Appreciating that most of our readers would have surely engaged with a considerable amount of coverage on this subject matter I will endeavour to cover some of the issues that arise in the legal aftermath to these tragic events and bring added value mainly by consolidating some of the most noteworthy coverage.
There is now little doubt as to the existence of numerous violations of international humanitarian law, and the commission of systematic war crimes by the Israeli military in the Gaza Strip during its most recent attacks on the Strip, where 1,300, many of them civilians, were killed and over 5,000 seriously wounded. Loss of life in this case is coupled by wide scale civilian displacement, homelessness, and infrastructural destruction causing the disappearance of entire neighborhoods. The effects of what had taken place during these three weeks are only becoming evident now.
Not apart from Franz’s post on the EU’s suspension of the upgrading of its economic relations with Israel, a major Swedish company rejected the construction contract for building the light railway that would connect settlements in East Jerusalem with main sites in West Jerusalem, and UK Minister Brown reaffirmed in a Parliamentary Debate on 21 January 2009 that measures need to be taken for “stopping the import into Europe, or at least labeling the import into Europe, of goods made in illegal settlements.” Amongst others, Evo Morales, the president of Bolivia, says he is breaking off ties with Israel in protest against its war in Gaza.
Violations of international humanitarian law
Israel will be called to respond to a number of jus in bello violations (inter alia, actions that constitue war crimes as per Article 8 of the ICC Rome Statute and grave violations of IHL as per Article 147 of the Fourth Geneva Convention) committed by its military personnel during the incursions in the Gaza Strip. Amongst these instances are: targeting of civilians objectives; illegal use of means of warfare such as white phosphorus (which is now “clear and undeniable” and its repeated use constitutes a war crime); destruction of protected locations such as UNRWA localities; targeting of aid supply trucks in the “humanitarian corridor”; and targeting of a hospital.
Throughout the attacks Israel failed to facilitate the work of medical relief organizations in the Gaza Strip and refused to allow for the evacuation of injured violating its obligation under Article 23 of the Fourth Geneva Convention and Article 55 of Additional Protocol I. Israel’s own supreme court, the Israeli High Court of Justice, accepted the State’s position, without doubting its objectivity or considering the need for confirmatory information, and proceeded to defer the petition filed by a number of NGOs demanding the state comply with its responsibilities in international law. It reasoned its decision in the case of HCJ 248/09 Gisha v State of Israel, in the following manner:
“in light of the establishment and advancement of humanitarian mechanisms as described, which it can be assumed will prove their effeciency; considering the message delivered to us that a serious effort will be made to improve the evacuation of the injured and the treatment thereof…it is to be hoped that the humanitarian forces will act adequately in accordance with its obligations” (para. 23 of the judgment).
Despite the tragic nature of these atrocities, Israeli military personnel persisted to unequivocally support the operations with no hesitation. Maj. Gen. Galant notes, “The assessment is that the other side understands that firing rockets is not worth it, and we will make sure that it remains that way and thus prepare to suppress the capabilities of Hamas.” “The more Qassam [rocket] fire intensifies and the rockets reach a longer range, they will bring upon themselves a bigger shoah because we will use all our might to defend ourselves,” Matan Vilnai, Israel’s deputy defence minister, told army radio. A number of such utterances have been delivered in public forums, constituting evidence of premeditation and statements intention.
According to Israeli soldiers who took part in the three-week offensive, the destruction of the area, a known Hamas stronghold, was designed to send a wider message to Gazans. “We pounded Zeitoun into the ground,” an Israeli soldier who was deployed in the area, told The Times. “We pounded them with fire; they never had a chance.” Soldiers who have returned from the front lines have confirmed Israel’s “ruthless military tactics” consisting of a short first policy being, as it is perceived, “the most aggressive strategies that [the Israeli military] ha[s] ever taken towards the Palestinian”. Such disproportionate use of force throughout the attacks compliments the indiscriminate nature of many of the targets.
Despite varying statements on the question of self-defense, international law requires that the use of force comply with Article 51 of the Charter of the UN, i.e. be invoked in response to an “armed attack” and be “necessary and proportionate”. A number of legal experts published opinions on the use of the self-defense argument for the justification of the attacks on the Strip, one concludes that Israel’s response lacked the critical element of necessity, as part of jus ad bellum. Another opinion discusses the “scale and effect” as well as the “gravity” of the attacks against Israel for the purpose of the justification of an armed attack. Thereby, a case specific application of Article 51 of the UN Charter would consequently suggest that “the deaths of a dozen civilians, over a one-year period, deplorable as that is, would probably not qualify as an armed attack“. It was Israel’s attack of 27 December 2008, which constituted the commencement of over twenty three days of bombardments, using Dinstein’s phrase, crossed the “legal Rubicon” to constitute an “armed attack” as per the provision of the Charter.
A less discussed legal question that has particular relevance to the operations in the Gaza Strip is the question of reprisals and their legality under the laws of war. Additional Protocol I to the Geneva Conventions prohibits reprisals against civilians (Article 51(6)). It is unequivocal that the indiscriminate bombing of cities by one party to a conflict does not entitle the other to reply in kind. In certain restricted situations, it is permissible to respond in like to a grave and flagrant violation committed by the enemy on the battlefield. In such a case, however, the reply must be directed strictly at combatants and military targets (see note on reprisals in the IRRC). The greatest quandary with this provision was the scope of its prohibition, in other words, the absolute nature of its interdiction, which seemed completely unrealistic.
Dinstein held that “[s]ince the Protocol does not provide state B with any practical alternative response, what is likely to happen is that Article 51(6) will remain dead letter and…state B will resort to belligerent reprisals against the civilians of state A.” Whilst pragmatists believed that it was better to try and restrain the prohibition by laying down specific rules in defining the extent of the terms of the paragraph, e.g. “civilian population or civilians”, the reluctance to implement these ideas at the time made prognoses like Dinstein’s an unfortunate reality.
The obligation to effectively investigate, prosecute and punish
One of the core pillars of international humanitarian law is each state’s obligation to effectively investigate, prosecute, and punish in post-conflict situations (namely, Article 132, Geneva Convention III and Article 149, Geneva Convention IV). Israel has previously proved itself unwilling and incapable politically to set up an independent and impartial investigatory body that would identify the perpetrators and ensure that they are brought to account. For instance, the Winograd Commission, set up a considerable amount of time after the end of the war in Lebanon 2006, produced little tangible results and never envisaged an enforcement arm that would try and bring to account specific individuals involved in the operations and provide compensation for the victims of these violations. Clearly, in Israel’s political climate such a body cannot be guaranteed impartial standing, and would indisputably require external implementation to ensure its compliance with the most basic facets of these obligations.
UN Secretary General Ban Ki-moon reiterated Wednesday his demand for a full explanation of “outrageous” Israeli attacks on UN facilities in the Gaza Strip including a school used as a refuge for civilians. The UN chief noted that Israeli Prime Minister Ehud Olmert had promised to provide results of the Israeli inquiry “on an urgent basis” and said he would then decide on “appropriate follow-up action.”
The government has set up a variety of investigation teams. Will these teams enable a fundamental investigation? Will they be independent? Will they be able to provide the appearance that justice is being done? If not, not only is their work superfluous, but their mere existence is liable to be seen as indicating an intent to conceal facts and evade responsibility (see article by Benvenisti).
The Israeli military’s legal department, and the legal addendum to Operation Cast Lead have worked extensively to legitimize the operations having provided the military with what has been releaved as the fadest instructions and a limitless license to act as they see fit: “As much as possible and under the circumstances of the matter, the civilian population in a target area is to be warned,” it states, adding “unless so doing endangers the operation or the forces.” The addendum orders commanders to be extremely cautious in the use of “incendiary weapons” (for example, phosphorus bombs), but does not prohibit their use: “Before using these weapons, the military advocate general or international law division must be consulted on the specific case.”
War crime trials in the horizon – where and how?
The greatest question that is presently at stake, whilst independent expert groups and international NGO arrive in the region for the purpose of conducting investigations, is where the violations will be prosecuted and by whom?
Despite these uncertainties, IDF officers intending to travel to Europe, whether for business or pleasure, have already been advised to contact the Judge Advocate General’s Office prior to leaving Israel; and some may be instructed not to leave the country. More over, the IDF has decided not to release the names and pictures of battalion and brigade commanders who participated in Operation Cast Lead. The decision was made in anticipation that international war crimes lawsuits would be filed against IDF officers, who could face prosecution when traveling overseas. Concurrently, Defense Minister Ehud Barak has ordered the IDF to set up a team of intelligence and legal experts to collect evidence related to operations in the Gaza Strip that could be used to defend military commanders against future lawsuits.
Although Israel is not a signatory to the Rome Statute, which means that it cannot be prosecuted in the International Criminal Court (ICC), there are a number of ways that the question of jurisdiction can be circumvented. First, a less likely option is the UN Security Council, who can refer cases directly to the ICC (as per Article 13(b) of the Rome Statute). Secondly, there are certain national jurisdictions, which have previously courageously contributed to the fight against impunity by trying cases against specific individuals in commanding posts. These are of course only those countries that have transposed the Geneva Conventions into national law and/or instituted universal jurisdiction laws that allow for the prosecution of an individual.
Alternatively, the ICC Rome Statute permits for the filing of lawsuits against individuals committing war crimes when the perpetrator holds the nationality of a signatory state. Otherwise, historically, many cases have been tried by national jurisdictions under their local war crime laws affording them universal jurisdiction, usually, from the moment the perpetrator has stepped onto their jurisdictional territory.
Finally, in light of the recent discussion in previous posts on the establishment of an international criminal tribunal and the downsides of such a mechanism for law enforcement or conflict resolution (see here and here), it should be mentioned that the Malaysian Parliament has recently released a resolution (on 12 January 2009) condemning the Israeli attacks on the Gaza Strip and ” Urg[ing] the United Nations General Assembly to immediately establish an International Criminal Tribunal For Palestine to investigate and prosecute suspected Israeli war criminals involved in the brutal and aggressive acts on the Palestinian people”.