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On 27 December 2008, the IDF launched an attack of unprecedented scale on the Gaza Strip, labelled “Operation Cast Lead”. According to the Israeli government, the attack was launched in response to unyielding Palestinian rocket and mortar fire into Israel since the end of the 19 December Egyptian-negotiated “calm”.
The Gaza Strip is an occupied territory
The current military operation Cast Lead launched by Israel Defense Forces (IDF) on 27 December 2008 is part of the continued international armed conflict between the State of Israel and the Palestinians living in the Gaza Strip, a territory occupied by Israel in 1967. Despite the 2005 withdrawal of ground troops from Gaza Israel continues to de-facto control its borders and essential governmental services such as water, electricity, communication systems, and even the population registry.
Israel has increased obligations to protect the civilian population under its control
As any state, Israel has a right to defend itself from any kind of violence, including rockets fired at its towns and cities, under the framework of international law. Therefore, any action taken by Israel has to abide by the governing law -- international humanitarian law (IHL), especially the rules applying to belligerent occupation and international human rights law. As an occupying power Israel has specific obligations to protect the civilian population and its property, which are under its control.
Necessity to launch an operation needs to stand two-folded requirements
Rockets are launched from Gaza, an occupied territory, rather than from another state. As specified in the International Court of Justice Advisory Opinion on the Wall from 2004, Israel cannot claim application of self-defence under article 51 of the UN Charter against an armed attack that does not come from another state. It can however, claim a state of necessity.
Necessity can be invoked only if it is the "only way for the state to safeguard an essential interest against a grave and imminent peril" (Article 25 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts). While it is not clear from statements by Israeli officials what are the specific goals of the current military operation - taking down the Hamas rule in Gaza, stopping the launching of rockets etc- it is also not certain that massive bombardment of the Gaza Strip was the only way to tackle the threat to the citizens of southern Israel. Necessity should also stand the test of proportionality, as explained hereby.
Violation of the principle of distinction
Regardless of whether launching the current operation was legal or not, the IDF as armed forces and Hamas fighters, members of an armed group have to abide by IHL and human rights law. Civilians should never be the target of attack.
Clearly the general public in the Gaza Strip are civilians, even if they are located in proximity to ammunition stockpiles or Hamas fighters. This does not mean that all Gazans take part in the hostilities. According to Al Mezan Center for Human Rights on 4 January 2009 at 9:30am Israeli Air Force fired a missile at a man and his sons while they were collecting wood for heating and cooking. Five people were killed in the attack. On its face this attack seems to violate the principle of distinction. Intentionally targeting civilians is a war crime.
In light of the high population density in Gaza it is reasonably expected that any fighting would occur near civilians with increased probability of harming them. Therefore, very special care needs to be taken by Israel due to these circumstances in choosing the means and weapons of fighting as part of its obligation to take precautions in and during attacks in order to minimize harm to civilians and their property, and to protect them from the hazards of war. The current IDF military policy that sees the entire population and its property as belonging to the Hamas movement amounts to collective punishment of the entire Gaza population and forbidden retaliation against protected persons.
IHL provides special protection to children and expectant mothers. Since Gaza has relatively very high ratio of children under 15 (around 45%) special care should have been taken by the IDF regarding children. As it seems, no such special care is provided by the IDF, which is a violation of the laws of occupation.
Israel is under the obligation to take special precautions in and during attacks
According to B'Tselem on 27 December five girls in one family were killed when the IDF bombed a mosque near their home in Jabalia Refugee Camp. Many houses in the area were damaged in the blast. Israel bombed the mosque without warning. Even if the mosque was a legitimate military target, the IDF should have warned the families around the mosque in order to spare civilian lives, as required under IHL, unless special circumstances did not permit it. The violation of the principle of precautions in attack is a violation of international customary humanitarian law.
Reports from human rights organizations show that IDF warnings prior to the launch attacks have not been effective. People received phone calls but were not provided enough time to leave their houses. In addition, as specified in the statement of the UN Humanitarian Coordinator for the occupied Palestinian territory from 6 January 2009 "...There are no safe places to flee. We call on all parties to uphold international humanitarian law and protect civilians."
Attack on medical personnel and ambulances is prohibited
Medical units and personnel must be respected and protected and their work facilitated by Israel. The targeting of medical personnel and ambulances during the current operation cannot be excused, unless proof is given of direct participation of such personnel and that vehicles are used to commit acts harmful to the enemy. Such proof was not given by the IDF.
Blockade is prohibited when endangering the lives of the civilian population
The blockade Israel imposes on Gaza since June 2006 is illegal since it endangers the lives of the civilian population by depriving it of resources essential for survival conditions. Especially during the current operation, the closure of border crossings does not allow for goods that are vital to the survival of the population to be brought into Gaza, at the necessary pace, and prevent civilians that wish to flee out of the territory to save their lives.
The burden of proof on the attacking army is heavy when attacking civilians who take direct part in hostilities
Hamas supporters, parts of the general public in Gaza, should continue to be protected persons under IHL and should never be the target of attack. Hamas political leaders can be targeted only if they are involved in the planning or executing of military actions. Civilian policemen that do not engage in hostilities against the occupying power should not have been a target of attack.
According to the Israeli High Court of Justice in the assassination case three things need to be examined before targeting a civilian that seems to take direct part in hostilities. Facts on the ground seem to point that the IDF did not follow these guidelines:
First, information which has been most thoroughly verified is needed regarding the identity and activity of the civilian who is allegedly taking part in the hostilities. Second, a civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed such as an arrest. On 1 January 2009 the Israeli Defence Minister, Ehud Bark ordered the establishment of a new detention facility in the outskirts of the Gaza Strip called "Sde Teman", the establishment of which indicates the existence of a less harmful alternative. Currently human rights organizations are attempting at finding out how many detainees from Gaza are there. Last, if the harm is not only to a civilian directly participating in the hostilities, rather also to innocent civilians nearby, the harm to them is collateral damage. That damage must withstand the proportionality test.
Military objectives are only those that effectively contribute to the military action and offer a definite, concrete and direct military advantage
According to Adalah, the Legal Center for Arab Minority Rights in Israel statements in the Israeli media by senior government officials and other official spokesmen indicate that all institutions under the control and administration of Hamas constitute legitimate military targets. It should be clarified that not all public buildings under Hamas rule are legitimate military targets. On its face the massive destruction seems to be part of targeting every symbol of Hamas rule rather than upholding the legal requirements.
Proportionality: attacks that are expected to cause excessive incidental loss to civilian life or property in relation to the concrete and direct military advantage anticipated is prohibited
Proportionality is measured by the expected harm to civilians as well as the harm already caused against the military objective sought. Although calculation of legitimate collateral damage is not easy, immediate outcome of IDF air attacks at the first days of the operation show that as could have been reasonably expected, Gaza's high population density took its high toll on civilian lives. These special circumstances did not seem to be taken into consideration, if not in the planning phase, immediately after the high numbers of deaths and injuries became apparent.
According to B'Tselem on 1 January Israel Air Force bombed the house of Nizar Rayan, a senior Hamas official in the Jabalia Refugee Camp. The blast killed him, his four wives, and their eleven children between 1-12 years old. Even if the IDF's position that the house served as a large munitions warehouse and as a war room and Rayan was a legitimate military target, on its face, the bombing of a private home cannot be justified in light of the expected high number of civilians dead. The violation of the principle of proportionality is a war crime.
Human shields should also be counted when considering the legality of collateral damage, especially in involuntarily cases and in air warfare
Indeed the use of human shields by Hamas is a war crime. However, Israel's actions cannot be justified as being proportional when disregarding the expected risk to civilians, even those who are voluntarily posing as human shields. At all times, human shields continue to retain their status as civilians and should be counted as such under the consideration of the need to minimize harm to civilians according to IHL. This is especially important when using air warfare.
The illegal use of weapons
According to the reports by media and human rights organizations, on January 4 the IDF shelled White Phosphorus bombs in Gaza, creating thick white smoke to cover its advancement into Gaza city and Jabalia area. Consequently injuries to civilians have been reported. If used against humans, White Phosphorus can inflict serious injuries and death by creating skin burns and suffocation.
Although White Phosphorus is not an illegal incendiary weapon under the 1980 United Nations Convention on Certain Conventional Weapons its use is still limited according to the IHL principles of distinction, proportionality and precautions in attack. Even if the weapon used by the IDF is not White Phosphorus, any similar type of weapon that has similar effect is also forbidden. Since it was used in proximity to civilian populated area, it became a weapon that could not have been directed at a specific military objective and was therefore forbidden under the principle of distinction. The IDF has also violated its obligation to take precautions in attacks when choosing and using such weapon under such circumstances.
Israel’s conduct raises high concerns of war crimes
The methods used in the current military operation are highly problematic and raise reasons to consider them as war crimes - violation of the principle of distinction, proportionality. There have also been violations of international humanitarian law such as collective punishment, disregard of the obligation to take precautions in and during an attack, disregarding wounded civilians and impeding their treatment, and lack of special protection of children.
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