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Why Israel’s legal justifications for ‘Operation Protective Edge’ are wrong

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Video of Israeli roof knocking technique in Gaza.

On 8 July Israel launched “Operation Protective Edge” in the Gaza Strip followed, on 17 July, by an ongoing ground invasion. Reminiscent of “Operation Cast Lead” in December 2008 to January 2009 and“Operation Pillar of Defense” in November 2012, there have been violations of international law committed both by Israel and Palestinian resistance groups. Yet, as with previous operations, the framing of “Operation Protective Edge” by both the media and world leaders has not only distanced this latest round of hostilities from the wider context of Israel’s 47 year-old occupation of the Palestinian territory – namely the West Bank, including East Jerusalem, and the Gaza Strip – but has also framed the discourse in a manner that largely legitimises Israel’s violations of international law.

As a Palestinian human rights organisation established to protect and promote human rights and the rule of law in the Occupied Palestinian Territory (OPT), Al-Haq has sought to address the widely inaccurate interpretations of international law that appear to justify Israel’s actions during “Operation Protective Edge”.

Why Israel’s “self-defence” justification is misleading

The UN Charter obliges all Members to refrain from the threat or use of force, with the sole exception of the “inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations”. This provision of the UN Charter forms the basis of the jus ad bellum – otherwise known as the body of law that regulates how and when UN Member States can resort to the use of force, i.e. it is applicable before an armed conflict erupts.

“Operation Protective Edge”, however, has been launched within the context of an ongoing occupation. Occupation in itself is a phase in armed conflict in which the previous invasion phase has ceased and authority is exercised and established by the Occupying Power. As such, the applicable body of law is international humanitarian law (IHL), which forms the basis of the jus in bello – otherwise known as the laws that regulate an ongoing armed conflict. Once in the throws of an armed conflict, as Israel has been since it occupied the OPT in 1967, the initial resort to force has already occurred and all ongoing and future use of force must be regulated exclusively by IHL, which does not include a “self-defence” provision. Instead, IHL recognises the reality of armed conflict while seeking to limit the humanitarian cost with a number of fundamental provisions, from which there can be no derogation. The prohibition against intentionally targeting civilians and civilian infrastructure and the obligation to take all precautions in attack to avoid civilian casualties are two crucial tenets of IHL.

Furthermore, Israel’s use of the “terrorism paradigm” to justify its attacks on the Gaza Strip is legally flawed. As the Occupying Power, Israel already exercises effective control over the OPT according to the rules of IHL. As such, rockets fired from the Gaza Strip cannot be viewed as an external threat of terrorism, but instead must be addressed within the context of a belligerent Occupant’s duty to maintain order within the occupied State under the laws governing belligerent occupation.

Regardless, the UN Security Council has made it clear that any actions combating terrorism must be in line with international law, particularly international human rights, refugee and humanitarian law. Therefore, Israel’s claim that it is engaged in a conflict to combat alleged terrorism does not absolve it from its obligations as a party to the conflict. As such, IHL and international human rights law (IHRL) remain the applicable bodies of law for any Israeli actions taken in the Gaza Strip no matter the pretext. Furthermore, it must be noted the obligation to respect and ensure respect for IHL does not depend on reciprocity.

Why “knock-on-the-roof” warnings, telephone calls, SMS messages and leaflets do not alleviate Israel’s obligation not to target civilians and civilian infrastructure

FA1 X4 GAZA 2014-03-06 H264-15Mbs from Forensic Architecture on Vimeo.

While the attacking party to the conflict is obliged to take precautionary measures before carrying out attacks in order to spare civilians and civilian objects, this by no means negates the primary obligation not to make civilians and civilian objects the target of attack. In cases in which a building is civilian in nature, Israel’s policy of “knock-on-the-roof” warnings – a procedure in which it fires a small missile at the roof of a building to warn its occupants that a fully armed larger missile attack is imminent – does not transform that building or its occupants into legitimate military targets. Telephone calls, SMS messages and leaflets warning civilians of an imminent attack similarly cannot be considered to alter the individuals’ civilian character nor imply that civilian casualties resulting from such attacks are to be considered ‘human shields’. In addition, when providing warnings, attacking parties to the conflict must ensure that such warnings are meaningful in that they indicate where civilians can take shelter and how much time they have to evacuate the premises. Without such information the warning is rendered ineffective.

Furthermore, Israel’s “knock-on-the-roof” policy in itself has caused damage to civilian property, has injured and killed civilians and generates fear among the civilian population. In this regard, it should be emphasised that in all circumstances it is the attacking party that must to do everything possible to verify that the objective is indeed military and not civilian. In case of any doubt as to the identity of the object or persons, they must be assumed to be civilians; hence the attack must be aborted.

Why the military necessity of displacing thousands of Palestinians in the Gaza Strip must be called into question

Under IHL, the principle of military necessity is the exclusive legal justification for any military operation. As such, belligerent parties must assess whether a military advantage will be gained as a result of an attack against legitimate military targets. Even if the proposed action does not violate other rules of IHL, attacks not intended to contribute to the enemy’s military defeat can never be justified by military necessity, because they serve no military purpose. Following from this definition, military action must be intended towards the military defeat of the opposing forces and must offer a direct contribution towards this goal.

Israel’s policy of urging Palestinians to evacuate their homes in whole neighbourhoods, leading to the displacement of tens of thousands of people, can only be justified if such action is essential for the attainment of legitimate goals, which are in themselves in line with the rules of IHL. If an attack is carried out and it transpires that there was no military advantage to be gained, then it may suggest that the motivation for the attack was to terrorise and forcibly displace the civilian population, in violation of IHL. During “Operation Protective Edge” Israel has issued fake warnings in which it informs families that their homes will be attacked without actually carrying out the attack. Such warnings instil fear into the civilian population of Gaza, unnecessarily contribute to the daily increase in displaced Palestinians and violate the prohibition included in the Fourth Geneva Convention against all measures of intimidation or terrorism.

Why any rejection of ceasefire proposals does not alter the obligations incumbent on the parties to the conflict under international law

The acceptance or rejection of any ceasefire proposal by either party to the conflict is a purely political decision and does not alter the obligation incumbent upon both Palestinian resistance groups and Israel to refrain from targeting civilians and civilian objects. In accordance with the Fourth Geneva Convention, no agreement between the parties to the conflict can adversely affect the situation of protected persons, i.e. the Palestinian population, nor restrict the rights conferred upon them by the Convention. Any ceasefire should be brokered under conditions that address the root cause of the current situation in the Gaza Strip and the West Bank, including East Jerusalem, and that seek to bring to an end the unlawful closure of the Gaza Strip and ensure Israeli compliance with its obligations under international law.

Why “Operation Protective Edge” must be viewed in the context of the 47 year-old occupation of the West Bank, including East Jerusalem and the Gaza Strip

Despite Israel’s unilateral ‘disengagement’ in 2005, the Gaza Strip remains under occupation, as affirmed by the International Committee of the Red Cross (ICRC), numerous states and UN bodies. Israel has repeatedly demonstrated that it meets the “effective control” threshold necessary for occupation through its ability to deploy troops into the Gaza Strip, its ability to make its authority felt in the territory and its continuing control over land borders, population registry, airspace and territorial sea.

As the Occupying Power, Israel is under a legal obligation to take all necessary measures to protect the civilian population of the occupied territory and to ensure that the human rights of the population therein are upheld. Israel’s illegal regime of closure imposed on the Gaza Strip since 2007 amounts to a form of collective punishment of the population of 1.8 million and has prevented full recovery from the devastation caused by “Operation Cast Lead” and “Operation Pillar of Defense”. The Gaza Strip is entirely surrounded by a concrete wall, a double wire fence, watchtowers and closed crossings and is subject to a naval blockade, allowing Israel to monitor and restrict the entry of goods and materials into the territory, including vital medicine and medical equipment. In the past year, the only departure point from the Gaza Strip, the Rafah border crossing with Egypt, has been frequently closed. These closures of the Rafah crossing, compounded by Israel’s ongoing closure of the territory, have resulted in electricity and fuel shortages.

This ongoing closure, combined with repeated cycles of violence, has a devastating impact on the population’s right to life, health, education, food, water and adequate standard of living – all of which Israel is obligated to provide for under IHRL. Import and export restrictions have severely stunted basic infrastructural development and recovery and have had a particularly negative impact on the agricultural and manufacturing sectors in Gaza. By the first quarter of 2014, this had translated into an unemployment rate of 40.8%.

These continuous violations of international law have provided the background for the current escalation of violence. In order for a just peace to be achieved that puts an end to this vicious cycle of violence, the international community must uphold their obligations under international law, including their own obligations under the Geneva Conventions, in order to end Israeli impunity. Ultimately, Israel’s occupation of the OPT must be brought to an end, as this is the root cause of the violations of international law committed in the region and the ongoing threat to peace and security. The framework for achieving this just peace is found in international law and only through its respect and enforcement can such a peace be achieved.

Al- Haq

Al-Haq is an independent Palestinian non-governmental human rights organisation based in Ramallah, West Bank. Established in 1979 to protect and promote human rights and the rule of law in the Occupied Palestinian Territory (OPT), the organisation has special consultative status with the United Nations Economic and Social Council.

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16 Responses

  1. just on July 24, 2014, 9:40 am

    Many, many thanks for this comprehensive report. It’s invaluable.

    (btw– CNN Paula Hancocks and Carol Costello had a more than sobering report on the dead, displaced, traumatized children who are the victims of this Israeli genocide/massacre/terrorism).

  2. Kay24 on July 24, 2014, 9:55 am

    A very good article, and it is gives us an entirely different perspective to the ongoing massacre, and insight to what the Palestinians have had to endure for years, and certainly on a larger magnitude now.
    “As the Occupying Power, Israel is under a legal obligation to take all necessary measures to protect the civilian population of the occupied territory and to ensure that the human rights of the population therein are upheld.”

    Israel has failed to comply with all international laws, and has blatantly violated
    basic laws pertaining to human rights, and it keeps spinning the truth, like cowards, so that the world will not condemn it. The latest fiasco at the UN by the US being the only nation that voted NO to investigate all these war crimes, is embarrassing to say the least, but disgusting too. This war in Gaza with it’s ridiculous name, has highlighted once again the power of the zionists over American leadership.
    Bibi threw a tantrum when flights to TA were cancelled, and he was quickly consoled by the FAA reversing the ban. We arm them, aid them, and pretend they are victims when they slaughter children. We are complicit when Israel mows down the lawn regularly, in fact we offer it the implements to do so.

    • lysias on July 24, 2014, 10:05 am

      US Airways to resume Tel Aviv flights, other airlines wait:

      TEL AVIV: US Airways said it would resume flights to Israel later Thursday after the U.S. Federal Aviation Administration lifted a ban imposed two days ago when a rocket fired from the Gaza Strip landed near Tel Aviv airport.

      About 30 carriers had suspended services to Ben Gurion International Airport, Israel’s main hub. Other major airlines have yet to announce a resumption of flights.

      Europe lifts ban on flights to Tel Aviv airport

      European airlines have been told they can consider flying again to Tel Aviv airport in Israel.

      The decision follows a similar one earlier on Thursday, in which the US aviation regulator lifted its ban on US carriers flying there.

      The European Aviation Safety Agency stopped short of saying that resumed flights would be safe.

      It said airlines and national authorities should make their own decisions, based on the risks involved.

      The decision of these authorities to change tack was immediately followed by the UK airline Easyjet resuming flights to Tel Aviv.

      • Kay24 on July 24, 2014, 10:19 am

        Israel cries victim, and makes excuses for going in to Gaza to massacre civilians, by referring to “thousands of rockets” falling on them, and that their precious people have to live in fear, YET when it comes to begging for international flights to come it and save their economy, they PROUDLY claim that them rockets are not a danger to the airport.
        In fact their loyal citizen Bloomberg also supported that notion.

        Either those rockets are dangerous, or not. Which is it?

        Zio double speak.

  3. dimadok on July 24, 2014, 9:57 am

    “The Gaza Strip is entirely surrounded by a concrete wall”- baloney…
    Now, back to the subject- please provide the international law guidelines for urban combat, when one party is hiding behind civilian population. There is none and the reason is quite simple-all these laws were written in the context of standard warfare.
    Therefore, any military operation against mixed combatant and civilian populations is ILLEGAl by the definition of law. By mixed population I mean the lack of regular armed forces and a “revolving door” for militants to go in and out from the hostilities.
    Ratios of military vs. civilian losses in Gaza are unparalleled to any armed conflict in urban areas, especially as densely populated as this one.

    • kalithea on July 24, 2014, 12:30 pm

      Don’t worry, the stench of Zionist war crimes is all over Gaza; there’s proof everywhere. You Zionists don’t have a leg left to stand on. Your Zionist comrades don’t even pretend to hide their hatred and racism against Palestinians any more, kill more Palestinian children is being expressed by Zionists all over the social mediaa after the murder of the 4 boys on the beach. You’re not going to get away with your supremacist genocidal massacres after this one. Your jig is up.

  4. ckg on July 24, 2014, 10:09 am

    With Hostage’s unfortunate absence, it’s nice to see the legal perspective here on MW.

  5. HarryLaw on July 24, 2014, 10:13 am

    Al-Haq.. ” the international community must uphold their obligations under international law, including their own obligations under the Geneva Conventions, in order to end Israeli impunity”. Many legal commentators differ on what are the responsibilities on states to “do something”, some say other states have a duty not to assist the breach of International law, others that states are not obliged to actively stop such violations Whatever the case, the primary duty of the Palestinian state is to protect its people, this it is signally failing to do, For instance it has failed to formally join the ICC and indict the individuals responsible for all the well documented war crimes to date, including this latest massacre. President Abbas recently told the New York Times “I don’t like to go to the courts. I don’t like courts. I want to solve my problems directly between the parties”, International law means nothing unless the people on the receiving end of the war crimes are going to actively pursue their claims in the appropriate venues. Abbas is entirely to blame.

  6. seafoid on July 24, 2014, 10:42 am

    Israel’s legal justifications are bullshit. Israel claims it is abiding by international law. This is pathetic.

    Never trust a violence junkie

  7. kalithea on July 24, 2014, 11:42 am

    Here’s how out of touch American politicans are:

    Bill Richardson stated that Egypt is stepping up as a potential peacemaker. Egypt? First of all Hamas trusts Egypt’s present leaders like it trusts Israel’s. Egypt that is helping Israel keep out medical personnel, convoys of medical and humanitarian supplies from reaching Gaza? Egypt’s leaders who are oppressing their own people and imprisoning journalists for no reason at all. Egypt that imprisoned the most recent democratically-elected leader and has thrown scores of people in prison for their political beliefs? That Egypt!

    Need I say more on how ignorant American politicians are.

  8. HarryLaw on July 24, 2014, 11:59 am

    Noam Chomsky’s latest thoughts on the massacre.. “The incursion and bombardment of Gaza is not about destroying Hamas. It is not about stopping rocket fire into Israel, it is not about achieving peace.
    The Israeli decision to rain death and destruction on Gaza, to use lethal weapons of the modern battlefield on a largely defenseless civilian population, is the final phase in a decades-long campaign to ethnically-cleanse Palestinians.
    Israel uses sophisticated attack jets and naval vessels to bomb densely-crowded refugee camps, schools, apartment blocks, mosques, and slums to attack a population that has no air force, no air defense, no navy, no heavy weapons, no artillery units, no mechanized armor, no command in control, no army… and calls it a war. It is not a war, it is murder.
    When Israelis in the occupied territories now claim that they have to defend themselves, they are defending themselves in the sense that any military occupier has to defend itself against the population they are crushing. You can’t defend yourself when you’re militarily occupying someone else’s land. That’s not defense. Call it what you like, it’s not defense.”

    • ckg on July 24, 2014, 2:13 pm

      Chomsky wrote that in 2012. But it’s still valid today.

      • W.Jones on July 24, 2014, 2:54 pm

        Right. Some things stay the same. True then, True now.

  9. James Canning on July 24, 2014, 1:31 pm

    Netanyahu created the disaster in Gaza by openly trying to wreck the Unity deal between Hamas and Fatah.

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