Joint Declaration Charging Legal Violations in Israel’s Gaza Offensive

by Julian Ku

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.

http://opiniojuris.org/2014/08/01/joint-declaration-charging-legal-violations-israels-gaza-offensive/

25 Responses

  1. 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.

  2. 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.

  3. 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.

  4. 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”.

  5. 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.

  6. 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.

  7. 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.

  8. 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 dual nationals in Gaza conflict may establish the jurisdiction of the Court to investigate alleged allegations of Rome Statute violations committed in Gaza?

    It will be interesting to see whether any obligations exists in above situation, and is that enough for the Prosecutor to open a preliminary examination?

  9. 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

  10. 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 advantage, and the intentional targeting of civilians and civilian houses have been persistent features of Israel’s long-standing policy of punishing the entire population of the Gaza Strip”

    — “collective punishment”

  11. 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 combatants directly to those who are uninvolved in the hostilities. It is not mediated by the actions of the ‘terrorists’. Accordingly, civilian bystanders living in a mixed vicinity should not bear a responsibility that the attacking forces refuse to shoulder. In a situation in which soldiers must either take excessive risks in getting close enough to a target to avoid collateral damage or else risk excessive collateral damage, as long as the attacking forces are in no immediate danger if they do not carry out the attack, then they need not take those risks, but ought to cancel the attacks.” [969]

    “Kasher and Yadlin doctrine, the transfer of military risks to the civilian population. In Kasher’s words:
    If you look at non-combatants in a territory where one does not have effective control and have already made a series ofwarnings 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.’
    In this construction, if the warned population stays in the battle zone or in close proximity to military objectives, it takes the calculated risk of possible injury and, thus, by analogy with the voluntary human-shield regime, bears the responsibility for such a risk. The humanitarian-law principle according to which those who qualify as civilians are entitled to protection against direct attack unless and for such time as they directly participate in hostilities, even though their activities and location may expose them to an increased risk of incidental injury and death,57 is set aside without a proper assessment of the effectiveness of the warnings provided.” [970]

  12. 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 Livni described as Israel “going wild” – nothing has changed. Israel provokes these wars to distract attention from the on-going occupation, the growth of its settlements in Palestine, and the cold blooded murder of those brave enough to demonstrate against the illegal practices of its military administrative regime.

    Refusing to even present that evidence to the Judges at trial only justifies the claims of those Palestinians who say they have no other choice, except to take the law into their own hands. It gets tiresome to hear platitudinous remarks to the effect that no nation on Earth can tolerate shelling of its citizens, when no other country on Earth would tolerate what the Zionist regimes have done to the Palestinians interned in the Gaza Strip and the West Bank enclaves, including indiscriminate attacks and shelling on a much wider scale than Israel has ever suffered.

    Response…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

    Shopworn Zionist talking points aside, the first name on the list is John Dugard, who has always called for the arrest and prosecution of those Palestinians who indiscriminately shell Israel territory. When he was the UN Special Rapporteur on Human Rights in the Occupied Palestinian territories he summed-up the situation: “Persons responsible for committing war crimes by the firing of shells and rockets into civilian areas without any apparent military advantage should be apprehended or prosecuted. This applies to Palestinians who fire Qassam rockets into Israel; and more so to members of the IDF who have committed such crimes on a much greater scale.” http://unispal.un.org/UNISPAL.NSF/0/B59FE224D4A4587D8525728B00697DAA

    The Goldstone fact finding mission report contained similar findings and recommendations.

  13. 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 my interpretation based on my experience, and I don’t expect anyone to understand that if they have to rely on mainstream media. At any rate, the crux of the declaration is fairly uncontroversial I hope, that ‘long-standing impunity has been a key factor in the perpetuation of violence in the region and in the reoccurrence of violations’, and that one possibility for both deterring future or ongoing crimes and for establishing to what extent Israel’s actions can be deemed criminal is for Palestine to ratify the Rome Statute.

    Academics have been muddling about for years discussing whether it is lawful to cut off an oppressed population’s food and water supplies, or what level of collateral damage is proportionate. That’s fine and such discussions are what we’re all about to a large extent. But they are, by definition, interminable, and pretty much pointless in the face of political indifference, and the absence of a judicial body which can provide a reasonably measured determination as to legality or illegality.

    At the same time the oppression of Palestine remains interminable, yet the Palestinian ‘leadership’ in Ramallah refuse to act to take even the most basic step by ratifying the Rome Statute. This refusal stems directly from threats made not just from Israel, but from Europe and north America.

    In practical terms, Declarations such as this might seem pointless so far as effectively protecting people from oppression is concerned, and are open to academic critique, but they certainly act to reflect the general mood of people appalled by the “international community’s” toleration of prolonged Israeli occupation. Engaging in debate on the niceties and convolutions of international humanitarian law at a time when overarching structural institutions of war and politics are unleashing sustained and rampant destruction on Gaza feels acutely detached from reality. And so we sign another plea for justice…

    Again, many thanks for having highlighted the document.

  14. 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 happened. Wiesenthal felt that was the only way to deter other would-be-criminals. See You Tube, “Conversations with History – Richard J. Goldstone” https://www.youtube.com/watch?v=6JZS170ppXQ&feature=youtu.be and Richard Goldstone “For Humanity: Reflections of a War Crimes Investigator”, Yale University Press, 2000.

  15. 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.

  16. 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 Livni described as Israel “going wild” – nothing has changed. Israel provokes these wars to distract attention from the on-going occupation, the growth of its settlements in Palestine, and the cold blooded murder of those brave enough to demonstrate against the illegal practices of its military administrative regime.

    Refusing to even present that evidence to the Judges at trial only justifies the claims of those Palestinians who say they have no other choice, except to take the law into their own hands. It gets tiresome to hear platitudinous remarks to the effect that no nation on Earth can tolerate shelling of its citizens, when no other country on Earth would tolerate what the Zionist regimes have done to the Palestinians interned in the Gaza Strip and the West Bank enclaves, including indiscriminate attacks and shelling on a much wider scale than Israel has ever suffered.

    Response…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

    Shopworn Zionist talking points aside, the first name on the list is John Dugard, who has always called for the arrest and prosecution of those Palestinians who indiscriminately shell Israel territory. When he was the UN Special Rapporteur on Human Rights in the Occupied Palestinian territories he summed-up the situation: “Persons responsible for committing war crimes by the firing of shells and rockets into civilian areas without any apparent military advantage should be apprehended or prosecuted. This applies to Palestinians who fire Qassam rockets into Israel; and more so to members of the IDF who have committed such crimes on a much greater scale.” http://unispal.un.org/UNISPAL.NSF/0/B59FE224D4A4587D8525728B00697DAA

    The Goldstone fact finding mission report contained similar findings and recommendations.

  17. 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.

  18. 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.

  19. 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.

  20. 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.

  21. 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 power elite…attacks should both aim at Hezbollah’s military capabilities and should target economic interests and the centers of civil- ian power that support the organization […] This approach is applicable to the Gaza Strip as well.”

  22. 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.

  23. 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

  24. 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.”

  25. 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.

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