The Gaza Strip: Israel, Its Foreign Policy, and the Goldstone Report
Sterio, Milena, Case Western Reserve Journal of International Law
At the end of 2008, Israel launched a three-week military offensive in the Gaza Strip (Operation Cast Lead), during which Israel carried out over 2,360 air strikes and numerous ground assaults over Gaza, causing the death of approximately 1,300 Palestinians, and wounding over 5,000 individuals. The Gaza conflict sparked numerous allegations of war crimes and international humanitarian law violations by both Israel and Hamas. Thus, the Human Rights Council (HRC) appointed a U.N. Fact Finding Mission on the Gaza Conflict (Goldstone Mission) led by prominent international jurist Richard Goldstone. The Goldstone Mission issued the Goldstone Report in September 2009, concluding that both Israel and Hamas committed international law violations by indiscriminately targeting civilians. It is a fair assertion that the Goldstone Report was met by controversy. Israel and its most important allies, such as the United States, have condemned the Report and have questioned its veracity and authenticity. Arab states, as well as other, less Israel-friendly states, have hailed the Goldstone Report as an important international legal document shedding light on international humanitarian law violations committed by Israeli forces and calling into question the Israeli policy over Gaza. This Article will attempt to illuminate the above debate, by examining the history of Israel and its policy vis-a-vis the Gaza Strip, Operation Cast Lead itself and its aftermath, as well as the relevant provisions international humanitarian law as they apply to the Gaza Strip. This Article will conclude that the Goldstone Report, despite all the controversy surrounding it, nonetheless represents an invaluable contribution to international humanitarian law and to international relations in their application to the volatile Middle East region.
I. INTRODUCTION II. ISRAEL AND GAZA: HISTORY, POLICY AND WAR III. OPERATION CAST LEAD IV. INTERNATIONAL HUMANITARIAN LAW AND ITS APPLICABILITY TO GAZA A. Duty of Distinction or Discrimination 1. Israeli failure to distinguish between civilian and non-civilian targets. 2. Liberal rules of engagement 3. Indiscriminate use of weapons B. The Principle of Proportionality 1. Israeli use of illegal and/or indiscriminate weapons 2. Overall death and destruction in Gaza. IV. THE GOLDSTONE REPORT: FACT-FINDING, CONCLUSIONS, RECOMMENDATIONS V. THE IMPORTANCE OF THE GOLDSTONE REPORT IN INTERNATIONAL LAW VI. CONCLUSION
On May 31, 2010, Israeli commandoes stormed an "activist" ship, sailing in a flotilla of ships that were carrying aid and other activists to the Gaza Strip, which had been blockaded by Israel and Egypt since 2007. (1) The activists were attempting to draw international support for Gaza, and to spark further condemnation of the Israeli blockade. (2) In the raid, nine passengers were killed by the Israeli commandoes, dozens of activists were wounded, and several Israeli soldiers were shot. (3) International reaction was swift; most countries condemned Israel, and even the U.S. President, Barack Obama, voiced deep regret over the raid. (4) Accounts of what exactly happened on the morning of May 31 vary. Israel claimed that the activists fired first at Israeli soldiers, causing Israel to fire in self-defense, while activists claimed the Israeli commandoes illegally boarded the activist ship and opened fire. (5) What is undoubted is that Israel was involved in yet another international incident involving Gaza where its soldiers opened fire and killed several individuals. The May 31 incident fits into an existing paradigm of internationally questionable Israeli military policy over Gaza, and portrays Israel once again as the potential aggressor and occupier over the Gaza strip. (6)
In fact, at the end of 2008, Israel launched a three-week military offensive in the Gaza Strip (Operation Cast Lead), during which Israel carried out over 2,360 air strikes and numerous ground assaults over Gaza, causing the death of approximately 1,300 Palestinians, and wounding over 5,000 individuals. (7) The Gaza conflict sparked numerous allegations of war crimes and international humanitarian law violations by both Israel and Hamas. (8) Thus, the Human Rights Council (HRC) appointed a U.N. Fact Finding Mission on the Gaza Conflict (Goldstone Mission) led by prominent international jurist Richard Goldstone. The Goldstone Mission issued the Goldstone Report in September 2009, concluding that both Israel and Hamas committed international law violations by indiscriminately targeting civilians. (9) The Goldstone Report requested that the U.N. Security Council call on both Israel and Hamas to conduct investigations into war crimes allegations over the Gaza conflict and recommended that if such investigations were not undertaken, the Security Council should refer the Gaza situation to the International Criminal Court (ICC) Prosecutor. (10) The HRC accepted the Goldstone Report's recommendations, and called upon all parties to ensure their implementation. (11)
It is a fair assertion that the Goldstone Report was met by controversy. Israel and its most important allies, such as the United States, have condemned the Report and have questioned its veracity and authenticity. (12) Arab states, as well as other, less Israel-friendly states, have hailed the Goldstone Report as an important international legal document shedding light on international humanitarian law violations committed by Israeli forces and calling into question the Israeli policy over Gaza. (13) This Article will attempt to illuminate the above debate, by examining, in Part II, the history of Israel and its policy vis-a-vis the Gaza Strip. In Part III, this Article will briefly describe Operation Cast Lead, the events that preceded it, the actual warfare, and its aftermath. Part IV of this Article will focus on international humanitarian law, and specifically, the violations thereof that have been alleged in Gaza. Part V will describe the Goldstone Report, its main conclusions, and the reasoning behind such conclusions. Ultimately, Part VI will attempt to place the Goldstone Report in the larger context of international law, by analyzing its contributions to international humanitarian law, its reliance on the ICC, and its implications for foreign policy in the Middle East. This Article will conclude that the Goldstone Report, despite all the controversy surrounding it, nonetheless represents an invaluable contribution to the body of international law and to international relations in their application to the volatile Middle East region.
II. ISRAEL AND GAZA: HISTORY, POLICY AND WAR
The Gaza Strip used to be part of the British Mandate for Palestine, and was destined to become part of a larger Palestinian Arab state. (14) However, that plan never materialized, and Gaza fell under Egyptian administration after the first Arab-Israeli war in 1948. (15) In the so-called Six Day War of 1967, Israel seized control of the Gaza Strip, establishing a military government in this region. (16) Israel's claim was that since Israel did not displace a sovereign state when it took control over Gaza, Gaza was not an "occupied" territory within the meaning of international law. (17) Thus, Israel claimed that Gaza was simply "administered" by Israel. (18) This position, however, was rejected by the international community, which came to view Israel as an occupier. (19)
In 2005, Israel dismantled its settlements and withdrew its landbased military forces from Gaza.20 Consequently, Israel reaffirmed its claim that Gaza was not an occupied territory, and that Israel had no specific obligations toward the Gazan population.21 This position is untenable under international law. Article 42 of the 1907 Hague Regulations (Hague Regulations) sets forth the "effective control" test for establishing occupation.= Under this test, "[T]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority is established and can be exercised"23 Under this test, however, the presence of permanent military forces is not required in the occupied territory. The Nuremberg Tribunal, in applying this test, held that occupation continues, even though the occupier has withdrawn its military forces from the occupied territory, if the occupier can reenter the occupied territory and exercise effective control at will.24 Israel certainly retains the ability to re-enter Gaza, and to exercise effective control over this territory at will.25 Israel maintains authority over Gaza pursuant to the Revised Disengagement Plan.26 Moreover, Israel patrols Gaza's airspace, Israeli naval ships patrol Gaza's territorial waters, and Israel regularly conducts military operations within Gaza itself.27 Operation Cast Lead, mentioned above, was yet another example of Israeli military operations in Gaza after the former's "disengagement" from Gaza.28 Finally, Israel is in full control over the movement of people and goods to and from Gaza and is able to shut crossings from Gaza at will.29 Israel controls Gaza's telecommunication networks, electricity, and sewage systems, as well as its population registry.30 The latter allows Israel to determine which individuals will be accorded, and denied, legal residency in Gaza. (31) Thus, the degree of control, which Israel still exercises over Gaza, clearly demonstrates that Israel has not ended its occupation of Gaza.
As an occupier, Israel has specific international legal obligations toward the people of Gaza. These obligations are detailed in several treaties, including the Hague Convention (II) respecting the Laws and Customs of War on Land and the Hague Regulations of 1907, the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949 (Fourth Geneva Convention), as well as in customary norms of international law. (32) "As a general matter, these regulations are designed to reduce the impact of military occupation on civilian life to the maximum extent possible, while preserving the freedom of the occupier to act according to military necessity." (33) Article 43 of the Hague Regulations requires that the occupier "take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." (34) The Fourth Geneva Convention designates civilians who fall under the power and control of the occupier as "protected persons." (35) The occupier, pursuant to this Convention, must ensure their basic welfare, and must treat civilians humanely. (36) For example, occupiers may not willfully kill or otherwise mistreat protected persons, must ensure that protected persons are supplied with food and medical necessities, and must care for the well-being and education of children. (37) More specifically, if food and other necessities in the occupied territory become inadequate, the occupier must permit the entry of humanitarian relief. (38)
Israel, as the occupier of Gaza, is obligated under international law to fulfill the above-described duties. (39) In the case of Gaza, Israel violated its international obligations under the law of occupation, before, during, and after Operation Cast Lead. For example, before and after Operation Cast Lead, Israel maintained a blockade of the Gaza Strip, rejecting humanitarian aid for Gaza and thereby forcing the Gazan population into poverty. (40) Moreover, Israel has treated Operation Cast Lead as an international armed conflict, and has invoked its inherent right of self-defense against Hamas attacks on southern Israel. (41) Yet, because Israel is the occupier of Gaza, and because Gaza is not a sovereign, independent state, any military action in Gaza must be treated as a law enforcement action, and not as an international conflict. (42) In other words, an occupier has specific duties toward the occupied territory and the population therein, which may preclude the occupier from engaging in armed conflict-type military operations in the occupier territory. "While an occupying force has a duty and a right to maintain public order in an occupied territory, its obligation to protect the civilian population implies limits on the amount of force that can be lawfully employed to fulfill that duty." (43) For example, under the law of occupation, the occupier is required "to seek to arrest, rather than kill, members of armed groups suspected of carrying out attacks, and to use the minimum amount of force necessary in countering any security threat." (44) Most Israeli military actions fall outside of the law enforcement model, and Israel itself has consistently denied its occupation of Gaza and has cast its military action within the paradigm of international warfare. (45)
While it is true that all military operations in occupied territories are different, and that Israel, because of its 2005 disengagement from Gaza, is no longer in charge of the daily administration of the Strip, these facts on their own do not call for a complete alteration of the law of occupation, or for the application of the law of armed conflict over the law of occupation. Israel as the occupier would prefer that the law of armed conflict be applied in Gaza, because:
[I]t is by virtue of superior military strength that occupiers become occupiers; it is to be expected, therefore, that they would press for legal standards that permit them to exploit their military advantage. It is, moreover, com paratively easy for any occupying power to manufacture circumstances that could be presented to the outside world to justify the use of military force on a large scale and to be judged according to the "armed conflict" standard. (46)
In fact, it appears unfair to permit Israel to maintain its effective occupation of the Gaza Strip, while allowing it to use massive military force against the Gaza resident, under the standards of law of armed conflicts "It forces the people of Gaza Strip to face one of the most powerful militaries in the world without the benefit either of its own military, or of any realistic means to acquire the means to defend itself." (48)
Whether treated under the law of armed conflict standard, or the law of occupation criteria, Israeli military actions during Operation Cast Lead violated fundamental rules and principles of international humanitarian law.
III. OPERATION CAST LEAD
The war in Gaza at the end of 2008 was not a true war; rather, it was a culmination of conflicts and skirmishes that had been simmering for a long time. As mentioned above, Israel withdrew its military forces and settlers from Gaza in 2005, claiming that it was ending its four-decade long occupation of Gaza. (49) The daily administration of this region was thus left to the Palestinian Authority, and in January 2006, a Hamas-affiliated party, "Change and Reform," won the majority of legislative seats in the Palestinian Legislative Council, earning the right to form the next cabinet. (50) Despite Israeli and American-led sanctions and protests, Prime Minister Mahmoud Abbas of Fatah joined Hamas officials in creating a unity government in early 2007. (51) As a response to the Hamas ascension to power, Israel imposed a blockade on the Gaza Strip, which resulted in abject poverty for the population of Gaza. (52) A human rights group described the humanitarian crisis in Gaza as follows:
As a result of the [blockade], the stocks of imported food products in Gaza are dwindling, driving their prices sky-high, while fruit and vegetables that were intended for export are being sold in Gazan markets at a loss. Many families cannot afford to buy them, however, due to the high poverty rate in Gaza. 80 percent of Gazan households now live below the poverty line ... 80 percent of all Gazan families would literally starve without food aid from international agencies. (53)
A blockade can be described as an act of war under international customary law. (54) The legality of any blockade under international customary law depends on whether the occupier is allowing the free passage of aid for the civilian population. (55) Israel has claimed that its blockade of Gaza was necessary in order to pressure Hamas to cease the firing of rockets into southern Israel. (56) However, there is no reasonable relationship between the blockade, depriving Gazan civilians of food and basic medical necessities, and the ceasing of Hamas' bombings of Israeli territories. In fact, as occupier, Israel is obligated under Article 55 of the Fourth Geneva Convention to allow the passage of humanitarian aid toward the Gazan population. (57) The blockade clearly violated the Fourth Geneva Convention, and has, moreover, raised concerns that it was a form of collective punishment against the Gazan population, which is prohibited under Article 33 of the Fourth Gene va Convention. (58) It appears therefore that Israel instituted a blockade of the Gaza Strip in response to Hamas' rise to power in this region; as such, Israel engaged in an act of war against its occupied territory, before Operation Cast Lead commenced. (59)
Hamas and Israel reached an official ceasefire agreement on June 19, 2008. (60) This agreement required both sides to cease their military operations and attacks, and Israel to ease its blockade of Gaza. (61) Israel did not abide by the latter obligation, and maintained tight control over Gazan borders, a fact which was deplored by major human rights groups. (62) On November 4, 2008, Israeli troops killed six Palestinians in Gaza. (63) Before this event, rocket attacks from Gaza on southern Israel had stopped almost completely. (64) Many had noted that the ceasefire agreement had been extremely effective, and that Hamas had truly abided by the terms of the agreement. (65) However, after Israeli military operations on November 4, Hamas rocket attacks picked up again, prompting Israel to engage in Operation Cast Lead. (66)
As mentioned above, Israel characterized Operation Cast Lead as self-defense. (67) Israel accused Hamas of breaking the ceasefire agreement, and then invoked its right, as a state, to self-defend. (68) This argument, however, fails under international law for several reasons.
First, as described above, it is doubtful that Hamas broke the ceasefire agreement. It is much more likely that it was Israel that actually disrespected the terms of the agreement by refusing to ease up the blockade and by engaging in the November 4, 2008, attacks in Gaza. (69) Hamas rocket launches after November 4, 2008, can be viewed as responses to Israel's decision to break the peace agreement. Under these conditions, Israel may not claim self-defense. (70)
Second, because Israel is the occupier of Gaza, it is doubtful that it can invoke the self-defense argument, which exists within the paradigm of the law of armed conflict and thus applies to wars fought between sovereign states. (71) An occupier, if facing violence by inhabitants of the occupied territory, can certainly engage in military efforts to quell the violence; however, the occupier cannot claim self-defense and must limit its military response to law enforcement operations. (72)
Third, in order for Israel to claim the right of self-defense, it must have, under the rules of international law, suffered an armed attack. (73) Israel itself attacked Gaza on November 4, 2008, provoked Hamas, and drove the Gazan population into poverty. (74) Thus, it was not a victim of armed attack and could not claim the right of self-defense.
Fourth, the Israeli military response in Gaza, even if it had constituted a legitimate exercise of self-defense, was neither necessary nor proportional. Operation Cast Lead was not necessary, as Israel could have at least attempted to renegotiate the peace agreement, and should have in good faith abided by the terms of the agreement. (75) In fact, Hamas leaders had offered to consider renewing the truce if Israel lifted the blockade of the Gaza Strip. (76) Israeli Foreign Minister Livni publicly stated that Israel was not interested in prolonging the truce with Hamas, because the truce "harms the Israeli strategic goal, empowers Hamas, and gives the impression that Israel recognizes the movement." (77) Israel thus chose to use military force, because continuing on the peaceful path would have implied that Israel recognized Hamas as a legitimate government of Gaza. Moreover, Operation Cast Lead was not proportional to the harm that it sought to redress. Even if it were true that Israel had suffered an armed attack, its response had to be limited to targets necessary to stop rocket launching from Gaza. (78) However, "Operation Cast Lead seemed calculated to achieve objectives considerably beyond stopping rocket fire from Gaza--a fact reflected both in statements by Israeli officials, and in Israel's choice of targets during the fighting." (79) Thus, even if Israel did have a right of self-defense, its military operations in Gaza exceeded the valid scope of this right and thereby violated international law. (80)
Operation Cast Lead formally began on December 27, 2008, when Israel began aerial bombardment of the Gaza Strip. (81) A ground invasion followed, beginning on January 3, 2009. (82) Palestinian casualties mounted rapidly, as did allegations of violations of international humanitarian law rules by Israeli soldiers, who, allegedly, used disproportionate force, failed to distinguish between military and civilian targets, and used white phosphorous shells. (83) On January 8, 2009, the U.N. Security Council passed a resolution, calling for an immediate cessation of hostilities by both Israel and Hamas. (84) The war continued until January 18, 2009, when both parties instituted unilateral ceasefires, ultimately ending ongoing hostilities. (85) The destruction and death toll caused by Operation Cast Lead were enormous, calling into question Israel's respect of international humanitarian law rules. (86) The section below examines such rules as they apply to the conflict in Gaza.
IV. INTERNATIONAL HUMANITARIAN LAW AND ITS APPLICABILITY TO GAZA
During Operation Cast Lead, Israel violated several international humanitarian law rules. The sections below will detail Israeli violations of some of the most fundamental rules of international humanitarian law, which include the duty of distinction or discrimination, the principle of proportionality, and illegal uses of weapons. This section will conclude that because of an overall death toll and destruction caused in Gaza by Operation Cast Lead, this military campaign appears to have been led without regard for the most fundamental rules and principles of the laws of war.
A. Duty of Distinction or Discrimination
First, Israel violated its duty to discriminate between civilian and non-civilian targets. (87) In fact, the Israeli commanders designated all institutions and individuals associated with Hamas as legitimate military targets, a designation which, on its own, violates international law. (88) Second, Israeli commanders ordered their troops to employ extremely liberal rules of engagement. Third, Israeli troops used indiscriminate weapons, which caused excessive suffering to the Gazan population. (89)
1. Israeli failure to distinguish between civilian and non-civilian targets
The duty of distinction or discrimination states as follows: "IT]he parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed at civilians." (90) This fundamental rule of international humanitarian law is codified in the 1863 Lieber Code, in the 1907 Hague Convention, the Fourth Geneva Convention, and the 1977 Additional Protocols to the Geneva Convention, inter alia. (91) The U.N. General Assembly confirmed this duty, stating that parties in a conflict must not "launch attacks against the civilian populations as such," and must not adopt "means of injuring the enemy" which are "unlimited." (92) Israel's own Law of War booklet confirms this principle, stating that "the IDF accepts and applies the principle of distinction."93 In order to apply the rule of discrimination, a military commander must thus distinguish between armed forces and civilians. The former are defined under international law as "all organized armed forces, groups, and units, which are under a command responsible to that party for the conduct of its subordinates." (94) Consequently, "persons who do not take a direct part in the hostilities of a non-international armed conflict enjoy protection against attack while persons who take a direct part in hostilities are liable to lawful attack." (95) If a military commander refuses to obey the rule of discrimination, he or she may face individual criminal liability. (96) Violations of the rule of discrimination may include maneuvers such as the intentional targeting of civilians as such, attacks that are indiscriminate in nature, as well as indiscriminate attacks in which the military commander knows of the danger posed to civilians in the targeted area. (97) The 1949 Geneva Convention specifies as a "grave breach" the acts of "willful killing, torture or inhumane treatment ... willfully causing great suffering or serious injury to body or health ... not justified by military necessity and carried out unlawfully and wantonly." (98)
During the three-week long attack on Gaza, Israeli forces targeted numerous civilian objectives, such as schools, U.N. headquarters, religious institutions, courts, prisons, police stations, fire houses, and infrastructure points, such as roads, bridges, harbors, etc. (99) Cultural sites were also targeted, as well as the Gaza zoo, where many animals were fatally shot. (100) Israeli forces strongly attacked the Gaza industry and private sector, targeting farms and factories and literally destroying the Gazan population's economic viability. (101) For most of these targets, Israel alleged some link to Hamas. For example, the office of the Hamas Prime Minister Ismail Haniyeh was designated as a 'terror target," because it "served as a planning, support, and finance center for terrorist activity." (102) Similarly, the Islamic University of Gaza was targeted in six separate air strikes, because Israeli officials claimed that the University housed a weapons research center. (103) When this claim was refuted, Israel alternatively claimed that this University was a cultural icon for Hamas students and militants. (104)
However, a civilian object is not transformed into a legitimate military target simply because it supports political opinions that the attacker finds dangerous. (105) Moreover, even if a facility is a so-called dual use building, thus combining features of a civilian and military target, it may only be targeted if it serves a fundamental military function. (106) Finally, if in doubt, the attacker must assume that a target is a non-military objective, and must abstain from attacking it. (107) The Israeli position during Operation Cast Lead--that Hamas is a terrorist organization and that anything or anyone associated with Hamas is a legitimate target--is unsupported in international law. (108) The terrorist designation of Hamas has no bearing on Israel's obligations and duties under international humanitarian law, and Israel was still under the duty to discriminate between civilian and military targets. (109) The Israeli targeting practice clearly violated all of the above rules, and even if Israel had serious doubts about the role and use of some of the buildings that it targeted, it had a duty under international humanitarian law to first investigate to substantiate its claim before striking in a military fashion.
2. Liberal rules of engagement
News media covering the conflict in Gaza reported numerous attacks on civilians. At the least, these attacks suggest that civilians were deliberately targeted, and this supports the conclusion that Israeli troops abided by liberal rules of engagement. (110) In fact, Israeli soldiers themselves confirmed that they were ordered to "[f]ire on anything that moves," and "to shoot first and ask questions later." (111) For example, in one of the deadliest attacks during Operation Cast Lead, occurring in the al-Zeitouna district of Gaza City in the beginning of January 2009, Israeli forces "reduced the eastern Gaza City suburb to little more than ruble in a matter of days." (112) Moreover, some families were particularly targeted, with almost seventy members of the same clan killed. (113) in another deadly attack on a town in southern Gaza, the village of Khuza was attacked over several hours, and several women, children, and elderly people were killed. (114) Reports indicate that during this attack, civilians were shot at indiscriminately, homes were being destroyed with residents still inside, and some civilians were targeted by snipers and killed. (115)
It is true that Israel used a variety of warning methods to alert residents of the Gaza Strip about the upcoming attacks, such as dropping leaflets and cell phone messaging. (116) Israeli troops would also "knock on the roof," by directing artillery fire at corners of buildings, as a warning to individuals inside that a more powerful attack was forthcoming. (117) Israel asserted that Palestinian civilians who did not abide by these warnings were acting as "voluntary human shields," and were thus taking part in hostilities and could be targeted as combatants. (118) While these warning indicate that Israel did attempt to respect the duty of discrimination, their application in the case of Gaza is problematic. In fact, Israel blockaded and fenced the entire region of Gaza, and closed all exit points from the Strip during Operation Cast Lead. (119) Thus, those Palestinian civilians who wished to abide by the warnings simply had nowhere to go. Finally, the claim that a civilian automatically becomes a combatant if he or she does not leave a structure despite a warning the structure would be attacked is unsupported in international law.
3. Indiscriminate use of weapons
Israeli forces chose less precise weapons in their strikes on the Gaza Strips, thereby causing the death and suffering of more civilians than if more precise weapons had been used. Reports indicate that Israeli troops fired so-called 155-millimeter howitzers into densely populated areas; such shells have a margin of error of thirty meters and a blast radius of 300 meters. (120) Thus, such shells cause indiscriminate killings and suffering of civilians in heavily populated areas. Because Israel allegedly had alternatives-shells that are GPS-guided and very accurate--its choice of less precise weapons in civilian areas indicates a violation of the duty to discriminate between civilian and military targets. (121)
B. The Principle of Proportionality
The proportionality principle recognizes that the attacker may at times legitimately use force in civilian areas, so long as the military advantage gained from such an attack is greater than the harm caused to civilians. (122) In other words, "the costs of war must not outweigh the benefits." (123) The proportionality principle is enshrined in both treaty law, such as the Additional Protocol I to the Geneva Conventions (Additional Protocol 1) as well as customary international law. (124) This principle applies both to rules about the initiation of war and the use of justified force (jus ad bellum), as well as to the way a war is conducted, once initiated (jus in bello). (125) The proportionality principle obliges military commanders to perform the proportionality calculus before launching a military operation; if the proportionality calculus isn't satisfied, the military commander should abandon the proposed military operation. "Launching 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, is prohibited." (126) The violation of this principle exposes military commanders to individual criminal liability. (127)
The difficulty in relation to the principle of proportionality lies with its application. An analysis of proportionality tends to focus on what legitimate military objectives are, what military advantage means, and how to balance this advantage against incidental harm to civilians. (128) A military target is such that "by [its] nature, location, purpose or use [it] make[s] an effective contribution to military action[s]," and that the "total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage." (129) For example, combatants are legitimate military objectives, as well as civilians taking direct participation in hostilities. (130) With relation to buildings, Additional Protocol I specifically states that "[I]n case of doubt whether an object which is normally dedicated to civilian purposes.., is being used to make an effective contribution to military action, it shall be presumed not to be so used." (131) In addition, Additional Protocol I requires that the military advantage sought in the attack be "concrete and direct." (132) The travaux preparatoires to Additional Protocol I indicate that "concrete and direct" advantage means "substantial and relatively close," and that long-term military advantages which are "hardly perceptible" should not be pursued by military commanders. (133) Finally, with regard to incidental harm caused to civilians by the military attack, attack planners should consider the long-term effects on the civilian population, in addition to just a short-term, immediate effect analysis. (134)
During Operation Cast Lead, evidence shows that Israeli military commanders purposely used a disproportionate amount of force. (135) In fact, Israeli forces adopted the so-called Dahiya doctrine, referring to the Beirut suburb razed during Israel's military offenses in Lebanon in 2006. (136) Israeli military commanders explicitly stated that this doctrine would apply to Gaza. (137) Thus, an Israeli army colonel stated that Israeli forces would adopt "the principle of a disproportionate strike against the enemy's weak points as a primary war effort," and that Israeli forces would "need to act immediately, decisively, and with force that is disproportionate to the enemy's actions and the threat it poses." (138) Similarly, Israeli Army commander, Gadi Eisenkot, stated that "[W]e will apply disproportionate force on it and cause great damage and destruction there." (139) Israeli Prime Minister Olmert asserted in January 2009 that there "will be a disproportionate Israeli response to the fire on the citizens of Israel and its security forces." (140) Finally, Israeli Foreign Affairs Minister, Tzipi Livni, stated that Israel, if fired upon, would respond by "going wild" and that this was a "good thing." (141)
It is possible and probable that Israel gained some military advantage from some of the attacks on Gaza. However, there is serious doubt whether Operation Cast Lead truly diminished Hamas' military capacity. (142) Moreover, "whatever discrete military advantage was gained by these large-scale attacks was dwarfed by the chaos and bloodshed that it meant for the civilian population." (143) It is true that military forces are not obligated under international humanitarian law to expose themselves to unnecessary risk of death of injury. However, compliance with the principle of proportionality does entail a willingness to accept some casualties in order to limit civilian suffering. (144) Unfortunately, Israeli actions in Gaza indicate that Israel did not accept casualties on its own side, and, as a result, countless civilians died. Consequently, Israel did not respect the principle of proportionality. Israel's goal in Operation Cast Lead was to restore its "deterrent capacity" in the Gaza Strip. (145) This goal appears both legally and morally problematic, and does not meet the definition of a direct military advantage. (146)
Though there is no requirement under the proportionality rule that damage to both sides be equivalent, the catastrophic losses suffered by Palestinian civilians, compared to dubiously classified military objectives and questionable military advantage Israel received from these attacks, it is fair to conclude that disproportionate force was clearly used in this conflict. (147)
1. Israeli use of illegal and/or indiscriminate weapons
Under international humanitarian law, certain weapons are prohibited because they cause excessive injuries and/or unnecessary suffering. (148) Moreover, some weapons, because they are indiscriminate in nature, may only be used if there is no other military alternative and when extraordinary care is undertaken to prevent harm to civilians. (149) Eyewitness reports from the Gaza Strip suggest that Israel used illegal weapons during Operation Cast Lead in densely populated civilian areas. (150)
Article 32(1) of Additional Protocol I prohibits "weapons, projectiles, and materials and methods of warfare of a nature to cause superfluous injury or unnecessary suffering." (151) A more specific convention, the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, consisting of an umbrella treaty and five protocols also bans weapons that are indiscriminate or that cause unnecessary suffering. (152) Israel is a party to this treaty. (153)
The Israeli government admitted that its forces may have used white phosphorous shells in their attacks in Gaza. (154) White phosphorous shells may not be used in densely populated areas, because their explosion results in an indiscriminate scattering of fragments, causing severe bums to human tissue and thus superfluous injury and suffering to civilians. (155) However, eyewitness accounts confirm that white phosphorous shells were fired upon heavily populated civilian areas in Gaza: (156) "The allegations of [white phosphorous] shells being fired at civilian targets indicate that there may have been serious breaches of international law by Israeli forces in the Gaza Strip." (157)
Israeli forces may have illegally used two other kinds of weapons in Gaza during Operation Cast Lead: flechettes and Dense Inert Metal Explosive (DIME). Flechettes are metal darts, pointed at the front with four fins at the rear. (158) Several thousand flechettes are packed into a shell, which is generally fired out of a tank, scattering over a large area. (159) While flechettes are not a prohibited weapon per se in international law, they are indiscriminate in nature and many agree that their use should be prohibited in densely populated civilian areas. (160) There is strong evidence suggesting that Israel did use flechettes in civilian areas in Gaza, in an indiscriminate manner, which would be a breach of international law. (161)
DIMEs are dispersed through shells that expel "a blade of charged tungsten dust that bums and destroys everything within a four-metre radius.'' (162) DIMEs are extremely lethal, but very precise and thus designed for use in populated urban areas. (163) DIMEs also contain radioactive materials, which can cause long-term effects on victims, such as cancer. (164) Because DIMEs are still an experimental weapon, their use is not prohibited by international law. (165) However, their use is subject to all the rules of international humanitarian law; for example, they are not to be used against civilians, who are never legitimate targets. (166) Reports from the Gaza Strip suggest that Israeli forces may have used DIMEs against civilians, which would be a violation of international law.
Details in the reports thus far indicate that Israel may have violated multiple provisions of international law by using these weapons, including the targeting of civilians and civilian objects, using weapons that cause superfluous harm or unnecessary suffering, using weapons that are indiscriminate in nature, and failing to allow for the medical attention to the wounded required by their condition. (167)
2. Overall death and destruction in Gaza
The number of Gazan victims caused by Operation Cast Lead, as well as the extensive infrastructure damage, suggest that Israel's attack on Gaza was indiscriminate, and that the amount of force used by Israel was disproportional. U.N. Secretary-General, Ban-ki Moon, described the scene in Gaza after Operation Cast Lead as "shocking and alarming.'' (168) A U.N. Emergency Relief Coordinator stated that "it is shocking that civilians suffered so disproportionately in this military operation.'' (169) More than 1,400 Gazans died during Operation Cast Lead and more than 5,000 were injured; a number of people may have died in the aftermath of the military operation itself, or may be simply unaccounted for. (170) The health situation in Gaza is precarious, as many Gazan hospitals suffered damage in this war. (171) The Israeli army destroyed many private homes and residences, and most Gazans have had to live in shelters and other kinds of temporary housing. (172) Schools were destroyed and, in general, Gaza's infrastructure and its industrial sector have been obliterated. (173) Rebuilding Gaza will require billions of dollars in foreign aid. (174) In sum, Operation Cast Lead, through its excessive nature, caused unnecessary civilian suffering and damage. Israel thus violated international humanitarian law and should seriously consider providing some form of accountability for its actions.
IV. THE GOLDSTONE REPORT: FACT-FINDING, CONCLUSIONS, RECOMMENDATIONS
In the aftermath of Operation Cast Lead, the HRC formally charged Justice Richard Goldstone, one of the most prominent international jurists of our time, with a mandate "to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.'' (175) On September 15, 2009, the Goldstone Report was released. (176) It is a comprehensive document of nearly 600 pages, divided into twenty-one chapters. (177) Sixteen chapters deal with Israeli abuses of international law, while five deal with abuses committed by "armed groups in Gaza" and the Palestinian Authority. (178) Justice Goldstone himself explained this disparity by indicating that Hamas' attacks on southern Israel were virtually undisputed, whereas Israeli attacks on Gaza were heavily disputed. (179) Thus, the Goldstone Report chose to focus on the latter. In order to investigate violations of international law in Gaza, Justice Goldstone requested cooperation from both parties; only Hamas accepted, while Israel consistently refuses to cooperate. (180)
The Goldstone Mission, in order to address possible violations, chose to investigate several "illustrative" incidents, which were exemplary of what had taken place in Gaza. (181) The Goldstone Report ultimately concludes that both sides violated international humanitarian law. (182) With respect to Hamas and other armed groups in Gaza, the Goldstone Report alleges their responsibility with respect to the targeting of civilians and their failure to adequately take precautions to protect civilians. (183) The Goldstone Report recommends that Hamas and other groups attempt to respect international humanitarian law in the future. (184) With respect to Israel, the Goldstone Report is critical of a number of acts, ranging from abusive detentions, to repression of dissent. (185) Moreover, the Goldstone Report describes thirty-six different incidents, which all include some form of illegal attacks on civilians by the Israeli forces, either in the form of indiscriminate or disproportionate use of force, or deliberate attacks on civilian objectives. (186) The Goldstone Report also alleges the use of Palestinian civilians as "human shields" during Operation Cast Lead. (187) The Report ultimately finds many different violations of international humanitarian law, as well as possible elements of war crimes. (188) Most importantly, the Goldstone Report concludes that Operation Cast Lead was directed against the people of Gaza on the whole, as part of "an overall policy aimed at punishing the Gaza population for its resilience and for its apparent support for Hamas.'' (189) Thus, according to the Goldstone Report, Operation Cast Lead was the result of an Israeli policy of "massive and deliberate destruction.'' (190)
The Goldstone Report called for accountability on behalf of all the parties involved. It specifically rejected the Israeli claim that it would investigate violations of international humanitarian law independently, and suggested alternatives to domestic justice. (191) These alternatives include Security Council monitoring, an ICC investigation, and the exercise of universal jurisdiction by other states interested in prosecuting Israeli officials. (192)
V. THE IMPORTANCE OF THE GOLDSTONE REPORT IN INTERNATIONAL LAW
The Goldstone Report may have limited influence in Israel and may not provoke much change in the Israeli military and foreign policy. However, the