing in Gaza for a fourth day... threatening a drawn-out conflict.). 43 See Richard Falk, Special Rapporteur, REPORT OF THE SPECIAL RAPPORTEUR ON THE SITUATION OF HUMAN RIGHTS IN THE PALESTINIAN TERRITORIES OCCUPIED SINCE 1967, U.N. DOC. A/HRC/10/20 (Mar. 17, 2009). 44 Yel Ronen, ICC Jurisdiction Over Acts Committed in the Gaza Strip, 8 J. INTL CRIM. JUST. 3, 3-4 (2010). 45 Isabel Kershner & Taghreed el-Khodary, Israeli Tanks and Troops Launch Attack on Gaza, N.Y. Times, Jan. 4, 2009, at A1 (Isreali tanks and troops swept across the border in to Gaza on Saturday night, opening a ground war against the militant group Hamas after a week of intense airstrikes.). 46 PRESS RELEASE, U.N. OFFICE FOR THE COORDINATION OF HUMANITARIAN AFFAIRS (OCHA), Situation Report on the Humanitarian Situation in the Gaza Strip, Situation Report No. 16 (January 23, 2009) [hereinafter SITUATION REPORT NO. 16). 47 See PRESS RELEASE, U.N. OFFICE FOR THE COORDINATION OF HUMANITARIAN AFFAIRS (OCHA), Field Update on Gaza from the Humanitarian Coordinator, (February 3-5, 2009).
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residents who live in parts of Gaza and the West Bank. The prime minister and elected president head the organization, and the Palestinian Legislative Council acts as its parliament.48 In June of 2006, the members of the Hamas-affiliated Change and Reform list won 76 out of 132 seats in the Palestinian Legislative Council, earning them the right to choose the members of the next cabinet in the PA.49 In response to Hamas victory in the elections, Israel and the United States sanctioned Hamas and the Occupied Territories and demanded recognition of Israel, the renunciation of all violence, and adherence to the agreements signed by former Palestinian leaders.50 Despite the sanctions, however, Hamas officials pushed for the creation of a unity government between Hamas and Prime Minister Mahmoud Abbas of Fatah.51 The disregard for Israel-American sanctions by Palestinian authorities led to the establishment of a blockade of the Gaza Strip by the Israeli government,52 resulting in widespread poverty and a devastating drop in the standard of living for an overwhelming majority of the Palestinian people.53 b. Israels Blockade of Gaza The duties and responsibilities of an occupying power, as mentioned above, include the obligation to provide protected persons with adequate humanitarian aid as a matter of customary international humanitarian law.54 By imposing a blockade against the Gaza Strip, Israel derogated from its responsibilities to the residents of Gaza55 and, in the process, committed an act of war against the Gazan people.56 Furthermore, the blockade was purported to be Israels method for pressuring Hamas militants to cease the rocket
See Bisharat, supra note 3, at 57, n. 100 (citing generally, Geoffrey Watson, The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements (2000)). 49 See Scott Wilson, Hamas Sweeps Palestinian Elections, Complicating Peace Efforts in Mideast, THE WASH. POST, January 26, 2006. 50 ALJAZEERA.NET, Profile: Hamas, Middle East News (2012). 51 See Power, supra note 40, at 236. 52 Heather Sharp, Guide: Gaza Under Blockade, BBC NEWS, June 15 (2009). 53 AMNESTY INTERNATIONAL et al., The Gaza Strip: A Humanitarian Implosion, Oxfam International, Jerusalem, (2008). 54 See HAGUE II, ART. 43, supra note 30; see also GENEVA CONVENTION IV, Arts. 3, 49, 50, 53, 55, and 60, supra note 30. 55 See Bisharat, supra note 3, at 51 (referring to the legal duties and obligations of Israel under the law of occupation, before and during Operation Cast Lead, All of these duties were incumbent upon Israel in its occupation of the Gaza Strip.). 56 CUSTOMARY INTERNATIONAL HUMANITARIAN LAW VOLUME I: RULES 187-189 (Jean-Marie Henchaerts & Louise Doswald-Beck eds., ICRC 2005) [hereinafter CUSTOMARY INTERNATIONAL HUMANITARIAN LAW] (Rule 53 states Starvation of civilians as a method of warfare constitutes a war crime under the legislation of several States. [page 187] Israels MANUAL ON THE LAWS OF WAR explains that the prohibition of starvation clearly implies that the citys inhabitants must be allowed to leave the city during a siege. Alternatively, the besieging party must allow the free passage of foodstuffs and other essential supplies, in accordance with Rule 55. [page 188]); see also, Bisharat, supra note 3, at 59 (Under customary international law, a blockade is an act of war.).
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attacks that had been directed at southern Israel.57 The imposition of a blockade against the whole of the Gazan population, however, has no relation to the bombings and attacks on Israel by Hamas.58 The blockade, which amounts to collective punishment against the people of Gaza as a whole,59 appears to be a response to Hamas rise to power in the region before Operation Case Lead began, rather than a reaction to continued rocket attacks, as Israel claims,60 and also constitutes a violation of the June 2008 truce between the two parties.61 c. Israels Claim of Self-Defense Israels primary justification for Operation Cast Lead was the right of self-defense guaranteed to Members of the United Nations by Article 51 of the UN Charter,62 as illustrated by the Israeli UN Ambassadors statement that after a long period of utmost restraint, the government of Israel has decided to exercise, as of this morning, its right of self-defense.63 In order to exercise the right of self-defense, however, a state must be responding to an armed attack from another state.64 Once again, the question of Gazas status under international law as an occupied territory or a sovereign state comes into play. Here, Israel attempts to paint Gaza as an independent member of the international community in order to justify large-scale military action against Hamas and the Gazan people. Furthermore, an act of self-defense must be proportional to the original attack,
See Bisharat, supra note 3, at 60. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, ART. 4, UNITED NATIONS, TREATY SERIES, VOL. 999, p. 171 [hereinafter ICCPR], (General Comment 8 [1997] states ...it is essential to distinguish between the basic objective of applying political and economic pressure upon the governing elite of a country to persuade them to conform to international law, and the collateral infliction of suffering upon the most vulnerable groups within the targeted country.); see also EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS, ART. 15, United Nations, Treaty Series, VOL. 213, p. 221; see also AMERICAN CONVENTION ON HUMAN RIGHTS, ART. 27, United Nations, Treaty Series, VOL. 1144, p. 143. 59 See GENEVA CONVENTION IV, supra note 30, ART. 33 (ART. 33 states No person shall be punished for an offence he or she did not personally commit. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.) The imposition of a blockade against the civilian population of Gaza is in direct violation of Article 33 of the GENEVA CONVENTION IV, and is indicative of a war crime on Israels pART. 60 See CUSTOMARY INTERNATIONAL HUMANITARIAN LAW, supra note 56. 61 See Israel and Hamas Agree Truce, BBC NEWS, June 18, 2008. 62 See CHARTER OF THE UNITED NATIONS, ART. 51, supra note 21 (ART. 51 reads Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations... Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council... to take at any time such action as it deems necessary in order to maintain or restore international peace and security.). 63 See Bisharat, supra note 3, at 63. 64 Id. at 63, note 150, (stating that This requirement comports with the common-sense proposition that one must be responding to the acts of another, acts which must be of a certain gravity, if ones actions are to qualify as self-defense.).
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and must be specifically limited to address the damage caused by the aggressing state.65 Also, even if Israels overall operation was intended as a legitimate self-defense, Israels misuse of weapons and indiscriminate targeting of densely-populated civilian areas negate any impunity they may have had under the Article 51 justification.66 Israels claim of self-defense also falls short of justification when the question of Gazas international status is examined. The question remains: Is the Gaza Strip an occupied territory of Israel?67 If the answer is Yes. then Israel committed a grave breach68 of customary international humanitarian law by conducting large-scale military strikes and devastating humanitarian aid restrictions against the population of its own territory, rather than resorting to the law enforcement model of restraint that is required of an occupying power when using force.69 By definition, a state cannot claim selfdefense against its own territory. In order to come to that conclusion, a state would essentially have to admit that it is exercising its right of self-defense against itself. This logic does not comport with international law or common sense. If the answer to the question of occupation is No. then Israel can no longer refuse to recognize the legitimacy of an independent Palestinian state,70 and must therefore accept a Palestinian presence in the international community. If Operation Cast Lead was indeed a conflict of an international nature, then Israel has committed the crime of aggression according to customary international law.71

Mary Ellen OConnell, THE AMERICAN SOCIETY OF INTERNATIONAL LAW: TASK FORCE ON TERRORISM, THE MYTH OF PREEMPTIVE SELF-DEFENSE, (August 2002), (The state acting in self-defense may seek the destruction of an attacking enemy force if that is necessary and proportional to its own defense.), [hereinafter THE MYTH OF PREEMPTIVE SELF-DEFENSE]. 66 See infra Section IV. 67 See Bisharat, supra note 3, at 56 (Under either legal regime, however, Israel appears to have committed massive violations.). 68 See GENEVA CONVENTION IV, supra note 30, at ART. 3, (The GENEVA CONVENTION IV defines "grave breaches" as "willful killing, torture or inhumane treatment... willfully causing great suffering or serious injury to body or health... and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly."). 69 Id. at 60-61 (Israel, in short, engaged in an act of war against an occupied people, and violated its legal obligations to them long before Operation Cast Lead had commenced.). 70 Saed Bannoura, Livni Calls For a Large Scale Military Offensive in Gaza, International Middle East Media Center, (Dec. 10, 2008), (Israeli Foreign Minister Livni stated before Operation Cast Lead began that a prolonged truce with Hamas harms the Israeli strategic goal, empowers Hamas, and gives the impression that Israel recognizes the movement.). 71 GA RES. 3314 (XXIX), ANNEX, ART. 1, U.N. DOC. A/RES/3314(XXIX), (Dec. 14, 1974) (Aggression is the use of armed force by a State against the sovereignty or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.); see also, Definition of Aggression, G.A. RES. 3314, U.N. GAOR, 29TH SESS., SUPP. NO. 31, U.N. DOC. A/9631 (1974); see also Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, G.A. RES. 2625, U.N. GAOR, 25TH SESS., SUPP. NO. 28, U.N. DOC. A/8028 (1970) ([s]tates have a duty to refrain from acts of reprisal involving the use of force.).
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In addition, the use of force as self-defense can only be invoked if the attack originates from a state legally responsible for the armed attack.72 It is not sufficient that the attack simply originated from within the territory of a state.73 The legal responsibility for the attack may only be attributed to a state if it uses its own agents to carry out the act of aggression, controls or supports the attackers, fails to control the attacks, or claims responsibility for the attacks post facto.74 Lastly, there may even be evidence that Operation Cast Lead had other impetuses apart from merely stopping rocket attacks from Hamas.75 On November 4, 2008 Israeli security forces entered the Gaza Strip and conducted a series of raids that ended with the death of 6 Palestinians.76 This operation was in direct contrast to the terms of the ceasefire established in June of the same year.77 In fact, the rocket attacks from Hamas, which Israel claimed were the basis for Operation Cast Lead, had virtually ceased until the November raid.78 Hamas then claimed responsibility for the attacks, marking the first public announcement of such hostilities since the ceasefire was implemented on June 19.79 The November raids constitute yet another breach of the terms of the recent truce,80 in addition to Israels refusal to ease the restrictions of its blockade of Gaza, which was also part of the terms of the truce.81 Thus, Israels claims that Operation Cast Lead was a response to the rocket attacks by Hamas fall short of the necessary criteria for justification for such a large-scale military assault on the Gaza Strip under Article 51 of the UN Charter. Regardless of how Israel chooses to answer the question of occupation, however, several other problems remain concerning the execution and early stages of Operation Cast Lead. First, a state cannot claim a right to self-defense from an attack that was provoked by the state itself. Neither reprisal,82 nor reprisal against reprisal is justified under international law.83 Second, Israels failure to ease its blockade of Gaza violated
72
Huwaida Araf et al., Onslaught: Israels Attack on Gaza and the Rule of Law, NATIONAL LAWYERS GUILD DELEGATION TO GAZA, 33 (February 2009). 73 See THE MYTH OF PREEMPTIVE SELF-DEFENSE, supra note 65, at 7. 74 Ibid. 75 See Barak Ravid, Olmert to Barak: Youre Negating Achievements of Gaza Op, HAARETZ, (August 3, 2009). 76 See Bisharat, supra note 3, at 61-62. 77 See Israel and Hamas Agree Truce, supra note 61. 78 EMBASSY OF ISRAEL, Gaza-Hamas Fact Sheet, INTELLIGENCE AND TERRORISM INFORMATION CENTER, (Dec. 22, 2008). 79 Nancy Kanwisher, Johannes Haushofer & Anat Biletzki, Reigniting Violence: How Do Ceasefires End?, THE HUFFINGTON POST, Jan. 6, 2009. 80 Israel Agrees to Truce with Hamas on Gaza, N.Y. TIMES, Jun. 18, 2008. 81 HUMAN RIGHTS WATCH, Letter to Olmert: Stop the Blockade of Gaza (2008). 82 Mr. Doudou Thiam, Special Rapporteur, FOURTH REPORT ON THE DRAFT CODE OF OFFENCES AGAINST THE PEACE AND SECURITY OF MANKIND, International Law Commission, A/CN.4/398, 11 March 1986, Section E(2)(f)(i), p. 56 (1986) [hereinafter DRAFT CODES]. 83 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 VOL. IV 493-94 (Oct. 1946 Apr. 1949) (Under international
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the terms of the truce, as did the continued military operations within Gaza from September 2005 up until Operation Cast Lead in December 2008.84 Lastly, even if Israel was justified in asserting its right to defend itself from the attacks, the targeting of civilians and civilian objectives, and the proportionality of the attacks negate any remaining exculpatory claims.85 d. U.N. Security Council Calls for Ceasefire After over a week of violence, the United Nations Security Council passed Resolution 23 on January 8, 2009, calling for both parties to immediately cease all hostilities.86 Notwithstanding the order from the UN Security Council, the fighting continued for another ten days,87 when Israel and Hamas finally agreed on unilateral ceasefires, and the attacks came to an end on January 18, 2009.88 The fighting only lasted for a total of 22 days, but the devastation and aftermath in the wake of the violence is bound to have a long-lasting effect on the residents of the Gaza Strip.89 The next section will examine the extent of the destruction as well as the claims that Israel violated numerous principles of international humanitarian law. V. INTERNATIONAL HUMANITARIAN LAW VIOLATIONS
Over the course of Operation Cast Lead, as with any use of military force, there is an element of destruction and death that is unavoidable and expected. There are, however, certain measures that must be taken in order to avoid any excessive collateral damage to the civilian population. Israel, in its invasion of the Gaza strip, failed to exercise the necessary restraint and exceeded the scope of a valid exercise of its military and police power as both an occupying state and a member of the international community. This section will show that, during Operation Cast Lead, Israel failed to prevent and, in some cases was directly responsible for, gross violations of international humanitarian law. a. Distinction and Discrimination The Fourth Geneva Convention is very clear concerning the treatment of civilians by parties to an armed conflict.90 Additionally, the 1863 Lieber Code,91 the 1907 Hague
law, as in domestic law, there an be no reprisal against reprisal. The assassin who is being repulsed by his intended victim may not slay him and then, in turn, plead self-defense.). 84 See Bisharat, supra note 3, at 65. 85 See infra Section V. 86 S.C. Res. 23, U.N. DOC. S/2009/23 (January 8, 2009). 87 Rory McCarthy, Gaza Bloodshed Continues Despite UN Calls for Ceasefire, THE GUARDIAN, (January 9, 2009). 88 See CNN World, Hamas, Israel Set Independent Cease-fires, (January 18, 2009). 89 Jessica Montell, Three Years After Operation Cast Lead, THE JERUSALEM POST, (last updated January 25, 2012). 90 See GENEVA CONVENTION IV, supra note 30, Arts. 3, 4, 27, and 33. 91 THE LIEBER CODE: INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD, Section I, ART. 22, 23, and 24 (April, 24, 1863).
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Convention,92 UN General Assembly Resolution 2444,93 General Assembly Resolution 3318,94 and Israels own Law of War booklet95 all identify and confirm the applicability and imperative nature of the duties of distinction and discrimination during an armed conflict. Violations of these principles of distinction and discrimination constitute grave breaches of international humanitarian law.96 Israel, during its assault on the Gaza Strip, targeted a multitude of civilian objectives and facilities despite its obligation under international law to limit civilian casualties and destruction of civilian infrastructure. The attacks were directed at roads, bridges, harbors, police and fire stations, government administrative buildings, mosques, schools,97 prisons, and even the UN headquarters.98 In addition, Israel targeted cultural sites, museums, and even the Gaza Zoo99 as they swept the region and destroyed the Palestinian private sector. The reasons for this pattern of indiscriminate destruction given by Israel do not seem to comport with the facts and reports of the incidents. For instance, many of the sites targeted were purported to house weapons caches or important strategic positions for Hamas militants.100 Yet, while it is possible that some of the facilities may have harbored Hamas weapons or supplies, it does not seem likely that the Gaza Zoo, the UN headquarters,101 or the American International School102 were cornerstones of the Hamas resistance. Likewise, the Al-Quds Palestinian Red Crescent Society (PRCS) Hospital, the Al-Wafa rehabilitation hospital, 9 Ministry of Health hospitals, 6 NGO hospitals, as well as 41 Primary Health Clinic facilities were either damaged or destroyed by Israeli forces during the assault.103 When asked how Israel could justify the bombing of the Islamic University of Gaza, U.S. Army Major General Robert Scales (Ret.) told FOX News,

See HAGUE II, supra note 30, at ART. 43. GA RES. 2444 (XXIII), U.N. DOC. A/RES/2444, (December 19, 1968). 94 GA RES. 3318 (XXIX), U.N. DOC. A/RES/3318, (December 14, 1974). 95 See CUSTOMARY INTERNATIONAL HUMANITARIAN LAW, supra note 56. 96 See GENEVA CONVENTION IV, supra note 30, ART. 3. 97 Jonathan Cook, Outcry Over Israels War Crimes: We Are Very Violent, COUNTERPUNCH (Jan. 9, 2009). 98 Jonathan Cook, Devastation Has Always Been a Goal for Israel, THE NATIONAL (Jan. 18, 2009). 99 Aleem Maqbool, Bleak Outlook for Bombed Gaza Zoo, BBC NEWS (February 18, 2009). 100 Jonathan Ferziger, Gaza School is Student Refuge, Target for Israel, Palestinians, BLOOMBERG (February 25, 2009). 101 Ibrahim Barzak & Christopher Torchia, Israel Shells UN Headquarters in Gaza, THE HUFFINGTON POST (January 15, 2009). 102 Tim McGirk, The Devastation of Gaza: From Factories to Ice Cream, TIME, January 28, 2009. 103 PALESTINIAN HUMAN RIGHTS MONITORING GROUP (PHRMG), The War on Gaza, Jerusalem (2009).
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OPERATION CAST LEAD IN INTERNATIONAL LAW The Islamic University is a gathering place for young militants and it has been for many, many years, this is not unusual in radical movements. We had our Berkeley and Russia had its Moscow University. The other issue, honestly, is that a lot of it has to do with the symbology [sic]. It is knocking down the symbols of Hamas authority to diminish them in the eyes of the rest of the world."104
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International humanitarian law, however, does not allow the destruction of universities or other civilian targets simply because they are symbols of authority for the enemy.105 In fact, according to international law, targets that are suspected to contribute to the military actions of the enemy shall be presumed not to be so used if there is any doubt as to the gravity of its contribution to opposition forces.106 The presence of radical thought, free speech, and protest107 is certainly not grounds for a targeted attack on a civilian objective. Similarly, Article 23 (G) of the Hague Conventions of 1907, Convention IV, forbids the destruction or seizure of the enemys property, unless such destruction be imperatively demanded by the necessities of war.108 b. Use of Illegal Weapons and Force Casualties are an unfortunate and unavoidable aspect of armed conflict. The fact that casualties and death are bound to occur, however, does not give the warring parties the right to use any means necessary to inflict damage on the opposition. International law prohibits inflicting superfluous injury or unnecessary suffering109 and forbids the use of certain weapons that are known to have those types of effects.110 Additionally, the use of certain weapons is especially prohibited when there is a possibility that the civilian
Bombing of Islamic University: Strategic Target or War Crime?, FOX NEWS, (December 30, 2008) [hereinafter Bombing of Islamic University]. 105 See GENEVA CONVENTION IV, supra note 30. 106 See INTERNATIONAL COMMITTEE OF THE RED CROSS (ICRC), Commentary on ART. 52 of the First Additional Protocol of 8 June 1977 to the Geneva Conventions of 12 August 1949, p. 2002, n. 3 (Yves Sandoz, Christophe Swinarski, & Bruno Zimmermann eds., 1987) (In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.). 107 See Bombing of Islamic University, supra note 104. 108 See HAGUE IV, supra note 22, ART. 23 (G). 109 PROTOCOL ADDITIONAL TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, AND RELATING TO THE PROTECTION OF VICTIMS OF INTERNATIONAL ARMED CONFLICTS (PROTOCOL I), ART. 35(2), (June 8, 1977) [hereinafter PROTOCOL I] (ART. 35(2) prohibits weapons, projectiles, and materials and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.). 110 CONVENTION ON PROHIBITIONS OR RESTRICTIONS ON THE USE OF CERTAIN CONVENTIONAL WEAPONS WHICH MAY BE DEEMED TO BE EXCESSIVELY INJURIOUS OR TO HAVE INDISCRIMINATE EFFECTS, Oct. 10, 1980, 1342 U.N.T.S. 7 reprinted in I.L.M. 1523 [hereinafter CONVENTION ON PROHIBITED WEAPONS].
104
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population will bear the brunt of the devastation.111 Despite the international prohibitions, evidence points to Israels use of several prohibited weapons and projectiles during Operation Cast Lead.112 Even more disturbing is the mounting evidence that a large portion of those weapons and projectiles were used against the civilian population, including women and children.113 The warnings issued114 to the residents of Gaza before commencing attacks on densely populated civilian areas fail to absolve Israel of its responsibilities concerning the protection of civilians under international law.115 Israel has also been known to treat the areas of upcoming attacks as if they are completely devoid of civilians after largely ineffective warnings have been issued to the resident populations.116 Once the warnings have been issued, Israeli forces indiscriminately target all visible persons and vehicles in the area, deeming anyone and anything left in the area to be Hezbollah117 or voluntary human shields.118 It is also pertinent to recall that Israel completely fenced in Gaza in 1994, and had subsequently tightened its restrictions on the area and blocked virtually every avenue of escape from the region before Operation Cast Lead began, leaving no route of egress even if the warnings were legitimate or effective.119 International Law aside, however, the idea that simply failing to leave your home during a time of crisis and confusion automatically renders you a voluntary human shield offends and shocks the conscience, to say the least.

See PROTOCOL I, supra note 109, ART. 51(5)(b) (defining and prohibiting indiscriminate attacks) ([A]n attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.). 112 See infra notes 117-125. 113 ISRAEL MINISTRY OF FOREIGN AFFAIRS, The Operation in Gaza: Factual and Legal Aspects, Section V.(D) at 312-445, (July 29, 2009) [hereinafter THE OPERATION IN GAZA]. 114 Abraham Rabinovich, Israel Warning Civilians to Flee, THE AUSTRALIAN, (December 30, 2008), at 7; see also Hanan Greenberg, IDF to Give Better Warnings Before Attacks, YNET NEWS, (July 29, 2009). 115 PROTOCOL ADDITIONAL TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, AND RELATING TO THE PROTECTION OF VICTIMS OF NON-INTERNATIONAL ARMED CONFLICTS (PROTOCOL II), ART. 17, (June 8, 1977) [hereinafter PROTOCOL II], (ART. 17(1) reads The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition. [italics added]). 116 See HUMAN RIGHTS WATCH, Why They Died, Vol. 19, No. 5(E) (September 2007), at 62. 117 Ibid. 118 Eyal Weizman, Lawfare in Gaza: Legislative Attack, OPEN DEMOCRACY (Mar. 1, 2009). 119 See Israel-Palestine Liberation Organization Agreement on the Gaza Strip and the Jericho Area, Isr.-PLO, May 4, 1994, 33 I.L.M. 622 (A small number of injured civilians were permitted to leave, however, see generally id. at Annex II.).
111
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The types of weapons employed during Operation Cast Lead shed light on allegations of additional war crimes committed by Israeli forces.120 Sources have now confirmed the use of White Phosphorous (WP) shells, not only against Hamas militants, but also against the civilian population of Gaza.121 WP munitions contain highly volatile chemicals that burn at extremely high temperatures (often reaching approximately 5,000F) and produce thick smoke that can be used to conceal tactical movement.122 The devastating effects that WP shells have on human flesh and bone, however, have earned them a spot on the list of weapons and projectiles prohibited by international law.123 The global human rights advocacy group, Amnesty International, has called on the United States, Israels largest arms supplier, to implement an immediate arms embargo on Israel and all Palestinian armed groups, although the U.S. is currently under an agreement negotiated by the Bush administration to provide Israel with $30bn in military aid over the next 10 years.124 Apart from using WP shells, Israel has also been accused of using flechettes against Gazas civilian population.125 Flechettes are anti-personnel weapons that are usually fired from a tank in order to penetrate dense vegetation and kill large numbers of enemy personnel.126 The flechette shells used by Israeli forces against Gazan civilians were 105-120mm in diameter, and the metal darts that were released upon explosion had an average length of 37.5mm.127 Each shell is packed with approximately 5,000-8,000 of the metal darts, and can affect an area of up to 300m wide and 100m long.128 Other allegations of questionable weapons and tactics stem from Israels use of Dense Inert Metal Explosives (DIMEs) and other experimental weapons against civilians during its assault on the Gaza Strip.129 DIMEs are used in small areas where an explosion must be contained.130 The pieces of shrapnel found in traditional explosives are replaced
See THE OPERATION IN GAZA, supra note 113. Robert Booth, Gaza Film Shows White Phosphorous From Alleged Israeli Attack, THE GUARDIAN (January 19, 2009); see also AMNESTY INTERNATIONAL, Israel Used White Phosphorous in Gaza Civilian Areas, (January 19, 2009). 122 FIELD MANUAL FM 23-30, Grenades and Pyrotechnic Signals, DEPARTMENT OF THE ARMY, at M15 White Phosphorous Grenade (December 27, 1988),. 123 International Humanitarian Law Research Initiative, IHL PRIMER #5 White Phosphorous Munitions, Program on Humanitarian Policy and Conflict Research, Harv. Univ. (July 2009) (when ignited WP munitions come into contact with human flesh, they may burn through skin causing tremendous pain and tissue damage.). 124 Rory McCarthy, Amnesty Calls on US to Suspend Arms Sales to Israel, THE GUARDIAN (February 23, 2009). 125 AMNESTY INTERNATIONAL, Israeli Army Used Flechettes Against Gaza Civilians, (January 27, 2009). 126 BTSELEM, Flechette Shells: An Illegal Weapon, Use of Firearms, (January 1, 2009). 127 See AMNESTY INTL, supra note 125. 128 See BTSELEM, supra note 126. 129 Maireid Sullivan, DIME: Israel Turns Gaza Into Weapon Testing Lab?, NOWPUBLIC, (January 18, 2009). 130 Raymond Whitaker, Tungsten Bombs Leave Israels Victims with Mystery Wounds, THE INDEPENDENT, (January 18, 2009) (Instead of being made from metal, which sprays shrapnel
121 120
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by tungsten powder and carbon fiber, making the treatment of wounds from these devices nearly impossible for most physicians and carries an increased risk of cancer if the victim manages to survive.131 Exposure to Tungsten has been shown to drastically increase the risk of cancer,132 and childhood leukemia clusters have been reported in multiple areas with increased tungsten content in tree core samples near military bases.133 While the use of DIMEs is not expressly prohibited under international law due to the novelty and experimental nature of the weapons,134 other provisions of international law may still be applied concerning the indiscriminate use and devastating effects of the weapons on the civilian population.135 VI. LIABILITY AND INTERNATIONAL JURISDICTION
The effects of Operation Cast Lead on the residents of the Gaza Strip have been nothing short of disastrous. Whenever death and destruction are brought upon a civilian population in such a disproportionate and indiscriminate manor, it is imperative that those responsible are held accountable for their actions in accordance with the rule of law. While it may be true that both Israel and Hamas are guilty of violating international law, it is also true that the transgressions of another do not vindicate reprisal. This simple concept can be summed up by the English proverb two wrongs dont make a right. The path to justice, however, is often impeded when attempts are made to assign blame to individual parties, and is further complicated when determining exactly what to charge the alleged perpetrators with. Despite any possible impediment to the pursuit of justice, the fact remains that crimes against International Law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of International Law be enforced.136 a. Offences Against the Peace and Security of Mankind The term crimes against humanity can elicit strong emotional responses from those who understand the implications of the definition.137 While it is said to be
across a wide area, the casing is carbon fibre [sic]. Part of the motive for developing the bombs was to replace the use of depleted uranium, but Dr Fosse said the cancer risk from tungsten powder was well known.). 131 Ibid. 132 Alexandra C. Miller et al., Neoplastic transformation of human osteoblast cells to the tumorigenic phenotype by heavy metaltungsten alloy particles: induction of genotoxic effects, 22 Carcinogenesis 1 (2001), at 115-125. 133 Karen E. Hanake, Toxicological Summary for Tungsten and Selected Tungsten Compounds, National Institute of Environmental Health Sciences, CENTERS FOR DISEASE CONTROL (2003), at page i. 134 See Bisharat, supra note 3, at 96. 135 See PROTOCOL I, supra note 109. 136 INTERNATIONAL MILITARY TRIBUNAL (NUREMBERG), Judgment of 1 October 1946, in The Trial of German Major War Criminals. Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part 22 (22nd August, 1946 to 1st October, 1946). 137 Alette Smeulers, Punishing the Enemies of All Mankind, Review Essays, 21 LEIDEN J. INTL L. 971, 975 (2008).
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impossible for the human mind to ever truly grasp the full scope of suffering that accompanies such atrocities,138 defining these crimes is the first step in obtaining justice for the victims. The Rome Statute of the International Criminal Court defines a crime against humanity as a widespread or systematic attack directed against any civilian population, with knowledge of the attack.139 Likewise, these crimes can be committed regardless of whether or not they are committed during the course of a domestic or international conflict.140 This has been further substantiated by the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR).141 Crimes against humanity are committed by a State against the freedom, rights, or life of a population for racial, national, religious, or political reasons142 and are defined separately from war crimes in the Nuremberg Charter.143 This definition does not apply to individual, isolated criminal acts and is strictly limited to those of a widespread, systematic nature.144 The most distinctive and widely acknowledged element of a crime against humanity seems to be the motive behind its commission, with virtually all writers, judicial decisions, and resolutions of international congresses referring to the mens rea that gives it its unique designation.145 Therefore the scale, nature, and motive need to be
138
Stanley Cohen, States of Denial: Knowing about Atrocities and Suffering, Polity Press, (2001),
139
I.
ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, ART. 7, Crimes Against Humanity, U.N. DOC. A/CONF.183/9 (July 1, 2002) [hereinafter ROME STATUTE] ("Attack directed against any civilian population means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.). 140 UN DOC. S/25704, Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808, 3 May 1993, p. 13, 47 (1993) (As for crimes against humanity, it is noteworthy that the report by the United Nations Secretary-General on the draft statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) indicates that they can occur in the course of an internal conflict or an international conflict.) [hereinafter REPORT ON SECURITY RESOLUTION 808]. 141 INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (ICTY), Prosecutor v. Dusko Tadic a/k/a Dule: Decision on the defence motion for interlocutory appeal on jurisdiction, Decision of 2 October 1995, Case No. IT-94-1-AR72, p. 72, 141 (1995) (This assertion was reinforced by the adoption of the statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda [the first expressly stipulates, in Article 3, that both categories of conflict are covered by this provision, and the second mentions crimes against humanity in Article 3], and received formal recognition from the Appeals Chamber in the Tadic case, which stated: It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict.). 142 See Eugne Aronanu, Le crime contre lhumanit, Paris, Dalloz, (1961) (A crime against humanity, before being a crime, is an act of State sovereignty, an act by which a State attacks, for racial, national, religious or political reasons, the freedom, rights or life of a person or group of persons.). 143 LONDON AGREEMENT OF 8 AUGUST 1945, Nuremberg Trial Proceedings, VOL. 1 (1945). 144 History of the United Nations War Crimes Commission and the Development of the Laws of War, Published for the United Nations War Crimes Commission by H.M. Stationary Office, London, p. 179 (1948). 145 See DRAFT CODES, supra note 82, at p. 9.
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considered in order to determine whether or not the actions of Israel constitute crimes against humanity. The international community has disputed the definition of the term war crimes as it pertains to actions committed during armed conflicts that are not specifically defined as wars.146 Thus, it is important to determine whether or not the actions of the Israeli government during Operation Cast Lead actually fall into this category to ensure that the proper charges may be levied against those who are found responsible. Although war in itself is prohibited under international law, it does indeed remain a reoccurring political and sociological phenomenon.147 Therefore, the problem of terminology association is at the forefront of this semantic confusion, rather than whether or not war actually occurs.148 Today, the term armed conflict has generally been substituted for the term war in reference to the sovereign use of force and can be used interchangeably.149 Additionally, non-international conflicts have long been included in the applicability of crimes committed during armed conflicts.150 Indeed, the 1977 Additional Protocols to the Geneva Conventions concerning armed conflicts confirms that the Geneva Conventions cover armed conflicts in which peoples are fighting against colonial domination and alien occupation against racist regimes in the exercise of their right to selfdetermination.151 This illustrates that international law as it pertains to war crimes is applicable to Israels actions during Operation Cast Lead in Gaza. b. Commentary on Gaza Invasion In response to the aftermath of Operation Cast Lead, several officials have expressed their concerns about the magnitude of destruction visited upon the civilian residents of the Gaza Strip, including UN Secretary General Ban-ki Moon.152 These observations have come from many different organizations including the United Nations News Centre,153 the International Commission of the Red Cross (ICRC),154 the United
Id., at p. 17. Ibid. 148 Id., at p. 18. 149 Ibid. 150 See REPORT ON SECURITY RESOLUTION 808, supra note 140. 151 See PROTOCOL I, supra note 109, at ART. 1(4). 152 UN to Embark on Humanitarian Assessment in Post-Conflict Gaza, UN NEWS CENTRE, Jan. 21, 2009 (UN Secretary General Ban-ki Moon has described the aftermath of the attacks on Gaza as shocking and alarming. These are heartbreaking scenes.). 153 Senior UN Officials Survey Shocking Aftermath of Israeli Offensive in Gaza, UN NEWS CENTRE, Jan. 22, (2009) (In a joint statement prepared by Under-Secretary-General for Humanitarian Affairs John Holmes and UN Special Coordinator for the Middle East Peace Process Robert Serry, the UN officials stated that "[t]he mission was struck by the scale and urgency of the needs of the people of Gaza, and the heavy and multi-faceted impact that this conflict has had on the civilian population."). 154 PRESS RELEASE, THE INTL COMM. OF THE RED CROSS, Gaza: Massive Devastation Calls for Vast Humanitarian Effort, (Jan. 20, 2009) (Antoine Grand, head of the ICRC office in Gaza, described Gaza residents as if they were waking from a nightmare.).
147 146
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Nations Office for the Coordination of Humanitarian Affairs (OCHA),155 and other human rights organizations such as Amnesty International,156 Human Rights Watch,157 and BTselem.158 In light of these statements and official commentary, it can be properly assumed that several if not all of the requirements necessary in order to allege that Israel committed war crimes or crimes against humanity159 during Operation Cast Lead have been met. These allegations, while certainly valid in theory, must also be properly applied to the individuals responsible for such acts in order to establish the necessary basis for pursuing prosecution. c. Liability Under International Law Offenses against the peace and security of mankind, or war crimes,160 are defined under international law independently from prosecution for such offenses under internal law. Therefore, the fact that an action is not prosecuted under domestic law does not alter or remove the characterization as such under international law.161 Such actions constitute a universal offence and the principle of jus cogens162 is therefore applicable in determining the individual liability of any person who commits those acts. Likewise, the fact that a perpetrator held the position of Head of State or Government at the time of the commission of the proscribed acts does not absolve him of criminal responsibility,163 neither does the fact that the acts were committed by his subordinates if he did not take
155
See SITUATION REPORT NO. 16, supra note 46 (The UN Emergency Relief Coordinator said it is shocking that civilians suffered so disproportionately in this military operation.). 156 AMNESTY INTERNATIONAL, Israel and the Occupied Palestinian Territories, State of the Worlds Human Rights, Amnesty International Report, (2009) (The Israeli military offensive launched in late December brought conditions to the brink of human catastrophe.). 157 HUMAN RIGHTS WATCH, Deprived and Endangered: Humanitarian Crisis in the Gaza Strip, Jan. 13, 2009 (Gaza's civilians are facing dire shortages of food, water, cooking gas, fuel and medical care due to insecurity, the enforced closure of all of Gaza's borders, and alleged serious violations of international humanitarian law. Electricity is sharply down, and in some places open sewage is spilling into the streets. Children, who make up 56 percent of Gaza's residents, are especially vulnerable.). 158 BTSELEM, Operation Cast Lead, 27 Dec. 08 to 18 Jan. 09, Gaza Strip, (2011) (The suspicions regarding breach of international humanitarian law relate not only to the conduct of one soldier or another, but primarily to policy. In some cases, there is a well-founded suspicion that the harm to civilians resulted from breach of the principles of distinction and proportionality, which are intended to ensure that civilians remain outside the cycle of the hostilities.). 159 See supra Section VI(a). 160 See DRAFT CODES, supra note 82, at CH. I, PART I, ART. 1 Definition. 161 Id., at CH. I, PART I, ART. 2 Characterization. 162 The term jus cogens is the technical term given to those norms of general international law, that are argued as hierarchically superior, the literal meaning of which is compelling law. These are, in fact, a set of rules, which are peremptory in nature, and no derogation from them under any circumstances is, therefore allowed. See Kjell Follingstad Anderson, Jus Cogens, DICTIONARY OF GROSS HUMAN RIGHTS VIOLATIONS, International Criminal Law (2007). 163 See DRAFT CODES, supra note 82, at CH. I, PART II, ART. 8(1)(a).
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all necessary and practical steps to prevent or suppress the offences.164 Lastly, superior orders do not relieve a subordinate of his criminal responsibility for actions committed in violation of international law.165 Every State also has aut dedere aur punire166 in regards to those responsible for an offence against the peace and security of mankind, without concern for any statute of limitations concerning acts of that particular nature.167 d. Obstacles to Justice Since 1993, the UN Security Council has exercised the powers given to it under Chapter 7 of the UN Charter168 on four separate occasions to implement special tribunals in the pursuit of international justice.169 This has led to the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone, and the Special Tribunal for Lebanon, among others.170 The Security Council could use these same powers under Chapter 7 of the Charter to establish a tribunal to investigate the alleged violations of international law committed during Operation Cast Lead.171 The inception of a special military tribunal for Israel and the Occupied Territories, however, will depend upon the unanimous approval of the permanent members of the Council, pursuant to Article 27(3) of the UN Charter.172 Throughout the course of the Israel-Palestine conflict, there have been several impediments to achieving peace and stability in the region. Aside from the sociological or ideological barriers to a peaceful solution, there have also been instances in which various members of the international community have directly inhibited negotiations and talks of peace. One member of the international community that seems to have played a significant role in preventing or prolonging the pacific resolution of hostile relations between Israel and Palestine is Israels most powerful ally, the United States. Since 1972, there have been numerous resolutions proposed by the United Nations Security Council
164 165
Id., at CH. I, PART II, ART. 9. Id., at CH. I, PART II, ART. 8(1)(C). 166 Aut dedere aur punire translates to The obligation to extradite or punish and refers to the concept of universal competence concerning the punishment of actions that violate the law of nature or of nations in regard to any persons whatsoever. See Hugo Grotius, De jure belli ac pacis (On the Law of War and Peace), BOOK II, CHAP. XX, PARA. XL(1) (1625); see also Id., at CH. I, PART II, ART. 4(1). 167 See DRAFT CODES, supra note 82, at CH. I, PART II, ART. 5. 168 See CHARTER OF THE UNITED NATIONS, supra note 21, CHAP. IV. 169 See Bisharat, supra note 3, at 107. 170 Ibid., (citing S.C. RES 827, U.N. DOC. S/RES/827 (May 25, 1993); S.C. RES. 955 S/RES/955, (Nov. 8, 1994); S.C. RES. 1315, U.N. DOC. S/RES/1315, (Aug. 14, 2000); S.C. RES. 1757, U.N. DOC. S/RES/1757, (May 30, 2007)). 171 Johansson, Patrik, UN Security Council Chapter VII Resolutions, 1946-2002 - An Inventory, Uppsala: DEPARTMENT OF PEACE AND CONFLICT RESEARCH (2005). 172 See CHARTER OF THE UNITED NATIONS, supra note 21, ART. 27(3).
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that have been critical of Israel.173 Of those, the United States has cast a No vote in nearly every single instance dating from 1972 to 2010, often the only Member State to vote against the proposals.174 Since Israel is not a signatory to the Rome Statute,175 the International Criminal Court (ICC) would most likely be unable to exercise jurisdiction over the alleged crimes committed during Operation Cast Lead. Unless Israel ratifies the Rome Statute and subsequently submits to the jurisdiction of the ICC under Article 12(3) of the Rome Statute,176 or the Office of the Prosecutor of the ICC initiates an investigation upon referral by a State to determine the jurisdiction of the ICC as it applies to the situation in Gaza.177 In either scenario, the outcome of the investigation will likely depend on the cooperation of Member States, particularly the United States,178 and the willingness of the ICC to pursue prosecution. VII. RECENT DEVELOPMENTS (2009-PRESENT)
On January 22, 2009, the Minister of Justice for Palestine, Mr. Ali Kashan, brought an ad hoc declaration to the Office of the Prosecutor of the ICC accepting the jurisdiction of the ICC179 under Article 12(3) of the Rome Statute, which allows a State, which is not party to the Statute to accept the jurisdiction of the court, as mentioned in the previous section.180 The declaration stated: The Government of Palestine hereby recognizes the jurisdiction of the Court for the purpose of identifying, prosecuting and judging the authors and accomplices of crimes committed on the territory of Palestine since 1 July 2002. As a consequence, the Government of Palestine will cooperate with the Court without delay or exceptions in conformity with Chapter 9. This declaration is made for an indeterminate duration...181 Palestine has continually requested to be considered for induction into the United Nations as a Member and its applications have consistently been denied, primarily by the
UNITED STATES MISSION TO THE UNITED NATIONS, List of Vetoes Cast in Public Meetings of the Security Council, (Aug. 4, 1986). 174 U.S. Vetoes of U.N. Security Council Resolutions Critical of Israel (1972-2011), AMERICANISRAELI COOPERATION ENTERPRISE, (2012) [hereinafter U.S. VETOES]. 175 PRESS RELEASE, INTL CRIMINAL COURT (ICC), The States Parties to the Rome Statute (July 21, 2009). 176 See ROME STATUTE, supra note 139, at ART. 12(3). 177 Id., at ART. 13 and ART. 15. 178 See generally supra Section VI(d); see also U.S. VETOES supra note 174. 179 Batrice Le Fraper du Hellen, Response to PNA Declaration of Authority, UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS, INTERNATIONAL CRIMINAL COURT, (Jan. 12, 2010) [hereinafter RESPONSE TO PNA DECLARATION OF AUTHORITY]. 180 See ROME STATUTE, supra note 139, at ART. 12(3). 181 See RESPONSE TO PNA DECLARATION OF AUTHORITY, supra note 179.
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United States and Israel.182 The observer from Palestine insists that the Palestinian right to self-determination and independence is not something that should be left to a vote or something that should be the product of negotiations.183 Other speakers have offered their support for the admission of a Palestinian State to the United Nations, suggesting that such a move would help reduce the asymmetry184 of negotiations and have further stated that a lasting agreement would not be possible while one side is continually undermined by activities on the ground, citing continued Israeli settlement activity, against which many speakers spoke in strong terms.185 As of April 3, 2012, the Office of the Prosecutor declined to exercise jurisdiction over the actions of the Israeli government in the Gaza Strip and the West Bank during Operation Cast Lead.186 In his two-page ruling, the Office of the Prosecutor, headed by Louis Moreno-Ocampo, stated that [t]he issue that arises... is who defines what is a State for the purpose of Article 12 of the Statute?187 He went on to state that although Palestine has been recognized [sic] as a State in bilateral relations by more than 130 governments and by certain international organisations, [sic] including United Nations bodies, the Security Council has yet to make a recommendation on its status under Article 4(2) of the UN Charter.188 VIII. CONCLUSION
The complex nature of the Israel-Palestine conflict is the product of decades of social, ideological, and political struggle for dominance and authority in the Middle East. The problems associated with that particular region of the globe cannot simply be understood in terms of whom to point a proverbial finger at. Instead, the events that took place need to be understood in the proper historical and political context to avoid assigning undue blame. That being said, the fact remains that war crimes were committed in Gaza, and those responsible must be held accountable for their actions if international criminal justice is to remain a legitimate concept in todays world. Those who would balk at the task of pursuing the perpetrators, simply because the cause may seem unfavorable to the majority, stand in the way of justice and promote lawlessness among nations. Those who follow the rule of law are sometimes forced to pursue unpopular causes, seemingly always swimming upstream,189 in the hopes of
182
PRESS RELEASE, Security Council Is Told Israel-Hamas Prisoner Exchange Offers Hope of Easing, All-day Debate Hears Renewed Pleas for Palestine UN Membership; Israel, United States Among Those Saying Move Would Be Counterproductive, UNITED NATIONS SECURITY COUNCIL, 6636th Meeting, SC/10420, (Oct. 24, 2011), at 7. 183 Ibid. 184 Id., at 9. 185 Ibid. 186 See generally OFFICE OF THE PROSECUTOR, Situation in Palestine, INTERNATIONAL CRIMINAL COURT (delivered April 3, 2012) [hereinafter ICC JURISDICTION DECLARATION]. 187 Id., at 5. 188 Id., at 7 189 Professor Lennox S. Hinds, Esq., Townsend Medal Acceptance Speech, City College of New York, (November 9, 2011) at 7:56 available at http://www.youtube.com/watch?v=AIlU-Rjm9v8.
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maintaining the integrity of the international criminal justice system and the international community. While it is true that allegations of war crimes can be made against both Israel and Hamas,190 the toll that Israels actions have taken on the civilian population of Gaza,191 the disproportionate and indiscriminate manner in which Operation Cast Lead was conducted,192 and the special paternalistic nature of Israels relationship with the Occupied Territories193 call for heightened scrutiny of Israels actions. The general attitude of the international community regarding the fate and status of Gaza and the Occupied Territories is cause for concern. The imbalance in military power and the international clout that Israel holds over Palestine and the surrounding areas allow it to manipulate the status quo in ways that jeopardize the stability of the Middle East as a whole. If a peaceful solution is ever to be reached between Israel and the Arab peoples, the rule of law must be applied equally and universally to all parties. Without equal protection and enforcement of international law, a pacific and politically tenable solution is unlikely to be reached and the suffering will continue.

190 191
See Bisharat, supra note 3, at 100, Section XIII, and 58-99 generally. See supra Section V. 192 Ibid. 193 See supra Section III.
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CRIMES AGAINST HUMANITY

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