The International Community Must End Israel’s Collective Punishment of the Civilian Population in the Gaza Strip
July 28, 2014
As international and criminal law scholars, human rights defenders, legal experts and individuals who firmly believe in
the rule of law and in the necessity for its respect in times of peace and more so in times of war, we feel the
intellectual and moral duty to denounce the grave violations, mystification and disrespect of the most basic principles
of the laws of armed conflict and of the fundamental human rights of the entire Palestinian population committed during
the ongoing Israeli offensive on the Gaza Strip. We also condemn the launch of rockets from the Gaza Strip, as every
indiscriminate attack against civilians, regardless of the identity of the perpetrators, is not only illegal under
international law but also morally intolerable. However, as also implicitly noted by the UN Human Rights Council in its
Resolution of the 23th July 2014, the two parties to the conflict cannot be considered equal, and their actions – once
again – appear to be of incomparable magnitude.
Once again it is the unarmed civilian population, the ‘protected persons’ under International humanitarian law (IHL),
who is in the eye of the storm. Gaza civilian population has been victimized
in the name of a falsely construed right to self-defence, in the midst of an escalation of violence provoked in the face
of the entire international community. The so-called Operation Protective Edge erupted during an ongoing armed conflict,
in the context of a prolonged belligerent occupation that commenced in 1967. In the course of such ongoing conflict
thousands of Palestinians have been killed and injured in the Gaza Strip during recurrent and ostensible ‘ceasefire’
periods since 2005, after Israel’s unilateral ‘disengagement’ from the Gaza Strip. The deaths caused by Israel’s
provocative actions in the Gaza Strip prior to the latest escalation of hostilities must not be ignored as well.
According to UN sources, over the last two weeks, nearly 800 Palestinians in Gaza have been killed and more than 4,000
injured, of whom the vast majority were civilians. Several independent sources indicate that only 15 per cent of the
casualties were combatants. Entire families have been murdered. Hospitals, clinics, as well as a rehabilitation centre
for disabled persons have been targeted and severely damaged. During one single day, on Sunday 20th July, more than 100
Palestinian civilians were killed in Shuga’iya, a residential neighbourhood of Gaza City. This was one of the bloodiest
and most aggressive operations ever conducted by Israel in the Gaza Strip, a form of urban violence constituting a total
disrespect of civilian innocence. Sadly, this was followed only a couple of days later by an equally destructive attack
on Khuza’a, East of Khan Younis.
Additionally, the offensive has already caused widespread destruction of buildings and infrastructure: according to the
UN Office for the Coordination of Humanitarian Affairs, over 3,300 houses have been targeted resulting in their
destruction or severe damage.
As denounced by the UN Fact-Finding Mission (FFM) on the Gaza conflict in the aftermath of Israel’s ‘Operation Cast
Lead’ in 2008-2009: “While the Israeli Government has sought to portray its operations as essentially a response to
rocket attacks in the exercise of its right to self defence, the Mission considers the plan to have been directed, at
least in part, at a different target: The people of Gaza as a whole” (A/HRC/12/48, par. 1680). The same can be said for
the current Israeli offensive.
The civilian population in the Gaza Strip is under direct attack and many are forced to leave their homes. What was
already a refugee and humanitarian crisis has worsened with a new wave of mass displacement of civilians: the number of
IDPs has reached nearly 150,000, many of whom have obtained shelter in overcrowded UNRWA schools, which unfortunately
are no save areas as demonstrated by the repeated attacks on the UNRWA school in Beit Hanoun. Everyone in Gaza is
traumatized and living in a state of constant terror. This result is intentional, as Israel is again relying on the
‘Dahiya doctrine’, which deliberately has recourse to disproportionate force to inflict suffering on the civilian
population in order to achieve political (to exert pressure on the Hamas Government) rather than military goals.
In so doing, Israel is repeatedly and flagrantly violating the law of armed conflict, which establishes that combatants
and military objectives may be targeted, i.e. ‘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.’ Most of the recent heavy bombings in Gaza lack
an acceptable military justification and, instead, appear to be designed to terrorize the civilian population. As the
ICRC clarifies, deliberately causing terror is unequivocally illegal under customary international law.
In its Advisory Opinion in the Nuclear Weapons case, the ICJ stated that the principle of distinction, which requires
belligerent States to distinguish between civilian and combatants, is one of the “cardinal principles” of international
humanitarian law and one of the “intransgressible principles of international customary law”.
The principle of distinction is codified in Articles 48, 51(2) and 52(2) of the Additional Protocol I of 1977 to the
1949 Geneva Conventions, to which no reservations have been made. According to the Additional Protocol I, “attacks”
refer to “acts of violence against the adversary, whether in offence or in defence” (Article 49). Under both customary
international law and treaty law, the prohibition on directing attacks against the civilian population or civilian
objects is absolute. There is no discretion available to invoke military necessity as a justification.
Contrary to Israel’s claims, mistakes resulting in civilian casualties cannot be justified: in case of doubt as to the
nature of the target, the law clearly establishes that an object which is normally dedicated to civilian purposes (such
as schools, houses, places of worship and medical facilities), are presumed as not being used for military purposes.
During these past weeks, UN officials and representatives have repeatedly called on Israel to strictly abide by the
principle of precaution in carrying out attacks in the Gaza Strip, where risks are greatly aggravated by the very high
population density, and maximum restraint must be exercised to avoid civilian casualties. HRW has noted that these rules
exist to minimize mistakes “when such mistakes are repeated, it raises the concern of whether the rules are being
disregarded.
Moreover, even when targeting clear military objectives, Israel consistently violates the principle of proportionality:
this is particularly evident with regard to the hundreds of civilian houses destroyed by the Israeli army during the
current military operation in Gaza. With the declared intention to target a single member of Hamas, Israeli forces have
bombed and destroyed houses although occupied as residencies by dozens of civilians, including women, children, and
entire families.
It is inherently illegal under customary international law to intentionally target civilian objects, and the violation
of such a fundamental tenet of law can amount to a war crime. Issuing a ‘warning’ – such as Israel’s so-called roof
knocking technique, or sending an SMS five minutes before the attack - does not mitigate this: it remains illegal to
wilfully attack a civilian home without a demonstration of military necessity as it amounts to a violation of the
principle of proportionality. Moreover, not only are these ‘warnings’ generally ineffective, and can even result in
further fatalities, they appear to be a pre-fabricated excuse by Israel to portray people who remain in their homes as
‘human shields’.
The indiscriminate and disproportionate attacks, the targeting of objectives providing no effective military advantage,
and the intentional targeting of civilians and civilian houses have been persistent features of Israel’s long-standing
policy of punishing the entire population of the Gaza Strip, which, for over seven years, has been virtually imprisoned
by Israeli imposed closure. Such a regime amounts to a form of collective punishment, which violates the unconditional
prohibition set forth in Article 33 of the Fourth Geneva Convention and has been internationally condemned for its
illegality. However, far from being effectively opposed international actors, Israel’s illegal policy of absolute
closure imposed on the Gaza Strip has relentlessly continued, under the complicit gaze of the international community of
States.
The fundamental human rights of the entire Palestinian population have been systematically violated and suppressed with
impunity for decades in the context of the prolonged Israeli occupation of Palestine. Far from being punished, and
notwithstanding the broad condemnation of its unlawful and seemingly criminal actions, Israel has not been prevented
from continuously suppressing the fundamental human rights of the entire Palestinian population.
As affirmed in 2009 by the FFM on the Gaza Conflict: “Justice and respect for the rule of law are the indispensable
basis for peace. The prolonged situation has created a justice crisis in the Occupied Palestinian Territory that
warrants action” (A/HRC/12/48, para. 1958) Indeed: “long-standing impunity has been a key factor in the perpetuation of
violence in the region and in the reoccurrence of violations, as well as in the erosion of confidence among Palestinians
and many Israelis concerning prospects for justice and a peaceful solution to the conflict”. (A/HRC/12/48, para. 1964)
Therefore,
•We welcome the Resolution adopted on the July 23th 2014 by the UN Human Rights Council, in which an independent,
international commission of inquiry was established to investigate all violations of international humanitarian law and
international human rights law in the Occupied Palestinian Territory.
•We call upon the United Nations, the Arab League, the European Union, individual States, in particular the United
States of America, and the international community in its entirety and with its collective power to take action in the
spirit of the utmost urgency to put an end to the escalation of violence against the civilian population of the Gaza
Strip, and to activate procedures to hold accountable all those responsible for violations of international law,
including political leaders and military commanders. In particular:
-All regional and international actors should support the immediate conclusion of a durable, comprehensive, and mutually
agreed ceasefire agreement, which must secure the rapid facilitation and access of humanitarian aid and the opening of
borders to and from Gaza;
-All High Contracting Parties to the Geneva Conventions must be urgently and unconditionally called upon to comply with
their fundamental obligations, binding at all times, and to act under common Article 1, to take all measures necessary
for the suppression of grave breaches, as clearly imposed by Article 146 and Article 147 of the Fourth Geneva
Convention;
-Moreover, we denounce the shameful political pressures exerted by several UN Member States and the UN on President
Mahmoud Abbas, to discourage recourse to the International Criminal Court (ICC), and we urge the Governmental leaders of
Palestine to invoke the jurisdiction of the ICC, by ratifying the ICC treaty and in the interim by resubmitting the
declaration under Article 12(3) of the Rome Statute, in order to investigate and prosecute the serious international
crimes committed on the Palestinian territory by all parties to the conflict; and
-The UN Security Council must finally exercise its responsibilities in relation to peace and justice by referring the
situation in Palestine to the Prosecutor of the ICC.
ENDS