Joint Declaration Charging Legal Violations in Israel’s Gaza Offensive

Joint Declaration Charging Legal Violations in Israel’s Gaza Offensive

A group of international law and criminal law scholars have issued a joint declaration denouncing Israel’s Gaza offensive for causing “grave violations…of the most basic principles of the laws of armed conflict and of the fundamental rights of the entire Palestinian population.” It is the latest front in the public debate over legal violations arising out of the Gaza conflict, some of which we have noted here at Opinio Juris (the legality of denying electricity to Gaza and the legal effect of Israeli warnings to civilians).Personally, I don’t think there is enough evidence in UN and media reports to support the Joint Declaration’s main claim: that Israel is intentionally trying to target, terrorize, and collectively punish the civilian population of Gaza. Rather, my view is that Israel is conducting an aggressive military operation which is resulting in civilian deaths, and that those deaths may or may not be legal violations of the law of armed conflict (it is hard to say based on media reports at this time).   But I am not convinced (as the Joint Declaration seems to allege) that killing civilians is actually the basic intention and goal of the Israeli government.

Still, the Gaza conflict has plainly drawn the attention of the global community of international and criminal law scholars. I think these kinds of statements will have, and are already having, an impact on world opinion and the Israeli government. So it is worth taking a look.

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Mister
Mister

Hamas noxiously puts civilians in harm’s way knowing that by so doing, this will inevitably lead to their deaths. Hamas’ intentional and purposeful conduct in seeking civilian casualties as media props should be called out by everyone.

zdenekv
zdenekv

There seems now a clear need for a discussion of how people who study international law apply it to conflicts like one we see in Gaza. One thing that is striking and that needs some explanation is why the law that governs armed conflict is applied in a clearly warped and distorted way where Hamas’ systematic violations of the core principles are brushed aside on the way to criticize IDF actions. The issue obviously is not that IDF is above criticism but rather that international law is rooted in politics and that cannot be good news for civilians.

Kevin Jon Heller

I did not sign the declaration because I have my own issues with it, but “that Israel is intentionally trying to target, terrorize, and collectively punish the civilian population of Gaza” is anything but its central claim.

shmuel
shmuel

I wonder where these 1million and 700thousand civilians (let’s assume that that the other 100thousand are terrorists) should go if Israel took 44% of the Gaza Strip as “buffer zone”.

zdenekv
zdenekv

The main bits of the Joint Declaration as it stands cannot be taken seriously because it just seems premature and one sided. But besides that jus in bello question there is also the just ad bellum question that needs to be looked at. I.e. Hamas’ goal/the reason for fighting Israel is morally problematic since it aims at ( see their charter ) establishing caliphate and that makes it absolutely unclear how that sort of motivation could provide a warrant for starting any hostilities against Israel.

Geoffrey Hartwell

What is the point of all these legal opinions? They won’t deflect a single shell now and not a single leader will be indicted later.

Diogo Alvim
Diogo Alvim

I generally agree that Israel’s response is being, at the very least, very strong. But should not scholars be less biased and condemn the Hamas for:
– constantly targeting civilians (not being successful just because Israel has a good missile defense system);
– building tunnels from civilian areas to attack Israel;
– firing missiles from civilian zones and hiding their weapons in UN ran facilities, particularly schools (thus putting Palestinian civilians within Israeli’s target).
I know that crimes on one side do not justify crimes on the other, but scholars should also point that out. And they could also, by the way, refer that it’s not so easy to distinguish civilians from armed forces in Palestine. They would only need to look at art. 5 of the IV Geneva Convention.

Lawyers4Justice

Opinions aside, as noted yesterday at the Security Council briefing, and the subsequent White House statement calling the targeting and shelling of the UN school shelter as “indefensible” act, it is clear that an independent investigation is warranted to establish the alleged IHL violations in the Gaza conflict. Be it IDF or Hamas or other militant groups, it is high time that the international legal community put aside rhetoric and look at the situation through the legal lens. Otherwise we risk rendering ourselves and our profession to the level of biased punditry and opinionated talking heads that currently occupy the media space. We are better than that! Now one of the things a number of lawyers are examining is the issue of dual nationality, IDF and the current Gaza hostilities. Kevin, I am currently in transit and am unable to post a detailed submission, however, would write it here for comments of others in the fraternity. Given that there are thousands of IDF personnel that hold dual nationality, and by that I mean dual nationals of ICC States-Parties, does this situation warrant an assessment of on part of the ICC Prosecutor to establish, at minimum, whether the participation of these… Read more »

Luigi Daniele
Luigi Daniele

The issue, here, as many observers note, is that it’s no more war… it’s policy! 2006, 2008-09, 2012, and now 2014.

Killing 85% civilians, 252 children and producing 457.000 IDPs (OCHA data), far from being an effective contrast against Hamas, is the best way to reinforce jihadism.

Even Navi Pillay is denouncing “continuing attacks on civilians”: “Six UN schools have now been hit, including another deadly strike on 24 July that also killed civilians […] The shelling and bombing of UN schools which have resulted in the killing and maiming of frightened women and children and civilian men, including UN staff, seeking shelter from the conflict are horrific acts and may possibly amount to war crimes […] If civilians cannot take refuge in UN schools, where can they be safe? They leave their homes to seek safety – and are then subjected to attack in the places they flee to. This is a grotesque situation”.

Continuing in this direction, Israel risks to have Hamas winning next elections also in the Wast Bank.
Every word we don’t say against this offensive, it’s a word that we don’t say to protect the security of Israel and its population.

http://www.ochaopt.org/documents/humanitarian_Snapshot_31July2014_oPt_V2.pdf

http://www.ohchr.org/EN/NewsEvents/Pages/media.aspx?IsMediaPage=true

Marty Lederman
Marty Lederman

Kevin: I wish you were correct that its central claim were not “that Israel is intentionally trying to target, terrorize, and collectively punish the civilian population of Gaza.” But that — allegations of violations of the principle of distinction — sure does appear to be the overwhelming focus. (Illustrative quotes below.) There is only a single paragraph devoted to proportionality — and as to that there is not much of an effort to engage on the very hard questions that ought to be the focus of any serious discussion of IHL in Gaza. (They’re not alone there — I haven’t seen anyone even endeavor to take those questions seriously.) quotes: — the plan is directed at “people of Gaza as a whole” — civilian casualties are “intentional, as Israel is again relying on the ‘Dahiya doctrine’, which deliberately has recourse to disproportionate force to inflict suffering on the civilian population in order to achieve political (to exert pressure on the Hamas Government) rather than military goals” — “Most of the recent heavy bombings in Gaza lack an acceptable military justification and, instead, appear to be designed to terrorize the civilian population.” — “the targeting of objectives providing no effective military… Read more »

Valentina Azarova

Though dated, this discussion by Jean-Philippe Kot of Israel’s conception of the principle of distinction in its ‘Operation Cast Lead’ in 2008/9, is very instructive: http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=8421022&fileId=S0922156511000458 It is overwhelmingly clear from Israeli official statements that the same logic applies to its current operation. Here are a few relevant passages from the article (footnotes omitted): “Israeli report on the operation in Gaza released by theMinistry of Foreign Affairs in July 2009 states that: ‘in many cases, the IDF could not forego a legitimate military objective without undermining its mission and jeopardizing both its soldiers and Israeli civilians. In those circumstances, the result of Hamas’ approach was to make it difficult, and sometimes impossible, for IDF forces to avoid harm to civilians and civilian structures.’ Such rhetoric, in which ‘terrorists’ choose the punishment of their own fellow nationals, totally eliminates the Israeli army as the intervening agent, rendering meaningless Article 51(8) ofAdditional Protocol I to the Geneva Convention, which states that a failure by the defending actor to abide by its obligations with respect to the civilian population does not alter an attacking state’s obligations to take the precautionary measures provided for in Article 57. This obligation is yet owed by the… Read more »

Hostage
Hostage

Response … Personally, I don’t think there is enough evidence in UN and media reports to support the Joint Declaration’s main claim: that Israel is intentionally trying to target, terrorize, and collectively punish the civilian population of Gaza. Well you only need to read the scores of racist statements made by the leaders of the governing coalition in the Israeli press to establish that fact beyond any doubt. Naftali Bennett is the gift that keeps on giving in that connection. The relevant UN fact finding reports have cited quite a few examples of those remarks over the course of many years. Just Google Olmert instructs IDF: no one sleeps in Gaza and read Amos Harel, May 14, 2006 “IDF has fired more than 5,100 shells at Gaza in six weeks” http://www.haaretz.com/print-edition/news/idf-has-fired-more-than-5-100-shells-at-gaza-in-six-weeks-1.187597 Believe me, if someone was firing 105 or 155mm tank or howitzer shells within 100 meters of your home, your children’s playground, and your farmlands around the clock, while F-16s carried-out sonic boom attacks along with Apache’s conducting the occasional targeted killing, you’d suspend your disbelief about the intent to create terror in a hurry. Several years on from that and subsequent onslaughts against Gaza – which cabinet minister… Read more »

Michael Kearney
Michael Kearney

Many thanks for highlighting the Joint Declaration. As we know, getting a group of international law academics to agree to a text is a difficult job. Its pretty much standard fare for judges at the international tribunals to disagree vehemently about interpretation of facts and the application of humanitarian law, yet with Declarations like this there’s not much opportunity for concurrent or dissenting opinions on particular issues. You sign on then perhaps, even if you have reservations about particular statements, in the knowledge that what’s at the core of the call is a turn to international justice and independent, fair, and comprehensive judicial consideration of the crimes and violations alleged. My own experience of Israel’s occupation and treatment of Palestinians has consistently been one of deliberate targeting of civilians, of persistent theft of land, of wholehearted racism, and delusional blame of the victims. My reading of the media over the past few weeks, supported by the statements of Israeli political and military figures, and the updates from friends in Israel and Palestine has left me in no doubt but that Israel is intentionally targeting, terrorizing, and collectively punishing the civilian population of Gaza and of the west Bank. But, that’s… Read more »

Hostage
Hostage

Response…What is the point of all these legal opinions? They won’t deflect a single shell now and not a single leader will be indicted later. If nothing else, they presumably constitute “information received” by the Prosecutor according to article 15 of the Rome Statute. There’s another article on the front page about the Court spending its “political capital” by examining credible evidence of war crimes in Iraq. Richard Goldstone said that Prosecutors should simply indict the responsible individuals if that is where the evidence leads. He related that the negative political assessment of UN Secretary-General Boutros-Ghali over the timing of the original indictment of Radovan Karadzic had been incorrect. He said that had he not been indicted, the Dayton Accords would not have been brokered and more people would have died. There’s plenty of evidence that criminal impunity is playing a role in the failed peace process when Israel helds press conferences to announce the enlargement of its illegal settlements during the US-brokered talks. Simon Wiesenthal stressed that if Karadzic were indicted at least he would know, that if he didn’t immediately face trial, he would be hunted for the rest of his days – and that is exactly what… Read more »

Hostage
Hostage

I spent 21 years in the military and have a hard time taking abstract discussions like this very seriously. It’s claimed that Hamas rockets and mortars are inaccurate and therefore their use is intended to create terror which constitutes a war crime. At one and the same time, Israel is reportedly shelling villages, like Khuzaa, east of Khan Younis with anti-personnel weapons that are designed to explode in the air and release thousands of deadly metal darts at the civilian population. See Israel using flechette shells in Gaza http://www.theguardian.com/world/2014/jul/20/israel-using-flechette-shells-in-gaza

Likewise, Israel littered the landscape in Lebanese towns and villages with millions of small anti-personnel mines released willy-nilly from canisters in 2006. All of these are examples where a civilian population was terrorized and targeted with weapons that are designed for use against people.

Hostage
Hostage

Response … Personally, I don’t think there is enough evidence in UN and media reports to support the Joint Declaration’s main claim: that Israel is intentionally trying to target, terrorize, and collectively punish the civilian population of Gaza. Well you only need to read the scores of racist statements made by the leaders of the governing coalition in the Israeli press to establish that fact beyond any doubt. Naftali Bennett is the gift that keeps on giving in that connection. The relevant UN fact finding reports have cited quite a few examples of those remarks over the course of many years. Just Google Olmert instructs IDF: no one sleeps in Gaza and read Amos Harel, May 14, 2006 “IDF has fired more than 5,100 shells at Gaza in six weeks” http://www.haaretz.com/print-edition/news/idf-has-fired-more-than-5-100-shells-at-gaza-in-six-weeks-1.187597 Believe me, if someone was firing 105 or 155mm tank or howitzer shells within 100 meters of your home, your children’s playground, and your farmlands around the clock, while F-16s carried-out sonic boom attacks along with Apache’s conducting the occasional targeted killing, you’d suspend your disbelief about the intent to create terror in a hurry. Several years on from that and subsequent onslaughts against Gaza – which cabinet minister… Read more »

Avi Bell
Avi Bell

Valentina,

No Israeli in the decisionmaking level has said that Israel is absolved from the duty to take due precautions due to Hamas/Hezbollah war crimes. This is just a red herring. What Israelis have pointed out, correctly, is that when Hamas/Hezbollah hide themselves in a civilian population, the likely number of lawful (i.e., proportionate) civilian deaths will increase, and when they hijack ordinarily civilian objects such as schools, they transform those objects into legitimate targets. The price for the Hamas/Hezbollah crimes is paid by innocent Lebanese and Palestinian citizens. Hamas/Hezbollah carries out these crimes because it relies on people like you to echo their propaganda and thereby score political/diplomatic blows against the state they have openly stated they want to destroy, and whose Jewish population they have openly stated they want to murder.

Your quotation, allegedly from Asa Kasher ,stating that proportionality is “set aside” by Israel due to human shields is not from Kasher at all; it is Kot’s deliberate misinterpretation of Israeli doctrine. You will not find any place where Kasher has ever said that Israel “sets aside” the rule of proportionality.

Shame on you.

Kevin Jon Heller

Leave it to Bell to accuse Kot of “deliberate misinterpretation of Israeli doctrine” without engaging in any analysis of what Kot wrote, which is based almost exclusively on Kasher and Yadlin’s own writing, and without providing even a scintilla of evidence that Kot somehow deliberately misinterpreted their writing.

There is shame to allocate here, but it does not belong to Valentina.

Kevin Jon Heller

Here, by the way, is a direct quote from Kasher: “If you look at non­combatants in a territory where one does not have effective control and have already made a series of warnings that are known to have been effective, then the lives of the troops come first … . The person who is afraid his home would be looted does not create by his odd behavior a reason for jeopardizing soldiers’ lives.”

I will leave it to readers to judge whether that statement is consistent with IHL.

Kevin Jon Heller

And here is a direct quote from Kasher and Yadlin: “‘the state has to give preference to saving the life of a single citizen even if the collateral
damage caused in the course of protecting him or her is much higher in number.”

Once again, readers can judge for themselves whether that statement is consistent with IHL — the principle of proportionality in particular.

Michael Kearney
Michael Kearney

My article here has a whole bunch of quotes and analysis on Israel’s policy re ‘proportionality’: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2153837 In October 2008, Maj. Gen. Gadi Eisenkott, Commanding Officer of the Israeli Army’s Northern Command, described the substance of the Dahiye Doctrine: “What happened in the Dahiye Quarter of Beirut in 2006, will happen in every village from which shots are fired on Israel. We will use disproportionate force against it and we will cause immense damage and destruction. From our point of view these are not civilian villages but military bases. This is not a recommendation, this is the plan, and it has already been authorized.” This was expounded upon by Dr Gabriel Siboni, a Colonel in the Israeli Army reserves: “With an outbreak of hostilities, the IDF will need to act immediately, decisively, and with force that is disproportionate to the enemy’s actions and the threat it poses. Such a response aims at inflicting damage and meting out punishment to an extent that will demand long and expensive reconstruction processes. The strike must be carried out as quickly as possible, and must prioritize damaging assets over seeking out each and every launcher. Punishment must be aimed at decision makers and the… Read more »

Avi Bell
Avi Bell

There is nothing in Kasher’s writings, or the snippets quoted out of context by Kevin, that says Israel sets aside the rule of proportionality. But, of course, having had discussions with Kevin before, I am familiar with his trick of changing the subject when he finds himself on the losing side of an argument, and I will not be following him there.

As for the quote from Eisenkott, it is obvious that he is not talking about proportionality in the IHL sense (proportion of civilian casualties to military necessity), but proportionality of response to initial strike. Eisenkott’s remarks played a starring role of false accusations in the Goldstone Report (2010) that Israel had deliberately targeted civilians, a charge Goldstone belatedly admitted was false in 2011.

Pashwina
Pashwina

Well, Julian, I think you should reconsider your opinion on Israel’s goal and intentions after having read this analysis: http://muslimlawyer.weebly.com/blog/still-in-doubt-about-israels-real-intentions

Andrew Garwood-Gowers
Andrew Garwood-Gowers

The difficulty of determining the number of civilian versus combatant casualties in the latest round of the Israel-Gaza conflict is highlighted in this piece by the Head of Statistics, BBC News:

http://www.bbc.com/news/world-middle-east-28688179

It ends with:

“In conclusion, we do not yet know for sure how many of the dead in Gaza are civilians and how many were fighters. This is in no sense the fault of the UN employees collecting the figures – their statistics are accompanied by caveats and described as preliminary and subject to to revision.
But it does mean that some of the conclusions being drawn from them may be premature.”

Ilja Richard Pavone
Ilja Richard Pavone

In my personal opinion, Israel committed War Crimes in Gaza, killing in an indiscriminate manner children and civilians…and the international community didn’t react.