UNDERSTANDING
THE GOLDSTONE REPORT

UNITED NATIONS FACT FINDING MISSION ON THE GAZA CONFLICT

The Submission below is a copy of class notes which I prepared for a lecture which I recently delivered on behalf of the Australian Institute of International Affairs. I hope that the short legal outline will be of assistance.

Ian Lacey. BA, LLB

Editor of the booklet International Law and the Arab-Israel Conflict

NOTES ON THE CONFLICT IN GAZA

The UN Charter

Article 2 prohibits aggression by one state against another. Article 51 permits self-defence. However in the Advisory Opinion on the Fence the International Court pronounced that self-defence against a non-state entity is not covered by Article 51.

In a communication to the UN in 2002 concerning the ongoing conflict in the Territories at that time, Israel characterized the situation as an “armed conflict,” and described it as follows:

Israel is engaged in an armed conflict short of war. This is not a civilian disturbance or a peaceful demonstration or a riot. It is characterized by live-fire attacks on a significant scale, both quantitatively and geographically - around 3,000 such attacks over the entire area of the West Bank and the Gaza Strip. The attacks are carried out by a well-armed and organized militia, under the command of the Palestinian political establishment, operating from areas outside Israeli control.

The Laws of War

The 1949 Geneva Conventions apparently do not apply, as there was no conflict between “High Contracting Parties”, and Israel has not signed Protocol 1. However Israel has declared that it will honour the humanitarian provisions, and the Israel High Court applies the humanitarian provisions as customary law.

The relevant provisions of Protocol 1 are:

Article 44 (Identifying combatants)

Article 51(7) (Human Shields)

Article 57(2) (Protection of Civilians).

Hamas ignores these provisions. Indeed the conflict resulted from the intentional targeting of civilians in breach of Article 57. Similarly the conduct of hostilities by Hamas involved breaches of Article 51(7).

Whether Israel was in breach of Article 57(2) is a question of highly disputed fact. Notably allegations of the illegal use of white phosphorus were withdrawn by the Red Cross, and the allegation of shelling an UNRWA school was withdrawn by UNRWA.

The Issue of “Proportionality”

It is alleged that Israel’s actions were “disproportionate” because of the disparity in the extent of force and the resulting casualties.

There is of course no rule in international law that overwhelming force may never be used in self-defence. However there are concepts of proportionality in the laws of war which apply in two senses:

1. The ius ad bellum, the right to take military action for the purposes of reasonable and necessary self-defence.

2. The ius in bello, the obligation under Article 57(2) not to cause civilian injury “which would be excessive in relation to…military advantage.”

The Gaza conflict was a continuing “armed conflict short of war” involving rocket attacks across the border and armed incursions in response, which was interrupted by a six-month truce ending in December 2008. Hamas did not renew the truce and intensified rocket attacks.

Accordingly the question of a ius ad bellum did not arise. The existing armed conflict continued, and the decision was taken to end it with overwhelming force. In addition there was a war aim of preventing the future importation of accurate long-range missiles.

The ius in bello, the question of “proportionality” in Palestinian casualties raises hotly disputed questions of fact. Palestinian claims of the targeting of civilians and children are contradicted by Israeli claims that the greater proportion of the casualties were Hamas operatives, and by allegations of widespread “human shield” tactics.

The International Criminal Court has declined to investigate allegations of “war crimes”, since no participant in the conflict is a party to the Rome Statute.

The US-Israel Memorandum of Understanding

Israel agreed to a unilateral cease fire on the basis of American undertakings to co-ordinate international action to prevent the importation of missiles into Gaza:

“The Parties will work cooperatively with neighbours and in parallel with others in the international community to prevent the supply of arms and related materiel to terrorist organizations that threaten either party, with a particular focus on the supply of arms, related materiel and explosives into Gaza to Hamas and other terrorist organizations.”