Israel's Invasion of Gaza in International Law

By Bisharat, George E.; Crawley, Timothy et al. | Denver Journal of International Law and Policy, Winter 2009 | Go to article overview

Israel's Invasion of Gaza in International Law


Bisharat, George E., Crawley, Timothy, Elturk, Sara, James, Carey, Mishaan, Rose, Radhakrishnan, Akila, Sanders, Anna, Denver Journal of International Law and Policy


I. INTRODUCTION

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

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

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

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

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

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

We further maintain that Hamas forces also likely committed war crimes during the fighting, particularly by undertaking indiscriminate attacks against Israeli civilians. …

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