Legal Aspects of the Gaza Conflict by yaosaigeng


									Legal Aspects of the
  Gaza Operation
 December 27, 2008 – January 17, 2009

           Office of the Legal Adviser
           Ministry of Foreign Affairs
                   March 2009
Law of Armed Conflict (LOAC)
 Even though the conflict in Gaza was between:
     Sovereign State      -        Terrorist
     authorized to use             organization –
     force to protect its          resort to force
     civilians                     unlawful

     Commitment to                 Hamas explicit
     respecting LOAC               rejection of LOAC

     Strenuous efforts to          Rejection of
     extend ceasefire and          ceasefire –
     avoid conflict                escalation of
  Nevertheless: IDF bound by LOAC
     Some Preliminary Questions

   Self defence against non-state actors?

   Status of Gaza Strip?

   Internal or International armed conflict?
      Legal Input into IDF operations
 Geneva Conventions                                  Legal Advice at HQ and
included in IDF commands                             Command level
 Mandatory training and                              Operational planning and
Computer tutorials                                   targeting
                            Prior to       Pre-
                            conflict     Operation

                               Lessons    During
   Investigation of incidents Learned   Operation
   Changes to command rules
                                                        Legal advisers in daily
  and Operational procedures
                                                       situation meetings
                                                        24/7 MAG center
Basic Principles in Armed Conflict

    Military Necessity

    Distinction

    Proportionality

    Humanity
Military Necessity

“My great maxim has always been, in
politics and war alike, that every injury
done to the enemy, even though
permitted by the rules, is excusable only
so far as it is absolutely necessary”
                         Napoleon Bonaparte
    Elements of Military Necessity

   Confronting the adversary’s weapons and

   Confronting terrorist infrastructure

   Force protection
           Confronting weapons and
Missiles fired from Gaza 2003-2008   Increasing range of missiles

Total 8, 827 rockets and mortars
   Confronting terrorist infrastructure
Weapons-smuggling tunnels discovered between Gaza and Egypt
Force protection

    Gilad Schalit
1000 days in captivity
The Principle of Distinction
Obligation to distinguish between adversary’s civilians and

      …the Parties to the conflict shall at all times distinguish between
       the civilian population and combatants and between civilian
       objects and military objectives and accordingly shall direct their
       operations only against military objectives
                                          Additional Protocol I, Article 48

      The civilian population as such, as well as individual civilians,
       shall not be the object of attack. Acts or threats of violence the
       primary purpose of which is to spread terror among the civilian
       population are prohibited.
                                       Additional Protocol I, Article 51(2)
Violating the Principle of Distinction

  Hamas posters boasting of missiles destroying
            civilian homes in Sderot
                Distinction (contd.)
Obligation to distinguish between own side’s civilians and

      The presence of a protected person may not be used to render
       certain points or areas immune from military operations.
                                    IVth Geneva Convention, Article 28

      The presence or movements of the civilian population or
       individual civilians shall not be used to render certain points or
       areas immune from military operations, in particular attempts to
       shield military objectives from attacks or to shield, favour or
       impede military operations.
                                        Additional Protocol I, Article 51(7)
Abuse of the principle of distinction

   Firing from civilian areas
   Weapons stores, R&D facilities in homes,
    schools and mosques
   Training bases and headquarters
   Dressing as civilians
   Recruiting children
   Booby-traps
   Human shields
       Firing from civilian areas

Rockets fired from rooftop        Firing into Israel from Beti lahia

Mortar launching squad firing     Rockets fired at Ashkelon from
 from front of School (2007)         behind cemetery
   (click picture to view film)
      Location of bases and training
         centers – Tel Al- Zatar

   Note proximity of firing points from schools and other protected
      Location of bases and training
            centers – Jabalia

   Note proximity of firing points from schools and other protected
                 Rocket launcher in
                 Shati refugee camp

   Launcher positioned next to medical center, center for disabled and
    soccer stadium
        Abuses of Distinction
   - weapons storage and factories
   Weapons storage                Weapons factories

Weapons found in Jabalia mosque   Manufacturing rockets in private
                                    house in Northern Gaza
Combatants dressing as civilians
                                 …combatants are
                                  obliged to distinguish
                                  themselves from the
                                  civilian population
                                  while they are
                                  engaged in an attack
“The commander, shaheed           or in a military
Muhammad Salameh Hilles,          operation preparatory
head of the mortar shells
unit in Saja’iya and a lion       to an attack
of the special unit.”
                                    Additional Protocol I, 44(3)
Abuses of distinction - recruiting children

    The Parties to the conflict shall take all
    feasible measures in order that children who
    have not attained the age of fifteen years do
    not take a direct part in hostilities, and in
    particular, they shall refrain from recruiting
    them into their armed forces
                           Additional Protocol I, 77(2)
Abuses of distinction - recruiting children

 “I like to help the
  resistance and I am not
  afraid of the Zionist
  occupation… I charge their
  cell phones and serve them
  tea… A group of friends
  and I burned tires to keep
  the Zionist planes from
  attacking the resistance”
       An eight-year old boy in the
         Jabaliya refugee camp to
                                      Children in uniform train at a
        Hamas magazine Al-Risala,     PRC camp (Hamas’ PALDF
                    March 7, 2008     Forum, August 22).
Abuses of Distinction - Booby traps

 Hamas map showing civilian homes wired
 and booby trapped to explode
  Abuses of Distinction - Human

Armed terrorist uses child as shield to cross
        exposed road (click picture for film)
   “Work accidents” resulting from preparing
        explosives in residential areas
Result of Explosion at weapons       ‘Work accidents’ in December 2008
  factory in Beit Lahiya
                                     6.12 - Kerem Shalom: Four rockets
                                     fired at the Kerem Shalom crossing fell on
                                     the Rafah Crossing. Egypt held Hamas

                                    20.12– Beit Hanoun: Two five-year old
                                     children wounded by an explosion,
                                     apparently caused by a rocket which fell in
                                     the Gaza Strip

                                    24. 12 - Tal al Hawa: Rocket falls on
                                     house of Imad al-Drimli, correspondent for
                                     a German news agency

                                    26.12 – Beit Hanoun: Explosion kills two
                                     girls aged 5 and 13. Palestinian man
                                     wounded by a rocket transferred to Israel
                                     for medical treatment

                                    December 27-31: (first five days of
                                     Operation Cast Lead) about 6.5% of the
                                     rockets fired at Israel fell in the Gaza Strip
    Distinction – lawful responses
What is a lawful ‘military objective’?

   ….those objects which by their nature, location,
    purpose or use make an effective contribution to
    military action and whose total or partial
    destruction, capture or neutralization, in the
    circumstances ruling at the time, offers a
    definite military advantage
                   Additional Protocol I, Article 52 (2)
       Distinction – Precautionary
         measures in targeting
   Weapon selection – precision munitions,
    size of explosive
   Method of operation – direction of strike,
    angle, delay fuse
   Timing – time of least occupancy
   Cross-Verification of intelligence
   Coordinated maps showing protected
    facilities – schools, medical facilities etc
    (1866 ‘sensitive sites’ in Gaza)
The Principle of Proportionality
No general requirement of proportionality with armed conflict
Obligation to refrain from excessive civilian harm

   Disproportionate attack: an attack which may be expected to cause
    incidental loss of civilian life, injury to civilians, damage to civilian
    objects, or a combination thereof, which would be excessive in
    relation to the concrete and direct military advantage anticipated.
                                                Additional Protocol I, 51(5)(b)

   “It may not be possible to limit the radius of effect entirely to the
    objective to be attacked… Members of the armed forces are not
    liable for such incidental damage, provided it is proportionate to the
    military gain expected of the attack”
       Major General A.P.V. Rogers, a former Director of British Army Legal Services
      Principles of Proportionality

   Forward-looking test - expectation not result

   Measure in relation to overall objective of attack
    United Kingdom declaration on signing API: "the advantage anticipated
    from the attack considered as a whole and not only from isolated or
    particular parts of the attack".

   Reasonable assessment of the military commander at
    the time
    "It is unlikely that a human rights lawyer and an experienced combat
    commander would assign the same relative values to military advantage
    and to injury to noncombatants.… It is suggested that the determination of
    relative values must be that of the 'reasonable military commander‘”
    “(Committee Established to Review NATO Bombings in Yugoslavia )
Proportionality considerations in urban

       - verification


         Legal                           Force
       Constraints                     Protection

                         Harm to
Abuse of proportionality principle
      - human shielding

“The defender has
the primary duty of
protecting the
civilian population
and removing
civilians from
military targets, if           Palestinian civilians used as
necessary”                     human shields on the roof of
                               Abu al-Hatal’s house in the
              W. Hays Parks,
                               Saja’iya area of Gaza City.”
  Air law and the Law of War
                                       Al-Aqsa TV, March 1, 2007
Abuse of proportionality principle
      - human shielding

“The Palestinian
people… created a
human shield of
women, children,
the elderly and the
Jihad fighters…We       Hamas leader Fathi Hamad
desire death as you     praises human shield
desire life.”           strategy shields on Al-Aqsa
                        TV, March 1, 2007
          Fathi Hamad        (click picture for link)
     Proportionality - Precautions
   Aborting planned attacks              click for link
   Early warning:
       Flyers
       Phone calls
       Preliminary light attacks

    “effective advance warning shall be given of
    attacks which may affect the civilian population,
    unless circumstances do not permit”
                      Additional Protocol I, 57(2)(c))
The Principle of Humanity
                - humanitarian efforts
   Establishment of MDA forward MDA clinic at Erez Crossing Point

   68 chronically ill people and their escorts made their way from Gaza
    to Israel, the West Bank and Jordan

   37,159 tons of humanitarian aid on 1503 trucks were transferred via
    the Kerem Shalom and Karni crossings (food, medication and
    medical supplies)

   449 dual nationals were evacuated via the Erez Crossing

   120 humanitarian officers appointed

   24/7 Humanitarian Affairs Coordination Center
    Abuse of humanitarian efforts

   Abuse of humanitarian window to launch
    increased amount of rockets (60% attacks)
   Attacks on crossings (Nahal Oz and Karni)
   Launching and firing from the immediate vicinity
    of international installations (UNRWA hospitals
   Use of ambulances to mobilize terrorists
   Theft of humanitarian supplies
   Artificial creation of shortages (fuel)
   Prevention of medical evacuation of Palestinians
    to Israel
      Abuses of humanitarian efforts
       - attacks on crossing points
   Truck bomb explodes at Erez      Two Israeli employees of the Nahal Oz
    Crossing Point                    fuel terminal were killed when
                                      Palestinian terrorists fired mortars at
                                      the terminal
    Abuses of Humanitarian arrangements – attacks
              on crossing points in 2008

    August 2: Sniper fire and three mortar attacks are
     reported at the Nahal Oz fuel terminal into Gaza.
    July 13: Two mortars are fired at Kibbutz Nahal Oz,
     approximately 875 yards (800 meters) from fuel
    July 8: A mortar shell fired from the Gaza Strip
     lands in Kibbutz Ein Hashlosha.
    July 7: Two mortar shells are fired from Gaza fall
     close to Karni goods crossing and Kibbutz Nahal Oz.
    July 6: Armed Palestinian terrorists open fire on
     agricultural farmers working close to the Nahal Oz
    Abuses of Humanitarian arrangements –
       attacks on crossing points (2008)
   May 22: A truck bomb, containing four tons of
    explosives, explodes at the Erez pedestrian crossing
    into Gaza.
   April 19: The Kerem Shalom goods crossing is
    attacked by two car bombs, wounding 13 IDF
    soldiers. April 13: Five mortars are fired at Kerem
    Shalom crossing.
   April 9: Mortars fired at Nahal Oz terminal.
    Terrorists later infiltrate the crossing and shoot dead
    two workers.
   March 23: Two mortars fall in close proximity to
    the Sufa crossing.
   Feb. 29: A mortar falls next to the Sufa crossing.
    Abuses of Humanitarian arrangements –
       attacks on crossing points (2008)
   Feb. 18: Two rockets fired towards Kibbutz Nahal-Oz,
    approximately 875 yards (800 meters) from fuel crossing.
   Feb. 16: Five rockets fired toward Kibbutz Nahal-Oz
   Feb. 12: Mortars are fired which fall near Nahal Oz fuel
   Feb. 6: A mortar shell is fired at Sufa goods crossing, forcing
    its closure.
   Jan. 18: Eight mortars are fired at Sufa crossing.17
   Jan. 12: A Qassam rocket falls near Erez pedestrian
   Jan.7: Palestinian Islamic Jihad attempts to bomb Erez
    pedestrian crossing; attack is thwarted.19
   Jan. 1: Five mortars are fired at Sufa goods crossing
Abuses of humanitarian arrangements –
      hospitals and ambulances

                     Two ambulances,
                     marked “Red Cross”
                     and “UN,” used to
                     evacuate terrorists
                     (click picture for film)
                Humanity – Abuses of
               humanitarian protection

                                         Medicine bottles, brought in as
Anas Naim – classified as a ‘medic’ in   humanitarian aid, converted to Hamas
   Palestinian fatality list             grenades
Finding a lawful balance
    HCJ- Israel’s Supreme Court

   “A military commander’s obligation does not end with
    avoiding harm to the lives and the dignity of the local
    residents, a “negative obligation”, but his obligation is
    also ‘positive’ – he must protect the lives and dignity of
    the residents, within the constraints of the time and
    place….” - Justice Barak HCJ 764/04

   “As long as Israel has control of the transfer of
    necessities and the supply of humanitarian needs to the
    Gaza Strip, it is bound by the obligations of international
    humanitarian law to allow the civilian population to have
    access, inter alia, to medical facilities, food and water, as
    well as additional humanitarian items.” - Justice Beinisch
    HCJ 201/09
    HCJ- Israel’s Supreme Court

   “Democracies fight with one hand tied
    behind their hand – but that is why they
    have the upper hand”
                         Justice Barak HCJ 769/02

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