THE OPERATION IN GAZA: FACTUAL AND LEGAL ASPECTS
Israel Ministry of Foreign Affairs
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 THE OPERATION IN GAZA: FACTUAL AND LEGAL ASPECTS

7/29/2009


III. THE APPLICABLE LEGAL FRAMEWORK
   
27 Israel faces many of the problems faced by other democratic States, as they try to conduct military operations against terrorists who violate the most fundamental principles of international law.  The purpose of this Paper is not to set forth an exhaustive analysis of the relevant law regarding those military operations.  Israel has articulated in other forums, including its Supreme Court, its long-standing commitment to applicable human rights standards and humanitarian principles relevant to situations of armed conflicts.  This Paper will focus on, and then apply, certain basic legal principles applicable to the Gaza Operation.  These principles are described further in Sections IV.C and V.A.  At the outset, though, it is important to emphasise four basic propositions.
28 First, the applicable legal framework for assessing the recent operations in Gaza is the “Law of Armed Conflict,” also known as “International Humanitarian Law.”(2)  According to the decision of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) in the Tadić case, “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.”(3)  The conflict between Israel and Hamas in Gaza meets this definition.(4)  Hamas is a highly organised and well-armed group that uses armed force against Israel, and, indeed, considers such armed struggle to be its primary mission.  By any measure, the conflict between Israel and Hamas has been protracted, spanning many years and intensifying in recent years as Hamas tightened its unlawful grip on Gaza. 
29 Generally, international law recognises two kinds of armed conflicts: “international armed conflict” and “non-international armed conflict.”(5)  Each has its own rules, although many of the basic provisions are common to both.  It is not yet settled which regime applies to cross-border military confrontations between a sovereign State and a non-State terrorist armed group operating from a separate territory. 
30 In this case, the Gaza Strip is neither a State nor a territory occupied or controlled by Israel.(6)  In these sui generis circumstances, Israel as a matter of policy applies to its military operations in Gaza the rules of armed conflict governing both international and non-international armed conflicts.  At the end of the day, classification of the armed conflict between Hamas and Israel as international or non-international in the current context is largely of theoretical concern, as many similar norms and principles govern both types of conflicts.
31 Some of the rules governing the use of force in armed conflicts are set forth in treaties, such as the Geneva Conventions of 1949 and the Regulations annexed to the Fourth Hague Convention of 1907.(7)  Others have gained acceptance by the practice of the international community and become part of customary international law.  The Israeli High Court has ruled that these customary international law rules bind Israel under both international law and Israeli law.(8)  In particular, Israel’s High Court of Justice has confirmed that in the ongoing armed conflict with Palestinian terrorist organisations, including Hamas,  Israel must adhere to the rules and principles in (a) the Fourth Geneva Convention,(9) (b) the Regulations annexed to the Fourth Hague Convention (which reflect customary international law), and (c) the customary international law principles reflected in certain provisions of Additional Protocol I to the Geneva Conventions on 1949.(10)  Israel is not a party to the Additional Protocol I, but accepts that some of its provisions accurately reflect customary international law.(11)
32 The second basic proposition is that the actions of Hamas must also be measured against accepted principles and applicable rules of international law.  As the Appeals Chamber of the Special Court for Sierra Leone held in 2004, “it is well settled that all parties to an armed conflict, whether states or non-state actors, are bound by International Humanitarian Law, even though only states may become parties to international treaties.”(12)
33 The third core proposition in this Paper is that the Law of Armed Conflict balances two competing considerations.  According to Judge Greenwood, “[i]nternational humanitarian law in armed conflicts is a compromise between military and humanitarian requirements.  Its rules comply with both military necessity and the dictates of humanity.”(13) 
34 The final core proposition that runs through this Paper is that, while the principles of customary international law may be “basic” and can be simply stated, they nevertheless must be applied with analytical rigor.  Reports by non-governmental organisations and rapporteurs and committees acting under mandates from international organisations too often jump from reporting tragic incidents involving the death or injury of civilians during armed combat, to the assertion of sweeping conclusions within a matter of hours, days or weeks, that the reported casualties ipso facto demonstrate violations of international law, or even “war crimes.”(14)  Often, these leaps of logic bypass the most basic steps, such as identification of the specific legal obligation at issue and explanation of how it was violated.  The depth of feeling in the face of civilian losses is understandable, but it does not excuse this rush to judgment.  It is a fundamental precept of the rule of law that any legal inquiry about events relating to armed conflicts cannot assume the conclusion, particularly a conclusion that — as shown below — proper application of the law does not sustain.(15)
35 The appropriate starting point for a proper analysis is the central distinction between the legality of a State’s resort to force in particular circumstances (jus ad bellum), and the legality of particular uses of force during hostilities (jus in bello).  Again, too often the two inquiries are collapsed into one, such that concerns about particular incidents — which may involve the decisions individual commanders or soldiers make in the midst of battle — prompt sweeping assertions about the legality of military operations as a whole.  This Paper treats these separate inquiries separately.  Section IV addresses issues regarding the resort to force, based on the broader context of the Gaza Operation.  Section V addresses issues regarding particular uses of force.
   
  FOOTNOTES
 

(2) This Paper will use the term “Law of Armed Conflict” in its ordinary sense — describing the legal obligations of parties to an armed conflict in the course of their military operations.  International Humanitarian Law is used by many commentators and countries as an interchangeable term.  Israel, like many other countries, prefers the term Law of Armed Conflict.

(3) Prosecutor v. Tadić, International Criminal Tribunal for the former Yugoslavia (“ICTY”), Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, at ¶ 70, 2 October 1995.

(4) For the sake of convenience, this Paper hereafter refers to Hamas only, but this should be seen as a reference to all terrorist organisations that took part in the fighting in Gaza during the recent conflict.

(5) The law of international armed conflicts has traditionally been used for fighting across borders between sovereign States, while the law of non-international armed conflicts has traditionally been applied within the boundaries of a State, such as civil wars or insurgencies.

(6) The High Court of Justice recognized last year that “since September 2005 Israel no longer has effective control over what happens in the Gaza Strip,” and thus no longer can be considered an “occupying power” under international law.  Jaber Al-Bassiouni v. The Prime Minister of Israel, HCJ 9132/07 at ¶ 12 (30 January 2008), available athttp://elyon1.court.gov.il/verdictsSearch/EnglishStaticVerdicts.html.

(7) Hague Convention (IV) Respecting the Laws and Customs of War on Land (1907) (hereafter “Hague Convention IV”).

(8) Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02 at ¶ 19 (11 December 2005).

(9) IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949) (hereafter “Geneva Convention IV”).

(10) Additional Protocol I to the Geneva Convention of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (hereafter “Additional Protocol I”).

(11) Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02 at ¶ 20 (11 December 2005).

(12) Prosecutor v. Sam Hinga Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), at ¶ 22, 31 May 2004.  See also Christopher Greenwood, Scope of Application of Humanitarian Law, in The Handbook of International Humanitarian Law 45, 76 (Dieter Fleck ed., 2d ed. 2008)  (explaining that  “[t]he obligations created by international humanitarian law apply not just to states but to individuals and to non-state actors such as a rebel faction or secessionist movement in a civil war.”).

(13) Christopher Greenwood, Scope of Application of Humanitarian Law, in The Handbook of International Humanitarian Law 37 (Dieter Fleck ed., 2d ed. 2008).

(14) See, e.g., Report, Operation Cast Lead: 22 Days of Death and Destruction, Amnesty International (29 June 2009); Report of the Independent Fact Finding Committee on Gaza, No Safe Place., League of Arab States (30 April 2009); Report, Rain of Fire: Israel’s Unlawful Use of White Phosphorus in Gaza, Human Rights Watch (March 2009).

(15) Cf. Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 14 June 2000 (hereafter “NATO Bombings, Final Report to the ICTY Prosecutor”), ¶ 51, available at http://www.un.org/icty/pressreal/nato061300.htm (“[m]uch of the material submitted to the OTP consisted of reports that civilians had been killed, often inviting the conclusion to be drawn that crimes had therefore been committed.”  Yet in truth, “[c]ollateral casualties to civilians and collateral damage to civilian objects can occur for a variety of reasons.”).

 
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