viewpublication articleid 87

• The rule of distinction requires combatants to aim all their attacks at legitimate targets. Attacks deliberately aimed at civilians are war crimes. A corollary of the rule of distinction is a ban on the use of weapons that are incapable of being properly aimed. The rockets used by the Palestinian attackers cannot be aimed at specific targets and are launched at urban areas. This means that the very use of these weapons violates international law.

• Each one of the 6,000 rocket and mortar attacks by Palestinian terrorists on civilian targets in Israeli towns is a war crime. Both the terror squads carrying out the attacks, as well as their commanders, bear criminal responsibility. Under the rules of command responsibility, senior Hamas leaders such as Khaled Mashal, who ordered a continuation of the rocket attacks, are among the parties guilty of war crimes.
  

• A consortium of Palestinian terrorist groups have held Israeli soldier Gilad Shalit incommunicado and out of reach of the International Committee of the Red Cross since 2006. This is a clear violation of international law concerning prisoners of war.

• The Palestinian attacks must be seen as terrorist attacks under the International Convention for the Suppression of Terrorist Bombings, which makes it a crime to bomb public places (such as city streets) with the intent to kill civilians. Under this Convention, the Palestinian attackers are considered international terrorists and Israel is required to assume criminal jurisdiction over them.
  

• UN Security Council Resolution 1566 requires states to deny safe haven to “any person who supports, facilitates, participates or attempts to participate in the financing, planning, preparation or commission of terrorist acts or provides safe havens.” Thus, all Palestinian governing authorities in Gaza, whether directly involved in terror attacks or not, are terrorists under international law, by virtue of their willing provision of safe haven for terrorists.

• In carrying out their attacks on Israeli Jews as part of a larger aim to kill Jews, as demonstrated by the Hamas Covenant, many of the Palestinian terrorists are also violating the Convention on the Prevention and Punishment of Genocide.

Palestinian terrorists in Gaza continue to launch rocket and mortar attacks on Israeli civilians and, in response, Israel has re-imposed a number of controls at its border with Gaza. As with every flare-up of the Arab-Israeli conflict, the air is thick with accusations of violations of international law. Yet criticism of Israeli behavior lacks any basis in international law. By contrast, criticism ought to be voiced regarding illegal Palestinian behavior.

Illegality of Palestinian Attacks Under the Laws of War

Palestinian attacks violate one of the most basic rules of international humanitarian law: the rule of distinction, which requires combatants to aim all their attacks at legitimate targets – enemy combatants or objects that contribute to enemy military actions. Violations of the rule of distinction – attacks deliberately aimed at civilians or protected objects as such – are war crimes.

One of the corollaries of the rule of distinction is a ban on the use of weapons that are incapable, under the circumstances, of being exclusively aimed at legitimate targets. The projectile weapons being used by the Palestinian attackers are primitive weapons that cannot be aimed at specific targets and must be launched at the center of urban areas. This means that the very use of these weapons under current circumstances violates international law.

Consequently, each one of the 6,000 rocket and mortar attacks by Palestinian terrorists on civilian targets in Israeli cities, towns, and villages is a war crime. Both the terror squads carrying out the attacks, as well as their commanders, bear criminal responsibility for these war crimes. Indeed, criminal responsibility for these crimes extends up the chain of command to the most senior officials in the terror groups who have approved these rocket attacks. Under the rules of command responsibility, senior Hamas leaders such as Khaled Mashal and Ismail Haniyeh, who ordered a continuation of the rocket attacks in response to “Zionist crimes,” are among the parties guilty of war crimes.

In addition, a consortium of Palestinian terrorist groups have held Israeli soldier Gilad Shalit incommunicado and out of reach of the International Committee of the Red Cross since 2006. This is a clear violation of international law concerning prisoners of war.

Illegality of Palestinian Attacks Under the Laws Against Terrorism

The Palestinian attacks, because they are intended to kill or seriously injure civilians in order to intimidate a population, are also terrorist acts within the scope of the International Convention for the Suppression of the Financing of Terrorism. So long as the acts are committed by non-nationals of the target state, Articles 2(4)-(5) extend liability to all those who attempt to commit; participate as accomplices; direct or organize terrorist acts; or contribute to acts by terrorist groups with the knowledge of the groups’ intent to commit terror or with the aim of furthering their goals.

Thus, international law considers a large number of Palestinians related to the attacks to be terrorists: the squads of militants actually carrying out the rocket attacks, all those who assist the squads with organization or financing, and all those who finance the terrorists since they are aware of the intent of the terror squads to carry out terrorist acts.

The Palestinian attacks must also be seen as terrorist attacks under a related international convention: the International Convention for the Suppression of Terrorist Bombings. This convention makes it a crime to bomb public places (such as city streets) with the intent to kill civilians. This relates to bombings carried out by persons that are non-nationals of the state of which the victims are nationals. Also under this Convention, the Palestinian attackers are considered international terrorists and Israel is required to assume criminal jurisdiction over them. Additionally, other states party to the Convention – such as the U.S., Russia, Turkey and France – must cooperate in helping to combat such Palestinian terrorist acts.

Palestinian authorities in Gaza also violate anti-terrorism provisions of international law by providing a safe haven for Palestinian terrorists. UN Security Council Resolution 1566, which was adopted under the authority of Chapter VII of the UN Charter and is therefore binding international law for all states, requires states to deny safe haven to “any person who supports, facilitates, participates or attempts to participate in the financing, planning, preparation or commission of terrorist acts or provides safe havens.” Similarly, Security Council Resolution 1373, also a Chapter VII resolution, requires states to “deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens.” Together, these documents establish that, under international law, providing safe haven for terrorists is itself a terrorist act. Thus, all Palestinian governing authorities in Gaza, whether directly involved in terror attacks or not, are terrorists under international law, by virtue of their willing provision of safe haven for terrorists.

Illegality of Palestinian Attacks Under the Genocide Convention

In carrying out their attacks on Israeli Jews as part of a larger aim to kill Jews, as demonstrated by the Hamas Covenant, many of the Palestinian terrorists are also violating the Convention on the Prevention and Punishment of Genocide. Under Article 1 of the Genocide Convention, Israel and other signatories are required to “prevent and punish” not only persons who carry out such genocidal acts, but those who conspire with them, incite them to kill and are complicit with their actions. The Convention thus requires Israel to prevent and punish the terrorists themselves, as well as leading figures that have publicly supported the Palestinian attacks. Article 2 of the Convention defines any killing with intent “to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” as an act of genocide.

The Hamas attacks fall within this definition of genocide. The Covenant of Hamas explicitly advocates a religious holy war aimed at creating a regional Islamic entity encompassing the territory of Israel and the disputed areas.

The murderous intent of Hamas has been translated into a political program openly aimed at obliterating the Jewish state, as well as a constant stream of terrorist murders. During the three and a half years of fighting from September 2000 until March 2004, Hamas perpetrated 425 terrorist attacks. From those attacks, 377 Israelis were murdered and 2,076 civilians and soldiers were wounded.

Israeli Counter-Measures Conform to International Law

In contrast to the illegal Palestinian attacks from Gaza, Israeli counter-measures have been legal. Indeed, Israel’s responses to Palestinian terrorist attacks and war crimes have been limited to far less than the full measure of actions Israel could legally have undertaken. In fact, Israel’s responses may be properly criticized on the grounds of international law, if at all, for being insufficient rather than excessive.

Many of the legal criticisms of Israel are implicitly based upon misinterpretations of the relevant international law. Moreover, many of the charges are disingenuously based upon misstatements of fact or misuse of legal terminology.

A careful examination of the relevant law demonstrates that Israeli counter-strikes to date, and potential future counter-strikes (both economic and military), conform to the requirements of international law.

The Legality of Israeli Military Actions under Jus ad Bellum

The law of jus ad bellum, as codified by the UN Charter, bars the use of military force against other states under most circumstances. Article 51 of the Charter recognizes the inherent right to self-defense, notwithstanding the general ban on the use of force.

Under international law, it is certain that Israel has the right to use force in defending itself against Palestinian attacks from Gaza. If Gaza is an independent sovereignty, and entitled to all the rights of states under jus ad bellum, Israel would be entitled to use force against Gaza by authority of the inherent right to self-defense referenced by Article 51 of the UN Charter. Gaza would have lost its general immunity from attack by repeatedly striking at its neighbor state and Israel’s use of force would therefore be permissible on the grounds of self-defense.

International humanitarian law regulates the use of force once military action is under way, irrespective of its legality. The two most basic principles of international humanitarian law are the rules of distinction and proportionality: Israel’s counter-strikes have abided by both.

1. Distinction and Proportionality

The rule of distinction requires aiming attacks only at legitimate (e.g., military and support) targets. The rule of distinction includes elements of intent and expected result: so long as one aims at legitimate targets, the rule of distinction permits the attack, even if the attack is expected to cause collateral damage to civilians and even if, in retrospect, the attack was a mistake based on faulty intelligence. Israel has aimed its strikes at locations from which rockets have been fired, at Palestinian combatants bearing weapons and transporting arms, Palestinian terrorist commanders, and support and command and control centers.

The rule of proportionality operates in conjunction with the rule of distinction to limit collateral damage. It forbids collateral damage that is expected to be excessive in relation to the military need. As with distinction, the rule of proportionality relies upon intent. If Israel plans a strike without expected excessive collateral damage, the rule of proportionality justifies it, even if, in retrospect, Israel erred in its damage estimates.

Legal advisors attached to Israeli military units review proposed military actions. They apply an extremely restrictive standard for both distinction and proportionality, in accordance with intrusive Israeli Supreme Court rulings that have imposed far stricter legal standards on the Israeli military than those found in international law.

2. Perfidy and Civilian Shields

At the same time, it is clear that Palestinian actions in conducting military operations from within built-up civilian areas, thereby increasing Palestinian casualties, constitute war crimes. It is important to note that Israel is not required to refrain from attacking Palestinian combatants simply because they have chosen to hide behind civilians. As Article 28 of the Fourth Geneva Convention makes clear, the presence of civilians “may not be used to render certain points or areas immune from military operations.” The article also makes Palestinian attempts to use civilian shields unlawful.

Additionally, the fact that Palestinian terrorists dress as civilians in carrying out attacks does not render them immune from attack – it simply makes them lawful targets that are also violating international law. International humanitarian law forbids perfidy, which, for example, means that it is forbidden to feign civilian status while actually being a combatant. The fact that Palestinian terrorists often dress as and pretend to be civilians while carrying out attacks makes it highly likely that many innocent Palestinian civilians will be accidentally killed. However, the war crimes here are Palestinian, and not Israeli.

3. Retorsion and Collective Punishment
   

International humanitarian law also provides important rules regarding military acts such as blockades and the imposition of punishment. Israel’s actions abide by these rules as well.

Israel’s imposition of economic sanctions of the Gaza Strip, such as withholding fuel supplies and electricity, does not involve the use of military force and is therefore a perfectly legal means of responding to Palestinian attacks, despite the effects on innocent Palestinian civilians. The use of economic and other non-military sanctions as a means of disciplining other international actors for their misbehavior is a practice known as “retorsion.” Since Israel is under no legal obligation to engage in trade of fuel or anything else with the Gaza Strip, or to maintain open borders with the Gaza Strip, it may withhold commercial items and seal its borders at its discretion, even if intended as “punishment” for Palestinian terrorism.

While international law bars “collective punishment,” none of Israel’s combat actions and retorsions may be considered collective punishment. The bar on collective punishment forbids the imposition of criminal-type penalties on individuals or groups on the basis of another’s guilt, or the commission of acts that would otherwise violate the rules of distinction and/or proportionality. None of Israel’s actions involve the imposition of criminal-type penalties or the violation of the rules of distinction and proportionality.

Examples of retorsions are legion in international affairs. The U.S., for example, froze trade with Iran after the 1979 Revolution and with Uganda in 1978 following accusations of genocide. In 2000, fourteen European states suspended various diplomatic relations with Austria in protest of the participation of Jorg Haider in the government. Numerous states suspended trade and diplomatic relations with South Africa as punishment for apartheid practices. In none of these cases was the charge of “collective punishment” raised. “Punishing” a country with restrictions on international trade is not identical to carrying out “collective punishment” in the legal sense.

4. Control of Airspace and Territorial Waters

Israeli control of Gazan airspace and waters is also legal under international law. The Oslo Accords – the 1990s interim peace agreements between the PLO and Israel – specify continued Israeli security control over Gazan airspace and coastal waters. Even if Gaza became an independent sovereign state, it is arguably still bound to its prior agreements with Israel respecting Israeli security control.

There is no legal basis for maintaining that Gaza is occupied territory. The Fourth Geneva Convention refers to territory as occupied where the territory is of another “High Contracting Party” (i.e., a state party to the convention) and the occupier “exercises the functions of government” in the occupied territory. Yet, the Gaza Strip is not territory of another state party to the convention – Egypt, which previously controlled Gaza, is a party to the convention, but Gaza was never Egyptian territory. And Israel does not exercise the functions of government – or, indeed, any significant functions – in the territory. It is clear to all that the elected Hamas government is the de facto sovereign of the Gaza Strip and does not take direction from Israel, or any other state.

Military superiority over a neighbor does not itself constitute occupation. If it did, the U.S. would have to be considered the occupier of Mexico and Canada, Egypt the occupier of Libya, Iran the occupier of Afghanistan, and Russia the occupier of Latvia.

If Israel were indeed properly considered an occupier, under Article 43 of the regulations attached to the Fourth Hague Convention of 1907, Israel would be required to take “all the measures in [its] power to restore, and ensure, as far as possible, public order and safety.” Thus, those who contend that Israel is in legal occupation of Gaza must also support and even demand Israeli military operations in order to disarm Palestinian terror groups and militias.

Due to internal political considerations, as well as several rulings by the Israeli Supreme Court, Israel continues not only to maintain the flow of basic humanitarian supplies such as food, medicine, and water to the Palestinian population of Gaza, but in many cases to supply the items itself.

Article 23 of the Fourth Geneva Convention permits states such as Israel to cut off fuel supplies and electricity to territories such as Gaza. Article 23 only requires a party to permit passage of food, clothing and medicines intended for children under fifteen, expectant mothers and maternity cases. Moreover, under Article 23, Israel would be under no obligation to provide anything itself; Israel would only be required not to interfere with consignments of food and so forth sent by others for the benefit of children under age fifteen, mothers of newborns and pregnant women.

Finally, under Article 23, a party can block passage even of food, clothing and medicine even for these population groups if it has serious grounds for suspecting that the items will be intercepted before reaching their destination. Israel has excellent grounds for fearing this result, especially after Hamas seized fourteen Red Crescent trucks carrying humanitarian aid on February 7, 2008, on the pretext that only Hamas may decide how to distribute aid in Gaza.

The Israeli Justice Ministry has acknowledged a duty under customary international law not to interfere with the supply of basic humanitarian items such as food and medicine. Regrettably, some Israelis have summarized this acknowledged duty expansively and inaccurately as requiring that Israel ensure a minimum necessary supply of food, fuel and electricity to prevent starvation or a humanitarian crisis. Yet Israel is not required by its customary general humanitarian duties to provide required items itself, only not to interfere with their passage. Moreover, fuel and electricity are almost certainly not items that Israel or other warring parties are required to supply.

Dependence on foreign supply – whether it be Gazan dependence on Israeli electricity, European dependence on Arab oil, or Somali dependence on foreign food aid – does not create a legal duty to continue the supply. Absent specific treaty requirements, countries may cut off oil sales to other states at any time. Neither Israel nor any other country is required to supply goods in response to its foes’ resource mismanagement or lack of natural bounty.

There is no precedent or legal text that creates legal duties on the basis of a former military administration. For instance, no one has ever argued that Egypt has legal duties to supply goods to Gaza due to its former military occupation of the Gaza Strip. Control of airspace does not create a legal duty to supply goods. For instance, UN Security Council-ordered no-fly zones in Iraq, Libya and Bosnia were not seen as the source of any legal duty to supply those countries with electricity, water or other goods.

The Humanitarian Crisis in Gaza in Perspective

The Palestinians are the largest per capita recipients of foreign aid worldwide. In addition, the Washington Institute for Near East Policy has pointed out that as of 2002, based upon contemporary prices, Palestinians in the West Bank and Gaza had received “$161 per person per year compared to $68 per person annually under the four-year Marshall Plan, meaning the Palestinians have gotten more than twice as much aid for twice as long as Europe received under the Marshall Plan.”

In fact, classic indicators of the standard of living place Gaza in a reasonably strong position. Life expectancy in the Gaza Strip is 72 years, higher than Russia (66), India (69), Ukraine (68) and Glasgow East (in Scotland), where male life expectancy is 69 years. Similarly, Gaza has a much lower infant mortality rate (21 deaths/1,000 live births) than Angola (182), Iran (37), India (32), Egypt (28) and Brazil (27). Perhaps the most astonishing fact, in light of the sensationalist media coverage damning Gaza’s chances for a better future, is that literacy in Gaza stands at a staggering 92 percent, far higher than India (48), Egypt (59), and even wealthy Saudi Arabia (71).

Likewise, contrary to common mythology that the Gaza Strip is “the most densely populated territory in the world,” Gaza is less densely populated than an array of other locales around the world, including a number of economic success stories. According to the Statistical Abstract of the United States: 2004-2005, the population per square mile in the Gaza Strip was 8,666, while Monaco had a population density of 41,608, Singapore, 17,751, Gibraltar, 11,990, Hong Kong, 17,833, and Macau had a population density nearly ten times that of the Gaza Strip (71,466) in 2003.

Some provisions of international law impose upon Israel duties to act against Gaza and the Palestinian terrorists who are based there. First, as noted above, Israel has the duty to act to prevent and punish Palestinian acts of genocide covered by the Genocide Convention. Second, Israel has the duty, under Security Council Resolution 1373 (a Chapter VII resolution), to take various steps against Palestinian terrorists. Among the required steps “the Council decided that all states should prevent and suppress the financing of terrorism, as well as criminilize the wilful provision or collection of funds for such acts” and the freezing of funds and financial assets “of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts.”

Israel’s duties to prevent funding of terrorists are far-reaching. Under Resolution 1373, states must “refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts.” Thus, arguably, Israel is forbidden to supply aid that will be diverted to Hamas and other terrorist groups and will, therefore, become passive support for persons involved in terrorist acts. Additionally, Israel is required by Resolution 1373 to “prevent the movement of terrorists or terrorist groups by effective border controls.” This means that Israel is arguably required to continue maintaining strict controls on the passage of persons from Gaza to Israel.

These duties do not fall solely upon Israel. Other states are also required to prevent and punish Palestinian acts of genocide, and, pursuant to Resolution 1373, to “cooperate, particularly through bilateral and multilateral arrangements and agreements, to prevent and suppress terrorist attacks and take action against perpetrators of such acts.”

The Palestinian-Israeli fighting in Gaza has been characterized by the extensive commission of war crimes, acts of terrorism and acts of genocide by Palestinian fighters. On the other hand, Israeli counter-measures have conformed with the requirements of international law, with the possible exception that Israel may be legally required to cut off aid to the Palestinians. Israel may continue to impose economic sanctions and engage in military strikes including a full-scale assault on the Gaza Strip, as long as it continues to abide by the basic humanitarian rules of distinction and proportionality.

Other states can, and must, do more to encourage compliance with international legal standards by fulfilling their own legal obligations. International law requires Israel and other states to take measures to bring Palestinian war criminals and terrorists to justice, to prevent and punish Palestinian genocidal efforts, and to block the funding of Palestinian terrorist groups and those complicit with them.

Justus Reid Weiner is an international human rights lawyer and a Scholar-in-Residence at the Jerusalem Center for Public Affairs. He served as Director of American Law and External Relations at the Israel Ministry of Justice, specializing in human rights and other facets of public international law.

Avi Bell, Professor of Law at the Bar-Ilan University Faculty of Law, and Visiting Professor at the University of Connecticut School of Law, is Director of the Global Law Forum at the Jerusalem Center for Public Affairs.

This essay is based on a larger, fully-footnoted study, International Law and the Fighting in Gaza, by Justus Reid Weiner and Avi Bell, prepared for the Global Law Forum, sponsored by the Legacy Heritage Fund. The complete study is available at www.jcpa.org.

Click here to read the entire briefing paper.