Doc's Talk: Operation Cast Lead and International Law Strategic Assessment Volume 11, No. 4, February 2009

Tuesday, February 24, 2009

Operation Cast Lead and International Law Strategic Assessment Volume 11, No. 4, February 2009

Sabel, Robbie

http://www.inss.org.il/publications.php?cat=21&incat=&read=2654

A combination of factors has led to particular interest in issues of international law in the study of Operation Cast Lead. These factors include the amorphous political status of the Gaza Strip; the problem of application of the rules of war to asymmetrical warfare between a modern military and urban guerrillas; the role of the UN Security Council; the involvement of European and other states in attempts to resolve the dispute; the intensive involvement of NGOs in Gaza; the widespread coverage by the international press and particularly Arab TV; the increasing involvement of judicial discourse in Israeli society and the IDF; and attempts by Palestinian organizations and their supporters to brand Israel's campaign and tactics as illegal. The article that follows reviews several international law issues that are particularly related to the operation in Gaza.

Self Defense against Urban Guerrillas

International law and the UN Charter recognize the inherent right of states to use force in self defense against an armed attack. The right applies even if the attack is by irregular forces. Following 9/11, the UN Security Council explicitly recognized the right of states to self defense against terrorist attacks. However, if the area from where the attack occurred is under the military occupation of the state being attacked, then it could be argued that the applicable law is that of the Fourth Geneva Convention, which deals with the rights of the occupying power to arrest and take legal action against violators of the law. If Gaza was under Israeli military occupation prior to the campaign, then Israel, according to this argument, should have simply arrested the Hamas rocket firing teams.

Occupation, however, requires effective control; only then do the laws of occupation apply. Clearly there was not sufficient Israeli control, if control at all, to allow police type actions. The legal status of Gaza is not clear and in the absence of effective control and ability to carry out police type actions, Israel correctly invoked its right to use force in self defense against attacks emanating from Gaza. The applicable law is thus the law of armed conflict.

Proportionality in the Use of Force?

To justify the claim of self defense, the use of force must be in proportion to the attack. A minor border incident does not warrant a full armed conflict in response. Proportionality can be measured not only against an individual attack but against an accumulation of attacks if they were part of a pattern. Regarding Operation Cast Lead, the Hamas attack by thousands of rockets clearly justified a response of armed attack.

Once parties are in armed conflict, the rule of proportionality is no longer applicable or relevant, except as regards civilian casualties. The rules of war do not impose a game type of equilibrium. In an armed conflict a party is entitled to use superior force to destroy the enemy's armed forces and military capabilities and not only to respond in kind. The UN Security Council authorized the US and its allies to defeat Saddam Hussein's military, not just to force it to vacate Kuwait. An aggressor state or organization must take into account that it is liable to meet a potential victim state that will use "disproportionate force" to defend itself.

Application of Laws of War to an Asymmetrical Conflict

Hamas has not denied that its attacks were targeted at Israeli towns; such attacks are a violation of the laws of war. Furthermore Hamas used civilians to shield its combatants, which is also a violation of the laws of war. There are reports that the Hamas leadership headquarter was located in the basement of a hospital, a further egregious violation. Reciprocity, which is normally an essential element of international law, did not exist in this conflict. Nevertheless, the IDF correctly saw itself as being bound by the laws of war in its conduct, notwithstanding the total disregard of these rules by its opponents.

Civilian Casualties

Where combat takes place in a built up area, civilian casualties are a tragic but inevitable consequence of a military operation. International law obligates that if there are civilians close to military targets, efforts must be made to minimize civilian casualties, and the civilian casualties may not be disproportionate to the military advantage to be gained. Hamas frequently fired from civilian areas. In the Gaza operation, the IDF repeatedly warned civilians of impending attacks, using leaflets and mass telephone messages. Civilian casualties apparently constituted about one third to one half of all casualties. It does not appear that any other military has ever taken such steps to minimize civilian casualties, nor is there any other similar conflict on record in a built up area where the percentage of civilian casualties in relation to combatant casualties was lower than in Operation Cast Lead.

Civilian Targets

A civilian target, including a mosque (or church or synagogue) that is used for military purposes such as storing weapons and ammunition, loses its immunity from attack and becomes a legitimate target. Any other rule would lead to granting an illogical advantage to an enemy hiding weapons in such a building. Israel had information that a certain hospital was used for hiding the leading staff of Hamas. Nevertheless Israel refrained from attacking the hospital because of the civilian casualties that would be caused by such an attack. The civilian police in itself not a military target, but where the police is part of the military establishment, as it was under Hamas, it becomes a legitimate target.

Phosphorous Shells

Like every military in the world, Israel uses phosphorous shells in flares and smoke shells, and for marking targets. Such shells are standard equipment in all NATO militaries as well as the Arab states' armed forces. They are of course dangerous to handle when burning but absolutely legal. The International Committee of the Red Cross has confirmed that there was no evidence that these shells were used in Gaza in any irregular way.

Supplies to the Civilian Population n Gaza

Classic laws of law permitted total embargos, as was done during the Second World War. Modern laws prohibit starvation of civilians as a means of warfare. Israel took the unprecedented step of allowing the large scale delivery of food and medical supplies from its territory into Gaza while actual fighting continued. Furthermore, Israel applied a unilateral ceasefire of some three hours every day to ensure distribution of such food and medicine.

Iranian Responsibility

A state selling weapons is not normally legally responsible for the results of their use. However, Iran trained Hamas operatives and financed and supplied rockets to Hamas, knowing that the rockets were to be used against civilian targets. This could well entail legal responsibility by Iran for the actions of Hamas.

Conclusion

The principal legal criticism of Israeli tactics in Operation Cast Lead appears to revolve around the issue of proportionality. It could be questioned what is a proportionate response to an attack of some four thousand Hamas rockets targeted at civilian towns over a period of three years. Beyond that, however, it is relevant to emphasize that once armed conflict develops, international law does not require proportionality of response. A state defending itself may indeed strive to cause disproportionate damage to its enemy's military targets and military capabilities. Let the attacking state or organization beware.

INSS - The Institute for National Security Studies
40 Haim Levanon St. • Tel Aviv 61398 • Israel • 03-640-0400 • http://www.inss.org.il • info@inss.org.il

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הודעה זו נשלחה ממערכת אוטומטית, אין להשיב עליה.
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להסרת כתובתך מרשימת התפוצה הנ"ל לחץ על הקישור הבא הסרה מרשימת התפוצה ושלח את בקשתך לשרת התפוצה שלנו.
לשם אימות בקשתך תשלח משרת התפוצה הודעת דואר ובה פרטים לאישור סופי של הבקשה.
בסיומו של תהליך האימות תשלח הודעת דואר נוספת המאשרת את הסרת כתובתך מרשימת התפוצה הנ"ל.

אם מכל סיבה שהיא אין באפשרותך להסיר את כתוב

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The IDF’s Minorities in Numbers and Pictures

In honor of IDF Diversity Week, we present diversity through numbers and pictures. Each year, more and more Muslims, Christians, Druze, Bedouin and immigrants from around the world take on the responsibility of defending Israel.

MUSLIMS:

Muslim Arab Israelis are not required to draft in the IDF, but there are many who volunteer. In 2013, there were over 200 Muslims serving in the IDF and over 300 in the reserves.

Bedouins:

Bedouins are nomadic Muslims who were in Israel when modern borders were set in place and are now considered Israeli citizens. They are not required to draft but a growing number choose to enlist. In 2012, there were over 1,400 Bedouin Muslim soldiers doing regular IDF service and almost 1,500 in the reserves.

Read more:http://www.idfblog.com/2014/02/27/truth-idf-numbers-pictures/#more-34027

Are you aware that in 2013, Middle class taxes go up-significantly?

In January of next year, the federal income tax rate for middle-class taxpayers is scheduled to rise from 25 percent to 28 percent, and the payroll tax is scheduled to rise from 13.3 percent to 15.3 percent… This drives the marginal tax rate based on the aforementioned three taxes to 48.12 percent. Add in state and local property, corporate, excise, and other state and local taxes, and the percentage of each additional dollar that is taxed hovers around 50 percent… When half of each additional dollar earned is taxed away, taxpayers experience a disincentive to start businesses or expand existing ones. This leads to fewer jobs being created.

Why is HAMAS Inside Tampa Schools?

Clare Lopez

Kelly Miliziano, who teaches history classes at Steinbrenner High School in the Tampa, Florida area apparently thinks it’s perfectly OK to invite a senior official of a HAMAS-affiliated organization into her classroom to discuss Islam with her students. According to local media reports, not only has this been going on for years, but in spite of the civil and criminal proceedings that could result from such reckless negligence, the Hillsborough County school superintendent, Mary Ellen Elia, and the chairman of the school board, Candy Olson, also expressed approval for students under their responsibility to be exposed repeatedly to guest speaker, Hassan Shibly, who is the Executive Director for the Council on American-Islamic Relations (CAIR) in the Tampa area.
More...

Did You Know... Ignoring the Call to Islam will Bring Jihad

‘Conquest through Da’wa [proselytizing] that is what we hope for. We will conquer Europe, we will conquer America! Not through sword but through Da’wa.’
-- Yousef al-Qaradawi , Muslim Brotherhood spiritual leader The Arabic word ‘Da’wa’ means the “call to Islam.” But do not think that Da’wa is the same thing as an invitation to an optional holiday event. The classical Islamic doctrine of jihad mandates that enemies must be given the opportunity to convert to Islam or pay the jizya tax before it is permissible to attack them.
Clare M. Lopez

Who is being discriminated-facts tell the truth

Religious bias

Hate crimes motivated by religious bias accounted for 1,409 offenses reported by law enforcement. A breakdown of the bias motivation of religious-bias offenses showed:

65.4 percent were anti-Jewish.
13.2 percent were anti-Islamic.
9.5 percent were anti-other religion, i.e., those not specified.
4.3 percent were anti-Catholic.
3.8 percent were anti-multiple religions, group.
3.3 percent were anti-Protestant.
0.5 percent were anti-Atheism/Agnosticism/etc.

http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2010/narratives/hate-crime-2010-incidents-and-offenses.

On March 31, 1977, the Dutch newspaper Trouw published an interview

with PLO executive committee member Zahir Muhsein. Here's what he said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct "Palestinian people" to oppose Zionism.

For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

In March 1977, Zahir Muhsein, a PLO executive, said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct Palestinian people to oppose Zionism."

"For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

The Arab Apartheid

Ben-Dror Yemini
In 1948, the Arab countries refused to accept the UN partition proposal and they launched a war of annihilation against the State of Israel which had barely been established. All precedents in this matter showed that the party that starts the war - and with a declaration of annihilation, yet - pays a price for it. Between 550,000 and 710,000 Arabs fled because of the war and a larger number of 850,000 Jews were expelled or fled from Arab countries (the "Jewish nakba").
Population exchanges and expulsions were the norm at that time, occurring in dozens of other conflict points and affecting about 52 million people. In all the population exchange precedents that occurred during or at the end of an armed conflict, there was no return of refugees to the previous region, which had turned into a new national state.
Only the Arab states acted completely differently from the rest of the world. Instead of assimilating the refugees, they crushed them despite the fact that they were their coreligionists and members of the Arab nation - instituting a regime of apartheid. So the "nakba" was not caused by the actual dispossession, which had also been experienced by tens of millions of others. The "nakba" is the story of the apartheid, oppression, abuse and denial of rights suffered by the Arab refugees at the hands of the Arab countries. (Maariv)

International Law and Military Operations in Practice - Col. Richard Kemp

"Islamist fighting groups study the international laws of armed conflict carefully and they understand it well. They know that a British or Israeli commander and his men are bound by international law and the rules of engagement that flow from it. They then do their utmost to exploit what they view as one of their enemy's main weaknesses. Their very modus operandi is built on the correct assumption that Western armies will normally abide by the rules, while these insurgents employ a deliberate policy of operating consistently outside international law. "

Lost Historical Moments

What Rabin’s last Knesset speech really said:repudiation of a Palestinian state

Rabin ruled out a fully sovereign Palestinian state :

“We view the permanent solution in the framework of State of Israel which will include most of the area of the Land of Israel as it was under the rule of the British Mandate, and alongside it a Palestinian entity which will be a home to most of the Palestinian residents living in the Gaza Strip and the West Bank. We would like this to be an entity which is less than a state, and which will independently run the lives of the Palestinians under its authority.”

Rabin ruled out a total withdrawal from Judea and Samaria and thus a return to the pre-June 1967 borders :

“The borders of the State of Israel, during the permanent solution, will be beyond the lines which existed before the Six Day War. We will not return to the 4 June 1967 lines.”

Rabin ruled out withdrawing form the Jordan Valley:

“The security border of the State of Israel will be located in the Jordan Valley, in the broadest meaning of that term.”

Rabin ruled out uprooting settlement blocs, like the Gush Katif bloc in Gaza (which was subsequently uprooted by former Prime Minister Ariel Sharon):

“The establishment of blocs of settlements in Judea and Samaria, like the one in Gush Katif.

AND

Rabin ruled out removing any settlement before coming to a full peace agreement with the Palestinians:

“I want to remind you: we committed ourselves, that is, we came to an agreement, and committed ourselves before the Knesset, not to uproot a single settlement in the framework of the interim agreement, and not to hinder building for natural growth.”

Rabin insisted on Israel retaining full security control of the borders with Egypt and Jordan, contrary to Israel’s relinquishment of the Philadelphia Corridor on the border with Egypt:

“The responsibility for external security along the borders with Egypt and Jordan, as well as control over the airspace above all of the territories and Gaza Strip maritime zone, remains in our hands.”

Correcting Oslo Myths-Part 2

3) Kuttab laments that the post-1993 Oslo process resulted in a Palestinian Authority "whose ministers and legislators are not guaranteed passage between Gaza and the West Bank ...."

Before free passage or other perquisites, PA leaders were obligated, among other things, to eliminate the terrorist infrastructure in the West Bank and Gaza Strip, end anti-Israeli, antisemitic incitement in schools, mosques, and communications media, and resolve all outstanding issues through peaceful negotiations. They met none of these commitments, sometimes bolstering terrorism and greatly increasing incitement.

4) Kuttab complains that under Oslo the PA got "lightly armed police ---- but no real sovereignty over the land or contiguity between our communities in Gaza and the West Bank."

Oslo agreements repeatedly were revised, regardless of Palestinian non-compliance, until the authorized number of police grew from 8,000 to 40,000. Though they were to be the only armed forces in the territories, Israeli estimates early in the second intifada put the number of gunmen - police, "security services," terrorists, and armed gangs - at 85,000. Their armament reportedly included not only heavy machine guns and rocket-propelled grenades, but also anti-tank and anti-aircraft missiles.

Sovereignty was to be negotiated in the envisioned 1998 "final status" talks - after a five-year period of confidence-building. Palestinian leadership chronically undermined the process. Palestinian terrorism made the 1993 - 1998 Oslo period more deadly for Israelis than the 15 years preceding it.

The United States doesn't have contiguity between the lower 48 states and Alaska and Hawaii; territorial contiguity between the West Bank and Gaza Strip - that is, through the 20 miles of Israeli territory between them - was never promised and would destroy Israeli contiguity.

5) "Palestinians have been made to endure hundreds of checkpoints in the West Bank, an eight-foot wall deep in our territories, and tight Israeli control over borders."

The security barrier is not "deep in Palestinian territories," but rather encompasses less than 8 percent of Judea and Samaria, and is mostly a fence, rarely a wall; the land in question is not "our [Palestinian] territories" but disputed territory to which, according to the authors of U.N. Security Council Resolution 242, Jews as well as Arabs have claims; and there are no international borders, only the 1949 armistice lines with Jordan. Under 242, borders remain to be negotiated. As for checkpoints - like the security barrier and "tight Israeli control" - Palestinian Arabs precipitated these measures themselves. No terrorism and there would be no fence or tight Israeli control and few checkpoints - like before the first intifada.

Correcting Some Oslo Myths

1) In Oslo "Israeli, Palestinian and other world leaders promised that ... Palestinian sovereignty would be solidified."

No, they didn't. The 1993 Declaration of Principles and subsequent Oslo agreements outlined a process by which final status negotiations about the West Bank and Gaza Strip would be reached. The process required an end to anti-Israel terrorism and incitement and a commitment to peaceful negotiations. The PA, Fatah, Hamas, Islamic Jihad, the Popular Front for the Liberation of Palestine, and other terrorist groups, sabotaged the process from the start.

2) "The reality is that, in defiance of U.N. Security Council Resolution 242, which states that it is inadmissible to occupy land by force, Palestinian territories are still under foreign military occupation."
Wrong again. Resolution 242 (1967) does note "the inadmissibility of the acquisition of territory by war." It also affirms the right of every state in the area "to live in peace with secure and recognized boundaries free from threats or acts of force." There were no "Palestinian territories." Jordan occupied the West Bank, Egypt controlled Gaza. Israel did not have "secure and recognized boundaries," so retention of some of those territories was possible under 242. Israel is not a "foreign" military occupier in the West Bank but, pending final negotiations, the lawful military administrator as a result of a successful war of self-defense.

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