Israel's invasion of Gaza in international law.

• Author: Bisharat, George E.

1. INTRODUCTION

   Israel commenced an aerial bombardment of the Gaza Strip on December 27, 2008 in a military operation it dubbed "Operation Cast Lead." (1) Israel augmented its attack with a ground invasion beginning on January 3, 2009. (2) Israel initially claimed that the assault was necessary to halt rocket fire from the Gaza Strip into Southern Israel and was, therefore, an exercise of Israel's sovereign right of self-defense. (3) Israeli leaders apparently also sought to re-establish Israel's "deterrent capacity," believed to have been diminished during the 2006 war on Lebanon. (4) Operation Cast Lead followed the breakdown of a truce that, from June 2008 to early November of that same year, had brought substantial calm to the border areas of Southern Israel and Gaza. (5)

   Israel's self-defense claim was soon challenged. (6) Evidence surfaced in the Israeli press that Israel had been planning the operation for at least six months, casting doubt on the claim that the attack was primarily a response to the breakdown of the truce. (7) Indeed, it appeared that Israel had exploited the truce period to gather intelligence regarding potential targets in the attack. (8) During the same period Israel had reportedly crafted a public relations campaign to defend its planned operation, to which new military spokespeople were assigned. (9) A number were women officers-apparently selected "to project a feminine and softer image" to Western media audiences. (10)

   Allegations also arose that, regardless of Israel's justification for initiating the attack, the conduct of its military in the operation violated international law in a number of respects. Rapidly mounting casualties among Palestinian civilians raised concerns that Israeli troops were failing to discriminate between military and civilian targets, or were using disproportionate force. (11) Reports also suggested that Israeli troops had used white phosphorous shells in densely populated parts of Gaza, leading to deaths and terrible wounds among Palestinian civilians. (12)

   On January 8, 2009, the United Nations Security Council passed a resolution calling for an immediate halt to fire from both Israel and Hamas. (13) Nonetheless, the assault continued until January 18, when Israel and Hamas (14) each instituted unilateral ceasefires, finally ending active hostilities. (15)

   This article considers the possible violations of international law entailed in Israel's twenty-two day assault on the Gaza Strip. The main bodies of law applicable to the Gaza invasion are international humanitarian law, the central purpose of which is to minimize human suffering in times of armed conflict, (16) and international criminal law, which establishes state and individual culpability for grave violations of international law, including for war crimes and crimes against humanity. (17) There is substantial evidence that Israel committed numerous violations of international law, in some cases amounting to war crimes or crimes against humanity, and this evidence is sufficient, at a minimum, to justify further investigation. If such evidence is further substantiated, Israel could bear state responsibility and Israeli political and military leaders could bear personal criminal liability. If so, they should be held accountable for their transgressions.

   The primary focus of the article is on major violations of international law and ones that appear systemic--in other words, those which stem from policy decision-making and military doctrines. (18) Although the names of various Israeli officials appear in the article in contexts that may suggest culpability for criminal offenses, we make no allegations of individual responsibility here. Linking identified individuals to definite, specific offenses would involve complex issues of intent, and we make no pretense of having established such linkages in the article.

   We further maintain that Hamas forces also likely committed war crimes during the fighting, particularly by undertaking indiscriminate attacks against Israeli civilians. (19) But these offenses in no way justify or excuse Israel's violations, which bore far more devastating consequences both for lives, for the prospects for peace in the Middle East, and for the status of international law. (20) Still, what is sauce for the goose is sauce for the gander, and a fair course of action would entail investigations of Hamas political and military leaders along with their Israeli counterparts.

   It is to be expected that combatants in a conflict would deny violations of international law and would seek to justify their behavior by reference to legal norms. (21) Thus, claims by any party about its wartime actions must be subjected to critical and skeptical review. As noted above, Israel has invested substantial effort in defending its actions before international public opinion. (22) Having the advantage of advance knowledge of the operation, not to mention greater resources and familiarity with the sensibilities of Western audiences, Israel's public relations campaign has far exceeded that of its opponent, (23) including, even, teleconferences on Twitter and videos made available by the Israel Defense Forces (IDF) via YouTube. (24) While ascertaining facts through the proverbial "fog of war" is always difficult, the challenges are greater when this "fog" is carefully planned and deliberately manufactured. The challenge is compounded by the fact that Israel largely barred Western reporters from entering the Gaza Strip during most of the fighting on the grounds of security-rendering independent verification of the realities of the assault all but impossible. (25)

   There is, moreover, reason to suspect that Israel's spokespeople were not consistently truthful in representing the actions of the Israel Defense Forces. This seemed evident, for example, in exchanges over allegations that the Israeli military had used white phosphorous shells. In a sequence chronicled by the Times of London, Israel initially denied that its troops had used white phosphorous. (26) Confronted with evidence to the contrary, Israeli spokespeople eventually admitted that white phosphorous had been used by Israeli troops and that an investigation for illegality in at least one instance was underway. (27) Remarkably, however, Israeli spokespeople ended the exchange with the Times by denying their initial denial of white phosphorous use! (28) Thus it has seemed prudent to this article's authors to examine all of Israel's claims regarding the Gaza invasion with heightened vigilance. (29) To repeat, however: such skepticism is always due, and examples of other nations misrepresenting facts so as to justify the use of force are notably rife. Israel, for its part, has accused Hamas of distorting figures concerning civilian deaths due to the Gaza assault, and it would be naive not to consider that a real possibility. (30)

   The next section following this introduction explores the complex and contentious issue of what law is applicable to Israel's recent invasion of the Gaza Strip. Operation Cast Lead cannot be understood, either legally or politically, in a historical vacuum. Thus, Section III will sketch the necessary backdrop to the recent fighting, beginning with Israel's 2005 withdrawal of troops and settlers from the Gaza Strip, and extending through the months directly preceding Israel's attack, during which a truce had prevailed. Section IV carefully examines Israel's justification for launching its attack--that it was necessary to defend itself against rocket fire emanating from the Gaza Strip--and ultimately rejects that claim. Section V argues that, as Israel's assault was not justified by self-defense, in fact, it may have constituted the crime of aggression. Section VI suggests that Israel deliberately targeted civilian infrastructure and civilian individuals in acts that constituted war crimes. Section VII examines the possibility that Israeli troops used Palestinians as human shields and concludes that there is some evidence to support such a charge. Section VIII reviews the question of proportionality and finds that statements by Israeli leaders and facts of the battlefield strongly suggest that Israel deliberately employed disproportionate force in its assault on Gaza. Section IX reviews charges that Israel failed to meet its obligations to protect and respect medical personnel and facilities, while Section X considers alleged Israeli failures to allow treatment of the wounded and evacuation of the dead. Section XI examines evidence that Israel used weapons illegally during the bombardment and invasion. Section XII details the bottom line; that is, the deaths and destruction caused by Operation Cast Lead. Section XIII looks at possible Hamas war crimes and finds that Hamas likely launched indiscriminate attacks against Israeli civilians in violation of the laws of war. Section XIV reviews state and individual liability, and surveys possible venues for the prosecution of war crimes committed during the Gaza invasion. Section XV offers a brief conclusion.

2. THE STATUS OF GAZA AND THE QUESTION OF APPLICABLE LAW

   The international legal status of the Gaza Strip is currently contested. There is no dispute that the Gaza Strip is not a sovereign state; rather, the main controversy is whether or not, after Israel's 2005 "disengagement" from the Gaza Strip, the territory remains subject to belligerent occupation within the meaning of international law. Israel maintains that its evacuation from the Gaza Strip ended its occupation, (31) while other observers and commentators have maintained that the occupation persists. (32)

   Whether Gaza is occupied or not is of considerable legal consequence. First, international humanitarian law imposes affirmative duties on an occupier in its treatment of the occupied civilian population. Israel, both before and during Operation Cast Lead itself, failed its legal duties as an...