Untitled

Operation 'Protective Edge': An analysis of alleged breaches of
international law
Christopher Patrick Fitzsimons BA(Hons) PGCert MA GDL
This dissertation is submitted in partial fulfilment of the degree

of LL.M. in International Law
Faculty of Laws, University of Malta
Submitted July 2015
Abstract
This dissertation assesses and examines breaches of international humanitarian, human rights
and criminal law allegedly committed during the 2014 Gaza war, referred to by the Israeli
authorities as Operation Protective Edge. A range of procedural concerns are addressed and
substantive violations of numerous international conventions and statutes are examined. This
dissertation concludes that there is evidence to support the claim that a range of violations of
the Geneva Conventions, several human rights treaties and the Rome Statute of the
International Court are likely to have been committed during the hostilities by both the Israel
Defense Forces and Hamas. Judicial remedies available to the parties, such as recourse to the
International Court of Justice and the International Criminal Court, are presented.
Operation 'Protective Edge': An analysis of alleged breaches of

international law
1. Introduction ............................................................................................................... 8
2. Research methodology and research objective ...................................................... 11
3. Context: background, procedural concerns and potential impediments to the rule
of law .............................................................................................................................. 12
a) Political, legal and historical background to Operation Protective Edge .......... 12
b) Palestinian statehood and the accountability of Hamas .................................... 17
c) The International Court of Justice Advisory Opinion of 2004 (Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory)
21
d) Responsibility for breaches of international law ................................................ 23
e) The International Criminal Court- background in the Arab-Israeli conflict......... 26
f) Article 12(3) Declaration of the Palestinian Authority and subsequent accession
to the Rome Statute- basic procedural issues ......................................................... 28
g) Bias, political pressure and censorship as impediments to the rule of law ........ 31
4. International Humanitarian Law.............................................................................. 39
a) An objective assessment of breaches of international humanitarian law under
the 1949 Geneva Conventions and Additional Protocols, and their Commentaries
41
b) Breaches by Hamas ............................................................................................. 41
c) Breaches by the IDF ............................................................................................. 55
5. International Human Rights Law ............................................................................. 70
a) An objective assessment of breaches of international human rights law under
the International Bill of Human Rights .................................................................... 70
b) Breaches of the International Bill of Human Rights by Hamas ........................... 73
c) Breaches of the International Bill of Human Rights by the IDF ........................... 76
d) An objective assessment of breaches of international human rights law under
the Convention on the Prevention and Punishment of the Crime of Genocide ..... 79
e) Breaches of the Convention on the Prevention and Punishment of the Crime of
Genocide by Hamas ................................................................................................. 79
f) Breaches of the Convention on the Prevention and Punishment of the Crime of
Genocide by the IDF ................................................................................................ 84
g) An objective assessment of breaches of international human rights law under
the Convention on the Rights of the Child .............................................................. 84
h) Breaches of the Convention on the Rights of the Child by Hamas ..................... 86
i) Breaches of the Convention on the Rights of the Child by the IDF ...................... 89
6. International Criminal Law ...................................................................................... 91
a) An objective assessment of breaches of international criminal law under the
Rome Statute of the International Criminal Court .................................................. 91
b) Procedural issues relating to the preliminary examination; jurisdiction and
admissibility ............................................................................................................. 92
c) Breaches by Hamas ........................................................................................... 102
d) Breaches by the IDF ........................................................................................... 106
7. The Goldstone Report and the United Nations Independent Commission of Inquiry
on the 2014 Gaza Conflict ............................................................................................ 108
a) Conclusions of the Goldstone Report and implications of the subsequent
retraction of key findings by Justice Goldstone- relevancy to Operation Protective
Edge ...................................................................................................................... 108
b) An assessment of the United Nations Independent Commission of Inquiry on the
2014 Gaza Conflict ................................................................................................. 109
8. Summary of breaches of international law identified ........................................... 114
a) Violations of international law by Hamas: ........................................................ 114
b) Violations of international law by IDF: .............................................................. 115
9. Conclusions- predictions and suggestions ............................................................. 117
10. Concluding recommendations............................................................................... 124
11. Annex I: a chronological timeline of relevant events before, during and after
Operation Protective Edge ......................................................................................... 126
12. Annex II: alleged breaches to be assessed ............................................................ 128
a) Alleged breaches by Hamas: ............................................................................. 128
Firing rockets and mortars at Israeli civilians and civilian targets: ........................ 128
Incidents involving children: .................................................................................. 129
b) Alleged breaches by Israel/IDF: ......................................................................... 129
Incidents involving civilians and civilian infrastructure: ........................................ 129
13. Annex III: Acronyms used ...................................................................................... 131
14. Annex IV: Citations of legislation ........................................................................... 132
15. Bibliography ........................................................................................................... 133
Books ..................................................................................................................... 133
Legislation .............................................................................................................. 134
Cases ...................................................................................................................... 134
United Nations documents .................................................................................... 136
Journal articles ....................................................................................................... 138
5
Online publications ................................................................................................ 139

Other publications ................................................................................................. 155
International humanitarian law imposes obligations on all parties to an armed conflict. Failure
to uphold obligations by one party cannot justify violations by their opponents. Thus, the
violations by Palestinian armed groups which are documented and analysed in this report,
some of which are war crimes, do not in any way justify violations by Israeli forces during the
fighting, nor do Israeli violations justify those of Palestinian armed groups.1
Amnesty International, March 2015
I had hoped that our inquiry [the 2009 United Nations Fact-Finding Mission on the Gaza
Conflict] into all aspects of the Gaza conflict would begin a new era of evenhandedness at the
U.N. Human Rights Council, whose history of bias against Israel cannot be doubted... That
comparatively few Israelis have been killed by the unlawful rocket and mortar attacks from
Gaza in no way minimizes the criminality.2
Justice Richard Goldstone, April 2011
Palestinian armed groups flagrant disregard for international humanitarian law during the
July/August 2014 conflict is evident from their routine firing of inherently indiscriminate rockets
towards Israeli towns and cities, as well as the numerous statements indicating that specific
attacks, including the mortar attack that killed four-year-old Daniel Tregerman, were direct
attacks on civilians.3
Amnesty International, March 2015
Israel had legitimate security concerns, he said, condemning the indiscriminate rockets fired
from Gaza, numbering more than 2,000 since 8 July, with more than half striking Israel. At the
same time, he was shocked at Israels response, which had claimed the lives of hundreds of
Palestinian civilians, including four children on a beach in Gaza City and three more children
yesterday.4
Jeffrey Feltman, United Nations Under-Secretary-General for Political Affairs
Amnesty International, Unlawful and deadly: Rocket and mortar attacks by Palestinian armed groups
during the 2014 Gaza/Israel conflict, 26 March 2015, p.3, available online at:
https://www.amnesty.org/press-releases/2015/03/palestinian-armed-groups-killed-civilians-on-bothsides-in-attacks-amounting-to-war-crimes-during-2014-gaza-conflict/
2
Richard Goldstone, Washington Post, Reconsidering the Goldstone Report on Israel and war crimes, 1
April 2011, available online at: http://www.washingtonpost.com/opinions/reconsidering-the-goldstonereport-on-israel-and-war-crimes/2011/04/01/AFg111JC_story.html
3
Amnesty International, (n 1), p. 60
4
Jeffrey Feltman, Under-Secretary-General for Political Affairs, Security Council, Meetings Coverage,
Gaza Crisis Resulted from Collective Failure to Achieve Political Solution to Israeli-Palestinian Conflict,
Security Council Told, 18 July 2014, available online at: www.un.org/press/en/2014/sc11482.doc.htm
1. Introduction
Operation Protective Edge was a military offensive carried out by the Israel Defence Forces
(IDF) against Hamas, the ruling authority in the Gaza Strip, Palestine, from the 8th of July 2014
until the 26th of August 2014. This dissertation will focus on those violations alleged to have
been committed by and/or claimed by Hamas. Nonetheless, it should be pointed out that
several other armed groups are active in Gaza, notably Palestinian Islamic Jihad and the AlAqsa Martyrs Brigade. As Hamas is the ruling authority and thus the de facto government in
the Strip, as discussed further below, responsibility for the activities of these armed groups will
be considered to ultimately lie with Hamas. The IDF states that the operation was launched in
an attempt to cease rocket fire from Gaza into Israel, and at a later point to destroy a tunnel
system built by Hamas, leading into Israeli territory and thus posing a security risk to the
State. The operation began with airstrikes and later developed to include a ground invasion in
order to destroy the tunnel system. The hostilities resulted in a significant loss of life on both
sides with the vast majority of casualties being in Gaza. The IDF have claimed that the
majority of those killed were linked, in some way, to terrorist operations or were in locations
used by Hamas for military purposes. A number of Palestinian sources have claimed that
those killed were mostly civilians, with no links to terrorism. The number of deaths reported
and the proportion of civilians versus militants killed vary significantly according to the source
of the data; UN OCHA estimates the total figure5 at 2,192 Palestinian casualties (of whom
1,523 have been identified as civilians, including 519 children) and 71 Israelis (including 66
soldiers, four civilians and one foreign national) while the IDF puts the figure6 at 2,127
casualties in Gaza, 616 of whom were combatants and terrorist operatives. The UN OCHA
figure thus estimates that around 70% of the casualties were civilians which is similar to the
IDF figures however the Israeli government has stated that around 1,000 of the casualties (so
close to 50%) were terrorists7 and the Intelligence and Terrorism Information Center claims
5
UN Office for the Coordination of Humanitarian Affairs, Protection of Civilians Weekly Report, 30
September 13 October 2014, 17 October 2014, available online at:
www.ochaopt.org/documents/ocha_opt_protection_of_civilians_weekly_report_2014_10_17_english.p
df
6
Washington Post, Heres what really happened in the Gaza war (according to the Israelis), September
3, 2014, available online at: http://www.washingtonpost.com/blogs/worldviews/wp/2014/09/03/hereswhat-really-happened-in-the-gaza-war-according-to-the-israelis
7
Zee News, We struck Hamas hard, almost 1,000 terrorists were killed: Israeli PM Benjamin Netanyahu,
Sunday, August 31, 2014, available online at: http://zeenews.india.com/news/world/we-struck-hamashard-almost-1000-terrorists-were-killed-israeli-pm-benjamin-netanyahu_1462977.html
the percentage of civilians is as low as 48%8 while the Palestinian Centre for Human Rights
puts the number of civilians at close to 75%9 and the Al Mezan Center for Human Rights
estimates that the percentage of civilians is 76.9%.10 A number of international
organisations11 as well as Arab12 and Israeli13 human rights NGOs and legal centres have
alleged that the conflict saw repeated breaches of international humanitarian, human rights
and criminal law, by both sides.
This dissertation will objectively assess these alleged
violations, mainly by analysing and applying primary sources of international law. In

accordance with Article 38 of the ICJ Statute14 the main sources of international law are
international conventions, customary international law, general principles of law, and judicial
decisions and teachings. As such, in this dissertation I will seek to apply the relevant
conventions, customary rules and principles and appropriate judicial decisions to draw my
conclusions. Evidence to prove or disprove the allegations will be drawn from a wide range of
8
Meir Amit Intelligence and Terrorism Information Center, Examination of the names of Palestinians
killed in Operation Protective Edge - Part Seven, December 1, 2014, available online at:
http://www.terrorism-info.org.il/Data/articles/Art_20734/E_191_14_1801441599.pdf
9
Palestinian Centre for Human Rights, Statistics: Victims of the Israeli Offensive on Gaza since 08 July
2014,Tuesday, 16 September 2014, available online at:
http://www.pchrgaza.org/portal/en/index.php?option=com_content&view=article&id=10491:statisticsvictims-of-the-israeli-offensive-on-gaza-since-08-july-2014&catid=145:in-focus
10
Al Mezan Center for Human Rights, IOF Declare Intentions to Commit further Violations of
International Law in Gaza under International Silence. Al Mezan: 2,142 Killed; 516 Children and 295
Women since 7 July, 25 August 2014, available online at: http://www.mezan.org/en/post/19396
11
Such as Human Rights Watch, which alleged that Israel had committed breaches of the law of war in
targeting schools with airstrikes, (Israel: In-Depth Look at Gaza School Attacks, September 11, 2014,
available online at http://www.hrw.org/news/2014/09/11/israel-depth-look-gaza-school-attacks)and
that Hamas deliberate targeting of civilian population centres violates the principle of indiscriminate
attacks under Article 51(4) of Additional Protocol I, Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8
June 1977 (Q&A: 2014 Hostilities between Israel and Hamas, August 3, 2014), available online at
http://www.hrw.org/news/2014/08/03/qa-2014-hostilities-between-israel-and-hamas). See also
Amnesty Internationals, Families under the rubble, Israeli attacks on inhabited homes, published
November 2014 and Unlawful and deadly rocket and mortar attacks by Palestinian armed groups during
the 2014 Gaza/Israel conflict, published March 2015, respectively available online at:
http://www.amnesty.org/en/library/asset/MDE15/032/2014/en/613926df-68c4-47bb-b58700975f014e4b/mde150322014en.pdf and
https://www.amnesty.org/en/articles/news/2015/03/palestinian-armed-groups-killed-civilians-on-bothsides-in-2014-gaza-conflict/
12
Such as ADALAH - Legal Center for Arab Minority Rights in Israel and the Arab Association for Human
Rights, see Joint written statement* submitted by ADALAH - Legal Center for Arab Minority Rights in
Israel, the Arab Association for Human Rights, non-governmental organizations in special consultative
status, 23 July 2014, available online at:
http://www.ohchr.org/Documents/HRBodies/HRCouncil/SpecialSession/Session21/NGO9.doc
13
Such as the Shurat HaDin-Israel Law Center, see http://israellawcenter.org/pr/shurat-hadin-files-warcrimes-complaints-against-top-plo-officials-in-international-criminal-court/ and BTselem The Israeli
Information Center for Human Rights in the Occupied Territories, see
http://www.btselem.org/publications/summaries/201501_black_flag
14
Article 38 (1), Statute of the International Court of Justice
reports, publications and articles authored by a broad array of international and regional
organisations, NGOs and media outlets. This dissertation was finalised in late June 2015 and
as such the information contained is current as of this date.
10
2. Research methodology and research objective

In the context of the lack of press freedom in Gaza and the restrictions on freedom of
expression in both Israel and Gaza during the hostilities of summer 2014, collecting evidence in
relation to alleged violations of international law, such as proof of where exactly rockets were
launched from within Gaza, how many civilians versus militants were killed in Israeli strikes or
IDF conduct in land incursions or air strikes is fraught with difficulty and potentially subject to
significant manipulation, distortion and censorship. It is therefore essential to consider a wide
range of source material spanning domestic (Israeli and Gazan government, media and civil
society), international (international organisations, civil society and media) sources of
information in assessing the alleged violations of international law, in order to obtain a
balanced and accurate picture of the factual and legal aspects. In this dissertation I have
attempted to use a research methodology which draws from the entire political spectrum,
utilising mainly legal publications, reports and articles as well as political and journalistic
documentation and resources in order to provide the required background information and to
contextualise the legal arguments put forward. As the subject of this dissertation is recent,
many of the publications necessarily come from online sources- nonetheless I have attempted
to prioritise those articles and reports drafted by credible jurists and legal professionals. Given
the obvious impossibility of conducting first-hand research I have, as matter of priority,
focused on the findings of those reports of various NGOs as well as that of the UN Commission
of Inquiry which draw their conclusions directly from victim testimonies and from other
evidence obtained on the ground, in the region. Information which comes from interviews
with those present during the conflict is likely to be least subject to manipulation and
falsification and to come the closest to an accurate, factual representation of the events that
took place. In terms of the specific incidents assessed in order to determine compliance with
international law, I have chosen to focus on a number of events I consider to be representative
and illustrative of the type of alleged breaches of the various branches of international law
committed by each party. These events are detailed in Annex II. The objective of this
dissertation is not to provide a comprehensive overview of the events during the conflict; that
information has been complied by the numerous reports cited. Rather I intend to analyse the
alleged violations of international public law committed by both sides with reference to certain
events in order to draw conclusions on the likelihood of said allegations being substantiated
and to provide predictions and recommendations as to future steps to be taken in order to
achieve justice for the victims of any breaches of international law identified.
11
The objective of this dissertation is to examine and analyse the allegations made against the
IDF and Hamas, as outlined at the beginning of each substantive chapter, in order to establish
to what extent it can be determined that violations of international humanitarian, human
rights and criminal law were carried out by either side during the hostilities of summer 2014.
These allegations emanate from a wide range of different sources including international and
intergovernmental organisations such as the United Nations, prominent international human
rights NGOs such as Amnesty International and Human Rights watch, regional NGOs and
international and regional media sources. This dissertation is thus split into several sections, as
follows. An initial introductory section provides a summary of the conflict to date, details
regarding the context in which the conflict took place, important background information and
procedural issues of relevance. There are then several substantive chapters on the different
areas of law, namely international humanitarian, human rights and criminal law, in that order.
In each of these chapters a list of the alleged breaches is presented at the outset and following
analysis of these allegations, in light of the legal and factual evidence and research presented
and in accordance with the relevant legal texts and jurisprudence, a conclusion is drawn
regarding the likelihood of said breaches being substantiated. The approach used is to examine
the violations allegedly committed by both sides, and to do so from the perspective of
international public law in a broad sense- namely under the Geneva Conventions, a number of
international human rights treaties and the Rome Statute of the International Criminal Court.
Finally a conclusion is reached, which includes recommendations for the parties as to potential
remedies, suggested judicial avenues and other legal options.
3. Context: background, procedural

impediments to the rule of law
concerns
and
potential
a) Political, legal and historical background to Operation Protective Edge

The IDF consists of the armed forces of the State of Israel and comprises the Israeli Army, Air
Force and Navy. The State of Israel was officially established on May 14, 1948, the day on
which the British Mandate over Palestine expired, and is currently an independent unitary
parliamentary republic and a UN member state15. The borders of the Jewish and Arab states
were originally established by United Nations General Assembly Resolution 181 (II), Future
15
Date of admission 11-05-1949, Member States of the United Nations, available online at:
http://www.un.org/en/members/
12
government of Palestine of 29 November 1947. The 1949 Armistice Agreements, following the
1948 Arab-Israeli War, defined the country's borders with Egypt, Lebanon and Jordan, as
approved and endorsed by the Tripartite Declaration of 1950, issued by Britain, France and
the United States. As a result of the Six-Day War of 1967 Israel occupied the Gaza Strip and
West Bank as well as the Golan Heights. Since 1967 these areas have been referred to as the
Israeli-occupied territories or Occupied Palestinian Territories (OPT). Following the Oslo
Accords in May 1994, the Gaza Strip was taken over by the Palestinian Authority. A unilateral
disengagement plan16, approved by the Israeli Knesset17 in 2005, led to Israel withdrawing its
military presence from the Gaza Strip, forcibly removing Israeli settlers and giving the
Palestinians control of the territory18. The State of Israel also continued to supply electricity,
water, gas and petrol to the Palestinians.19 Following this unilateral disengagement Israel
claims that it no longer occupies the Gaza Strip however numerous international
organisations20 and the international community 21 in general still consider the territory to be
occupied as is it essentially controlled by and dependent on Israel 22. This was confirmed by
the UN Commission of Inquiry which concluded that Israel has maintained effective control of
the Gaza Strip within the meaning of Article 42 of the 1907 Hague Regulations.23 Thus, the
16
Israel Ministry of Foreign Affairs, The Cabinet Resolution Regarding the Disengagement Plan, 06 June
2004, available online at:
http://www.mfa.gov.il/mfa/foreignpolicy/peace/mfadocuments/pages/revised%20disengagement%20p
lan%206-june-2004.aspx
17
The legislative branch of the Israeli government
18
Albeit with several notable exceptions such as control of the land and sea borders, airspace and the
airport. Israel has stated that it would continue to control the coastline, borders and airspace for
security reasons.
19
Israel Ministry of Foreign Affairs (n 16)
20
Such as the United Nations' Office for the Coordination of Humanitarian Affairs, which uses the term
occupied Palestinian territories, see http://www.ochaopt.org/
21
the characterization of Israels presence in the West Bank including East Jerusalem and Gaza as one
of military occupation, rests on solid opinio juris and is supported by many resolutions, some of a binding
nature, as well as the position of governments individually or in groups, International Court of Justice,
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Separate opinion
of Judge Al-Khasawneh, available online at: http://www.icj-cij.org/docket/files/131/1685.pdf
22
While the shape and degree of this military occupation have varied, Israel has continuously maintained
effective control over the territories it occupied as a result of the Six Day War in 1967, and over the
Palestinian population living there, International review of the Red Cross, Challenges to international
humanitarian law: Israels occupation policy, Winter 2012, available online at:
https://www.icrc.org/eng/assets/files/review/2013/irrc-888-maurer.pdf
23
Human Rights Council, Report of the detailed findings of the independent commission of inquiry
established pursuant to Human Rights Council resolution S-21/1, A/HRC/29/CRP.4, 22 June 2015, p.9
13
level of effective control exercised by Israel is the measure by which its obligations under
international law, vis--vis Gaza, are to be determined and defined24.
The State of Palestine25 is a non-member observer state of the United Nations. Hamas, a
Palestinian, Islamic political and military organisation, was elected in the Palestinian
legislative election of 2006 with 44.45%26 of the votes (74 seats versus Fatahs 45). The
election results saw tension between the two organisations reach a pinnacle in 2007 when
Hamas fighters took control27 of the Gaza strip following a military struggle with Fatah. Hamas
has adopted a formal position, as a matter of policy, which calls for the destruction of Israel
and incites violence in order to achieve this aim. This is evidenced by the Hamas Charter or
Covenant28 which states on this subject, for example, inter alia, that There is no solution for
the Palestinian question except through Jihad29, and quotes Islamic Hadith30 to support these
objectives such as The Day of Judgement will not come about until Moslems fight the Jews
(killing the Jews)31. The Charter has been interpreted as being both anti-Zionist as well as
openly anti-Semitic32 as it can be understood as encouraging violent attacks against not only
the State of Israel but against all Jews given that, for example, Article 7 specifies that Muslims
should kill Jews, not Israelis or even Zionists. In addition senior Hamas officials have also
repeatedly called for the annihilation of all Jews33 and have claimed that the Holocaust was
24
Peter Maurer, Challenges to international humanitarian law: Israels occupation policy, International
Review of the Red Cross, Winter 2012, Vol. 94, Number 888, p. 1508.
25
By resolution A/RES/67/19 of 29 November 2012, the General Assembly accorded non-member
observer State status to Palestine, Non-member states, available online at:
http://www.un.org/en/members/nonmembers.shtml
26
Sources used: The International Foundation for Electoral Systems and the Central Elections
Commission, Palestine, respectively available online at:
http://www.electionguide.org/elections/id/1433/ and
https://www.elections.ps/tabid/818/language/en-US/Default.aspx
27
Center for Strategic and International Studies, II. Going to War, THE GAZA WAR: A Strategic Analysis,
February 2, 2009, p.5, available online at: http://csis.org/files/media/csis/pubs/090202_gaza_war.pdf
28
Yale Law School, Hamas Covenant 1988 , available online at:
http://avalon.law.yale.edu/20th_century/hamas.asp
29
Article 13, Hamas Covenant 1988
30
Sayings and actions attributed to the prophet Muhammad
31
Article 7, Hamas Covenant 1988
32
See Articles 22 and 32, Hamas Covenant 1988
33
For example, see Middle East Media Research Institute, Hamas Official Ahmad Bahr Preaches for the
Annihilation of Jews and Americans, August 10 2012, available online at:
http://www.memritv.org/clip_transcript/en/3538.htm and
https://www.youtube.com/watch?v=ygbJDcOTjjw
14
exaggerated or even fabricated34. Hamas is also considered to be a terrorist organisation by

both the European Union35 and the United States36, as well as by Israel.
Given the Hamas Charter and its stated objectives, the election of Hamas in the Palestinian
legislative election and its subsequent seizing of power in the Gaza Strip was of significant
concern to Israel which responded to these events by imposing an economic blockade37 on
the Gaza Strip, lobbying international donors to limit aid to Gaza and tightening its control of
its borders with Gaza. The stated rationale for these decisions was to prevent weapons being
smuggled into Gaza, to limit access to construction materials which could be used to build
tunnels into Israel and to, therefore, safeguard Israel against violent attacks emanating from
Gaza. Hamas, in turn, responded by smuggling arms into Gaza, mainly via the Egyptian border
and firing Grad, Qassam and longer range, Chinese-manufactured38 rockets and mortars at
targets in Southern Israel and eventually at major civilian population centres in Central and
Northern Israel39, including Haifa and Ben Gurion Airport in Tel Aviv 40. Some of the rockets
acquired by armed groups in Gaza are thought to have a range of up to 200km 41. In addition a
tunnel built by Hamas into Israeli territory was used to capture 42 Gilad Shalit, an IDF soldier, in
34
BBC, Hamas 'blasts Palestinian official's Auschwitz visit', 2 August 2012, available online at:
http://www.bbc.com/news/world-middle-east-19091147
35
Council Common Position 2003/651/CFSP of 12 September 2003 updating Common Position
2001/931/CFSP on the application of specific measures to combat terrorism and repealing Common
Position 2003/482/CFSP
36
United States Department of State Office of the Coordinator for Counterterrorism, Country Reports on
Terrorism 2005, April 2006, available online at:
http://www.state.gov/documents/organization/65462.pdf
37
Samira Shackle, Israel tightens its blockade of Gaza for 'security reasons', 14 October 2013, available
online at: https://www.middleeastmonitor.com/blogs/lifestyle/7813-israel-tightens-its-blockade-ofgaza-for-security-reasons
38
Noah Shachtman, Hamas Fires Long-Range Chinese Rockets at Israel, 31 December 2008, available
online at: http://www.wired.com/2008/12/hamas-chinese-a/
39
Human Rights Watch, Gaza: Palestinian Rockets Unlawfully Targeted Israeli Civilians, December 24,
2012, available online at: http://www.hrw.org/news/2012/12/24/gaza-palestinian-rockets-unlawfullytargeted-israeli-civilians
40
Hamas issued a statement on 8 July 2014 claiming that For the first time, the (Ezzedine al-) Qassam
Brigades strike Haifa with an R160 rocket, and strike occupied Jerusalem with four M75 rockets and Tel
Aviv with four M75 rockets, see http://english.alarabiya.net/en/News/middle-east/2014/07/08/Israellaunches-Protective-Edge-Gaza-raids-.html (8 and
http://www.telegraph.co.uk/news/worldnews/middleeast/palestinianauthority/10955377/Hamas-firesrockets-at-Tel-Aviv-and-Jerusalem.html
41
longer-range rockets appear to have been acquired by Palestinian armed groups in recent years
(with a range of up to 200 km). Human Rights Council, Report of the detailed findings of the independent
commission of inquiry established pursuant to Human Rights Council resolution S-21/1, A/HRC/29/CRP.4,
22 June 2015, p.19
42
Israel Ministry of Foreign Affairs, Two soldiers killed, one missing in Kerem Shalom terror attack, 25
June 2006, available online at:
15
2006, who was held by Izz ad-Din al-Qassam Brigades, the military wing of Hamas, for over
five years43. Consequently, the IDF and Hamas have been engaged in an ongoing conflict since
2006, which has seen several major peaks in hostilities, namely the 2008 Gaza War, also
known as Operation Cast Lead, and the 2014 conflict, Operation Protective Edge, which will
be the subject of this dissertation.
Operation Cast Lead which took place from 27 December 2008 until 18 January 2009, was
the subject of the United Nations Human Rights Councils United Nations Fact Finding Mission
on the Gaza Conflict44, which was established with the aim of assessing breaches of
International Human Rights and Humanitarian Law 45. The central conclusions of the report,
which were essentially that both Hamas and the IDF had committed numerous breaches of
international law by indiscriminately or intentionally targeting civilians were, at a later date,
partially withdrawn by Justice Goldstone 46 himself. This led to a great deal of criticism being
directed at the report and its conclusions from numerous international sources and Israeli
NGOs47 and has bolstered Israeli scepticism regarding the role of the UN in the IDF-Hamas
conflict and the wider Israeli-Arab conflict. Among the most significant of Justice Goldstones
statements in the op-ed were the following:
If I had known then what I know now, the Goldstone Report would have been a different
document.... That the crimes allegedly committed by Hamas were intentional goes without
saying its rockets were purposefully and indiscriminately aimed at civilian targets....
Something that has not been recognized often enough is the fact that our report marked the
first time illegal acts of terrorism from Hamas were being investigated and condemned by the
United Nations. I had hoped that our inquiry into all aspects of the Gaza conflict would begin a
new era of evenhandedness at the U.N. Human Rights Council, whose history of bias against
Israel cannot be doubted... That comparatively few Israelis have been killed by the unlawful
rocket and mortar attacks from Gaza in no way minimizes the criminality. The U.N. Human
Rights Council should condemn these heinous acts in the strongest terms Regrettably, there
has been no effort by Hamas in Gaza to investigate the allegations of its war crimes and
http://www.mfa.gov.il/mfa/pressroom/2006/pages/two%20soldiers%20killed%20one%20missing%20in
%20kerem%20shalom%20terror%20attack%2025-jun-2006.aspx
43
Israel Ministry of Foreign Affairs, Gilad Shalit: Released after 5 years in terrorist captivity, 18 October
http://www.mfa.gov.il/mfa/foreignpolicy/issues/pages/behind%20the%20headlines%20six%20months%20in%20terrorist%20captivity%2011-jan-2007.aspx
44
Also known as the Goldstone Report, after Richard Goldstone who headed the report, and
hereinafter referred to as such
45
Full report available online at: http://image.guardian.co.uk/sysfiles/Guardian/documents/2009/09/15/UNFFMGCReport.pdf
46
Richard Goldstone, (n 2)
47
See, for example The Goldstone Report reconsidered, a critical analysis, published in 2011 by NGO
Monitor, Jerusalem Center for Public Affairs and available online at: http://www.ngomonitor.org/data/images/File/The%20Goldstone%20Report%20Reconsidered.pdf
16
possible crimes against humanity...Simply put, the laws of armed conflict apply no less to nonstate actors such as Hamas than they do to national armies.48
Although the statements made in this op-ed are clearly lacking in any sort of legal force they
undoubtedly have significant implications when it comes to interpreting the Goldstone report
and in assessing the legality of both Operation Cast Lead and Operation Protective Edge
under international law. The implications and relevance of this report and of Justice
Goldstones subsequent statements will be further discussed at a later point.
b) Palestinian statehood and the accountability of Hamas

A discussion of the issue of Palestinian statehood is necessary in order to understand the ways
in which international law, essentially defined as the law governing relations between states,
can and should be applied to Israeli-Palestinian and in particular Israeli-Hamas relations and
how this affects the legal options available and possible remedies for any breaches identified.
This issue is both politically and legally complex and an assessment of the criteria required for
statehood is essential to understanding the current position regarding Palestinian statehood.
Prior to the General Assembly Resolution49 according non-member observer state status to
Palestine, there were several main barriers to the concept of Palestinian statehood. Firstly, as
discussed in more detail in the chapter on ICC jurisdiction below, Palestine does not have
defined, internationally recognised borders.
The boundaries of Palestine are still subject to dispute even among Palestinian leaders who
continue to debate the question whether to seek recognition of a State within boundaries
resulting from the 1967 Arab-Israeli conflict or whether to petition for more50.
Secondly Palestine has never, historically, been recognised internationally as a sovereign,
independent state nor has it ever been governed as such. Prior to the establishment of the
State of Israel, the territory claimed as part of the State of Palestine, namely the West Bank
and the Gaza strip, was not under independent sovereignty51. Thirdly, the General Assembly
resolution according non-member observer state status has also been criticised as being a
political and subjective action as the General Assembly, in accordance with Chapter IV of the
48
UN General Assembly Resolution 67/19, 29 November 2012
50
Shurat HaDin-Israel Law Center, Letter to ICC Registrar, 22 June 2015, available online at:
www.scribd.com/doc/269291002/Letter-to-ICC-Registrar
51
Yael Ronen, Sha'arei Mishpat Academic Center, Hod Hasharon; Hebrew University of Jerusalem Faculty of Law, Minerva Center, ICC Jurisdiction Over Acts Committed in the Gaza Strip: Article 12(3) of
the ICC Statute and Non-State Entities, January 3, 2010, p.15, available online at:
papers.ssrn.com/sol3/papers.cfm?abstract_id=1530529
49
17
United Nations Charter, is not mandated to make binding proclamations with regards to legal
issues such as statehood. The Security Council is the only one of the six principal organs of the
United Nations able to issue binding resolutions.
The GA is not a judicial body, but a political one. Its determinations are political, not legal. (It
also has no power under the U.N. Charter, to create or recognize states.)52
As a result of the General Assembly Resolution the State of Palestine has been able to accede
to a number of international treaties53, including seven of the nine core human rights treaties.
Palestine's acceptance as a signatory of these international treaties would appear to confirm
that Articles 15 and 81 of the Vienna Convention on the Law of Treaties have been successfully
applied and that Palestine was considered to constitute a state for these purposes. None of
the additional mechanisms for accession detailed under Article 81, such as an invitation from
the General Assembly, were used in this case and as such it can be assumed that the General
Assembly Resolution was taken as evidence of the existence of Palestinian statehood per se.
All of these treaties came into force before Operation Protective Edge and as such the State
of Palestine was formally bound to comply with the provisions of these treaties under
international law for the duration of the hostilities. As such these treaties will be considered,
for the purposes of this assessment, to have been in force during the period of time being
examined.
The State of Palestine is generally considered to include the West Bank and Gaza. The
signatory of the international treaties to which the State of Palestine acceded in 2014 was
Mahmoud Abbas, on behalf of the Government of the State of Palestine. However, the de
facto and, arguably, de jure ruling power in the Gaza Strip is Hamas, not the Palestine
Liberation Organization or Palestinian National Authority, which governs the West Bank. Thus
there are two separate administrations within the same state. However, in relation to
Hamas accountability for breaches of international law it should be recalled that the Human
Rights Council has held that non-state actors which exercise government-like functions and
control over a territory are obliged to respect human rights norms when their conduct affects
52
Eugene Kontorovich, Washington Post, ICC undermines its own independence with Palestine inquiry,
January 16 2015, available online at: http://www.washingtonpost.com/news/volokhconspiracy/wp/2015/01/16/icc-prosecutor-undermines-courts-independence/
53
Press briefing notes on Palestine, Spokesperson for the UN High Commissioner for Human Rights:
Rupert Colville, Location: Geneva, Date: 2 May 2014, available online at
http://unispal.un.org/UNISPAL.NSF/0/262AC5B8C25B364585257CCF006C010D
18
the human rights of the individuals under their control54 and that It is especially appropriate
and feasible to call for an armed group to respect human rights norms when it exercises
significant control over territory and population and has an identifiable political structure55.
Moreover, the United Nationss Panel of Experts on Accountability in Sri Lanka56 held that nonstate actors exercising control over a territory are obliged to respect fundamental human
rights. Amnesty International also considers that the fact that Gaza is under occupation does
not relieve Hamas of its obligations under international law.
This does not negate the responsibilities of the Hamas authorities, who have had de facto
administration over internal affairs in the Gaza Strip since June 2007, or those of the
Palestinian authorities, which have jurisdiction over internal affairs in parts of the Occupied
Palestinian Territories under the Oslo Accords.57
In addition the Israeli Supreme Court58 has classified conflicts between Hamas and Israel as
international in nature and has thus adjudged that international law should apply. The Court
acted on this determination by applying international humanitarian law to Operation Cast
Lead59. The Court does not consider Gaza to be occupied by Israel but does consider that the
international character of the conflict gives rise to obligations under international law.
Therefore whether Gaza is considered to be occupied or not60, international law is widely held
to apply to conflicts between Israel and the Gazan authorities. Before the UN GA Resolution
regarding Palestinian statehood, although Hamas was democratically elected, the issue with
Hamas being held to be the legitimate government of a recognized state related less to its
54
Human Rights Council, Human rights situation in Palestine and other occupied Arab territories, 20
March 2009, A/HRC/10/22, para. 22
55
Human Rights Council, Implementation of General Assembly Resolution 60/251 of 15 March 2006
entitled Human Rights Council, 2 October 2006, (A/HRC/2/7), para. 19; Report of the Special
Rapporteur on extrajudicial, summary or arbitrary executions submitted to the Commission on Human
Rights at its sixty-first session (E/CN.4/2005/7), para. 76.
56
U.N. Secretary-General, Report of the Secretary-Generals Panel of Experts on Accountability in Sri
Lanka, 188, 31 March 2011
57
Amnesty International, 'Strangling Necks': Abduction, torture and summary killings of Palestinians by
Hamas forces during the 2014 Gaza/Israel conflict, May 2015, p.34, available online at:
https://www.amnesty.org/en/articles/news/2015/05/gaza-palestinians-tortured-summarily-killed-byhamas-forces-during-2014-conflict/
58
Public Committee against Torture in Israel v. Government of Israel, Supreme Court of Israel, HCJ
769/02, 11 December 2005 (Targeted Killings Judgement); A v. the State of Israel, Supreme Court of
Israel, CrimA 6659/06, 1757/07, 8228/07, 3261/08, 11 June 2008 (Unlawful Combatants Judgement).
59
Physicians for Human Rights v. The Prime Minister of Israel, Supreme Court of Israel, HCJ 201/2009, 19
January 2009, para. 14.
60
The ICJ considers that Israel is in occupation of Palestine and that Israel, as the occupying power, is
bound to respect the rights of the Palestinians under international human rights and humanitarian law:
International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory (Request for advisory opinion), Summary of the Advisory Opinion of 9 July 2004,
available online at http://www.icj-cij.org/docket/files/131/1677.pdf
19
qualification as the government, given that it exercises full control over the Strip and was
elected by the population and more to the fact that Palestine itself was arguably not
internationally recognised as a state- the organisation could not be a state actor as there was,
effectively, no state61. Currently the situation is almost the exact opposite- Palestine is now
recognised as a state at General Assembly level yet Hamas has remained in power without any
subsequent elections and as such its legitimacy as the democratically elected, genuine
government may be subject to doubt. There is also the issue of several other armed groups
operating in Gaza and the question as to whether or not these groups can or should be
controlled by Hamas and if Hamas can be held responsible for their actions and any violations
of international law they commit. Given the above, for the purposes of this dissertation Hamas
will be considered, as the de facto administration of Gaza, to be bound to comply with those
international treaties to which Palestine is a signatory as well as with customary international
law.
a duty to protect fundamental, inherent, non-derogable rights should apply to any group with
territorial control or political power, regardless of international recognition of statehood (or the
lack thereof).62
In accordance with the view taken by the ICJ63 Israel will be held responsible for those
violations of international law it commits in Gaza, as it is the occupying power in the territory.
Likewise, in accordance with the generally accepted legal principle of the extraterritoriality of
human rights obligations64 Hamas can be held to be responsible for breaches of international
human rights law it causes in Israel. This is particularly true where the state controls65 the
actions of those committing the violations; thus when Hamas military wing, controlled entirely
by the Hamas leadership, launches indiscriminate rockets at civilians in Israel, Hamas, as the de
facto government is responsible for the violations of international law engendered.
61
Professor Brigitte Nacos, Israel and Hamas: Villain-and-Hero Narrative and the t-Word, 11 January
2009, available online at: http://www.reflectivepundit.com/reflectivepundit/2009/01/israel-and-hamasvillain-and-hero-narrative-and-the-t-word.html
62
Jerusalem Institute of Justice, Hamas and the International Human Rights Law, April 2015, p.6,
available online at: jij.org.il/wp-content/uploads/2015/04/Hamas-and-the-International-Human-RightsLaw-4-27-15-with-edits.pdf; Report of the Special Rapporteur on extrajudicial, summary or arbitrary
executions submitted to the Commission on Human Rights at its sixty-first session (E/CN.4/2005/7),
para. 76.
63
Palestinian Territory, Separate opinion of Judge Koroma, available online at http://www.icjcij.org/docket/files/131/1679.pdf
64
Bankovic & Ors V Belgium & Ors - 52207/99 [2001] ECHR 890 (12 December 2001)
65
Issa and others v. Turkey - 31821/96 [2004] ECHR 629 (16 November 2004); Ocalan v. Turkey 46221/99 [2005] ECHR 282 (12 May 2005); Medvedyev and others v. France - 3394/03 [2010] ECHR 384
(29 March 2010)
20
Nonetheless with regards to the ICC preliminary examination and the application of
international criminal law in Gaza, a number of important jurisdictional, admissibility and
procedural issues will be explored. In addition it is necessary to examine the implications of the
ICJ Advisory Opinion of 2004.
c) The International Court of Justice Advisory Opinion of 2004 (Legal

Consequences of the Construction of a Wall in the Occupied Palestinian
Territory)
On the 9th of July 2004 the International Court of Justice issued an advisory opinion, in
response to a request made by the United Nations General Assembly, on the legal
consequences of the construction of a wall in the Occupied Palestinian Territories. This
advisory opinion and the separate opinions of the judges involved in formulating the opinion
are relevant to the 2014 Gaza conflict in a number of ways.
Jurisdictional issues and statehood
Israel had claimed that the GA was acting ultra vires66 in requesting an advisory opinion from
the ICJ given that the SC was actively involved in the Israeli-Arab conflict. However the ICJ held
that the advisory opinion request did not constitute a recommendation as such, and that, in
any case, the interpretation of Article 12 of the Charter had evolved over time and it was now
not uncommon for both the SC and the GA to be actively exercising their functions in parallel
in relation to a specific conflict or situation67. This is an important point given that it
demonstrates that the interpretation of the UN Charter is fluid and develops over time, in
accordance with customary international law. It is also significant as it essentially provides
authorisation for both the GA and SC to be simultaneously actively involved in the resolution
of hostilities in the region. The ICJ also held that the fact that the conflict is a politicised one
and that there are clear political interests at play does not suffice to deprive it of its character
as a legal question68. Consequently the court concluded that it had jurisdiction to deliver the
advisory opinion. This is relevant to the 2014 conflict as the Court would presumably also find
it had jurisdiction were a request to be made for an advisory opinion to be issued in relation to
this situation in spite of the political complexities at play. It also underlines the fact that,
66
Under Article 12, paragraph 1 of the UN Charter

Palestinian Territory (Request for advisory opinion), Summary of the Advisory Opinion of 9 July 2004, p.2,
68
Ibid. p.4
67
21
despite political and diplomatic interests, the salient legal principles should be assessed
objectively by a judicial body, without any prejudice or bias.
Another significant point made in this advisory opinion relates to the criticism of the ICJs
involvement in this issue as somehow undermining or threatening the stability and progress of
sensitive diplomatic and political negotiations. In particular it was claimed that resolution of
the conflict through the Roadmap proposed by the Quartet on the Middle East and endorsed
by Security Council Resolution 1515 (2003)69, could be derailed through an advisory opinion
being issued. Israel expressed its concerns as follows:
any opinion from the Court on the substance of the request will without doubt upset the
balance of the Roadmap and make any meaningful resumption of negotiations more difficult to
achieve.70
However the Court stated that this factor could not be a compelling reason to decline to
exercise its jurisdiction71, as any impact on the negotiations was unclear and ultimately
speculative. In his separate opinion, Judge Al-Khasawneh stated that:
The discharge of international obligations including erga omnes obligations cannot be made
conditional upon negotiations72.
Thus we can conclude that the ongoing negotiations between the two states relating to, inter
alia, complex, sensitive issues such as the status of Jerusalem and West Bank settlements,
should not in any way undermine or interfere with judicial processes which are carried out
regionally or internationally in respect of violations of international law committed during the
hostilities in Gaza in 2014. The progress or indeed, lack thereof, made in diplomatic
negotiations does not negate the obligations of the parties to the conflict under the relevant,
applicable provisions of international law.
The applicability of international law in occupied territories:
69
United Nations Security Council Resolution 1515, S/RES/1515, 19 November 2003

Written Statement of the Government of Israel on Jurisdiction and Propriety, Point 0.6, 30 January
2004, available online at: http://www.icj-cij.org/docket/files/131/1579.pdf
71
Palestinian Territory, Separate opinion of Judge Al-Khasawneh, available online at: http://www.icjcij.org/docket/files/131/1685.pdf
72
Ibid.
70
22
Finally, the advisory opinion is also important in that it clarifies the applicability of
international humanitarian and human rights law in the Palestinian territories. In the past
Israel has rejected the argument that it is bound to comply with these legal provisions in Gaza
and the West Bank. However the Court held that Israel was, as the occupying power, obliged
to comply with the provisions of both the international conventions to which it is a signatory,
as well as with international customary law, in the Palestinian territories as well as within
Israel.
With respect to humanitarian and human rights law, the Court has rightly adjudged that both
these rgimes are applicable to the occupied territories; that Israel as the occupying Power is
under an obligation to respect the rights of the Palestinian population of the occupied
territories.73
d) Responsibility for breaches of international law

The law of state responsibility, codified by the International Law Commission in 200174, is
central to public international law and governs those circumstances in which a state can be
held to be responsible for an internationally wrongful act under international law. Among
the basic principles set out in this document include that the conduct of any state organ (such
as the IDF) is to be considered an act of the state, regardless of the nature of the function
carried out by this organ75 and that the conduct of a person or group of persons is attributable
to the state where said conduct is controlled by the state. Where the conduct is not carried
out by a state organ, the degree of the states control76 of the conduct is to be assessed in
order to determine whether the act can be considered an act of the state and thus engender
state responsibility.
The requirement of international law for the attribution to States of acts performed by private
individuals is that the State exercises control over the individuals. The degree of control may,
however, vary according to the factual circumstances of each case. The Appeals Chamber fails
73
Palestinian Territory, Separate opinion of Judge Koroma, available online at http://www.icjcij.org/docket/files/131/1679.pdf
74
International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful
Acts, with commentaries, 2001
75
Ibid. Chapter II, Article 4 (1)
76
Ibid. Chapter II, Article 8
23
to see why in each and every circumstance international law should require a high threshold for
the test of control.77
Under these rules those wrongful acts under international law carried out by the IDF, resulting
in breaches of Israels international obligations under the applicable provisions of international
human rights, humanitarian and criminal law, as identified in this dissertation, clearly result in
state responsibility given that the IDF is an integral part of the State of Israel and is entirely
controlled by the state. With regard to Hamas, as mentioned under point b) above, Hamas was
democratically elected in the Gaza Strip and as such is the de facto government authority in
the Strip. Nonetheless the State of Palestine is split geographically and politically into two
entities with two separate government structures. As such Hamas level of responsibility for
breaches of international law may be queried. It is submitted, nonetheless, in accordance with
the views expressed by the United Nations Human Rights Council, the United Nations
Secretary-General and Amnesty International78 and in accordance with jurisprudence, that
Hamas can undoubtedly be said to have directed or enforced the perpetration of the acts
contrary to human rights and humanitarian law79 carried out by its military wing, given that it
fully controls and manages the actions of this group. Hamas thus clearly has effective control
of the military or paramilitary operations80 carried out by Izz ad-Din al-Qassam Brigades as
the latter is an integral part of the former, thus it is essentially an organ of the state if we
consider Hamas to be the de facto government of the Palestinian state in the Gaza Strip.
Even if Hamas is considered to be a non-state actor and thus not the official state authority,
given the complexity inherent in identifying the government of the State of Palestine, it
would, as a very minimum, still be obligated to act in accordance with the provisions of
customary international law and its conduct, resulting in grave breaches of international law
as identified in this dissertation, would still be considered an act of the state and thus
engender state responsibility as Hamas could be considered to be exercising elements of the
governmental authority in the absence or default of the official authorities81. Consequently
we can conclude that the State of Israel is responsible for the conduct of the IDF as the State
of Palestine is responsible for the actions of Hamas, and that the breaches of international
77
ICTY, The Prosecutor v. Dusko Tadi, IT-94-1-AR72, Appeals Chamber, Decision, 2 October 1995, para.
117.
78
See footnotes 54-57
79
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, p. 64, para. 115
80
Ibid.
81
Acts, with commentaries, 2001, Chapter II, Article 9
24
public law carried out by the IDF and Hamas as detailed in the following chapters, give rise to
state responsibility.
In addition, it should be pointed out that those breaches of international law identified in this
dissertation are of a serious82 nature as they involve "gross or systematic failures" 83 to fulfil
the obligations to uphold the respective provisions of international law. This is the case as
these breaches generally "derive from a peremptory norm of general international law" 84 and
are serious in nature85. Consequently this conduct gives rise to aggravated state
responsibility. The result is that responsibility for breaches in the sense of Article 40 entails
consequences which are more severe than those triggered by ordinary breaches86. Thus the
aggravated state responsibility, resulting from the serious breaches of international law
committed by Israel and Palestine, will have more significant ramifications than ordinary state
responsibility (resulting from ordinary breaches of obligations of a less serious nature).
Although only states were traditionally considered to be international subjects and thus
capable of breaching international law, it is now widely accepted that individual criminal
liability can also arise from such breaches. As such, the conduct of those individuals in charge
of perpetrating these acts on behalf of the state in question would also engender individual
criminal liability87. The aim of individual liability is to ensure that collective punishment is not
applied as this is no longer acceptable88, and, according to Gerry Simpson, a Professor of
Law at the London School of Economics that a defendant ought not to be punished for acts
perpetrated by other individuals89. Although individual criminal liability and state
responsibility are codified separately, there is an overlap between the two as it is possible for
a crime to simultaneously trigger both state responsibility and individual criminal
responsibility and if an individual is held to be criminally responsible this does not mean that
82
N.H.B. Jorgensen, The Responsibility of States for International Crimes, Oxford University Press, 2000,
pp.106-116
83
Acts, with commentaries, 2001, Article 40 (2)
84
Ibid. Article 40, Commentary (1)
85
Crimes such as genocide, war crimes and torture are widely considered to be preemptory, jus cogens
norms of international law. With regard to torture, for example, ICTY stated that the prohibition of
torture has attained the status of jus cogens in Prosecutor v. Furundija, International Criminal Tribunal
for the Former Yugoslavia, 2002, 121 International Law Reports 213 (2002)
86
Tams, Christian J., Do Serious Breaches Give Rise to Any Specific Obligations of the Responsible State?,
European Journal of International Law, 2002, vol. 13, no. 5, pp. 1162
87
Article 25, Rome Statute of the International Criminal Court, 1998
88
Cassesse Antonio, International Criminal Law, Oxford University Press, 2nd Edition, (2008), p. 137
89
Simpson, Gerry J., Law, War and Crime: War Crimes, Trials and the Reinvention of International Law,
Polity, (2007),
25
state responsibility is waived90. This is most frequently the case with serious breaches, such
as in the case of war crimes, which can be attributed to both an individual (for example the
commander who ordered or carried out a specific attack which constituted a war crime) and
the state (which can be said to have been in control of the conduct of the military, as a state
entity, and thus to be responsible for its conduct when breaches of international obligations
occur.)
Crimes entailing individual criminal responsibility under international law can also give rise to
aggravated state responsibility if they are committed by state organs and if they reach a
certain degree of seriousness.91
An example of this principle in practice can be seen from the situation in The Hague in 2006.
One case at the International Criminal Tribunal for the Former Yugoslavia92 concerned the
individual responsibility of the former leader of Serbia while Bosnia v. Serbia93 was being heard
simultaneously at the International Court of Justice and concerned state responsibility for the
crime of genocide. Thus it would theoretically possible for the States of Israel and Palestine to
be engaged in proceedings relating to state responsibility for breaches of international law,
such as the crime of genocide, at the ICJ, for example, as well as for individuals to be tried at
the ICC for core crimes such as war crimes, in accordance with the provisions of the Rome
Statute, under the principle of individual responsibility.
e) The International Criminal Court- background in the Arab-Israeli conflict

The International Criminal Court is the first permanent, international court with criminal
jurisdiction and was formally established in 2002. The Rome Statute of the International
Criminal Court is the founding document of the Court. The Palestinians have long threatened
the Israelis with action at the international level in relation to alleged violations of
international law, in particular grave violations of the type under ICC jurisdiction, in accordance
with the Rome Statute, such as genocide, crimes against humanity and war crimes. In
particular the Palestinians have repeatedly focused on recourse to the ICC as a method of
ensuring the rule of law and obtaining justice in the context of Israeli military activities in Gaza
and the West Bank.
90
This is also made clear in Article 25 (4) of the Rome Statute

Bonaf, Beatrice I., The Relationship Between State and Individual Responsibility for International
Crimes, Brill, (2009), p.76
92
ICTY, The Prosecutor v. Slobodan Milosevic, 2006
93
ICJ, Bosnia and Herzegovina v. Serbia and Montenegro, 2007
91
26
The criticism of a Palestinian referral to the ICC of the situation in Gaza ultimately centres on
the shortcomings of the ICC procedural mechanisms and the plentiful jurisdictional roadblocks
which would have to be overcome before an investigation would be able to go ahead. There is
also a valid argument to be made for pursuing legal action at the ICJ as opposed to the ICC. As
explained by Victor Kattan, an Associate Fellow at the Faculty of Law at the National University
of Singapore and a former Legal Adviser with the United Nations Development Program in East
Jerusalem:
Although the ICC prosecutor has indicated that the ICC would accept a new application
submitted by Palestine to join the court, the final ruling on whether the ICC has jurisdiction
would be left up to the judges. Furthermore, the ICC has a mixed record of carrying out
investigations or preliminary examinations quickly. Not only would it have to check whether
Israel is investigating the crimes that took place in Gaza, it may have to wait for the Israeli legal
process to run its course, which would also take time. Additionally, because Israel is not a party
to the Rome Statute, it has no obligation to co-operate with the ICC; without Israeli cooperation, the process could take even longer. And finally, even if the prosecutor decides to
open a full investigation, she would then have to charge and issue arrest warrants for Israelis
and Palestinians implicated in crimes under the statute. Yet Israel would be unlikely to hand
over any of its nationals to the ICC. With so many possibilities for a stalemate, the ICC route is
unlikely to produce the desired results.94
The ICJ is the principal judicial organ of the United Nations95 system, adjudicates in conflicts
between states and provides legal opinions on issues referred to it as opposed to the ICC
which is charged with prosecuting individuals for specific crimes. The ICJ is a much quicker
option than the ICC as, first and foremost, its jurisdiction is automatic: in accordance with UN
Charter all members of the United Nations are ipso facto parties to the Statute of the
International Court of Justice96. Secondly it is able to produce an advisory opinion in a relatively
short period of time given the comparative procedural simplicity with which it operates. While
not legally binding, an opinion could certainly be influential and provide the Palestinians and
Israelis with greater legal clarity on the merits of their respective claims and the strength of
94
Victor Kattan, The European Council on Foreign Relations, Palestinian options at the United Nations
and the International Court of Justice, 23 October 2014, available online at:
http://www.ecfr.eu/article/commentary_palestinian_options_at_the_united_nations_and_the_internat
ion334
95
Article 92, Charter of the United Nations
96
Article 93, Charter of the United Nations
27
their respective legal arguments as advisory opinions have the purpose of furnishing to the
requesting organs the elements of law necessary for them in their action97.
There are several advantages of going back to the ICJ as opposed to lodging another
application at the ICC. The Palestinians have a good track record at the ICJ. They do not have a
good track record at the ICC, which rejected their attempt to grant that court jurisdiction after
Operation Cast Lead in January 2009. an ICJ advisory opinion could be produced in a matter
of months. The 9 July 2004 advisory opinion on the wall only took the court five months to
deliver after it heard the oral pleadings in February 2004.98
Consequently, one of the recommendations I will make as part of this dissertation is that an
advisory opinion be sought from the ICJ with regards to Operation Protective Edge either
instead of or in addition to pursuing the available options at the ICC. As mentioned above
there are numerous issues which would impede a swift decision being made on the issue by
the ICC, all of which will be explored in greater detail in the coming sections.
f) Article 12(3) Declaration of the Palestinian Authority and subsequent

accession to the Rome Statute- basic procedural issues
Under Article 12 of the Rome Statute of the International Criminal Court, in order to accept ICC
jurisdiction a state can either become a party to the Rome Statute (Article 12(1)) or it can
make an ad-hoc declaration under Article 12(3). It is also possible for the Security Council to
refer a situation to the ICC (Article 13(b)). The Palestinian Authority, on 22 January 2009,
submitted a declaration99 under Article 12(3) of the Rome Statute of the ICC. The purpose of
this declaration is to allow States not Party to the Rome Statute to accept the jurisdiction of
the Court. It does not, however, automatically trigger an ICC investigation into alleged
breaches of the Rome Statute, its sole effect being a unilateral declaration of acceptance of the
Courts jurisdiction100. This was widely believed to be a reaction, on the part of the Palestinian
Authority, to the 2009 war in Gaza, known as Operation Cast Lead. Following a preliminary
examination, in accordance with Article 15 of the Rome Statute, the Office of the Prosecutor of
97
Palestinian Territory (Request for advisory opinion), Summary of the Advisory Opinion of 9 July 2004, p.6,
98
Victor Kattan, (n 94)
99
Article 12(3) Declaration of the Palestinian Authority recognising the jurisdiction of the International
Criminal Court in the territory of Palestine, 21 January 2009, available online at: http://www.icccpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4C8071087102C/279777/20090122PalestinianDeclaration2.pdf
100
International Criminal Court, Questions and answers, available online at: http://www.icccpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279787/QARegistryArticle14.pdf
28
the International Criminal Court stated101 in 2012 that an investigation would not be
conducted as only states can accept the Courts jurisdiction.
the current status granted to Palestine by the United Nations General Assembly is that of
observer, not as a Nonmember State.102
However, significantly, Moreno Ocampo also pointed out that the determination of what
constituted a state could be made, for the purposes of ICC jurisdiction, by means of
membership of the General Assembly. In effect as Palestine was only an observer at this time,
it could not be considered a state that was able to accept ICC jurisdiction under Article 12(3):
competence for determining the term State within the meaning of article 12 rests, in the
first instance, with the United Nations Secretary General who, in case of doubt, will defer to the
guidance of General Assembly.103
The Office of the Prosecutor did, however, acknowledge the fact that the Palestinian Authority
had submitted an application for admission to the UN as a member state and made clear that
the outcome of this application could result in a change in the legal status of Palestine for
the purposes of jurisdiction under the Rome Statute:
The Office understands that on 23 September 2011, Palestine submitted an application for
admission to the United Nations as a Member State in accordance with article 4(2) of the
United Nations Charter, but the Security Council has not yet made a recommendation in this
regard. While this process has no direct link with the declaration lodged by Palestine, it informs
the current legal status of Palestine for the interpretation and application of article 12.104
Essentially the Office of the Prosecutor of the ICC, by means of this statement, confirmed that
Palestinian statehood, for the purposes of ICC jurisdiction would not be determined by means
of objective, standardised, internationally accepted criteria such as, for example, in accordance
with the Montevideo Convention105. Under the Montevideo Convention, Palestinian statehood
could arguably fail on such basic requirements of a state as defined territory under Article 1.
Rather the Office of the Prosecutor noted that the opinion of the General Assembly could, in
101
Situation in Palestine, 3 April 2012, International Criminal Court, available online at: http://www.icccpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9836106D2694A/284387/SituationinPalestine030412ENG.pdf
102
Ibid. Point 7
103
Ibid. Point 5
104
Ibid. Point 7
105
Montevideo Convention on the Rights and Duties of States 1933
29
effect, give rise to statehood and thus jurisdiction under the Rome Statute. As stated106 in the
Oxford Journal of International Criminal Justice by Professor Eugene Kontorovich, Professor of
Law at Northwestern University in Chicago, although Palestine may not meet certain
traditional statehood criteria, this statement offered a clear opportunity to the Palestinian
Authority by allowing the political will of the General Assembly to influence the jurisdiction of
criminal prosecutions under the Rome Statute. The declaration made in 2009, previous to
Resolution A/RES/67/19, as confirmed by the Office of the Prosecutor, could not be accepted
given the above. However, following the conferment of non-member observer state status107
the State of Palestine acceded to the Rome Statute on 2 January 2015 and lodged a retroactive
declaration on 1 January 2015 under Article 12(3) of the Rome Statute. Presumably the effect
of the UNGA Resolution would be that the statehood criteria as mentioned by the Office of the
Prosecutor108 would now be satisfied. However, as explained by Professor Kontorovich109, a
second major obstacle in an ICC preliminary examination may be the definition of what exactly
constitutes Palestinian territory, given that this has not been formally established and
accepted internationally and therefore whether the alleged breaches of the Rome Statute can
be proven to have occurred on what is effectively the territory of a state party to the Statute in
accordance with Articles 4(2) and 12(3)110.
In accordance with the Montevideo Convention a state can only be recognised as such under
international law where it possesses defined territory.111 The United Nations Security Council
has frequently called for the establishment of two states with mutually and internationally
recognized borders112. However the borders of both the State of Palestine and the State of
Israel remain contested and unclear and consequently defining the territory belonging to the
state of Palestine is far from straightforward.
To exercise jurisdiction, the Court necessarily must decide on the borders of Palestine, which
simultaneously determines the borders of Israel, a nonmember. In order to reach the issue of
106
Eugene Kontorovich, Israel/Palestine The ICCs Uncharted Territory, Oxford Journal of International
Criminal Justice, 2013, available online at:
http://jicj.oxfordjournals.org/content/11/5/979.full.pdf?keytype=ref&ijkey=VVymRjzZYQCLRzu
107
General Assembly Resolution A/RES/67/19 of 29 November 2012
108
International Criminal Court, Situation in Palestine, 3 April 2012, available online at: http://www.icccpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9836106D2694A/284387/SituationinPalestine030412ENG.pdf
109
Eugene Kontorovich, (n 106)
110
Articles 4(2) and 12(3), Rome Statute of the International Criminal Court, 1998
111
Article I, Montevideo Convention on the Rights and Duties of States 1933, full text reproduced in
Annex IV
112
UN doc S/2014/916, 30 December 2014
30
individual liability, the Court must first draw the borders of a non-consenting state as clear a
violation of the Monetary Gold principle as one could imagine.113
Consequently, in carrying out the preliminary examination the Prosecutor of the ICC must
ensure that she does not use the political determination of the GA to draw the borders of a
non-state party, thus violating a basic principle of international law. In addition, in accordance
with Article 34 of the Vienna Convention on the Law of Treaties signatory parties to a
convention such as the Rome Statute cannot create obligations or rights for a third party state
and its citizens (such as Israel) without the latters explicit consent114.
They [some legal scholars] appear to advocate that as the object and purpose of the ICC is to
end impunity for mass crimes, the court ought to intervene, even where clear jurisdictional
parameters have not been met. This is neither good law nor does it make for responsible
judicial action.115
As stated by Fatou Bensouda, the Prosecutor of the ICC, jurisdictional issues are crucial to the
work of the ICC; given the limitations of the Rome Statute, the Court may only intervene when
all procedural concerns have been resolved, in accordance with the principles inherent in its
founding Statute. Consequently significant procedural concerns would need to be addressed
and resolved by the ICC, presumably at the preliminary examination stage, before any
investigation, looking into the merits of the case(s) put forward could be conducted.
g) Bias, political pressure and censorship as impediments to the rule of law

The political aspect of any conflict or instance of hostilities involving Israel and Palestine
cannot and should not be underestimated. The role of the media and the influence of
diplomatic and political issues on the implementation of international law in the region are
significant. In addition the issue of alleged bias should be taken into account.
Bias
Israel has repeatedly accused the United Nations System, as a whole, of inherent, pervasive
anti-Semitism, anti-Zionism and anti-Israel sentiments in carrying out its mandate. It has
repeatedly stated that it believes the Human Rights Council, for example, has
113
Eugene Kontorovich, (n 106)

115
Fatou Bensouda, The Guardian, Fatou Bensouda: the truth about the ICC and Gaza, 29 August 2014,
available online at: http://www.theguardian.com/commentisfree/2014/aug/29/icc-gaza-hague-courtinvestigate-war-crimes-palestine
114
31
disproportionately and unfairly focused its work on Israel rather than on countries such as
Syria or North Korea, despite the systematic, grave human rights violations widely believed to
have been committed in these territories, and that this is an example of inherent anti-Israel
bias in the UN system:
Human Rights Council which has discredited itself with its disregard for human rights - for
example, in 2014, the Council adopted more resolutions against Israel than against Iran, Syria
and North Korea combined.116
From 2006 through 2013, Israel has been subjected to 45 [UNHRC] condemnation resolutions.
No other nation in the world comes close From 1947 to 1991, there were about 300 antiIsrael General Assembly resolutions against Israel. In 2012, there were 22 GA resolutions
specifically against Israel, while there were only four for the rest of the world combined.117
Interestingly, Justice Goldstone, who chaired the previous UNHRC inquiry into the Gaza conflict
in 2008, explicitly recognised this inherent bias in the Human Rights Council and indicated that
he requested that the mandate be broadened to be fairer and more just:
I insisted on changing the original mandate adopted by the Human Rights Council, which was
skewed against Israel. I have always been clear that Israel, like any other sovereign nation, has
the right and obligation to defend itself and its citizens against attacks from abroad and
within118.
It has been claimed that any such bias or discriminatory behaviour with regards to a UN
member state would constitute a severe violation of the equality principles guaranteed by the
UN Charter and underlying the Universal Declaration of Human Rights119. Kofi Annan, the
former Secretary-General of the United Nations, speaking in 2004 was especially vocal on this
issue:
No one should be allowed to use criticism of Israel's actions as a mask for anti-Semitism.Let
us acknowledge that the United Nations record on anti-Semitism has at times fallen short of
116
Israel Ministry of Foreign Affairs, Behind the Headlines: Schabas' resignation from UNHRC
Commission of Inquiry, 05 February 2015, available online at:
http://mfa.gov.il/MFA/ForeignPolicy/Issues/Pages/Schabas-resignation-from-UNHRC-Commission-ofInquiry-5-Feb-2015.aspx
117
Eric R. Mandel, The Jerusalem Post, Is the United Nations anti-Semitic?, 07 July 2014, available online
at: http://www.jpost.com/Opinion/Op-Ed-Contributors/Is-the-United-Nations-anti-Semitic-361842
118
119
UNWatch, UN, Israel & Anti-Semitism, available online at:
http://www.unwatch.org/site/c.bdKKISNqEmG/b.1359197/k.6748/UN_Israel__AntiSemitism.htm
32
our ideals. The General Assembly resolution of 1975, equating Zionism with racism, was an
especially unfortunate decision.120
A report by UNWatch formulated the concern as follows:
It is legitimate for UN bodies to criticize Israel, but not when they do so unfairly, selectively,
massively, sometimes exclusively, and often obsessively121
In particular, in the context of the hostilities of the summer of 2014 in Gaza, the appointment
of William Schabas, who has been an outspoken and unapologetic critic of Israeli policy and
military conduct in the past, as head of the UNHRC Commission of Inquiry, drew virulent
criticism from the Israeli government and others, such as John Baird122, the Foreign Minister of
Canada and Hillel Neuer of UNWatch123 who accused Schabas and the Commission he headed
of prejudice against Israel. In statements made previous to his appointment as the chair of the
committee, Schabas stated, inter alia that Israeli Prime Minister Netanyahu should be in the
dock of an international court124 and that, given the large number of civilian casualties in Gaza
and the absence (at the time he made this statement) of Israeli casualties prima facie, there is
evidence of disproportionality in the response that Israel is undertaking in order to protect
itself125. Israel in turn accused Schabas of having an obsessive hostility towards Israel and
the Commission of having a one-sided mandate126. Hillel Neuer , a Canadian lawyer who acts
as executive director of human rights NGO UNWatch, expressed the issue as follows:
120
K. Annan, The Inaugural Robert Burns Memorial Lecture, 13 January 2004, UN Press Release
SG/SM/9112
121
UNWatch, The United Nations and Anti-Semitism, 2004-2007 Report Card, November 1, 2007, p.44,
available online at: http://www.unwatch.org/atf/cf/%7B6DEB65DA-BE5B-4CAE-80568BF0BEDF4D17%7D/UNW_THE_UN_AND_ANTI_SEMITISM_04_07_REPORT_CARD.PDF
122
John Baird, Twitter post, dated 11 August 2014, available online at:
https://twitter.com/Baird/status/498940506278477824
123
UNWatch, NGO: William Schabas must recuse himself from UN Gaza inquiry, August 11, 2014,
available online at: http://blog.unwatch.org/index.php/2014/08/11/ngo-william-schabas-must-recusehimself-from-un-gaza-inquiry/
124
Lee-Anne Goodman, The Canadian Press, William Schabas, head of UN Gaza commission, dismisses
anti-Israel charge, 11 August 2014, available online at: http://www.cbc.ca/news/politics/williamschabas-head-of-un-gaza-commission-dismisses-anti-israel-charge-1.2733740. See also footage of
statement made by Schabas regarding Benjamin Netanyahu, My favorite would be Netanyahu in the
dock of the International Criminal Court, available online at:
https://www.youtube.com/watch?v=0EgykgqpgQY
125
Statement made by Schabas to the BBC on July 17, 2014, according to the Israel Ministry of Foreign
Affairs, Behind the headlines: The Human Rights Council commission of inquiry on Gaza, 07 September
2014, available online at: http://mfa.gov.il/MFA/ForeignPolicy/Issues/Pages/The-Human-Rights-Councilcommission-of-inquiry-on-Gaza.aspx
126
Israel Ministry of Foreign Affairs, Israel will not cooperate with UNHRC investigative committee, 13
November 2014, available online at: http://mfa.gov.il/MFA/PressRoom/2014/Pages/Israel-will-notcooperate-with-UNHRC-investigative-committee-13-Nov-2014.aspx
33
Under international law, William Schabas is obliged to recuse himself because his repeated
calls to indict Israeli leaders obviously gives rise to actual bias or the appearance thereof. You
cant spend several years calling for the prosecution of someone, and then suddenly act as his
judge. Its absurd and a violation of the minimal rules of due process applicable to UN factfinding missions.127
Schabas subsequent resignation from the post was the result of a perceived conflict of
interest given that he was paid the sum of $1,300 by the PLO to produce a legal analysis
regarding the Palestinian bid for non-member observer status128. This issue is clearly closely
related to the mandate of the Commission and as such could undoubtedly be construed as
constituting a conflict of interest. Although Schabas denied that this consultancy work in itself
constituted a conflict of interest or was evidence of bias he acknowledged that a probe into his
activities in order to determine whether he could be held to be biased against Israel would
distract from the work of the Commission. Consequently, rather than allow this to take place,
and potentially call into question the legitimacy of the Commission, he decided to step down
from his position. The Israeli government has, however, expressed disappointment at the
timing of this occurrence; namely that the work of the Commission was drawing to a close at
the time of Schabas resignation.
Schabas' resignation cannot whitewash the fundamental and inherent bias of the commission
itself, including in its mandate. The removal of one symptom does not cure the disease.
Furthermore, Schabas imprint on the final report - to be delivered next month - cannot be
purged after he directed and conducted the five-months-long research and evidence-gathering
phases, with the drafting work already begun.129
In any case, the report of the Commission, initially due to be published in March 2015, was
delayed until June on the request of the newly appointed chairperson, Mary McGowan Davis:
On 9 March we asked the Council to extend our mandate until June this year. We need more
time in order to assess the large amount of information we have accumulated much of which
127
available online at: http://blog.unwatch.org/index.php/2014/08/11/ngo-william-schabas-must-recusehimself-from-un-gaza-inquiry/
128
Mondoweiss, Israel: Schabas resignation cannot whitewash bias in UN war crimes inquiry, February
10 2015, available online at: http://mondoweiss.net/2015/02/resignation-whitewash-inquiry
129
Commission of Inquiry, 05 February 2015, available online at:
http://mfa.gov.il/MFA/ForeignPolicy/Issues/Pages/Schabas-resignation-from-UNHRC-Commission-ofInquiry-5-Feb-2015.aspx
34
has only been received in recent weeks after the extension of the deadline for submissions. In
addition there are complex legal issues to consider. This process cannot be rushed.130
In addition to the role played by Schabas, as the chairman of the 2014 Commission, the
involvement of Grietje Baars, a noted anti-Israel activist and legal scholar, in the Goldstone
report has also been criticised as being representative of prejudice within the OHCHR itself131.
Hillel Neuer of UNWatch described Baars involvement as follows:
Baars already had a disturbing track record of extreme hostility against Israel. Because of the
sensitive nature of her position, OHCHR must have examined her resume and conducted a basic
Google search, all of which would have revealed her prejudice and made it clear that
prosecuting Israelis in international courts was essentially her lifes dream. In other words, that
she was the very opposite of the impartial, neutral, and objective member of the secretariat
envisioned under the UN CharterGiven Baars immense on-the-ground experience and
credentials with Palestinian and international lawfare activists, along with her substantial legal
writing experience, she was arguably the most influential behind-the-scenes member of the
Goldstone probe.132
Neuer claims that the staffing of the Office in general reflects an inherent anti-Israel bias and
alleges that there is a lack of transparency with regards to the identity of the staff involved in
drafting the reports the Office produces and in conducting the research which makes up these
reports. Given the fact that a number of prominent international NGOs133 working in the
human rights field have, as a result of their own investigations, charged Hamas, as well as the
IDF, with a number of violations of international law, the fact-finding mission of the OHCHR
could reasonably have been expected to have access to the same evidence and to thus reflect
these findings. In any case the issue of bias is one which should be kept in mind when
examining the conclusions of the UN Commission. As discussed below, Israels failure to
collaborate with the Commission may also be partially to blame for any lack of balance
identified in the Commissions report.
Political pressure and censorship
The political discourse which takes place in the media and elsewhere can also have a
significant detrimental effect on legal proceedings and the rule of law in a conflict such as the
130
United Nations Office of the High Commissioner for Human Rights, Oral Update by the Chairperson of
the Independent Commission of Inquiry on the 2014 Gaza Conflict, 23 March 2015, available online at:
www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15741&LangID=E
131
Hillel Neuer, The Tower, Why the Schabas Report Will Be Every Bit as Biased as the Goldstone Report,
March 2015, available online at: http://www.thetower.org/article/why-the-schabas-report-will-beevery-bit-as-biased-as-the-goldstone-report/
132
Ibid.
133
In particular Amnesty International (n 1)
35
Hamas-Israel one. In particular in the age of social media, online media outlets and continually
updated, real-time information, the publics access to news on hostilities is broader and more
comprehensive than ever. At a first glance this may appear to be a positive development and
one which encourages transparency, accountability and, indeed, an end to impunity in the
case that violations of international legal norms do occur. However in the case of the hostilities
of the summer of 2014 in the Gaza strip and Israel, a number of allegations of press bias,
journalists being intimidated and the media being manipulated have been made against both
Hamas and Israel. The Foreign Press Association, on August 15th 2014, rebuked Hamas for
limiting press freedom and forcefully intimidating international journalists in Gaza:
The FPA protests in the strongest terms the blatant, incessant, forceful and unorthodox
methods employed by the Hamas authorities and their representatives against visiting
international journalists in Gaza over the past month...In several cases, foreign reporters
working in Gaza have been harassed, threatened or questioned over stories or information they
have reported through their news media or by means of social media.134
In the past Hamas has also been criticised by the United Nations for excessively restricting
freedom of speech, often in a violent manner.
The Special Rapporteur calls upon the de facto authorities [in Gaza] to promote a culture of
tolerance of divergent views, including criticisms, which is essential for any healthy society. To
this end, he urges the de facto authorities to stop the practice of arbitrary arrests, detention
and interrogation of individuals expressing critical views, as well as raids of offices, and
interference with human rights related conferences and events.135
Of particular relevance to gathering evidence to prove breaches of international law is the
claim that Hamas actively worked to prevent journalists from filming missile launching sites136.
Hamas has admitted to deporting from the strip any journalists who filmed these sites, if they
did not agree to refrain from doing so137. Hamas also admitted to forcing journalists to modify
their reporting to suit its narrative. A number of journalists138 posted videos and issued
134
Foreign Press Association, Statements 2014, available online at:

http://www.fpa.org.il/?categoryId=73840
135
United Nations Human Rights Council, Report of the Special Rapporteur on the promotion and
protection of the right to freedom of opinion and expression, Frank La Rue - Addendum - Mission to Israel
and the occupied Palestinian territory, A/HRC/20/17/Add.2, p.22, 11/06/2012
136
Times of Israel, Hamas admits intimidating foreign press who reported wrong message, August 15,
2014, available online at: http://www.timesofisrael.com/hamas-admits-intimidating-foreign-press-whoreported-wrong-message/
137
Isra Al-Mudallal, Spokesperson of the Palestinian Information Ministry in Gaza, interview with Al
Mayadeen TV channel (Lebanon) on August 14 2014, available online at:
https://www.youtube.com/watch?v=mVjDiI1xm4U#t=133
138
Israel Ministry of Foreign Affairs, Testimonies from Gaza and Hamas intimidation of foreign
journalists, 11 August 2014, available online at:
36
statements confirming this harassment once they had left the territory. In addition Amnesty
International claimed that those accused of assisting Israel by documenting Hamas rocket
launch sites or other military sites, or in other ways, were targeted with reprisals; Hamas
forces also summarily killed at least 23 people in the Gaza Strip who allegedly collaborated
with Israel.139 This finding was corroborated by the UN OHCHR140.
OHCHR has encountered difficulties in Gaza gathering information about alleged violations by
Palestinian armed groups, some witnesses apparently fearing reprisals or reluctant to criticize
the actions of armed groups.141
The effect of this persecution of journalists, media representatives and other individuals and
groups in Gaza cannot be underestimated in relation to collecting evidence to prove violations
of international law. It is also important to note that, as stated by Amnesty International142 the
incidents recorded by journalists, in spite of the severe curtailment of their liberty in Gaza, are
likely to represent only a very small number of the total number of cases in which residential,
civilian areas were used for military purposes by Hamas. It is very possible that in the areas in
which the media were not present, these violations of international law were even more overt.
In addition employees of human rights NGOs in Gaza have reportedly143 been assaulted,
forcibly intimidated and otherwise actively prevented from carrying out their work on a
number of occasions in the past. Reprisals against human rights defenders and whistle blowers
in Gaza and the Palestinian territories are a significant impediment to documenting violations
of international law committed by Palestinian armed groups in the Gaza strip:
even though only a handful of specific incidents of Palestinian attacks launched from civilian
areas were documented by sources other than the Israeli military or authorities, this should not
be taken as an indication that such attacks were infrequent.144
http://mfa.gov.il/MFA/ForeignPolicy/Issues/Pages/Testimonies-from-Gaza-and-Hamas-intimidation-offoreign-journalists.aspx
139
Amnesty International (n 1)
140
Addendum to Report of the United Nations High Commissioner for Human Rights on the
implementation of Human Rights Council resolutions S-9/1 and S-12/1: The human rights situation in
the Occupied Palestinian Territory between 12 June and 26 August 2014, including the escalation of
hostilities between the State of Israel and Palestinian armed groups in Gaza, A/HRC/28/80/Add.1, 26
December 2014, p.19
141
Ibid. p.3
142
it is possible that armed groups took greater precautions in areas where they knew international
media were present, Amnesty International (n 1), p43
143
Amnesty International, Hamas authorities must guarantee safety of human rights activist, 18 January
2012, available online at: https://www.amnesty.org/en/articles/news/2012/01/hamas-authoritiesmust-investigate-attacks-human-rights-defender-gaza/
144
Amnesty International, (n 1) p.42
37
In addition there is a significant amount of evidence145 that points to the possibility that Hamas
violated international law by torturing and executing those accused of collaborating with
Israel. This climate of intolerance and persecution will have clearly had an effect on civilians
being willing to testify against Hamas, in relation to the location of rocket launch sites and
Hamas human rights and humanitarian law violations and thus makes it difficult to amass
evidence to prove allegations against Hamas.
Hamas forces in Gaza, including Internal Security and the al-Qassam Brigades, have committed
serious violations of international law by carrying out acts of abduction, torture and unlawful
killings.146
On the Israeli side, allegations have focused on curtailed freedom of expression, among both
the media and civil society, during Operation Protective Edge. According to the 2014 State of
Human Rights Report issued by the Association for Civil Rights in Israel (ACRI), voices on the
left of the political spectrum, especially those calling for solidarity with Gazans or for
Palestinian human rights, were actively curtailed during the hostilities:
The tendency to suppress criticism and controversy in times of emergency caused severe harm
to freedom of expression. The silencing of voices that deviated from the national consensus,
and especially the labeling of critics as unpatriotic or showing disloyalty to the state, is
extremely troubling.147
The ACRI report goes on to detail numerous allegations of censorship and limitations of
freedom of expression including anti-war demonstrators being verbally and physically
harassed, interrogated and arrested, online discourse being policed and censored, universities
dissuading their students from expressing themselves in online forums and on social media,
and employers punishing their employees for expressing opinions, online or elsewhere, which
deviated from the status quo, mainstream narrative, all of which ultimately culminated in a
public climate of intolerance bolstered by comments by public officials148. These allegations
constitute a clear attack on freedom of speech, freedom of expression and freedom of
association, fundamental human rights149 which must be respected by states. Silencing
criticism of government policies should not be a feature of a country which calls itself
democratic and professes to comply with international human rights law. Israel must thus
145
Amnesty International, (n 57)

Ibid., p.42
147
Association for Civil Rights in Israel, 2014 State of Human Rights Report, December 2014, available
online at: http://www.acri.org.il/en/wp-content/uploads/2014/12/Situation-Report-2014.pdf
148
Ibid.
149
See, inter alia, Articles 19, 20 and 23 of the Universal Declaration of Human Rights, Article 19 of the
International Covenant on Civil and Political Rights
146
38
ensure that its citizens are free to express their views, regardless of where they fall on the
political spectrum.
4. International Humanitarian Law

Under international humanitarian law (hereafter: IHL), by which I am mainly referring, in this
dissertation, to the four treaties and three additional protocols which comprise the Geneva
Conventions150, civilians and non-combatants must be protected during armed conflict and any
loss of civilian life must not be excessive or disproportionate when compared to the military
advantage that results from a given operation. The definition of civilian is given in Article 50
of Protocol I151.
Israel is a state party to the four 1949 Geneva Conventions and to the 2005 Additional Protocol
III. It is not a state party to Protocols I and II however it has recognised that the provisions of
these treaties embody customary international law152. The State of Palestine acceded to the
Conventions and Protocol I in April 2014 and to Protocols II and II in January 2015. The Geneva
Conventions are widely considered to form part of international customary law153 and as such
parties may be held to have violated their provisions even if they have not signed the relevant
Convention. The ICJ, in the Nuclear Weapons case described the principle of distinction as one
of the intransgressible principles of international customary law that are to be respected by
all states, regardless of whether or not they have ratified the conventions in which they are
contained154. The principles contained in the Geneva Conventions have been held by the ICJ 155
to be applicable in cases of both international and non-international armed conflict while ICTY
found that they are minimum mandatory rules with respect to which the character of the
150
The International Committee of the Red Cross, Geneva Conventions, full texts available online at
https://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions
151
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of International Armed Conflicts (Protocol I), 8 June 1977
152
Repeated reference is made to the customary nature of a range of provisions of the additional
protocols in the following document: State of Israel, The 2014 Gaza Conflict, factual and legal aspects,
May 2015, available online at:
http://mfa.gov.il/ProtectiveEdge/Documents/2014GazaConflictFullReport.pdf
153
See, for example, the explanations of the principles of distinction and proportionality in the ICRC
database of Customary International Law, available online at: https://www.icrc.org/customaryihl/eng/docs/v2_rul_rule1 and https://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule14
154
ICJ, Nuclear Weapons case, Advisory Opinion
155
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), Judgement, 1986 ICJ
Rep. 14 (Nicaragua Judgement), at 114
39
conflict is irrelevant156. Both courts also held that the provisions of Common Article 3 have
become customary international law norms.
The cardinal principles contained in the texts constituting the fabric of humanitarian law are
the following. The first is aimed at the protection of the civilian population and civilian objects
and establishes the distinction between combatants and non-combatants; States must never
make civilians the object of attack and must consequently never use weapons that are
incapable of distinguishing between civilian and military targets157.
In addition the Conference of High Contracting Parties to the Fourth Geneva Convention in
December 2014 confirmed that Israel is considered to be the occupying power for the
purposes of the Geneva Conventions:
The participating High Contracting Parties... call on the Occupying Power [Israel] to fully and
effectively respect the Fourth Geneva Convention in the Occupied Palestinian Territory,
including East Jerusalem.158
Among the most important and fundamental principles under the Geneva Conventions are
that civilians must never be deliberately targeted in hostilities. The most serious breaches of
IHL under the Geneva Conventions are referred to as grave breaches. The four Geneva
Conventions of 1949 and Protocol I of 1977 each have a definition of what constitutes grave
breaches. Among these definitions are the following statements:
Grave breaches to which the preceding Article relates shall be those involving any of the
following acts, if committed against persons or property protected by the Convention: wilful
killingextensive destruction...of property, not justified by military necessity and carried out
unlawfully and wantonly.159
Breaches of the principles of proportionality and distinction, resulting in injury to civilians, the
loss of civilian life and the destruction of civilian property are the main types of breaches
alleged to have been carried out by the IDF and Hamas. Should individual combatants be
located among civilians this does not relieve the attacking party of its obligations with respect
to civilians, namely compliance with the principle of distinction, the prohibition on
indiscriminate or disproportionate attacks, and the principle of precautions in attack. In
assessing whether a grave breach has indeed been committed by a party in armed hostilities a
156
Prosecutor v. Tadi, ICTY Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal
on Jurisdiction, Appeals Chamber, 2 October 1995 (Tadi Jurisdiction Decision), para. 102.
157
Advisory Opinion, ICJ Reports 1996 (I), p. 257, para. 78.
158
Conference of High Contracting Parties to the Fourth Geneva Convention Declaration, 17 December
2014, available online at: unispal.un.org/UNISPAL.NSF/0/E7B8432A312475D385257DB100568AE8
159
Geneva Convention II Article 51
40
number of factors must be determined. Firstly it is essential to establish whether the acts were
carried out in a way that was not justified by military necessity, that is to say, were the targets
of the acts legitimate military objectives and were any people targeted positively identified
as combatants as opposed to civilians. Additionally, Protocol I states that in case of doubt
whether a person is a civilian, that person shall be considered to be a civilian.160 Secondly it
must be determined whether the acts were proportionate in relation to the military objectives
and the military advantage gained. Therefore it is essential to determine whether the
anticipated military advantage can justify the expected civilian death toll.
Under the Geneva Conventions161 and customary international law162 states are obliged to
exercise their domestic criminal jurisdiction in order to investigate and prosecute those grave
breaches of the Conventions believed to have been carried out by their armed forces or
citizens, or on their territory. Consequently those breaches of the Geneva Conventions
identified below should be investigated, respectively, by the Israeli and Palestinian judicial
systems. Failing this, the ICC may have jurisdiction, in accordance with the principle of
complementarity, as discussed in the chapter on International Criminal Law.
a) An objective assessment of breaches of international humanitarian law under

the 1949 Geneva Conventions and Additional Protocols, and their
Commentaries
b) Breaches by Hamas
Alleged breaches:
1. Failing to comply with the principles of distinction and military necessity under
Articles 48, 51(2) and 52(1)(2) of Additional Protocol I by:
launching indiscriminate attacks against civilians (Article 51(4) of the 1977
Additional Protocol I);
failing to distinguish between the civilian population and combatants and civilian
objects and military objectives (Article 48);
using human shields (Article 28 of the 1949 Geneva Convention IV, Article 51(7) of
the 1977 Additional Protocol I);
failing to comply with the requirement to avoid locating military objectives in
densely populated areas and to remove the civilian population and civilian objectives
from the vicinity of military objectives under Article 58 of Additional Protocol I;
and directing attacks against non-military objectives (Article 52 of the 1977
Additional Protocol I).
160
Additional Protocol I, Article 50(1)

First Geneva Convention, Article 49; Second Geneva Convention, Article 50; Third Geneva
Convention, Article 129; Fourth Geneva Convention, Article 146
162
ICRC, Customary IHL, Rule 158. Prosecution of War Crimes, available online at:
https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44_rule158
161
41
2. Breaching Article 3 common to the four Geneva Conventions of 1949 (acts of violence
to life and person against persons taking no active part in the hostilities).
3. Breaching Article 51(2) of Additional Protocol I by spreading terror among the civilian
population.
4. Failing to provide effective advance warning of those attacks which may affect
civilians under Article 57(2)(c) of 1977 Additional Protocol I.
they [the Palestinian authorities] must end the use of inherently indiscriminate weapons such
as unguided rockets, denounce attacks targeting civilians and indiscriminate attacks and make
clear that Palestinian armed groups must comply with international humanitarian law.163
Palestinian armed groups made clear in their statements that harming civilians was their
aimThere is simply no legal justification for launching rockets at populated areas.164
The accusations levelled at Hamas in the context of breaches of the Geneva Conventions relate
to:
1. Deliberately targeting Israeli civilians and civilian areas in Israel.
2. The use of indiscriminate weapons165, which cannot be guided to target military
objectives.
3. Launching attacks from densely populated civilian areas, deliberately concealing
militants among the civilian population and storing weapons in civilian infrastructure.
4. Urging civilians to remain in their homes despite warnings, thus using civilian as
human shields.
5. Arbitrarily detaining, arresting, torturing and summarily executing those accused of
collaborating with Israel.
6. Spreading terror among the civilian population leading to over 10,000 people being
displaced from their homes.166
7. Failing, in most cases, to provide any prior warning when civilians were likely to be
affected by rocket and mortar fire into Israel and issuing only vague, generalised and
ineffective warnings in a few isolated cases.
According to Israeli human rights NGO B'Tselem and several international NGOs including
Human Rights Watch and Amnesty International, Hamas deliberately and indiscriminately
targeted Israeli civilians with rocket fire, launching said rockets from civilian infrastructure and
163
Amnesty International, (n 1), p.4

Sarah Leah Whitson, Middle East director at Human Rights Watch, Palestinian Rockets Unlawfully
Targeted Israeli Civilians, December 24 2012, available online at: https://youtu.be/m5CtAGRa3SI
165
ICRC Customary IHL Study, Rule 11; Protocol I, Article 51(4)
166
State of Israel, (n 152), p.16
164
42
hiding weapons, military equipment and the militants themselves in residential premises and
among civilians.
There is no question that Hamas and other Palestinian organizations have breached provisions
of international humanitarian law. Its operatives fired at Israeli civilians from within civilian
populated areas, concealed weapons and munitions inside homes and, as a rule, did not keep
themselves distinct from civilian population.167
Navi Pillay, former United Nations High Commissioner for Human Rights, accused Hamas of
locating rockets within schools and hospitals, or even launching these rockets from densely
populated areas.168 The IDF also released footage and a report169 that allegedly documents170
a number of instances of rockets being launched from civilian areas171 in Gaza, towards civilian
areas in Israel.
The use of the Iron Dome missile defence system, early warning alarm systems and extensive
bomb shelters in Israel undoubtedly significantly reduced the number of Israeli civilian
deaths. An important point must however be made regarding the impact of the lower civilian
death toll on the legality of Hamas actions. It has been claimed that the comparatively low
number of Israeli citizen deaths somehow renders indiscriminate rocket attacks against Israeli
civilians from Gaza a less serious breach of IHL. This is an erroneous and dangerous assertion.
Breaches of IHL are not to be determined based on the death toll they cause; rather the
legality of military activities should be assessed based on the legal principle of distinction, at
the time when the attack is launched. Thus, in launching a rocket towards a civilian area,
knowing that said rocket is utterly incapable of being configured so as to accurately target a
military objective and to avoid striking a civilian area, the principle of distinction is being
breached. It is irrelevant whether or not the Israeli authorities intercept the attack.
167
BTselem The Israeli Information Center for Human Rights in the Occupied Territories, Black Flag:
The legal and moral implications of the policy of attacking residential buildings in the Gaza Strip, summer
2014 BTselem report, January 2015, p.4, available online at:
http://www.btselem.org/download/201501_black_flag_eng.pdf
168
Ian Deitch and Ibrahim Barzak, Israel vows to destroy Hamas tunnels, deaths spike, Associated Press,
July 31 2014, available online at:http://news.yahoo.com/israel-vows-destroy-hamas-tunnels-deathsspike-214755183.html
169
Israel Ministry of Foreign Affairs, Violations of the Law of Armed Conflict, War Crimes, and Crimes
Against Humanity Committed by Hamas and Other Terrorist Organizations During Operation Protective
Edge, pp. 16-40, available online at: http://mfa.gov.il/ProtectiveEdge/Documents/HamasCrimes.pdf
170
IDF, 12 Examples of Hamas Firing Rockets from Civilian Areas, July 31, 2014, available online at:
https://youtu.be/IUrDAEgisXM
171
IDF, What is Hamas Doing to Schools & Hospitals in Gaza?, August 6 2014, available online at:
https://youtu.be/H8bwiour-iM
43
That comparatively few Israelis have been killed by the unlawful rocket and mortar attacks
from Gaza in no way minimizes the criminality. The U.N. Human Rights Council should
condemn these heinous acts in the strongest terms.172
It is claimed173 that in the summer of 2014 around 80% of the Israeli population lived within
the range of rockets fired from Gaza. An attack which deliberately or indiscriminately targets
civilians who are not actively taking part in the conflict, and civilian infrastructure174, as Hamas
did when targeting Israeli towns, cities and the Ben Gurion Airport, rather than military
targets, is a flagrant breach of one of the most fundamental tenets of IHL-the immunity of
civilians from direct attack.175
The al-Qassam Brigades, the military wing of Hamas, issued statements176 throughout the
hostilities, in some cases several times a day, claiming responsibility for rocket and mortar
attacks directed at specific Israeli [civilian] communities.177
A press release issued by the al-Qassam Brigades on 20 August 2014 specifically makes
mention of the international civilian airport in Israel as well as several other explicitly civilian
targets:
We warn international airlines against flying to Ben-Gurion Airport....All big rallies by the
enemy's supporters are banned in all the areas that fall within the range of Al-Qassam rockets.
This applies in particular to football crowds as well as those in other open areas. The
inhabitants of what is called the Gaza rim and the towns close by should not return to their
homes. 178
In addition Israeli civilians and civilian areas are emphatically stated to be the target of Hamas
rocket fire:
172
Richard Goldstone, Reconsidering the Goldstone Report on Israel and war crimes, published in the
Washington Post, 1April 2011, available online at:
http://www.washingtonpost.com/opinions/reconsidering-the-goldstone-report-on-israel-and-warcrimes/2011/04/01/AFg111JC_story.html
173
By last summer, Hamas could and did reach 80 percent of Israels population with its rockets.
Jeff Robbins, Boston Herald, Robbins: U.N. beats familiar anti-Israel drum, June 19 2015, available online
at:
www.bostonherald.com/news_opinion/opinion/op_ed/2015/06/robbins_un_beats_familiar_anti_israel
_drum
174
Hamas claimed responsibility for rocket fire which intentionally targeted Israels international airport,
near Tel-Aviv. Al-Qassam Brigades Twitter account, post from 25th July 2014, available online at:
https://twitter.com/Qassam_English/status/492595278449373186
175
Article 48 of 1977 Additional Protocol I
176
Original statements available from the Al-Qassam brigade website (in Arabic), available online at:
http://www.alqassam.ps/arabic/#!//5211/
177
178
Al-Qassam Brigades, Press Release of Abu Obeida, Al Qassam spokesperson, 20 August 2014,
available online at: www.qassam.ps/statement-1509Press_Release_of_Abu_Obeida_Al_Qassam_spokesperson.html
44
our rockets are aimed at the Hebrews, the murderers, the Israelis, the criminalsour missiles
accurately target the homes of the Israelis and the Zionists.179
All Zionist cities will be targeted daily until all of our demands are met180.
Given the fact that Hamas openly and unequivocally acknowledged, consistently, that their
intent was to strike civilian areas and to kill civilians they have clearly failed to comply with the
requirement, under Additional Protocol I, to which Palestine acceded in April 2014, to direct
their operations only against military objectives181.
In addition the issue of the prior warning provided by Hamas should be further explored.
Effective advance warning is required182 when civilians are expected to be affected by
military operations. This is an accepted norm of customary international law, based on state
practice, and is also codified in the Hague Regulations.183 The term effective is not defined in
Additional Protocol I however the UN Commission of Inquiry, in its report, interpreted the
meaning as twofold:
(1) that the warning is crafted in a way that will be understood by those to whom it is
addressed; and (2) that the warning can be acted upon, meaning that what the warning
requires
can
be
realistically
complied
with184.
The UN Commission noted that Palestinian armed groups appear to have provided advance
warning in a very few instances before launching attacks that may have killed Israeli
civilians185 however identified one instance186 where it claimed that the warning was of a
nature that could be acted upon. In this instance the Commission alleged that warning
citizens in Tel Aviv, a city with almost 3.5 million people in its metropolitan area, to seek
shelter as a rocket was to be fired at the city provided the opportunity for residents to seek
179
Hamas Spokesman Fawzi Barhoum, The Middle East Media Research Institute, Hamas to Israeli
Arabs: Have No Fear, Our Missiles Target Only the Hebrews, July 11 2014, available online at:
www.memri.org/clip_transcript/en/4350.htm
180
@qassamenglish, 8 August 2014. Account currently suspended. Also reported on page 26 of Human
Rights Council, (n 23)
181
Article 48 of 1977 Additional Protocol I
182
Art. 57(2)(c) of 1977 Additional Protocol I
183
Hague Regulations, Article 26
184
Human Rights Council, (n 23), p.28
185
Ibid., p.28
186
Ezzeddeen Al-Qassam Brigades Information Office, Military Communiqu, Press Release of Abu
Obeida, Al Qassam spokesperson, August 20 2014, available online at:
http://www.qassam.ps/statement-1509Press_Release_of_Abu_Obeida_Al_Qassam_spokesperson.html
45
shelter187. Considering that it is actionable to for over three million people to seek shelter
simultaneously is farcical at best and is a clear distortion of the meaning of effective prior
warning. This is especially true given that the Commission was highly critical of the IDFs
comparatively comprehensive and multi-faceted approach to issuing advance warnings. The
Commission additionally found that warning airlines that the (sole) civilian airport in Israel was
to be targeted was actionable as it provided them with the time to suspend flights188. Again
it is highly doubtful if such a generalised, blanket warning can be considered to be either
actionable or understood by those to whom it is addressed. Both of these warnings are vague
and arguably ineffective. However, they are further proof that civilian infrastructure (Ben
Gurion airport) and civilian areas (Tel Aviv) were repeatedly deliberately targeted by Hamas.
In addition to attempting to deliberately target civilian areas as mentioned above, the
weapons fired from Gaza, by Hamas, into Israeli territory are not guided and are not therefore,
able to distinguish, to any extent whatsoever, between legitimate military targets and nonmilitary, civilian targets189. Hamas has, as explained above, repeatedly claimed that it
deliberately targeted Israeli citizens with its rocket attacks however even in the absence of
such a declaration and such intent, using said weaponry would be extraordinarily reckless and
a breach of IHL190 given their indiscriminate nature. Under IHL attacks which are not directed
at a specific military objective191 are prohibited as are those which employ a method or
means of combat which cannot be directed at a specific military objective192, thus covering
unguided and indiscriminate fire. In certain circumstances indiscriminate attacks against
civilians have even been held to be tantamount to direct attacks193.
This lack of precision is apparently not of concern to the Hamas militants given that they have
defended the use of these rockets against Israel by claiming that they are resisting occupation
and are retaliating against Israeli aggression194. They have also claimed that they are entitled to
do so by any means necessary and that they are using the only weapons they have available,
187

Ibid.
189
Human Rights Watch, Palestinian Rockets Unlawfully Targeted Israeli Civilians, December 24, 2012,
available online at: https://www.youtube.com/watch?v=m5CtAGRa3SI#t=34
190
Article 51(4) of the 1977 Additional Protocol I provides: Indiscriminate attacks are prohibited.
191
Article 51(4)(a) of the 1977 Additional Protocol I
192
Article 51(4)(b) of the 1977 Additional Protocol I
193
International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Galic, case No. IT-98-29-T,
Judgement, 5 December 2003, para. 57.
194
Ezzedeen Al-Qassam Brigades, Military Communiqu, Al Qassam Brigades Fire "Fajer-5" missile at
"Tel Aviv", November 18 2012, http://www.qassam.ps/statement-1475Al_Qassam_Brigades_Fire_Fajer_5_missile_at_Tel_Aviv.html
188
46
which happen to not be sophisticated enough so as to be capable of being configured to target

military objectives. These justifications are not acceptable under IHL. Regardless of the merits
of Hamas cause (Palestinian national liberation/opposing occupation etc.) the rules of IHL and,
more broadly, the rules of war are clear: each and every use of force is to be judged twice,
once with regard to the justness of the objective (jus ad bellum) and the justness of the means
used to achieve the objective (jus in bello). Even if Hamas objective was to be determined,
under jus ad bellum, to be justified, an issue which falls outside of the scope of this
dissertation in any case, the means employed (jus in bello) in order to resist Israeli occupation
and/or to attempt to establish an independent Palestinian nation by Hamas are entirely
unjustified and irreconcilable under IHL. Even if Hamas asserts that the IDF have committed
war crimes and have violated IHL in their actions, this claim cannot be used to justify Hamas
own breaches of international law; violations by one side can never justify violations of the
laws of war by the other side195 and civilians must not be the subject of reprisals196. Civilians
must never be directly or indiscriminately targeted and in launching inherently indiscriminate
rockets towards civilian population centres there can be no doubt that Hamas has violated the
principle of distinction in failing to distinguish between Israeli military targets and Israeli
civilians197. Indeed Human Rights Watch198 has even implied that Hamas objective, in carrying
out a campaign of rocket fire against civilian population centres in Israel may actually be to
intimidate and terrorise civilians, rather than to actually achieve any military advantage.
Mortars have a shorter range (of 3km to 10km) than rockets, but are still an imprecise weapon
and must therefore never be used to target military objectives located amidst civilians or
civilian objects...Hence, when mortars are used with the intent of striking military targets
located in the vicinity of civilian concentrations, but strike civilians or civilian objects instead,
they constitute indiscriminate attacks. Indiscriminate attacks that kill or injure civilians
constitute serious violations of international humanitarian law and are war crimes. Throughout
the conflict, and in particular during the final week, Palestinian armed groups fired numerous
mortars with a range of 6-8km in the direction of Israeli towns located near the border with
Gaza As already mentioned, all the rockets used by Palestinian armed groups, with ranges
varying from 10km to 160km, are unguided projectiles that cannot be directed at specific
targets. In other words, these weapons cannot be accurately aimed in a manner that
distinguishes between military objectives and civilian objects, as required by international
humanitarian law; they are inherently indiscriminate and using them is likely to injure and kill
195
Fred Abrahams, Senior Emergencies Researcher, Human Rights Watch, Rockets from Gaza, August 6
2009, available online at: https://www.youtube.com/watch?v=zpm_1vByig&list=PL8EC5D4B1345E3E9D&index=67
196
Article 51(6) of the 1977 Additional Protocol I provides: Attacks against the civilian population or
civilians by way of reprisals are prohibited
197
198
Fred Abrahams, (n 195)

Fred Abrahams, (n 195)
47
civilians and damage civilian objects. International humanitarian law prohibits the use of
weapons that are by nature indiscriminate. Using prohibited weapons is a war crime.199
In a report published in March 2015, Amnesty International, following thorough and
independent research into alleged violations committed by Hamas and other armed factions in
Gaza concluded that, on a number of occasions, Hamas had indeed committed violations of
IHL, both against the Israeli civilian population and against the civilian population of Gaza.
Under customary IHL parties are under an obligation to take all feasible precautions to avoid,
and in any case to minimise, the loss of civilian life, injury to civilians and damage to civilian
objects. This has been interpreted as meaning all those precautions which are practicable or
practically possible, taking into account all circumstances ruling at the time, including
humanitarian and military considerations.200 This means that Hamas was obliged not only to
refrain from launching deliberate or indiscriminate attacks against Israeli citizens but that it
should have taken all feasible precautions to protect Palestinian citizens within Gaza. In
particular there is sufficient evidence, according to Amnesty International201, to conclude that
one case involving the death of 13 Palestinian citizens in the al-Shati refugee camp was caused
not by an Israeli attack but rather by rocket fire from within Gaza. This case is proof of the
indiscriminate nature of the rockets used by Hamas and of their utter inability to be configured
so as to accurately target specific military objectives. In addition to targeting Israeli civilians,
Hamas thus endangered civilians in Gaza by means of this conduct and consequently entirely
failed to comply with the obligation to take all feasible precautions. By using these weapons on
a regular basis, flagrant disregard for the rules of IHL was repeatedly displayed throughout the
conflict. In actual fact, if the al-Shati attack was to be proven to have been caused by Hamas,
it would mean that attacks launched by Palestinian armed groups during the 2014 conflict
killed more civilians inside the Gaza Strip than in Israel202.
The [al-Shati refugee camp]attack appears to have violated international humanitarian law in
several ways, as the evidence indicates that it was an indiscriminate attack using a prohibited
weapon which may well have been fired from a residential area within the Gaza Strip and may
have been intended to strike civilians in Israel.203
In addition to violating the Geneva Conventions and the customary international laws of war
by firing rockets indiscriminately at Israeli citizens, Hamas has also violated international law
199

ICRC, Customary IHL, Rule 15. Precautions in Attack, available online at:
https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule15
201
Amnesty International, (n 1), p.36, pp.47-25
202
Ibid. p.60
203
Ibid. p. 52
200
48
by firing their rockets from civilian areas within Gaza. The largest hospital in Gaza, al-Shifa, was
alleged204 to have been used as a rocket launcher site. Similar claims205, such as that the alShifa hospital functioned as a command centre for Hamas and was used for interrogations,
were made by the Israeli authorities, Amnesty International and other international media
outlets.
the hospital, which has become a de facto headquarters for Hamas leaders, who can be seen
in the hallways and offices. 206
Hamas forces used the abandoned areas of al-Shifa hospital in Gaza City, including the
outpatients clinic area, to detain, interrogate, torture and otherwise ill-treat suspects, even as
other parts of the hospital continued to function as a medical centre.207
Al-Wafa Hospital was also allegedly208 used for military purposes. Moreover, there were claims
made by the head of the Greek Orthodox Church in Gaza that Hamas militants had used a
church as a launch site for rockets209. According to the IDF numerous other civilian locations,
including another hospital210 and a number of schools211 were also used for military purposes.
In accordance with Article 18 of the Fourth Geneva Convention hospitals may not be attacked
during armed conflicts however the Article also calls on all parties to the conflict to respect
and protect medical facilities and in particular mentions that in view of the dangers to
which hospitals may be exposed by being close to military objectives, it is recommended that
204
Joshua Levitt, Finnish TV Reporter at Gazas Al Shifa Hospital: Its True that Rockets Are Launched
Here From the Gazan Side Into Israel, The Algemeiner, 1 August 2014, available online at
http://www.algemeiner.com/2014/08/01/finnish-tv-reporter-at-gazas-al-shifa-hospital-its-true-thatrockets-are-launched-here-from-the-gazan-side-into-israel-video/
205
Israel Ministry of Foreign Affairs, (n 169), p. 20
206
See, for example, William Booth, While Israel held its fire, the militant group Hamas did not,
Washington Post, July 15, 2014, available online at:
http://www.washingtonpost.com/world/middle_east/while-israel-held-its-fire-themilitant-grouphamas-did-not/2014/07/15/116fd3d7-3c0f-4413-94a9-2ab16af1445d_story.html
207
208
Palestinian terrorist organizations used the hospital compound for a range of varied and multiple
military purposes, Israel Ministry of Foreign Affairs, Operation Protective Edge: Investigation of
exceptional incidents - Update 2, Decisions of the IDF Military Advocate General, 7 December 2014,
available online at: http://mfa.gov.il/MFA/ForeignPolicy/IsraelGaza2014/Pages/Operation-ProtectiveEdge-Investigation-of-exceptional-incidents-7-Dec-2014.aspx
209
George Thomas, Gaza Bishop: Hamas Used Church to Fire Rockets, CBN News, 8 August 2014,
available online at: http://www.cbn.com/cbnnews/insideisrael/2014/august/gaza-bishop-hamas-usedchurch-to-fire-rockets-/
210
IDF Blog, Hamas uses hospitals and ambulances for military-terrorist purposes, 28 July 2014, available
online at: http://www.idfblog.com/blog/2014/07/28/hamas-uses-hospitals-ambulances-militarypurposes/
211
Israel Ministry of Foreign Affairs, (n 169), pp. 19-27,
49
such hospitals be situated as far as possible from such objectives. In addition Article 58 of
Additional Protocol I states that the parties must endeavour to remove the civilian
population, individual civilians and civilian objects under their control from the vicinity of
military objectives; avoid locating military objectives within or near densely populated areas.
Taken together, the provisions of Article 18 and Article 58 constitute a binding, positive
obligation to locate military objectives and hospitals as far away from one another as possible.
By storing weapons in hospitals and firing rockets from the vicinity of hospitals, Hamas clearly
violated this requirement. Article 19 of the Fourth Geneva Convention notes that said
protection of hospitals may cease in the event that they are used to commit, outside their
humanitarian duties, acts harmful to the enemy. Storing weapons and firing rockets could
reasonably come under the definition of acts harmful to the enemy. It has been argued212
that the evidence that Hamas used hospitals for military purposes would trigger the Article 19
discontinuation of legal protection. This is particularly true given the allegations213 that
Hamas used Al-Shifa Hospital as a command centre, to interrogate journalists and to conduct
press relations activities214, thus clearly violating the requirement to locate hospitals as far as
possible from all military objectives. The IDF would still be required, in any case, to provide
due warning of its intentions to attack the hospital premises given their use for military
purposes which it arguably did, through phone calls215 and leaflet drops216 inter alia.
A report217 released by the IDF claimed that of the over 3,600 rockets fired at Israel from Gaza
at the time of writing, 1,600 had been fired from civilian areas, among them numerous
mosques, cemeteries, hotels, power plants and hospitals. Given that there was also evidence
212
Eli Wishnivetski, JNS.org, Applying international law to the Israeli-Hamas conflict, August 28 2014,
available online at: http://www.jns.org/latest-articles/2014/8/27/applying-international-law-to-theisrael-hamas-conflict#.VXg1Tc-qqko
213
Elder of Ziyon, Hamas Al Qassam offices are next to the emergency room at Shifa Hospital, July 24
2014, available online at: http://elderofziyon.blogspot.co.uk/2014/07/hamas-al-qassam-offices-arenext-to.html#.VXg2Bc-qqkr
214
Lahav Harkov, Jerusalem Post, Gaza reporters tweets: Hamas using human shields, 24 July 2014,
available online at: http://www.jpost.com/Operation-Protective-Edge/Gaza-reporters-tweets-Hamasusing-human-shields-368689
215
IDF, Warning Call to Wafa Hospital Before IDF Targets, July 23 2014, available online at:
https://youtu.be/8O9AHzUKYk8
216
IDF, IDF Urges Civilians to Leave Areas of Gaza Targeted for Strikes, July 16 2014, available online at:
https://youtu.be/yoK9YL6D5RE
217
IDF, Declassified Report Exposes Hamas Human Shield Policy, August 19, 2014, slide 2., available
online at: http://www.slideshare.net/IsraelDefenseForces/new-declassified-report-exposes-hamashuman-shield-policy-38180790
50
that civilian areas had been used for military purpose by Hamas in previous conflicts218, and in
the light of the claims made by journalists and the Israeli authorities, it is likely that Hamas did
indeed use built-up, residential areas for military operations:
Hamas and other armed groups also endangered Palestinian civilians by failing to take all
feasible precautions in the conduct of their military activities, notably by firing rockets from
residential areas and storing weapons, explosives and ammunition in themHamas and other
Palestinian groups endangered civilians by firing rockets from populated residential
neighbourhoods...Hamas and other groups generally store weapons in civilian areas and there
is no reason to believe that it was any different during Operation Cast Lead219
Footage filmed by French media correspondents220 appears to provide evidence that Hamas
fired rockets from areas heavily populated with civilians as well as from the vicinity of UN
schools. Amnesty International reiterated this finding in one of their reports on Operation
Protective Edge stating that attacks by armed groups in Gaza launched from within residential
areas were far from isolated occurrences221. This finding is also corroborated by UN OHCHR
which documented222 cases of rockets being fired from cemeteries in the North of the Gaza
Strip:
OHCHR received multiple reports that members of Palestinian armed groups frequently fired
rockets from the cemetery towards Israel. On three occasions UNRWA confirmed that
weapons components had been placed in three vacant UNRWA schools in Gaza in breach of the
inviolability of United Nations premises Immediately after discovering the items, UNRWA
informed all key parties and condemned these violations of international law.223
Storing weapons in civilian areas is prohibited under IHL224 as it essentially a way to shield and
disguise military objectives. On three separate occasions225 UNRWA confirmed that weapons
218
See, for example, Amnesty International, Israel/Gaza: Operation Cast Lead: 22 Days of Death and
Destruction (Index: MDE 15/015/2009), 2 July 2009, pp. 74-75, available online at:
https://www.amnesty.org/en/documents/mde15/015/2009/en/
219
Ibid.
220
France 24, Rocket fire caught live as France 24 correspondent reports from Gaza, 31 July 2014,
available online at: https://www.youtube.com/watch?v=EaqWqjb4w6s; France 24, Exclusive: Hamas
rocket launch pad revealed near Gaza homes, 5 August 2014, available online at:
https://www.youtube.com/watch?v=uE3feo_b8Cg#t=54
221
222
December 2014, pp. 18-19.
223
Ibid.
224
Article 51(7) of the 1977 Additional Protocol I
225
Ilan Ben Zion, Times of Israel, Rockets found in UNRWA school, for third time, July 30 2014, available
online at: http://www.timesofisrael.com/rockets-found-in-unrwa-school-for-third-time/
51
had been found in their premises in Gaza. Israel also released a report226 detailing some of the
weapons found in schools in Gaza. According to the Israeli authorities, specific launching sites
have been identified within 25m of healthcare facilities, within 25m of mosques and within
30m of UN schools227. This allegation has been confirmed by senior Hamas official Ghazi Hamas
who claimed that:
The Israelis kept saying rockets were fired from schools or hospitals when in fact they were
fired 200 or 300 metres (yards) away. 228
A senior researcher from Human Rights Watch also endorsed this claim stating that I dont
think theres any doubt urban areas were used to launch rockets from in the Gaza Strip229. A
number of other international journalists also documented rockets being fired from the vicinity
of UN buildings, hotels and civilian homes230. The use, by Hamas, of UN premises for military
purposes, condemned by UNRWA as a flagrant violation of the inviolability of its premises
under international law231 is likely to constitute a breach of IHL.
In addition, encouraging or coercing civilians232 to remain in areas they have been warned are
to be targeted in military attacks may constitute a violation of IHL233. There is abundant
evidence234 that senior Palestinian officials repeatedly called on civilians to ignore warnings
and remain in their homes. However the definition of human shields proposed by the ICRC235
shows that intentional co-location is required for a practice to be considered to comply with
226

Israel Ministry of Foreign Affairs, (n 169), pp. 18-19, 20-26, 30
228
Hamza Hendawi and Josef Federman, Evidence growing that Hamas used residential areas as cover
for firing rockets at Israel, AP, 12 September 2014, available online at:
http://www.theglobeandmail.com/news/world/evidence-growing-that-hamas-used-residential-areasas-cover-for-firing-rockets-at-israel/article20572875/
229
Ibid.
230
231
UNRWA, Press release, 17 July 2014, available online at: www.unrwa.org/newsroom/pressreleases/unrwa-strongly-condemns-placement-rockets-school
232
IDF, Hamas Use of Human Shields is a War Crime, 14 July 2014, available online at:
http://www.idfblog.com/blog/2014/07/14/hamas-use-human-shields-war-crime/
233
Article 28 of the 1949 Geneva Convention IV, Article 51(7) of the 1977 Additional Protocol I
234
We call on them to remain in their homes and disregard the demands to leave, however serious the
threat may be. See Al-Aqsa TV, Hamas tells civilians to ignore warning notices from the Israeli army,
July 14, 2014, available online at: https://youtu.be/Zm09uRDdzto; see also IDF, Hamas instructs
Palestinians in Gaza not to follow the IDF's instructions to evacuate their homes, 12 July 2014, available
online at: https://twitter.com/IDFSpokesperson/status/488077694471385088; Israel Ministry of Foreign
Affairs, (n 169), pp. 38-39.
235
the use of human shields requires an intentional co-location of military objectives and civilians or
persons hors de combat with the specific intent of trying to prevent the targeting of those military
objectives, ICRC, Customary IHL, Rule 97. Human Shields, accessed 15 June 2015, available online at:
https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter32_rule97#Fn_61_22
227
52
the ICRC definition. In addition, jurisprudence236 on this matter indicates that some level of
physical coercion, against the will of the civilians, may be necessary to prove this violation.
Given that the statements made by Hamas and other Palestinian officials refer to a wide
geographical area (such as the whole Gaza Strip) there may be difficulty in proving that these
instructions constitute a specific intent (intentional co-location) to locate military objectives
and civilians in the same precise geographic area for the purposes of shielding legitimate
military targets from attack. In some instances237, however, the IDF did assert that Hamas
physically coerced civilians to stay in their homes. In addition Sami Abu Zurhi, a senior Hamas
spokesperson has publicly praised this practice stating that Palestinian civilians in Gaza have
defied IDF prior warnings and instead climbed onto the roof of their buildings, effectively
acting as human shields in order to deter IDF air strikes, stating that , Our citizens took a bold
step by standing on the roof of the house to prevent the occupation forces from
attackingThe fact that our people are willing to sacrifice themselves...this strategy is proving
itself...we Hamas, call on our people to adopt this practice238. There is therefore significant
evidence that Hamas directly encouraged and promoted the use of human shields and there
may have been a violation of IHL239 in this respect. Publicly calling on civilians to continue this
practice may, arguably, come under the definition of Article 51(7)240 if it can be demonstrated
that the actions of Hamas amounted to directing the movement of said persons.
The main defence, used by Hamas, with regard to the allegation that civilian areas were used
for military purposes is that the Gaza Strip is an extremely densely populated urban area with
little to no non-residential land available. This claim has been refuted by Amnesty International
who stated the following in a recent report:
significant areas within the 365km2 of territory are not residential, and conducting hostilities
or launching munitions from these areas presents a lower risk of endangering Palestinian
civilians241
The allegation that Hamas breached Article 51(2) of Additional Protocol I by launching
indiscriminate rocket attacks with the objective of spreading terror among the civilian
population was also corroborated by the UN Inquiry which stated that it could not exclude
236
ICTFY, Karadi and Mladi case, CASE NO. IT-95-5-I, Review of the indictments
Israel Ministry of Foreign Affairs, (n 169), p. 40.
238
IDF, Hamas Spokesperson Encourages Use of Human Shield, July 9 2014, available online at:
https://youtu.be/UXZEzbT0H1s
239
Article 28 of the 1949 Geneva Convention IV, Article 51(7) of the 1977 Additional Protocol I
240
Article 51(7) of the 1977 Additional Protocol I, full text reproduced in Annex IV
241
237
53
the possibility242 that this was Hamas intention. This is particularly the case given the
apparent lack of a military advantage to be achieved through such attacks. The Commission
concluded that, despite the difficulties inherent in collecting evidence to prove Hamas
violations of international law, it was able to identify certain patterns of behaviour of
Palestinian armed groups which may have had a negative impact on the protection of the
civilian population and of civilian objects in Gaza243. It also stated that Hamas' obligation to
avoid to the maximum extent possible locating military objectives within densely populated
areas was not always complied with244.
Those individuals who use civilian areas245 in Gaza to store weapons and launch deliberate or
indiscriminate246 attacks, against civilian population centres247 in Israel, using indiscriminate
weapons248 are committing numerous serious breaches of IHL and are responsible for their
actions under the principle of individual criminal responsibility. Jurisprudence249 has also
demonstrated that spreading terror among the civilian population can give rise to individual
criminal liability under customary international law. Hamas, as the de facto governing entity in
the Gaza Strip, is liable for these breaches of IHL under the principle of state liability and for
failing to ensure that civilian infrastructure is not used, by its military wing or other armed
groups, for military purposes250.
The Hamas government in the Gaza Strip must do everything in its power to stop the rocket
and mortar fire, and the Palestinian organizations must cease attacks aimed at civilians, in
particular when they are carried out from populated Palestinian areas. The government is
responsible for the breaches of international humanitarian law, due to its failure to take
sufficient action to stop the firing from areas close to civilian homes, and even more so, as it
actively takes part in these attacks. The persons involved in these breaches are guilty of war
crimes and bear individual criminal responsibility for their acts.251
The allegations outlined, if substantiated, would clearly constitute, inter alia, unequivocal
violations of the principles of distinction, necessity and proportionality in attack under Articles
242

Ibid. p.124
244
Ibid. p. 127
245
246
247
Article 52 of the 1977 Additional Protocol I
248
249
Prosecutor v. Galic, case No. IT-98-29-A, Judgement, 30 November 2006.
250
Article 18 of the Fourth Geneva Convention states that "Civilian hospitals...shall at all times be
respected and protected by the Parties to the conflict".
251
B'Tselem, Rocket and mortar fire into Israel, 24 July 2014, available online at:
www.btselem.org/israeli_civilians/qassam_missiles
243
54
48, 51(4), 52, and 58 of Additional Protocol I. In conclusion, in relation to the alleged breaches
outlined at the beginning of this chapter, and in light of the evidence presented above, there is
a significant likelihood that all of the alleged violations of provisions of IHL committed by
Hamas were indeed carried out. Hamas has thus failed to comply with the obligations it has as
the de facto government of the Gaza Strip, in the State of Palestine, a state which has signed
the Geneva Conventions and is thus bound to comply with their provisions. A number of these
breaches are core crimes under the ICC Statute and as such potential remedies for these
violations will be explored in the chapter on international criminal law, below.
c) Breaches by the IDF

Alleged breaches:
1. Failing to comply with the principles of distinction and proportionality under Articles
48, 51(2), 51(5)(b) and 52(2) of Additional Protocol I by:
objects and military objectives (Article 48) and launching indiscriminate attacks not
justified by military necessity (Article 51(5)(b));
failing to fully comply with the principle of precautions in attack (Article 57 (1) of
and directing attacks against civilians (51(2)) and non-military objectives (Article 52).
Perhaps nothing symbolized more the horror that was unleashed on the people of Gaza than
the repeated shelling of UN facilities harbouring civilians who had been explicitly told to seek a
safe haven there. These attacks were outrageous, unacceptable and unjustifiable.252
In an unusually strongly worded speech to the General Assembly on 6th August 2014, Ban Kimoon, the Secretary General of the UN, condemned the IDF shelling of UN schools and other
facilities in Gaza. He pointed out that serious questions had to be asked in relation to both
distinction and proportionality and insinuated that suspected breaches of international law
had been committed in relation to these Israeli attacks on UN premises. In the same speech he
did, however, also acknowledge that weapons had been stored in a small number of
abandoned buildings and that Hamas reportedly launched rockets from near UN premises. In
addition, in another speech made in Tel-Aviv several weeks earlier, Ban Ki-moon had made
reference to indiscriminate rocket firings from Gaza by Hamas and Islamist jihadists253 as well
as Israels legitimate security concerns254. Upon his return to the UN headquarters from the
252
Remarks to the General Assembly on the situation in Gaza, Secretary-General Ban Ki-moon, General
Assembly, 06 August 2014
253
Remarks to the press with Israeli Defense Minister Moshe Ya'alon, Secretary-General Ban Ki-moon,
Tel Aviv (Israel), 22 July 2014
254
Ibid.
55
Middle East he again reiterated that Hamas rockets have randomly struck Israel and called
for accountability and justice for crimes committed by all sides255. These unusually direct and
emphatic statements illustrate the complex issues at play in relation to the alleged breaches of
international law carried out during this period as well as the seriousness of these allegations.
In particular the attacks on schools, hospitals and other shelters, mainly those run by the
United Nations, have repeatedly been held up as breaches of the most unacceptable type.
According to the United Nations Department of Safety and Security, between 7 July and 26
August, the IDF conducted a total of 4,028 air raids, firing 5,830 missiles, in addition to 16,507
artillery and tank projectiles and 3,494 naval shells256. A statement released by an IDF
spokesperson stated inter alia that in the course of the operation more than 5,226 terror sites
were attacked, which included structures used as military posts, command and control
centers, weapon arsenals, and weapons manufacturing infrastructure and government
institutions that supported military fighting257. The IDF also released a graphic258 detailing
the location of its strikes (using a map of damage in Gaza, produced by the UN) side by side
with another map showing the alleged locations of Hamas military structures and launch sites.
The image is used to advance the claim that the IDF distinguishes between structures used for
terror purposes and structures used only for civilian purposes259.
It is also likely that the IDF would attempt to claim that it was acting in self-defence in Gaza
and that its actions are therefore justified under the UN Charter260. The Security Council press
releases from summer 2014 would seem to confirm the IDFs allegations that its actions were a
response to Hamas rocket fire:
255
Opening remarks at press encounter upon return from visiting the Middle East, Secretary-General
Ban Ki-moon, UN Headquarters, 28 July 2014
256
December 2014, p.8
257
IDF Spokesperson release, 29 August 2014, Target by target: the main events of Operation Protective
Edge (Hebrew)
258
IDF blog, IDF targets map, August 04, 2014, available online at: http://www.idfblog.com/wpcontent/uploads/2014/08/Shujaiya-maps-comparison2.jpg
259
IDF blog, New Map Exposes Hamas Fortress in Shujaiya, August 4, 2014, available online at:
http://www.idfblog.com/blog/2014/08/04/map-exposes-hamas-fortress-shujaiya-neighborhood/
260
Article 51, Charter of the United Nations, 1945
56
the fragile calm in the Gaza Strip had been interrupted by multiple rockets fired into Israel, as
well as the Israeli military response.261
a barrage of more than 500 rockets and mortars from Gaza into Israel and more than 500 air
strikes on Gaza undertaken by Israel primarily targeted at Hamas and Islamic Jihad facilities
and residences of their members262.
The IDF may also assert, as in the war against Lebanon/Hezbollah, that its actions come under
the war on terror. However this rhetoric has been criticised in the past by the UN, especially
when it appears that it is being used in a manipulative manner such as when it was alleged
that Israel drew parallels to the situation in the USA in order to capitalize on the legitimate
indignation over the tragic events that the people of the United States had lived through
recently263. In addition the IDF has claimed264 that airstrikes on weapons caches in Gaza,
located in densely populated urban areas, often resulted in secondary explosions (as a result of
the weapons contained in the building exploding following the airstrike) and that this, not the
airstrike by the IDF per se, was the cause of significant damage to civilian property and loss of
civilian lives.
Protection of the civilian population- failure to comply with the principle of distinction and
proportionality (civilian deaths)
In accordance with Article 48 of Additional Protocol I265 the parties must ensure that they
differentiate between combatants and civilians while Article 51(5)(b) holds that there will be a
breach of IHL where the loss of civilian life, injury to civilians or damage to civilian object is
excessive in relation to the concrete and direct military advantage anticipated. In addition
under Article 51(3) of Additional Protocol I civilians shall lose protection from attack if they
take a direct part in hostilities. Consequently to establish the legality of military operations
which cause civilian deaths or injuries it is essential to prove that: either the direct military
261
Jeffrey Feltman, Under-Secretary-General for Political Affairs, United Nations Security Council,
Meetings Coverage, Unsettling Events in Wider Middle East Must Not Obscure Israeli-Palestinian
Conflict, Under-Secretary-General Cautions during Security Council Briefing, 23 June 2014, available
online at: http://www.un.org/press/en/2014/sc11446.doc.htm
262
Secretary-General Ban Ki-moon, United Nations Security Council, Meetings Coverage, International
Community Must Accelerate Efforts to Halt Violence in Gaza, Israel from Spiralling Out of Control,
Secretary-General Tells Security Council, 10 July 2014, available online at:
http://www.un.org/press/en/2014/sc11467.doc.htm
263
UN Press Release SC/7242, 14 December 2001
264
IDF, IDF Strike on Concealed Weapons Causes Massive Secondary Explosion, July 10 2014, available
online at: https://youtu.be/4ayyXgRVWHk
265
Full text produced in Annex IV
57
advantage warranted the attack or the civilians targeted were taking a direct part in the
conflict.
It is important to point out that it is not the numbers of civilian deaths which will determine
whether or not the IDF acted disproportionately in Gaza. Therefore the disparity between the
number of Palestinian and Israeli fatalities should not be taken, prima facie, as an indication
that the IDF acted disproportionately266. The principle of proportionality, widely accepted as a
norm of customary international law applicable in international and non-international armed
conflicts, requires a party planning an individual attack on a specific target to assess, at this
point in time, whether the expected incidental harm (to civilians, civilian objects or a
combination thereof) would be excessive in relation to the concrete and direct military
advantage anticipated267. Proportionality may not therefore be assessed by comparing the
numbers of civilian fatalities after the conflict. Nonetheless, given that the majority of the
allegations against the IDF relate to an excessive number of civilian deaths the final ratio of
civilian to combatant deaths bears closer examination. The ratio reported by the UN is around
2:1 while the ratio reported by the IDF is 1:1268. In any case, it should be noted that even if the
UN figure is correct, this is significantly lower than the international norm269 of 3:1. In
Afghanistan the ratio is estimated to have been 3:1 while in Iraq and Kosovo it is believed to
have been closer to 4:1.270
It is important to note in any case that numerous sources271 have confirmed that a number of
civilian deaths within the Gaza strip were likely caused by the actions of Hamas, rather than by
the IDF. Therefore the numbers of civilian deaths are to be interpreted in light of this
allegation as well as in light of the argument that Hamas may have manipulated the numbers
of civilians versus combatants for strategic, politicised reasons. A number of allegations have
266

Article 51(5)(b) of Additional Protocol I
268
Washington Post, The U.N. says 7 in 10 Palestinians killed in Gaza were civilians. Israel disagrees,
August 29, 2014, available online at: http://www.washingtonpost.com/world/middle_east/the-un-says7-in-10-palestinians-killed-in-gaza-were-civilians-israel-disagrees/2014/08/29/44edc598-2faa-11e49b98-848790384093_story.html
269
Richard Kemp, A salute to the IDF, 15 June 2011, available online at:
http://www.jpost.com/Opinion/Op-Ed-Contributors/A-salute-to-the-IDF
270
Ibid.
271
In some attacks investigated by Amnesty International, researchers have found that the deaths or
injuries of Palestinian civilians in Gaza were most likely caused by indiscriminate munitions fired by
Palestinian armed groups; The Paper also notes the direct injury and damage caused to Palestinians by
the explosion of Hamas weapons factories and the falling of rockets short of their targets on
Palestinians in Gaza. Amnesty International, (n 1)
267
58
been made in this respect, such as that Hamas took measures to encourage Gazans to conceal
that individuals were killed as a result of their involvement in the hostilities in an attempt to
undermine their qualification as legitimate targets
272
. Inter alia, the evidence for this
assertion is a number of social media posts by the Hamas authorities making statements such
as:
Anyone killed or martyred is to be called a civilian from the Gaza Strip or Palestine, before we
talk about his status in jihad or his military rank. Dont forget to always add innocent civilian
or innocent citizen in your description of those killed in Israeli attacks on the Gaza Strip.273
Hamas was involved, as the main data provider, in producing the official figures released by
the Palestinian Authority. These figures were then used by a number of international
organisations and NGOs in drawing conclusions about the numbers of civilians versus
combatants. As such, Hamas political incentive in doctoring the data in order to assert that
most deaths were of civilians should be taken into consideration in assessing the data. As
stated by the Israeli authorities:
The need for a careful examination of such statistics is especially important given Hamass
efforts to manipulate the number of civilian fatalities from hostilities with Israel.274
The IDF has repeatedly asserted that it acted in accordance with international law, in particular
with regard to the principles of proportionality and distinction under IHL. A report issued by a
mission made up of a team of senior diplomats and military officials (featuring 11 former chiefs
of staff, generals, senior officers, political leaders and officials from the United States,
Germany, the United Kingdom, Spain, Italy, Australia and Colombia), led by General Klaus
Naumann, former Chief of Staff of the Bundeswehr (German Federal Defence Forces) and
Chairman of the NATO Military Committee, concluded that:
We believe that in general Israeli forces acted proportionately as required by the laws of armed
conflict and often went beyond the required legal principles of proportionality, necessity and
discrimination. 275
272
State of Israel, Palestinian Fatality Figures in the 2014 Gaza Conflict, 2014, p. A-4, available online at:
http://mfa.gov.il/ProtectiveEdge/Documents/PalestinianFatalities.pdf
273
Ibid. pp. A-4-A-7
274
Ibid., p. A-11
275
High Level International Military Group, The Gaza Conflict in 2014, 31 May 2015, available online at:
http://blog.unwatch.org/wp-content/uploads/HLIMG-report-cover-letter-to-Judge-Mary-McGowanDavis-UNHRC-31-May-2015.pdf
59
This mission was granted unprecedented access to the Israeli government and the IDF and
was presented with a wide range of evidence in situ, in Israel. This group also submitted its
finding to the UN Commission of Inquiry.
It is important to determine whether the IDF acted in a proportional manner in carrying out its
military operations in Gaza, given the specific circumstances in which it was operating. An
attack which can reasonably be expected to cause incidental civilian deaths, injuries and/or
damage to civilian property must not be excessive in relation to the concrete and direct
military advantage anticipated276. Proportionality must therefore be assessed contextually,
taking into consideration the military advantage to be gained and weighing this against any
incidental collateral damage. As Robert Ago, a former ICJ judge explained the action needed
to halt and repulse the attack may well have to assume dimensions disproportionate to those
of the attack suffered277. The objective of a military operation in the context of self-defence is
normally to end the offensive action, so in the case of the IDF in Gaza, to end Hamas rocket fire
into Israel. In order for the IDFs response to be held to be proportionate it is not necessary for
the defensive action to be restricted to exactly the same weapons or the same number of
armed forces as the armed attack278. Nor is it necessary for the means to be identical to those
employed by Hamas: A proportionate responseis [one] necessary and appropriate to repel
the attackusing the means appropriate to the particular circumstances.279 It is argued that
the overall threat posed by the enemy which launches an attack, in this case Hamas, is what
should be assessed in order to determine the scope and breadth of the proportionate,
permissible response. By only responding to aggression by Hamas in an identical manner, that
is, by launching unguided missiles into civilian areas, Israel would be, first and foremost,
violating the same provisions of IHL as Hamas and secondly allowing the aggressor to set the
parameters of the subsequent hostilities280. Professor Yoram Dinstein of Tel Aviv University
argues that a defensive war need not be terminated at the point when the aggressor is driven
276

Addendum - Eighth report on State responsibility by Mr. Roberto Ago, Special Rapporteur - the
internationally wrongful act of the State, source of international responsibility, Extract from the
Yearbook of the International Law Commission, 1980
278
Tom Ruys 'Armed Attack' and Article 51 of the UN Charter, Evolutions in Customary Law and Practice,
October 2013, Cambridge University Press
279
Enzo Cannizzaro, International Review of the Red Cross, Contextualizing proportionality: jus ad
bellum and jus in bello in the Lebanese war, December 2006, available online at:
https://www.icrc.org/eng/assets/files/other/irrc_864_cannizzaro.pdf
280
David Daoud, The Tower, Everything you need to know about International Law and the Gaza War,
September 2014, available online at: http://www.thetower.org/article/everything-you-need-to-knowabout-international-law-and-the-gaza-war/
277
60
back281. Rather the purpose of a defensive war is to eliminate the threat posed and restore
security, meaning that such a war may be carried on by the defending State until final
victory282. Proportionality should not therefore be understood as limiting the actions of the
IDF to simply replicating the attacks launched by Hamas; in self-defence a party may,
emphatically, continue to fight the war until such a time as the threat posed has been entirely
neutralised. Given the very real and ever-growing threat283 posed by Hamas it is claimed that
the IDFs ground incursion, together with its airstrikes, were necessary in order to set the
organization back to a point where it could no longer threaten Israel284.
Nonetheless, a wide range of allegations cast doubt on the actions of the IDF, in particular in
certain individual attacks which resulted in a large number of civilian deaths 285. According to
B'Tselem, IDF airstrikes on residential civilian homes led to the deaths of almost one quarter
of the Palestinian casualties286. Israels heavy response was also criticised in Security Council
meetings by Secretary-General Ban Ki-moon:
However, while strongly condemning the indiscriminate rocket fire launched by Hamas and the
Islamic Jihad from Gaza into Israel, he voiced alarm by Israels heavy response and the
corresponding high civilian death toll in Gaza.287
With respect to proportionality, as mentioned above it is essential that the civilian deaths
expected to occur are not excessive in relation to the anticipated military advantage. In this
respect there are serious and legitimate concerns regarding the bombing of inhabited civilian
homes, in some cases entire apartment block, on occasion reportedly in order to target a
single Hamas operative:
Israeli aircraft dropped without prior warning a large aerial bomb which demolished an entire
apartment building, resulting in the killing of 36 people from four families, including at least 33
281
Yoram Dinstein, War, Aggression and Self-Defence, December 2011, Cambridge University Press,
p.211
282
Ibid.
283
David Daoud, (n 280)
284
Ibid.
285
See the list of representative alleged breaches in Annex II
286
these strikes would become one of the appalling hallmarks of the fighting , with more than a quarter
of Palestinians fatalities killed in such a strik [sic], BTselem The Israeli Information Center for Human
Rights in the Occupied Territories, Black Flag: The legal and moral implications of the policy of attacking
residential buildings in the Gaza Strip, summer 2014 BTselem report, January 2015, p.4, available online
at http://www.btselem.org/download/201501_black_flag_eng.pdf
287
Secretary-General Ban Ki-moon, United Nations Security Council, Meetings Coverage, Urging IsraeliPalestinian Parties to Renew Ceasefire Efforts, Secretary-General Tells Security Council Conflicts Root
Causes Must Be Addressed, 22 July 2014, available online at:
61
civilians, of whom 18 were children. Amnesty International believes this attack was targeting
one individual.288
While it is difficult to establish precisely who the target of this attack was, and acknowledging
the fact that this issue would need to be objectively assessed based on the records kept by the
IDF, if it were the case that a single combatant was the target in an attack that killed 36 people
and, crucially, it can be demonstrated that the IDF should have expected this result, it cannot
reasonably be held that such an attack is lawful, given that it clearly breaches the principle of
proportionately. 35 civilian deaths is a decisively excessive figure if the target was one
individual. It is also important to determine whether this practice can be said to constitute
military tactics reflective of a broader policy, approved, endorsed or condoned by senior
government officials289. The fact that the policy appears to have been implemented
throughout the conflict, without being amended or revised, would give weight to this claim.
Allegations have also been made that the IDF treated large civilian areas as a valid military
objective, due to the existence of distinct military objectives in said area. This may constitute a
violation of the prohibition of indiscriminate attacks and may even constitute a direct attack
on civilians in accordance with jurisprudence290:
The information available also indicates that during the Shujaiya operation on 19 and 20 July
the IDF violated the prohibition of treating several distinct individual military objectives in a
densely populated area as one single military objective291.
Additionally, in relation to the principle of proportionality, the timing of a number of attacks
has been called into question. One can reasonably assume that civilians are most likely to be at
home in the evening, at night and in the early morning, as opposed to during the working day.
Thus it is logical to assume that the highest number of civilian casualties can be expected to be
incurred if attacks are carried out against civilian properties at this time and consequently one
would expect the IDF to avoid attacking homes at these times. One NGO report292 claimed that
69% of the attacks they documented were in fact carried out between the hours of 19.00-7.00.
The UN Commissions report also highlighted this issue:
288
Amnesty International, Families Under the Rubble: Israeli Attacks on Inhabited Homes, November
2014, p.8, available online at: https://www.amnesty.org/en/documents/mde15/032/2014/en/
289
See ICTYs Kupreskic Judgement of 2000; FIDH, Trapped and Punished: The Gaza Civilian Population
under Operation Protective Edge, March 2015,pp. 29, 30, available online at:
https://www.fidh.org/IMG/pdf/report_gaza_fidh_march_2015.pdf
290
291
292
Alkarama, The 2014 Operation Protective Edge, Violating the Laws of War, February 2015, p.7,
available online at: http://en.alkarama.org/documents/Gaza_COI-2014_EN_WEB.pdf
62
many of the attacks took place in the evening as families gathered for iftar, the Ramadan
meal to break the fast, during the night when people were asleep; or in the early morning
during suhhur, the last meal before dawn, which increased the likelihood that many persons,
often entire families, were at home.293
The principle of precaution in attack requires that any strike targeting a combatant be
organised (included timing) so as to avoid civilian injury and death. Carrying out a strike against
an individual when there is a high likelihood of there being a large number of civilians present
may thus constitute a breach of this obligation. This is particularly true where there may have
been an alternative time available to carry out the strike, which would have resulted in fewer
civilian casualties294.
The second largest number of civilian deaths in any single attack in Operation Protective Edge
was caused by the bomb dropped on the Abu Jame family home, killing 26 individuals,
including 25 civilians, of whom 19 were children. Only three people inside the house at the time
survived. The apparent target was a fighter with the al-Qassam Brigades, the military wing of
Hamas, who was not even within the house at the time, but reportedly sheltering under a
balcony.295
There is evidence, therefore, that the IDF did not fully comply with the principle of
proportionality in relation in particular to the timing of certain attacks and the numbers of
civilian deaths which should have reasonably been expected, especially given the nature of the
targets and the timing of the strikes. The number of deaths which occurred in the strike on the
Abu Jame family home, for example, are clearly excessive296 in relation to the concrete and
direct military advantage anticipated by killing one Hamas fighter. Unless the IDF can prove
that the military advantage gained in this case and in other similar cases was exceptionally and
unusually significant, and that it took all necessary precautions in attack297, there is prima facie
evidence that it would constitute an indiscriminate attack298. The IDF should make available
more specific and detailed information to justify these strikes and to enable independent
parties, in particular the ICC, to investigate whether or not their actions complied with their
obligations under IHL.
Protection of civilian objects- failure to comply with the principle of distinction (civilian
objects/non-military objectives)
293

Article 57(3) of Additional Protocol I
295
296
297
298
294
63
During the conflict there was significant damage to civilian infrastructure in Gaza:
During the escalation, 18,080 units, housing approximately 108,500 persons, were totally
destroyed or severely damaged in the Gaza Strip and had become uninhabitable.299
OCHA estimated that Operation Protective Edge resulted in the destruction of around 18,000
homes, leaving over 100,000 Palestinians homeless.
About 18,000 homes were destroyed or badly damaged and more than 100,000 Palestinians
were rendered homeless.300
Article 52 of Additional Protocol I states that civilian objects shall not be the object of attack
unless they are being used to make an effective contribution to military action. Article
51(5)(b) holds that there will be a breach of IHL where the damage to civilian objects is
excessive in relation to the concrete and direct military advantage anticipated. Deliberately
or indiscriminately targeting civilian homes, which are not making any contribution to military
action, during military operations is therefore explicitly prohibited under IHL as is causing
damage to civilian infrastructure where this damage is excessive when compared with the
military advantage to be gained through said attack. As such two facts are paramount to
establishing the legality of military operations which cause damage to civilian infrastructure:
firstly, before launching an attack, it must be ascertained whether the object can be
considered to have been making an effective contribution to military action and secondly the
damage caused followed the military operation must be justified and proportional in relation
to the military advantage that the damage provided.
A number of the most serious allegations of breaches of the Geneva Conventions in relation to
the actions of the IDF relate to the destruction of places of worship, hospitals, schools, other
civilian infrastructure, such as the power plant, and private homes of civilians. In accordance
with Additional Protocol 1 this can constitute a grave breach of humanitarian law:
Acts described as grave breaches in the Conventions are grave breaches of this Protocol if
committed against persons in the power of an adverse Party protected by Articles 44, 45 and
73 of this Protocol, or against the wounded, sick and shipwrecked of the adverse Party who are
299
December 2014, p.8
300
United Nations Office for the Coordination of
Humanitarian Affairs, Overview of the facts and figures published by OCHA , available online at:
http://www.ochaopt.org/content.aspx?id=1010361
64
protected by this Protocol, or against those medical or religious personnel, medical units or
medical transports which are under the control of the adverse Party and are protected by this
Protocol.301
In addition under Article 18302 of the Fourth Geneva Convention hospitals are explicitly and
absolutely off limits for any military activities. As stated above this is a positive obligation
imposed on all the parties to the conflict and while Hamas is undoubtedly in breach of this
obligation by using hospitals for military purposes, the IDF may also be considered to have
acted in breach of this Article if it can be demonstrated either that the hospitals were not a
legitimate military target and/or if the force used can be proven to be disproportionate. The
fact that Hamas used hospitals for military purposes may, as claimed by the IDF, mean that
these buildings can be considered to be legitimate military targets under Additional Protocol I,
Article 52 (2):
In conducting military operations within U.N. buildings, Hamas and other terrorist
organisations frequently caused them to lose the protections afforded to civilian objects under
customary international law, and rendered them legitimate military targets303.
Nonetheless Article 52(2) requires that an objectives total or partial destruction, capture or
neutralization, in the circumstances ruling at the time, offers a definite military advantage.
Consequently this needs to be assessed in order to determine whether airstrikes on hospitals
and schools can be lawful under IHL. Assertions made by the IDF that civilian premises
targeted in air strikes were being used for military purposes need to be carefully and
objectively analysed in order to ensure whether the attacks really provided a military
advantage that would justify the damage to civilian property and the loss of civilian life. This is
the case even given the evidence from the IDF and international sources, as outlined above,
which would appear substantiate and corroborate the allegation that schools, hospitals and
other civilian infrastructure were used for military purposes.
If Palestinian armed groups violated international humanitarian law by storing munitions near
the hospital, and this was what Israel was targeting when it struck the hospital and killed
civilians, serious concerns about the manner and execution of Israels attack would remain.304
301
Additional Protocol 1 Article 85

Full text reproduced in Annex IV
303
Israel Ministry of Foreign Affairs, Violations of the Law of Armed Conflict, War Crimes, and Crimes
Against Humanity Committed by Hamas and Other Terrorist Organizations During Operation Protective
Edge, p. 85, available online at: http://mfa.gov.il/ProtectiveEdge/Documents/HamasCrimes.pdf
304
302
65
In conclusion, although there can be no doubt that Hamas used civilian infrastructure,
including private homes, residential areas, hospitals and mosques for military purposes it
appears that, in some cases, the IDF may have acted disproportionally in, for example, striking
multi-storey buildings housing a large number of civilians at a time when it is likely that many
civilian fatalities would occur. The military advantage gained by killing one or two Hamas
militants cannot be considered significant enough to warrant the deaths of tens of civilians,
among them many children, and the destruction of entire apartment blocks. In certain cases,
this may have constituted a breach of Articles 51(5)(b) and of Article 52(2) of Addition Protocol
I unless it can be demonstrated that the actions described above were not excessive in
relation to the concrete and direct military advantage anticipated in each strike and that the
destruction of the civilian infrastructure offered the IDF a definite military advantage. This is
particularly true when buildings such as hospitals, which normally benefit from special
protection, were targeted.
Prior warning
Prior warning is required under IHL305 when civilian populations are expected to be affected by
the military operation. This warning must be effective. In addition to the use of leaflets306,
phone calls307 and small missiles308 to provide prior warning of the intention to attack a target,
the IDF also claims that it frequently called off airstrikes309 where civilians were believed to be
present in the area.
The IDF claims that it always provided prior warning before launching attacks throughout the
duration of the conflict, in numerous forms. In the case of the Abu Jame family home,
testimony obtained by B'Tselem, provided by Tawfiq Abu Jame, one of the residents of the
building who survived the strike, suggests that prior warning was not provided to the residents
of the building:
305
Article 57(2)(c) of Protocol I

IDF, IDF Urges Civilians to Leave Areas of Gaza Targeted for Strikes, July 16 2014, available online at:
https://youtu.be/yoK9YL6D5RE
307
308
Joel Landau, Daily News, Israel's 'knock the roof' tactic featured in video as building is destroyed in
Gaza, July 14 2014, available online at: http://www.nydailynews.com/news/world/israel-knock-rooftactic-caught-camera-gaza-article-1.1866342
309
IDF, IDF Aircraft Calls Off Strikes to Protect Gazan Civilians, July 14 2014, available online at:
https://youtu.be/PuL-OA84p54
306
66
We were bombed without any warning. We didnt receive a telephone call and a missile wasnt
fired at our house, like sometimes happened in other houses.310
Other reports have also alleged that warnings were not also provided with one NGO asserting
that 94% of the civilians[sic] victims were attacked without any prior warning311. The UN
Commission, while criticising some instances in which prior warning was not, reportedly
provided, prior to strikes also stated the following, confirming that, at least in some instances,
these warnings were effective:
Different types of warnings are reported to have been issued in advance of the strikes on three
multi-storey buildings and one shopping centre in the last days of the conflict, which warnings
appear to have been effective, since the buildings were vacated and nobody was killed312.
In its customary IHL database the ICRC states that State practice considers that a warning is
not required when circumstances do not permit, such as in cases where the element of surprise
is essential to the success of an operation313. The warnings provided by the IDF were therefore
not strictly necessary if they could be considered to give Hamas an advantage in the conflict
and, somewhat unsurprisingly, this is exactly what the outcome of these warnings often was.
This finding was reflected in the report of a High Level International Military Group:
A measure of the seriousness with which Israel took its moral duties and its responsibilities
under the laws of armed conflict is that in some cases Israel's scrupulous adherence to the laws
of war cost Israeli soldiers' and civilians' lives.314
William M. Stern, a law professor, formulated his concerns as follows:
Thousands and thousands of warnings were given. The Israeli military authorities essentially
told the enemy where the IDF troops would enter the village and when. And for three days,
Hamas fighters, no dummies, took full advantage...At this point, it was abundantly clear that
IDF commanders had gone beyond any mandates that international law requires to avoid
civilian casualties.315
310
BTselem (n 167)
Alkarama, The 2014 Operation Protective Edge, Violating the Laws of War, February 2015, p.7,
312
313
ICRC, Customary IHL, Rule 20. Advance Warning, available online at:
https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter5_rule20#refFn_25_2
314
High Level International Military Group, The Gaza Conflict in 2014, 31 May 2015, available online at:
http://blog.unwatch.org/wp-content/uploads/HLIMG-report-cover-letter-to-Judge-Mary-McGowanDavis-UNHRC-31-May-2015.pdf
315
Willy Stern, The Weekly Standard, Attorneys at War, Inside an elite Israeli military law unit, June 15
2015, available online at: www.weeklystandard.com/articles/attorneys-war_964911.html?page=1
311
67
Despite the potential military disadvantage engendered by providing these warnings the IDF
continued to do so, in numerous ways, as mentioned above. Hamas, in contrast, rarely issued
any warnings in advance of attacks which could have harmed civilians and in the few cases
where it did, as described above, these warnings were far from effective. As stated by the UN
Commission of Inquiry:
[IDF] attacks on more than 200 residential buildings by air strikes resulted in no civilian
casualties. This indicates that specific warnings by the IDF to inhabitants of these buildings
were effective in many cases.316
Both the telephone and text message warning were considered by the UN Commission to
generally be effective. The knock on the roof method of prior warning was, however,
criticised. This entails launching a small missile, in advance of a larger strike, to provide
advance warning of intent to do so. The UN Commission felt that this method was sometimes
confusing, given the densely populated nature of Gaza, and that often there was not sufficient
time left between the knock and the actual attack317. Nonetheless the Israeli Military
Attorney General has stated318 that this technique was used as a last warning, in combination
with other methods. This is corroborated by the UN Commissions findings, on at least one
occasion319. In any case it would appear that in most cases at least one, and frequently several,
methods of prior warning were used by the IDF.
Immoral, illegal directives along with ambiguous, overly permissive instructions led to the
killing of babies, children, women, old men and other civilians who could not flee or had
nowhere to go. Entire families were obliterated. Many others nurse physical and psychological
wounds. These are not the unfortunate results of isolated incidents, but the direct, horrifying
consequence of a policy set by decision makers in the government and military.320
The quote above was used by Israeli NGO BTselem, to describe the findings of a report321
issued in May 2015 by another Israeli NGO, Breaking the Silence. This report, entitled How we
316

Ibid., p.65
318
IDF Military Advocate General: Decisions of the IDF MAG Regarding Exceptional Incidents that
Allegedly Occurred During Operation 'Protective Edge'- Update No. 4, 11 June 2015, available online at:
http://www.law.idf.il/163-7353-en/Patzar.aspx
319
See description of attack on Kaware family home in Khan Younis on 8 July where both a telephone
call and knock were employed by the IDF, Ibid. p.47
320
B'Tselem , Facebook post from 5 May, 2015, available online at:
https://www.facebook.com/btselem/photos/a.416625281569.201864.169981156569/10152787729811
570/?type=1&fref=nf
321
Breaking The Silence, This is how we fought in Gaza, Soldiers' testimonies and photographs from
Operation "Protective Edge" (2014), available online at:
http://www.breakingthesilence.org.il/pdf/ProtectiveEdge.pdf
317
68
fought in Gaza is a compilation of testimonies from IDF soldiers who were allegedly involved
in Operation Protective Edge. The testimonies cast doubt on the assertions by the IDF that
they complied with international law, in a number of different ways, in their activities in the
Gaza Strip. However the credibility and objectivity of the report has been called into question
in particular because the anonymity of the testimonies means that they are impossible to
independently verify322 . The testimonies have also been described as being anecdotal,
anonymous and unverifiable323. In addition the fact that official complaints have not been
lodged324 with the IDF regarding the conduct alleged in the report has cast doubt on the
legitimacy of the accusations and the prospect of their use in any investigation into the
conduct of the IDF in Gaza. In any case, the testimonies should be objectively assessed,
alongside detailed information provided by the IDF on the same incidents, in order to
determine whether they provide sufficient evidence to corroborate allegations relating to
violations of IHL by the IDF. There is also evidence in the testimonies to corroborate the steps
taken by the IDF to comply with the requirement to provide prior warning and the principle of
distinction:
the interviews themselves show the army taking numerous steps to avoid harm to civilians.
The soldiers regularly mention warning leaflets, roof-knocking rockets, phone calls, warning
shells, warning shots, lists of protected sites like UN facilities, and drones vetting targets for
civilians before an airstrike...Indeed, what is truly striking is that the soldiers simply take all of
these steps for granted, as if they were obviously part of warfare, when in fact many are
unique to Israeli military practice.325
Even if the IDF did not fully comply with the requirement (in itself not always strictly necessary
if the element of surprise is needed in an attack) to provide effective advance warning in all
cases it is clear, given the above, that in comparison to the actions of Hamas, who almost
never provided any warning, the IDF frequently utilised numerous methods of prior warning,
although this was admittedly done with differing levels of success. In general it does however
appear that the IDF has largely complied with the obligation under Article 57(2)(c) of Protocol
322
Matti Friedman, Mosaic Magazine, The Latest "Breaking the Silence" Report Isn't Journalism. It's
Propaganda., May 14 2015, available online at: http://mosaicmagazine.com/observation/2015/05/thelatest-breaking-the-silence-report-isnt-journalism-its-propaganda/
323
The Tower, Watchdog: Breaking the Silence was Paid to Incriminate IDF, 5 June 2015, available
online at: www.thetower.org/1999-watchdog-breaking-the-silence-was-paid-to-incriminate-idf/
324
Matti Bernhardt, Ynet, Ex-soldiers protest over Breaking the Silence claims against IDF, 15 May 2015,
available online at: http://www.ynetnews.com/articles/0,7340,L-4657689,00.html
325
Matti Friedman, (n 322)
69
I. Those instances in which it was alleged by the UN Commission and other NGO reports326 that
sufficient time was not provided between warnings and strikes should serve as a lesson for
future conflicts. The IDF should revise its policies to ensure that, when warnings are provided,
they should not be cut short:
by giving a warning, the IDF accepted that the attack did not require the element of surprise;
accordingly, there appears to be no reason why more time was not granted to the residents of
the house to evacuate.327
5. International Human Rights Law
a) An objective assessment of breaches of international human rights law under

the International Bill of Human Rights
The International Bill of Human Rights is the name given328 to three separate human rights
documents, namely the Universal Declaration of Human Rights (UDHR), the International
Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic,
Social and Cultural Rights (ICESCR). The initial proposal329 put forward at the international level
was to have one declaration and one legally binding covenant or treaty reproducing the
provisions of the declaration. The Universal Declaration of Human Rights clarifies and expands
on the meaning of terms such as human rights and fundamental freedoms as used in the
United Nations Charter and is considered to be the most comprehensive international human
rights document, having significantly influenced most international, regional and national
human rights texts and organisations. Although the Declaration is often considered to form
part of customary international law, it is not a legally binding instrument. The two legal
covenants, namely the ICCPR and ICESCR, were drafted based on the articles of the Universal
Declaration, in order to create legally binding obligations on states. The fact that there are two
separate covenants resulted from an ideological, political, cultural and economic split among
the member states of the United Nations as certain countries (mainly those in the West) have
326
Physicians for Human Rights, Findings of an Independent Medical Fact-Finding Mission, Gaza 2014,
pp. 43-44.
327
328
Together, the Universal Declaration and the two Covenants are commonly referred to as the
International Bill of Human Rights. Office of the High Commissioner for Human Rights, Brief historic
overview of the Commission on Human Rights, available online at:
http://www.ohchr.org/Documents/HRBodies/CHR/BriefHistoric.doc
329
At the United Nations Conference on International Organization held in 1945 in San Francisco, USA.
70
historically prioritised civil and political rights while others (those in the East) traditionally
consider economic, social and cultural rights to be more important. In any case, many states,
including Israel and Palestine, have now signed and ratified both covenants.
Israel signed both the International Covenant on Civil and Political Rights330 and the
International Covenant on Economic, Social and Cultural Rights331 on 19 December 1966 and
ratified them both on 3 October 1991 while the State of Palestine acceded to both Covenants
on 2 April 2014. Neither State has signed the Optional Protocols to the International Covenant
on Civil and Political Rights and the International Covenant on Economic, Social and Cultural
Rights, meaning that the right to submit individual complaints has not been established. As
such it is not possible for individuals affected by violations of their rights under the Covenants
to complain directly to the treaty monitoring bodies. Parties to the Covenants are obliged to
legislate in such a way as to give effect to the human rights recognised under the Covenants
and to ensure that effective legal remedies are available for violations of these rights.332 The
rights of civilians in wartime are protected by the provisions of international humanitarian law.
However international human rights law does not necessarily cease to be applicable during
armed conflict, according to the ICJ:
it [the International Court of Justice] considers that the protection offered by human rights
conventions does not cease in case of armed conflict, save through the effect of provisions for
derogation of the kind to be found in Article 4 of the International Covenant on Civil and
Political Rights After examination of the provision of the two international Covenants, in the
light of the relevant travaux prparatoires and of the position of Israel in communications to
the Human Rights Committee and the Committee on Economic, Social and Cultural Rights, the
Court concludes that those instruments are applicable in respect of acts done by a State in the
exercise of its jurisdiction outside its own territoryThe Court further concludes that the
Convention on the Rights of the Child is also applicable within the Occupied Palestinian
Territory.333
Consequently, both international covenants can be considered to have remained in force
during Operation Protective Edge. In addition to an analysis of alleged breaches in light of the
330
United Nations Treaty Collection Database, International Covenant on Civil and Political Rights,
available online at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV4&chapter=4&lang=en
331
United Nations Treaty Collection Database, International Covenant on Economic, Social and Cultural
Rights, available online at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV3&chapter=4&lang=en
332
ICCPR, Articles 2.2, 2.3. and ICESCR, Article 2.1
333
71
ICCPR, ICESCR and UDHR, certain allegations of breaches of the provisions of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) will
also be assessed. Israel signed the CAT on 22 October 1986 and ratified it on 3 October 1991
while Palestine acceded to the Convention on 2 April 2014. Following an assessment of the
allegations of substantive breaches of these international covenants, remedies available to the
parties for any substantiated breaches identified will be proposed.
It should be noted that the human rights covenants which are mentioned in this section are
not enforceable in the traditional sense. That is to say they are not subject to the jurisdiction
of a judicial entity which would impose sanctions on offenders; rather the compliance of states
with their obligations under these instruments is monitored and assessed by treaty monitoring
bodies by means of a reporting procedure.
The reporting procedure is not of a contentious nature; rather it aims at establishing a
constructive dialogue between the States parties and the Human Rights Committee.334
These bodies, which are each responsible for a specific covenant and thus a specific set of
rights, examine the performance of the states in ensuring that the relevant rights are
protected and promoted by means of state reports (submitted by the state itself) and shadow
reports (submitted by civil society). These entities then issue their own reports, containing
recommendations and suggestions on the overall human rights situation, with regard to the
relevant Covenant, in the state in question. In this way the process relies on the goodwill of
the states involved to submit truthful and accurate reports and to subsequently strive to
comply with the feedback received from the respective committee. The impetus is thus on
states to report on their achievements and shortcomings, in a genuine, honest and transparent
manner and to then take into consideration the outcome of this reporting process in order to
learn lessons and improve their domestic human rights situation in the future. Criticism of this
system focuses on the seemingly voluntary, non-redressable and non-enforceable nature of
the obligations created by the conventions. However this approach has undoubtedly achieved
great success in the past, despite its non-penal character. Given that media coverage of human
rights abuses, together with diplomatic and political pressure placed on offending states, can
have undesirable political, social and potentially even economic effects in a given state, most
governments consider it to be in their interests to ratify human rights conventions and to
334
Boerefijn, Ineke, Towards a strong system of supervision: The Human Rights Committee's role in
Reforming the Reporting Procedure under Article 40 of the Covenant on Civil and Political Rights, Human
Rights Quarterly, 1995, volume 17, issue 4, Johns Hopkins University Press, p.772
72
subsequently attempt to comply with their provisions and with the reports issued by the
international human rights treaty monitoring committees.
Although these bodies have been granted few powers and have seemed ineffective at first
sight, through the years they have managed to gain ground and to contribute significantly.335
b) Breaches of the International Bill of Human Rights by Hamas

Alleged breaches:
Right to life: UDHR Article 3, ICCPR Article 6(1)

Right to fair trial: UDHR Article 10, ICCPR Article 14
Right to freedom of expression: UDHR Article 19, ICCPR Article 19(2)
Right not to be subject to torture, or to cruel, inhuman or degrading treatment or
punishment: UDHR Article 5, ICCPR Article 7, CAT Article 2(1)
Right not to be arbitrarily arrested or detained: UDHR Article 9, ICCPR Article 9(1)
Hamas forces in Gaza committed serious human rights abuses, including abductions, torture,
and summary and extrajudicial executions with impunity in 2014.336
Article 6(1) of the ICCPR states that Every human being has the inherent right to life No one
shall be arbitrarily deprived of his life. Similarly Article 3 of the UDHR states that Everyone
has the right to life, liberty and security of person. This right is universally considered to be a
jus cogens norm of international law and states may not ever, in any case, suspend or
otherwise derogate from their obligation to respect this right. This is the case both during
conflicts as well as in times of peace.
it is clear that deliberately or recklessly killing a civilian taking no direct part in hostilities or
anyone hors de combat is an arbitrary deprivation of life.337
Causing the deaths of civilians, who were not taking any active part in the military operations,
both in Israel and in Gaza, is undoubtedly an arbitrary deprivation of life. Hamas use of
indiscriminate weapons, fired from civilian areas in Gaza, and thus endangering the lives of
Palestinian civilians, towards civilian areas in Israel, thus endangering the lives of Israeli
civilians, therefore violates this right on two counts. Hamas is also accused of having
subjected at least 23 people to summary, extrajudicial executions338. Not only is this a clear
335
Ibid., p.767
337
Ibid., p.35
338
Ibid. p.5
336
73
breach of the right to life, it also constitutes an extremely serious breach of the right to a fair
trial given that due process was not respected as no judicial proceedings were held, much less
a fair and public hearing by an independent and impartial tribunal339. In addition Hamas
failed to conduct any investigations into these alleged breaches and is actually very likely to
have taken an active part in their commission:
In the first instance, the Hamas de facto administration failed to carry out its international legal
obligation to conduct independent investigations into the unlawful killings and other abuses
carried out by Hamas forces and others, and to hold those responsible to account. In fact, the
Hamas authorities appear to have condoned possibly even to have ordered summary,
extrajudicial executions that amount to war crimes340.
Under Article 19 (2) of the ICCPR the freedom of expression of all citizens of a state party to
the Convention is protected. In addition Article 19 of the UDHR specifies that this includes the
right to seek, receive and impart information and ideas through any media and regardless of
frontiers. Consequently this right applies both to individuals who are free to hold opinions
and express their views, and to the media who are free to disseminate these opinions and
points of view. There has been an array of reports341 that Hamas prevented journalists from
publishing unfavourable accounts of its activities during the conflict, especially in relation to
filming, photographing or otherwise documenting rocket launch sites, militants, and military
facilities and infrastructure in general, by manipulating, threatening and intimidating media
representatives342. Journalists have reported feeling that they were not able to freely report on
events due to a fear which hobbles the reporting such material: fear of reprisals from Hamas
against us343. In addition human rights activists and those working for NGOs in general have
reportedly344 been targeted by Hamas on numerous occasions. A climate of hostility towards
those criticising or documenting the possible violations of international law committed by
Hamas has a trickle-down effect, stifling and muting discussion and debate at all levels of
339
UDHR Article 10
341
Foreign Press Association, Statements 2014, available online at:
342
Alan Johnson, The Telegraph, Hamas manipulated and intimidated the media in Gaza. Why was that
kept from us?, August 13 2014, available online at:
http://blogs.telegraph.co.uk/news/alanjohnson/100283063/hamas-manipulated-and-intimidated-themedia-in-gaza-why-was-that-kept-from-us/
343
Sreenivasan Jain, NDTV, Three Men, A Tent and Some Shrubs: The Backstory of Our Hamas Report,
August 14 2014, available online at: www.ndtv.com/world-news/three-men-a-tent-and-some-shrubsthe-backstory-of-our-hamas-report-646582
344
Amnesty International, Hamas authorities must guarantee safety of human rights activist, 18 January
2012, available online at: https://www.amnesty.org/en/articles/news/2012/01/hamas-authoritiesmust-investigate-attacks-human-rights-defender-gaza/
340
74
society, as well as restricting citizens access to information, thus ensuring that Hamas
propaganda is the only source of information to which they have access.
Hamas authorities have contributed to the creation of a climate of fear and intimidation that
deters many victims and their families from reporting or even disclosing abuses committed
against them345.
By creating this climate of fear, the Hamas authorities have succeeded in severely curtailing
freedom of expression in Gaza, thus violating the right to freedom of expression under UDHR
Article 19 and ICCPR Article 19(2).
The absolute prohibition of torture and other ill-treatment is considered to be a peremptory,
jus cogens norm346 of customary international law. It is codified, not only in the ICCPR and the
UDHR, but also in the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT). The right to be free from torture is one of the most
fundamental and unequivocal human rights347. Under CAT all persons responsible for acts of
torture, attempted torture, or complicity or participation in torture must be brought to justice
for their crimes while the ICCPR requires the same regarding any acts of similar cruel,
inhuman, or degrading treatment348. It is alleged that suspected collaborators with Israel,
members of Fatah and other perceived opponents of Hamas were routinely and systematically
subjected to torture in Gaza, often with the aim of extracting a confession:
Testimonies indicate that victims of torture were beaten with truncheons, gun butts, hoses,
wire, and fists; some were also burnt with fire, hot metal or acid. In several cases family
members of victims described to Amnesty International various injuries inflicted on the
detainees, such as broken bones including of the spine and neck bones trauma to the eyes,
as well as damage, punctures or burns to the skin.349
Article 1 of CAT defines torture as any act by which severe pain or suffering, whether physical
or mental is intentionally inflicted. The above-mentioned infliction of beatings, broken
bones, burning and trauma clearly fall under this definition. As such Hamas has evidently
violated the provisions of the CAT, the ICCPR and the UDHR in relation to torture, cruel,
inhuman and degrading treatment. The instances of torture and summary execution above
often resulted from arbitrary arrest and detention, which is prohibited under UDHR Article 9,
345

See CAT Article 2(2)
347
Human Rights Watch, The Legal Prohibition Against Torture, March 11, 2003, available online at:
http://www.hrw.org/news/2003/03/11/legal-prohibition-against-torture
348
349
346
75
and ICCPR Article 9(1). Article 9 of the ICCPR also provides that anyone deprived of their liberty
shall be promptly informed of the reasons for their arrest and shall have the right to challenge
before a court the lawfulness of their detention. The prohibition of arbitrary deprivation of
liberty is also a norm of customary international law.
Many of the arrests looked more like abductions with armed men in civilian clothes,
sometimes masked, who did not present identification or a legal basis for arrest, forcing the
suspects into a car and taking them to locations unknown to their families.350
The manner in which individuals were abducted and subsequently imprisoned and tortured, or
even executed, does not comply with the requirement that states only deprive individuals of
their liberty on such grounds and in accordance with such procedure as are established by
law351. The State of Palestine has signed the ICCPR and as such its provisions are established
by law in Gaza- Hamas is thus bound to respect the requirement not to arbitrarily arrest and
detain individuals. Given the alleged conduct of the Hamas authorities, this also constitutes an
evident breach of international human rights law.
The Hamas authorities, as the de facto government entity in Gaza, are responsible for
investigating human rights abuses alleged to have taken place in the Strip. Given the fact that
the allegations are against Hamas itself, this is unlikely to take place. As such the relevant
treaty monitoring bodies, namely the Committee against Torture, which monitors
implementation of the CAT, and the Human Rights Committee, which monitors the
implementation of the ICCPR, should investigate and, if found to be substantiated, condemn
these egregious breaches of international human rights law. In addition a number of these
violations may be considered to be crimes under the Rome Statute and so the possibility of
investigating the violations through this mechanism will be explored.
c) Breaches of the International Bill of Human Rights by the IDF

Right to freedom of assembly and association: UDHR Article 20 (1), ICCPR Article 21,
22
Right to freedom from discrimination: UDHR Article 7, ICCPR Articles 4, 20(2) and 26
Although Israel is normally considered to have a relatively high degree of human rights
protection with regard to basic rights such as freedom of expression, assembly and
350
351
Ibid., p.6
ICCPR Article 9(1)
76
association352, as mentioned above, during the 2014 conflict these rights were reportedly not
adequately safeguarded, with claims that infringement of freedom of expression rose to the
level of a threat to Israeli democracy353.
Democratic principles such as freedom of expression are not suspended when the guns roar.354
Allegations355 were also made that citizens were interrogated regarding social media posts and
other online activity and that discussion were policed in such a way as to limit freedom of
expression. This led to an atmosphere of fear and repression in which citizens self-censored
and, for example, employers closely monitored their employees online activity out of fear of
being held responsible for any opinions they expressed which then led to interrogations by the
authorities. Additional allegations356 relate to racism and violence directed against Arab
Israelis, often implicitly condoned by the authorities, through their omission to actively curtail
this behaviour. This included, inter alia, boycotts of Arab businesses357, physical assaults
against Arab Israelis358 and discriminatory employment practices. This discrimination was
especially marked359 against those Arab Israelis who had expressed any form of solidarity with
Gaza.
The Israeli authorities are obliged, as signatories of the ICCPR, to ensure that they legislate,
issue policies and administer the country in such a way so as to ensure that the rights of its
citizens are protected. Israel is obliged to uphold freedom of expression, assembly and
association and to ensure that its citizens are not subjected to discrimination. It has arguably
failed, on all of these counts, during the 2014 conflict. The government must revise its
352
The Special Rapporteur is encouraged by the vibrant media landscape in Israel, where divergent
opinions are openly exchanged. United Nations Human Rights Council, Report of the Special Rapporteur
on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue Addendum - Mission to Israel and the occupied Palestinian territory, A/HRC/20/17/Add.2, p.6,
11/06/2012
353
Association for Civil Rights in Israel, 2014 State of Human Rights Report, December 2014, p.7,
available online at: http://www.acri.org.il/en/wp-content/uploads/2014/12/Situation-Report-2014.pdf
354
Yohanan Plesner, The Israel Democracy Institute, A Red Alert for Israeli Democracy, July 27 2014,
available online at: en.idi.org.il/analysis/articles/a-red-alert-for-israeli-democracy/
355
Association for Civil Rights in Israel, 2014 State of Human Rights Report, December 2014, pp. 9-11,
available online at: http://www.acri.org.il/en/wp-content/uploads/2014/12/Situation-Report-2014.pdf
356
Ibid. pp. 17-23
357
Jack Khoury and Jonathan Lis, Haaretz, Lieberman urges Israelis: Boycott businesses of Arabs striking
over Gaza op, July 21, 2014, available online at: www.haaretz.com/news/israel/.premium-1.606416
358
Eli Ashkenazi, Haaretz, Two indicted for assaulting Arab teen who had befriended Jewish girl, August
12, 2014, available online at: www.haaretz.com/news/israel/.premium-1.610124
359
Mosssawa Center, As War on Gaza Escalates so too Does Violence and Incitement Against Arab
Citizens in Israel and anyone Who Voices Their Opposition to the War, 20 July 2014, available online at:
www.mossawacenter.org/en/item.asp?aid=1194
77
approach to safeguarding human rights, in particular civil rights, during armed conflicts, to
ensure that these violations are not repeated. Israeli NGOs such as ACRI should submit their
findings to the relevant treaty monitoring bodies in the form of shadow reports and the
monitoring bodies should condemn the violations if found to be substantiated and recommend
steps to be taken to better protect the rights infringed.
78
d) An objective assessment of breaches of international human rights law under

the Convention on the Prevention and Punishment of the Crime of Genocide
Israel signed the Convention on the Prevention and Punishment of the Crime of Genocide on
August 17, 1949 and ratified it on March 9, 1950, while the State of Palestine acceded to the
Convention on April 2, 2014360. As such both Hamas and the IDF should, in theory, have been
bound by the provisions of this convention during Operation Protective Edge. Under the
Convention the crime of genocide is defined361 as any of the following acts committed with
intent to destroy, in whole or in part, a national, ethnical, racial or religious group with said
acts including killing members of the group. Under Article III of the Convention it is stated
that genocide, conspiracy to commit genocide and direct and public incitement to
commit genocide shall all be punishable acts. The erga omnes nature of the obligations
emerging from this Convention as well as the fact that the prohibition of genocide is a jus
cogens norm have been confirmed by recent jurisprudence.362
e) Breaches of the Convention on the Prevention and Punishment of the Crime

of Genocide by Hamas
Alleged breaches: Committing genocide under Article 3(a) and direct and public incitement
to commit genocide under Article 3(c), against Israeli Jews.
The way in which in whole or in part should be interpreted was clarified by the International
Court of Justice in its judgement on the Bosnia and Herzegovina v. Serbia and Montenegro
case363.
In terms of that question of law, the Court refers to three matters relevant to the determination
of part of the group for the purposes of Article II. In the first place, the intent must be to
destroy at least a substantial part of the particular group. That is demanded by the very nature
of the crime of genocide: since the object and purpose of the Convention as a whole is to
360
United Nations Treaty Collection Database, Convention on the Prevention and Punishment of the
Crime of Genocide, available online at
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4&lang=en
361
Article II, Convention on the Prevention and Punishment of the Crime of Genocide
362
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia
v. Serbia), ICJ, Judgment of 3 February 2015, para. 87
363
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro)
79
prevent the intentional destruction of groups, the part targeted must be significant enough to
have an impact on the group as a whole.364
As such, in applying this Convention to Operation Protective Edge it is not necessary to
demonstrate that the intention of Hamas was to wholly destroy the population of Israel by
means of inciting genocide through its Charter or by firing rockets at civilian population
centres, in order to determine that a breach of the Convention has taken place. Rather it is
simply required that there be an attempt to destroy a substantial part of the group in
question365. In this case that group would be Jews or Israeli Jews. The intent to destroy, in
whole or in part, a national, ethnical, racial or religious group is the essential characteristic of
genocide and is required in addition to the intent (mes rea) for the individual acts366. As
evidenced by Hamas repeated explicit targeting of civilians areas in Israel and of the
Hebrewsthe Israelisthe homes of the Israelis and the Zionists367 and not Israeli Arabs, it is
clearly the Jewish Israelis who are the target of Hamas attacks. The second issue relates to
whether Jews or Israelis can be considered to be a protected group in accordance with
Article 2 of the Convention. It is submitted that Jewish/Israeli people are likely to be
considered to form a national, ethnical, and religious group. Even under the very strictest
interpretation Jews would undoubtedly classify as a religious group for the purposes of Article
2. In drawing this conclusion it could be claimed that there are a number of objective
indicators of the group as a group with a distinct identity368. Jewish Israelis, on the whole,
have practices, routines and rituals linked to culture and religion that are objective indicators
of their distinct identity from Arab Israelis and Palestinians, as well as from Arab Christians and
Muslims in the wider region. Indeed, one is born into Judaism in the vast majority of
circumstances (with the exception of a very small number of individuals who choose to
convert) and thus belonging to this religious group is often considered to be automatic and
irrevocable. Therefore Jews would appear to fit into the definition provided by ICTR in
interpreting the travaux prparatoires of the Genocide Convention (membership in such
groups would seem to be normally not challengeable by its members, who belong to it
364
Article 198, International Court of Justice, Judgment of 26 February 2007, Case Concerning
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), available online at http://www.icjcij.org/docket/files/91/13685.pdf
365
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia
v. Serbia), ICJ, Judgment of 3 February 2015, paras. 137-142
366
Ibid., paras. 132-148
367
Hamas Spokesman Fawzi Barhoum, The Middle East Media Research Institute, Hamas to Israeli
Arabs: Have No Fear, Our Missiles Target Only the Hebrews, July 11 2014, available online at:
www.memri.org/clip_transcript/en/4350.htm
368
The Prosecutor v. Jean-Paul Akayesu, ICTR, Judgment of 2 September 1998, para.170
80
automatically, by birth, in a continuous and often irremediable manner369). In addition Jewish

Israelis are perceived to share a legal bond based on common citizenship, coupled with
reciprocity of rights and duties370 given that they hold citizenship of the same country and are
thus subject to its laws, and they also share a common language and culture371. Under the very
strictest and most limited application of this definition Jewish Israelis, albeit secular, still
share the same religion372 and so would form, at the very least, a religious group.
It is a well-established principle that the determination of whether the crime of genocide can
be said to have been committed is not dependent on the numbers of deaths or, indeed, on any
deaths having occurred. Rather the intent (mens rea) of the party alleged to have committed
genocide is to be examined both with regard to the specific offence carried out (for example
murder) to achieve the objective, and with regard to the intent to destroy the group in
question, together with any action which actually took place or any preparatory activities.
These activities do not necessarily have to relate to committing homicides or otherwise
causing bodily harm or death. In fact, in the Akayesu373 case it was held that ethnic cleansing
by means of rape, with the intent to destroy the cohesion and continued existence of a group,
can also constitute genocide. In this particular case, given the patriarchal nature of Rwandan
society the offspring of forced pregnancies resulting from rape would be considered to take
the father's ethnicity. Thus there was an attempt to destroy the ethnic group to which the
women belonged by both actively preventing them reproducing with men from their ethnic
group and by forcibly impregnating them in such a way that their children would not be
considered to be of the same ethnicity as the mother. This case therefore expanded the
definition of genocide to include sexual violence as a possible genocidal action. Consequently
in determining the culpability of Hamas under this Convention it is important to recognise that
the underlying intent (dolus specialis) is of the utmost importance and the type of actions
carried out do not necessarily have to result in the deaths of Israelis to be considered to fall
under the definition of genocidal crimes.
Incitement can be understood as encouragement or persuasion to commit an offense. The
term public is generally understood to relate to the use of mass media (such as television,
print publications, social media etc.) or statements made in a public place. In the previous Gaza
369
Ibid. para. 511

Ibid. para. 512
371
Ibid. para. 513
372
Ibid. para. 515
373
ICTR, The Prosecutor v. Jean-Paul Akayesu, 1 June 2001
370
81
conflict Hamas' official TV station (Al-Aqsa TV) broadcast numerous music videos with lyrics
including Killing Jews is worship that draws us close to Allah...we kill Jews...The cemeteries
await you [Jews]...Death to Israel374. Encouraging, praising and rewarding violence against
Israelis, as can be clearly seen in quotes from senior Hamas officials375 can be viewed as
evidence of inciting genocide. During Operation Protective Edge Hamas produced and
disseminated376 a music video in Hebrew, thus clearly targeting Israelis, which contained lyrics
such as Raze it [Israel] to the ground, exterminate the cockroaches' nest, and banish all the
Zionists. As has been correctly pointed out377 the language used, in particular the word
cockroaches is reminiscent of radio broadcasts and articles in Rwanda inciting genocide
against the Tutsi ethnic group. Hassan Ngeze was indicted and later convicted for incitement
to genocide by publishing articles which dehumanised the Tutsi, inter alia by using the term
cockroaches. To prove the charges it was not necessary to demonstrate that someone was
killed in response to the articles or to the similar radio broadcasts378. As such there is no
causation requirement:
In the well-known Nuremburg case of Julius Streicher, there was no allegation that Streichers
publication Der Strmer was tied to any particular violence379.
The Hamas Charter, as described above, also clearly incites genocide. Doubts regarding the
continued validity of the Charter have been raised given that it dates back to 1988 however a
senior Hamas official and co-founder of the organisation, Mahmoud Zahar, speaking in 2006
374
Itamar Marcus and Nan Jacques Zilberdik, PMW Bulletins Hamas: Killing Jews is worship of Allah,
November 27, 2012, available online at: palwatch.org/main.aspx?fi=157&doc_id=8091
375
The gun is our only response to [the] Zionist regime [This] is the generation of the missile, the
tunnel and suicide operations Palestine is from the sea to the river, from Rosh HaNikra to Rafah...We
will never recognize the usurper Zionist government and will continue our jihad-like movement until the
liberation of Jerusalem, a range of quotes attributed to Ismail Haniyeh, a senior Hamas official and
former President of the Palestinian National Authority, IDF Blog, 8 years, 8 Quotes by Hamas Leader
Ismail Haniyeh, February 19 2014, available online at: https://www.idfblog.com/hamas/2014/02/19/8years-8-quotes-hamas-leader-ismail-haniyeh/
376
Middle East Media Research Institute, Hamas TV Song in Hebrew: Annihilate all the Zionists,
Exterminate the Coackroaches' Nest, July 10 2014, available online at:
www.memritv.org/clip_transcript/en/4341.htm; Video available at: https://youtu.be/1-Ouqp-YI-A
377
Caroline Glick, The Jerusalem Post, Our world: The popular Palestinians, July 15 2014, available online
at: http://www.jpost.com/Opinion/Columnists/Our-world-The-popular-Palestinians-362943
378
United State Holocaust Memorial Museum, INCITEMENT TO GENOCIDE IN INTERNATIONAL LAW,
June 20 2014, available online at: www.ushmm.org/wlc/en/article.php?ModuleId=10007839
379
The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze (Judgement and
Sentence), ICTR-99-52-T, International Criminal Tribunal for Rwanda (ICTR), 3 December 2003, p.21,
available online at: http://www.refworld.org/docid/404468bc2.html
82
stated that Hamas will not change a single word in its covenant380. Speaking in 2010 he also
claimed that The day we expel them [Israelis] is drawing near....You [Jews] are headed to
annihilation.381 The Charter is also arguably a publicly disseminated document. As is clear
from ICTR jurisprudence, in cases where promoting killing occurred through the publication of
communiques and other writings that called for the extermination of the enemy and defined
the enemy382 this can be held to constitute incitement to commit genocide. Given the above
there is clear evidence of direct and public incitement to genocide. Under Article 25, 3(e) of
the Rome Statute, directly and publicly inciting others to commit genocide is a crime which
engenders individual criminal responsibility. As such this avenue will be further considered in
the chapter on ICL below.
There may also be a case for genocide per se having been committed by Hamas during the
conflict in 2014. As frequently expressed by Hamas during the conflict, its rockets were
indiscriminately fired at Israeli civilians and civilian population centres. Given Hamas charter
and the clear incitement to genocide as discussed above, its indiscriminate rocket fire into
Israeli territory, targeting Israeli civilians, could be construed as a genocidal act under Article
2(a) of the Convention.
Hamas is committed to Israel's genocidal destruction, as enshrined in its charter, and it not only
encourages rocket attacks into Israel but is responsible for terrorist attacks that have killed
hundreds of innocent Israeli civilians.383
As genocide per se is also a core crime under the Rome Statute, more attention will be given to
this allegation in the chapter below.
380
Jeffrey Goldberg, The Atlantic, What Would Hamas Do If It Could Do Whatever It Wanted?, August 4
2014, available online at: http://www.theatlantic.com/international/archive/2014/08/what-wouldhamas-do-if-it-could-do-whatever-it-wanted/375545/
381
Middle East Media Research Institute, Hamas Leader Mahmoud Al-Zahhar Justifies Persecution of
Jews in History and Declares That Jews "Are Headed to Annihilation.", November 5, 2010, available
online at: www.memritv.org/clip_transcript/en/2676.htm
382
Sentence), ICTR-99-52-T, International Criminal Tribunal for Rwanda (ICTR), 3 December 2003, p.24,
available online at: http://www.refworld.org/docid/404468bc2.html
383
Sharyn Mittelman, The Sydney Morning Herald, Hamas' rocket attacks provoked Israel's ground
offensive into Gaza Strip, July 21 2014, available online at: www.smh.com.au/comment/hamas-rocketattacks-provoked-israels-ground-offensive-into-gaza-strip-20140720-zuysx.html
83
f) Breaches of the Convention on the Prevention and Punishment of the Crime

of Genocide by the IDF
Although the IDFs actions in Gaza may, prima facie, have violated certain provisions of
international humanitarian law, namely the principles of proportionality and precautions in
attack, and certain human rights obligations, based on my research there is no credible
evidence of an attempt to commit genocide by destroying in whole or part, the ethnic,
religious and national group Palestinians arguably form. This is particularly true given that a
large number of air strikes in Gaza were carried out without any casualties:
[IDF] attacks on more than 200 residential buildings by air strikes resulted in no civilian
casualties. This indicates that specific warnings by the IDF to inhabitants of these buildings
were effective in many cases.384
The prior warnings provided and the measures taken by the IDF to avoid civilian harm in these
instances and others would not logically be compatible with intent to destroy a group of
persons. In addition violence against Palestinian civilians in general is routinely condemned385
in Israel, across the political spectrum, while violence against Israeli citizens is praised386 and
even encouraged by Hamas.
g) An objective assessment of breaches of international human rights law under

the Convention on the Rights of the Child
Israel signed the United Nations Convention on the Rights of the Child on 3 July 1990 and
ratified it on 3 October 1991 while the State of Palestine acceded to the Convention on 2 April
2014387. Israel signed the Optional Protocol on the Involvement of Children in Armed Conflict
on 14 November 2001 and ratified it on 18 July 2005 while the State of Palestine acceded to
the Optional Protocol on 7 April 2014. Neither Israel nor Palestine have signed the third
Optional Protocol, which allows for individual complaints to be submitted.
384

Figures including Prime Minister Netanyahu and Nir Barkat, the Mayor of Jerusalem, strongly
condemned the murder of Mohammed Abu Khdeir; Eliyahu Federman, USA Today, Reaction to teen
murders matters, too: Column, July 9 2014, available online at:
www.usatoday.com/story/opinion/2014/07/09/israel-palestine-murders-reaction-column/12363495/;
Ilan Ben Zion and Lazar Berman, Times of Israel, Arab teen killed in capital; revenge attack suspected,
July 2 2014, available online at: www.timesofisrael.com/palestinian-teen-said-found-dead-in-jerusalemforest/
386
Such as the statements made by Hamas in relation to the murder of three Israeli teenagers: Tova
Dvorin, Israel National News, Hamas Praises Teens' Murderers as 'Martyrs', 23 August 2014, available
online at: www.israelnationalnews.com/News/News.aspx/185447#.VY1BJvmqqko
387
United Nations Treaty Collection Database, Convention on the Rights of the Child, available online at
https://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV-11&chapter=4&lang=en
385
84
Some of the most serious allegations, in relation to human rights violations, to come out of
Operation Protective Edge relate to the death of children. Examples include the allegations
that the IDF was responsible for the July 20 bombing of the Abu Jama family home in the
southern Gaza city of Khan Younis, which, according to a report by Amnesty International388,
killed 25 members of a family, 19 of them children, the Israeli strike that resulted in the death
of 16 civilians sheltering at a United Nations school in Beit Hanoun, the killing of four boys on a
Gaza beach389 and, on the part of Hamas, the death of a four year old Israeli child, killed by a
mortar round fired from Gaza and the deaths of eleven children, in the al-Shati refugee camp
on 28 July390. In response to criticism from human rights organisations391 a number of criminal
investigations392 were opened by the IDF into these incidents. Despite this fact, the United
Nations Human Rights Council, in its Resolution of 23th July 2014, considered that said
investigations did not comply with the requirements as regards to impartiality and
independence inter alia, as required by international law:
Noting the systematic failure by Israel to carry out genuine investigations in an impartial,
independent, prompt and effective way, as required by international law, on violence and
offences carried out against Palestinians by the occupying forces and settlers and to establish
judicial accountability over its military actions in the Occupied Palestinian Territory.393
Amnesty International also expressed concern regarding this fact in its report on the conflict,
published in March 2015.
Since the 2014 conflict, Israels investigations into the actions of its forces have once again
been conducted by the Israeli military itself, and there is no indication that the Palestinian
authorities are investigating violations by Palestinian armed groups.394
The United Nations Committee on the Rights of the Child has previously criticized both Hamas
and Israel for violating the provisions of the Convention on the Rights of the Child:
388

A number of these incidents were the subject of an IDF review of military misconduct, Fact-finding
assessment, Operation Protective Edge, available online at
http://www.idfblog.com/blog/2014/12/06/decisions-regarding-exceptional-incidents-occurredoperation-protective-edge/
390
391
For example, Human Rights Watch, (n 11)
392
IDF Military Advocate General's Corps, Operation Protective Edge: Update re Individual Incidents,
10/09/2014, available online at: http://www.mag.idf.il/261-6858-en/Patzar.aspx
393
Resolution adopted by the Human Rights Council, Ensuring respect for international law in the
Occupied Palestinian Territory, including East Jerusalem, 23 July 2014
394
Amnesty International, (n 1)
389
85
The recent air and naval strikes on densely populated areas in Gaza with significant presence of
children constitute gross violations of the Convention on the Rights of the Child, its Optional
Protocol on the involvement of children in armed conflict and international humanitarian law
Over the past week, hundreds of thousands of Palestinian and Israeli children have lived under
the terror of explosions caused by rocket attacks or air strikes and shelling, the Committee
said, noting that UNICEF had drawn attention to the fact that many children had been forced to
sleep in the cold in Gaza, because their windows had been shattered by explosions, or because
they had kept the windows open, to avoid injury from shards of glass. In southern Israel,
children also lived in fear and were forced to go into bomb shelters or to seek shelter in other
parts of the country. 395
In addition the Committee has also pointed out that the obligations of states under the
Convention also apply during military operations and other hostilities:
human rights law, including the Convention on the Rights of the Child, applies at all times,
including in situations of armed conflict.396
As such it is important to note that international human rights treaties do not operate only
when humanitarian law obligations cease to be applicable- rather they remain in operation in
both wartime and in peacetime.
h) Breaches of the Convention on the Rights of the Child by Hamas

Alleged breaches:
Article 6 (1), (2) (inherent right to life and right to survival and development);
Article 19 (1), (obligation to protect the child from all forms of physical or mental
violence, injury or abuse);
both in relation to Palestinian and Israeli children.

The Israeli Ministry of Health has claimed that 1,600 civilians in Israel, including more than 270
children, were treated at hospitals for various types of injuries suffered during rocket and
mortar attacks.397 Daniel Tregerman, a four year old Israeli, was killed by shrapnel from
mortars fired from Gaza at the kibbutz (residential community) where he lived with his parents
in Southern Israel. Responsibility for the attack was claimed by Hamas398.
395
Office of the High Commissioner for Human Rights, Children suffering devastating and lasting impact
of Gaza crisis, says UN Committee on the Rights of the Child, 22 November 2012, available online at:
396
Ibid.
397
398
Al-Qassam Brigades, Information Office, Al-Qassam Brigades bomb enemy positions and settlements
with 12 mortar shells, 22 August 2014, available online (in Arabic) at:
http://www.alqassam.ps/arabic/#!/5170//
86
The claim of responsibility, which did not mention any military objective targeted in the attack,
indicates that this was a direct attack on civilians or civilian objects, and thus a war crime. Even
if the attack had targeted IDF troops or equipment located in the vicinity of the kibbutz during
Operation Protective Edge, mortars are an imprecise weapon which should never be used to
target military objectives located amidst civilians, and the attack would still have been
indiscriminate, and thus a war crime.399
By launching indiscriminate rocket and mortar fire into Israel from Gaza, Hamas violates Article
19(1) of the CRC as it puts children on both sides of the border at risk from injury and death. In
addition to causing the death of a child in Israel, Hamas actions are also believed to have
caused the death of thirteen civilians, eleven of them children, in the al-Shati refugee camp on
28 July as a result of a rocket fired from within the Gaza Strip400. Additionally this took place
during a temporary humanitarian ceasefire.
An independent munitions expert who examined all of this evidence told Amnesty International
that it strongly indicated that the projectile was a Palestinian rocket. The blast crater was too
shallow to have been caused by an artillery or mortar shell or a missile fired by a drone, and its
circumference was too wide to have been caused by a tank shell. The shrapnel holes in the car
and surrounding buildings were too large to have been caused by a drone-fired missile of the
types generally used by Israeli forces and documented by Amnesty International and munitions
experts in previous conflicts.401
Hamas claimed responsibility for the death of Daniel Tregerman while an independent expert
claims that the deaths of the children in the al-Shati camp were caused by Hamas fire. These
occurrences are unequivocal and clear-cut examples of violations of the most fundamental and
significant provisions of the CRC, which the State of Palestine acceded to and is thus bound to
comply with. In addition to causing the deaths of children, Hamas conduct has also led to
mental violence being perpetrated against children, causing serious injury.
Children living within a range of up to seven kilometres from the Gaza Strip often remained in
bomb shelters for the entire day in order to ensure they would not be in open areas during a
rocket or mortar attack.402
Children are especially susceptible to psychological and psychiatric trauma. Those children
living in the Israeli towns near the border with Gaza are accustomed to living under the
constant threat of attack. This has, inter alia, reportedly led to children crying, vomiting,
shaking uncontrollably, wetting the bed or suffering from stomach pains, as a result of rocket
399
Amnesty International (n 1), p.29

401
Amnesty International, (n 1), p. 51
402
400
87
and mortar attacks403. The effect on a childs physical, emotional and psychological wellbeing
and development of living in such relentless fear, at such a young age, cannot be
underestimated. Up to 70% of children in certain parts of Southern Israel near the Gaza border
are suffering from at least one symptom of posttraumatic stress
404
such as sleeping
disorders and severe anxiety405, inter alia. The almost constant fear of attack leads to a high
level of anxiety and stress with the trauma resulting from the apprehension of not knowing
where or when there will be an attack406. The UN Committee on the Rights of the Child has
expressed its concerns as follows:
The Committee is deeply concerned about the climate of violence in which Palestinian and
Israeli children live, especially during explosions caused by rocket attacks, air strikes and
shelling.407
The Israeli Ministry of Education has claimed that a significant proportion of those children
residing in the area around the Gaza Strip are affected by trauma:
According to the Ministry of Education, as of February 2015, 38% of children in the immediate
area surrounding the Gaza Strip (known as Otef Aza) were diagnosed as suffering from full or
partial symptoms of post-traumatic stress disorder.408
When children grow up in a violent and hostile environment, they are more likely to become
violent later in life. There is therefore both a short and a long term benefit to preventing
violence. In the short term the child will be able to develop in a more supportive and less
belligerent atmosphere. In the long term the society will be more peaceful and the cycle of
violence will be broken.
Research shows that children who have not experienced violence and who develop in a healthy
manner are less likely to act violently, both in childhood and when they become adults.
Preventing violence in one generation reduces its likelihood in the next. Implementation of
403
Ibid. p. 120
Yedioth Ahronoth, Ynet news, 70% of Sderot kids traumatized, 07 October 2011, available online at:
www.ynetnews.com/articles/0,7340,L-4093281,00.html
405
Irin News, ISRAEL-OPT: Relentless rocket attacks take psychological toll on children in Sderot, 27
January 2008, available online at: www.irinnews.org/report/76438/israel-opt-relentless-rocket-attackstake-psychological-toll-on-children-in-sderot#sthash.MEKDqNXC.dpuf
406
IRIN news, ISRAEL-OPT: Israeli communities traumatized by Gaza rockets, 20 April 2011, available
online at: http://www.irinnews.org/report/92527/israel-opt-israeli-communities-traumatized-by-gazarockets
407
Committee on the Rights of the Child, Concluding observations on the second to fourth periodic
reports of Israel, adopted by the Committee at its sixty-third session (27 May 14 June 2013), p.11,
CRC/C/ISR/CO/2-4, 4 July 2013, available online at: www2.ohchr.org/english/bodies/crc/docs/co/CRC-CISR-CO-2-4.pdf
408
404
88
article 19 is therefore a key strategy for reducing and preventing all forms of violence in
societies and for promoting social progress and better standards of life and freedom, justice
and peace in the world for the human family in which children have a place and a value
equal to that of adults.409
Perpetrating violence which both directly and indirectly harms children is utterly inconsistent
with the Convention on the Rights of the Child. The Hamas government must therefore comply
with its obligations under international human rights law and ensure that it acts in such a way
so as to comply with the provisions of the treaties to which it has acceded.
i) Breaches of the Convention on the Rights of the Child by the IDF

Alleged breaches:
Article 6 (1), (2) (inherent right to life and right to survival and development);
Article 19 (1), (obligation to protect the child from all forms of physical or mental
violence, injury or abuse).
The main concern, as discussed in previous chapters, relating to breaches of international law
allegedly committed by the IDF is the large number of civilian deaths recorded. Particularly
troubling is the proportion of the dead who were children. The UN OCHA estimates410 put the
number of children who died at around 519. A report by Alkarama, a Swiss-based,
independent human rights NGO, conducted research into the conflict and documented around
128 of these deaths, concluding that a large number of the children were aged under the age
of 10.
Among civilian casualties, our team was able to fully document 280 deaths among which 128
victims (46%) are children Among the 128 children, 94 are aged 10 or less (i.e. 73 % of the
total number of children) and 34 are aged between 11 and 17 (i.e. 27 % of the total number of
children).411
409
Committee on the Rights of the Child, General comment No. 13 (2011), The right of the child to
freedom from all forms of violence, p.7, CRC/C/GC/13, 18 April 2011, available online at:
www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.13_en.pdf
410
df
411
Alkarama, The 2014 Operation Protective Edge, Violating the Laws of War, February 2015, available
online at: http://en.alkarama.org/documents/Gaza_COI-2014_EN_WEB.pdf
89
In many of the instances in which the IDF bombed civilian homes412, there were a large number
of children among the casualties. As explained above, the protection afforded by human rights
instruments does not cease in wartime. In addition, as the occupying power, Israel must apply
the provisions of the human rights conventions which it has ratified not only in Israeli territory,
for the benefit of Israeli citizens, but also in the Palestinian territories, for the benefit of
Palestinian civilians. Consequently the provisions of the CRC are binding on the IDF, even when
conducting military operations against legitimate targets in Gaza.
In particular the attack which led to the deaths of four young children on a beach in Gaza413
would appear to be an example of a very serious breach of the IDFs obligations under the CRC.
In this case despite the claim that the children were misidentified as combatants and that
there was a Hamas military structure in the vicinity, the IDF have been criticised for breaching
their obligations under international law. Children must never be directly or indiscriminately
targeted in conflicts and this event is likely to constitute breaches of the CRC414 as well
breaches of IHL under the Geneva Conventions415.
An attacker may not just assume its shooting at a valid military target: the laws of war require
that the attacker do everything feasible to first verify that the target is a legitimate military
objective. People must be presumed to be civilians, not combatants416.
Without an evident military target having been unequivocally identified417 and without the
individuals having been positively identified as combatants, the attack should not have taken
place. This is even truer given that the victims were children. This also applies in the case of
child fatalities in bombings of civilian homes:
BTselem is still investigating who among the people killed had taken part in the hostilities, but
can already estimate with a high degree of probability that more than 70% of them did not
take part in the hostilities, according to the following breakdown: 93 infants and children
412
In particular the al-Dali building in which 18 children reportedly died in a single attack and the Abu
Jame family home where 19 children are believed to have died, as detailed in Annex II.
413
Human Rights Watch, Bill Van Esveld, Dispatches: Explaining Four Dead Boys on a Gaza Beach JULY
18, 2014, available online at http://www.hrw.org/news/2014/07/17/dispatches-explaining-four-deadboys-gaza-beach
414
In particular the obligations under Article 19 (1) and Article 6 (1).
415
In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.
416
417
In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place
of worship, a house or other dwelling or a school, is being used to make an effective contribution to
military action, it shall be presumed not to be so used. Article 52(3) of Additional Protocol I
90
under the age of 5, including 13 less than a year old; 129 children aged 5 to14; 42 teens
aged 14 to18;418
As in Israel, in Gaza children lived in an atmosphere of fear and distress419, leading to
psychological trauma and serious long-term consequences, as mentioned above. Consequently
Israel must ensure that it is taking all possible measures to protect children, both in Palestine
and Israel, both in peace and in war time, and must independently investigate the allegations
violations of its obligations under the CRC, as outlined above.
6. International Criminal Law

a) An objective assessment of breaches of international criminal law under the
Rome Statute of the International Criminal Court
Israel initially signed the Rome Statute but later withdrew its signature and has never ratified
the Statute. Thus it is not subject to ICC jurisdiction, nor is it bound by the provisions of the
Statute. Israel has objected to the inclusion of a war crime420 in the Statute, which was the
result of pressure from Arab states during the drafting of the statute, and has claimed that this
is an example of distorting existing principles of international law, as part of a political
agenda421 given that it can be interpreted as singling out Israel and its settlement activity. As
such Israel concluded that the Courts mandate had been politicized, was not impartial and
was thus inherently flawed and consequently decided against ratification of the Statute.
Palestine acceded to the Rome Statute on 2 January 2015 and submitted a declaration on 1
January 2015, lodged under article 12(3) of the Rome Statute, accepting the jurisdiction of the
ICC over alleged crimes committed in the occupied Palestinian territory, including East
Jerusalem, since June 13, 2014.422 Following Palestine's accession to the Rome Statute on 2
January 2015, as of April 1st 2015 the state became a full member of the ICC. On 16 January
2015 the Prosecutor of the ICC opened a preliminary examination into the situation in
Palestine. The term situation, in the context of the ICC encompasses not only the alleged
418
BTselem (n 167), p.6

FIDH, Trapped and Punished: The Gaza Civilian Population under Operation Protective Edge, March
2015, p. 29, available online at: https://www.fidh.org/IMG/pdf/report_gaza_fidh_march_2015.pdf
420
the transfer of parts of the civilian population of an occupying power into occupied territory, Article
8, 2. (b)(viii) Rome Statute of the International Criminal Court
421
Israel Ministry of Foreign Affairs, Israel and the International Criminal Court, 30 June 2002, available
online at: mfa.gov.il/MFA/MFAArchive/2002/Pages/Israel%20and%20the%20International%20Criminal%20Court.aspx
422
Declaration accepting the jurisdiction of the International Criminal Court, 31 December 2014,
available online at: http://www.icc-cpi.int/iccdocs/PIDS/press/Palestine_A_12-3.pdf
419
91
crimes carried out in the territory of the state party to the statute, namely crimes carried out
by the IDF against civilians in Gaza, in the territory of the State of Palestine, but also those
actions carried out in the wider context of the conflict, meaning that the ICC investigation
could also focus on Hamas attacks launched from Gaza into Israeli territory, in spite of the fact
that Israel is not a state party to the Rome Statute. Therefore any serious crimes committed on
or from Palestinian territory from June 13, 2014 shall be subject to ICC jurisdiction.
b) Procedural issues relating to the preliminary examination; jurisdiction and

admissibility
The Office of the Prosecutor (OTP) of the International Criminal Court is tasked with assessing
whether the criteria set out in the Rome Statute are satisfied, before proceeding with an
investigation. This stage is referred to as the preliminary examination and entails an
examination of the information made available to the OTP by the party referring the situation
to it, in accordance with the statutory criteria for admissibility. The OTP conducts a preliminary
examination in accordance with Articles 53(1) (a)-(c) of the Statute. In doing so the Prosecutor
must assess whether the crime comes under the jurisdiction (temporal, either territorial or
personal, and material) of the Court, whether the case complies with the admissibility criteria
under Article 17 and whether investigating the alleged crimes would serve the interests of
justice423. Under the Courts Rules of Procedure and Evidence424 it must first examine
jurisdiction and then, subsequently, admissibility. The OTP employs a filtering system, with
four distinct phases, in order to decide whether a particular situation warrants investigation425.
The first phase assesses the seriousness of the information received and checks if the alleged
crimes fall within the Court's jurisdiction, phase two assesses the preconditions for jurisdiction
under Article 12, phase three concerns admissibility and phase four relates to interests of
justice.
In order to decide on whether to open an investigation a number of questions therefore need
to be answered by the Office of the Prosecutor:
423
Article 53 (1) (c), Rome Statute of the International Criminal Court, 1998
58 sub-rule 4, Rules of Procedure and Evidence
425
The Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination
Activities 2013, November 2013, p.5, available online at: www.icccpi.int/en_menus/icc/press%20and%20media/press%20releases/Documents/OTP%20Preliminary%20Ex
aminations/OTP%20-%20Report%20%20Preliminary%20Examination%20Activities%202013.PDF
424
92
Do the crimes come under ICC (temporal and material) jurisdiction?
While Israel is not a State Party or a State otherwise accepting the jurisdiction of the Court and
the Security Council has not referred the case to the ICC, two of the three situations in which
the ICC can exercise jurisdiction, the third scenario, that the crime took place on the territory
of a State Party or a State otherwise accepting the jurisdiction of the Court, would appear to
be fulfilled.
However there are a number of issues relating to ICC jurisdiction, namely establishing the
territory of Palestine and, consequently, the boundaries of Israel, which is not a signatory of
the Rome Statute; and the concern regarding accepting the General Assemblys political
recognition of the State of Palestine as sufficient for judicially valid statehood to subsist. These
are issues to be dealt with by the Prosecutor during the preliminary examination.
In terms of rationae temporis, the alleged crimes were committed after the entry into force of
the Rome Statute (1 July 2002). In the State of Palestine the Statute did not come into force
until April 1 2015 however, as a result of the Article 12(3) declaration, lodged on January 1
2015426 the court has temporal jurisdiction for any crimes that took place from June 13 2014.
Therefore the conflict of summer 2014 in Gaza would come under this time period, for the
purposes of Article 11 of the Rome Statute. Ratione materiae relates to the crimes listed under
Article 5 of the Statute. This will be discussed in more detail below.
Admissibility-are there any national legal proceedings dealing with the alleged crimes,
which could take precedence over ICC action?
Admissibility can be divided into two requirements: complementarity and gravity. Gravity
entails an assessment of the scale, nature, manner of commission of the crimes, and their
impact427. The objective of this assessment is to determine whether the potential cases that
could arise from an investigation of the situation at hand would constitute "grave" violations of
international law and thus be admissible. In this regard, given that there is significant evidence
that grave breaches of the Geneva Conventions were carried out during the conflict, as
426
427
Activities 2013, November 2013, p.4, available online at: www.icccpi.int/en_menus/icc/press%20and%20media/press%20releases/Documents/OTP%20Preliminary%20Ex
aminations/OTP%20-%20Report%20%20Preliminary%20Examination%20Activities%202013.PDF
93
outlined in the section on IHL, and that these breaches may also constitute war crimes under
the ICC Rome Statute, it is likely that the OTP will consider that the crimes are sufficiently
grave to warrant investigation.
Complementarity is one of the fundamental principles of the ICC, as reflected by the preamble
of the Statute which emphasises that the Court shall be complementary to national criminal
jurisdictions. The existence of a number of investigations opened into exceptional
incidents428 by the IDF Military Advocate General may be a significant barrier to ICC
admissibility for these specific cases. A number of these investigations resulted in criminal
investigations. However the investigation into the death of four children on a beach in Gaza,
for example, was closed without any further legal proceedings criminal or disciplinary with
the MAG concluding that the IDF has been working to improve a number of its operational
capabilities, including technological capabilities, in order to minimize the risk of the recurrence
of tragic incidents of this kind429. Significant doubts have been expressed regarding the
genuineness, independence and impartiality of these investigations, in particular regarding this
specific incident. Nonetheless other incidents investigated did result in criminal investigations
and indictments such as one incident involving looting in Gaza by IDF soldiers resulting in the
MAG deciding to issue three indictments against three soldiers who were involved in the
incident and another in Khan Younis in which nine individuals were killed in a beachside caf,
which also resulted in a criminal investigation430. The OTP may, however, claim that the onus is
on the state in question, Israel, to prove the genuineness of these investigations in the context
of the complementarity test:
The Prosecutor submitted that because the State has superior access to the relevant
information, the State bears the burden of proving inadmissibility with respect to both limbs of
the complementarity test.431
The Pre-Trial Chamber has confirmed this assertion, claiming that evidence of a sufficient
degree of specificity and probative value432 must be provided by the state and that it is for
428
429
Allegedly Occurred During Operation 'Protective Edge'- Update No. 4, 11 June 2015, available online at:
http://www.law.idf.il/163-7353-en/Patzar.aspx
430
Ibid.
431
Dr. Gilad Noam, Emerging Voices: Configuring Admissibility Challenges in the ICCCivil Dispute or Part
of the Criminal Proceedings?, August 5 2013, available online at:
http://opiniojuris.org/2013/08/05/configuring-admissibility-emerging-voices-challenges-in-the-icc-civildispute-or-part-of-the-criminal-proceedings/
94
the State challenging admissibility to provide, together with its challenge, sufficient evidence
to substantiate that the case before the Court is being investigated or prosecuted at the
national level433. As such, in the absence of this evidence being provided by the MAG, the OTP
may well decide that the state has failed to prove the genuineness of the investigations it has
conducted and complementarity would therefore not be a barrier to proceeding with an
investigation. In any case, as mentioned above, jurisdiction must first be established before
assessing admissibility and, given the significant issues regarding jurisdiction, the preliminary
examination may not even proceed to the point of assessing admissibility.
Fatou Bensouda, the current Prosecutor of the International Criminal Court, has stated that
the preliminary examination will be conducted in the most independent and impartial way,
devoid of any political considerations434. A number of criticisms of the decision by the ICC
prosecutor to open a preliminary examination have, however, been raised. Firstly, the
acceptance of a GA resolution as fulfilling legal criteria for determining statehood, as
mentioned above in the section on Palestinian statehood, could potentially set a dangerous
precedent given that the GA is not mandated to conduct such activities, rather its role is
explicitly political in nature.
The Prosecutor, at least, seems willing to allow the GA to expand the Courts jurisdiction to
territories that would otherwise not qualify as states under principles of international law...
Moreover, the Prosecutors view contradicts the clear policy of the Rome Statute, where the
only U.N. body with control over the Courts jurisdiction is the Security Council.435
Secondly, as already mentioned, because the ICC is a court of last resort for the crimes over
which it has jurisdiction436 and is intended to complement437 rather than replace national
judicial systems, if national legal proceedings have been initiated or completed the court
432
The Government of Libya's Appeal against Pre-Trial Chamber I's 'Decision on the admissibility of the
case against Saif Al-Islam Gaddafi', ICC-01/11-01/11-350 (OA 4), para.135
433
The Prosecutor v Simone Gbagbo, Decision on Cte dIvoires challenge to the admissibility of the
case against Simone Gbagbo, ICC-02/11-01/12, ICC Pre-Trial Chamber, 11 December 2014, para. 77
434
Times of Israel, PA says its awaiting Hague okay to push war crimes allegations, May 18 2014,
available online at: http://www.timesofisrael.com/pa-says-its-awaiting-hague-okay-to-push-war-crimesallegations/
435
Eugene Kontorovich, The Palestinian ICC Bid and U.S. Interests, Prepared written congressional
testimony, February 4, 2015, available online at:
http://docs.house.gov/meetings/FA/FA13/20150204/102887/HHRG-114-FA13-Wstate-KontorovichE20150204.pdf
436
Under Article 5 of the Rome Statute of the International Criminal Court, 1998
437
The Preamble of the Rome Statute of the International Criminal Court, 1998 states that Emphasizing
that the International Criminal Court established under this Statute shall be complementary to national
criminal jurisdictions.
95
should not normally investigate a situation. Israel has a functioning legal system which is
widely claimed to be transparent and independent438. In addition, in recent years Israel has
further strengthened the independence and impartiality of its legal system by implementing a
number of recommendations received from the Turkel Commission439. This independent
commission of inquiry, overseen by international observers BrigadierGeneral (ret.) Kenneth
Watkin, Professor Timothy McCormack and Lord David Trimble, was set up to assess whether
the process used in Israel to investigate allegations of violations of the international law of
armed conflict complies sufficiently with the state's international legal obligations.
The [Turkel Commission] Report reveals that, taken as a whole, Israeli law and practice will
stand comparison with the best in the world440
As such the existence of Israeli judicial or military investigations should take precedence over
an ICC investigation. Unless Israel can be proven to be unable or unwilling441 to conduct its
own investigations, the case is thus to be considered inadmissible. In this respect the fact that
the IDF has initiated (and in certain cases completed442) its own investigations into alleged
violations committed by its soldiers during the hostilities may therefore be significant as it
enables Israel to claim that it has already conducted appropriate action at the national level
and as such ICC jurisdiction should not apply. As stated above a number of these investigations
have resulted in criminal cases being opened. Ban Ki-Moon recognised these investigations
and the simultaneous lack of similar investigations in Gaza in his letter of 27 April 2015 on the
findings of the UN Board of Inquiry443:
I welcome the efforts of the Government of Israel in establishing criminal investigations into
certain incidents which occurred during the conflict, including some of those falling within the
scope of the Board's terms of reference. I hope that the Government of Palestine will also
conduct examinations into possible criminal activity during the conflict. 444
438
Independence. A person vested with judicial power shall not, in judicial matters, be subject to any
authority but that of the Law. Israel Basic Law: Judicature, Chapter One, Section 2, 1984
439
The Public Commission to Examine the Maritime Incident of 31 May 2010, Second Report The
Turkel Commission, Israels Mechanisms for Examining and Investigating Complaints and Claims of
Violations of the Laws of Armed Conflict According to International Law, February 2013. Available online
at: http://www.turkel-committee.gov.il/files/newDoc3/The%20Turkel%20Report%20for%20website.pdf
440
Lord David Trimble, Ibid. p.22
441
Article 17, 1(a) of the Rome Statute of the International Criminal Court, 1998
442
443
A separate initiative from the fact-finding mission of the OHCHR.
444
Security Council Document S/2015/286, 27 April 2015
96
The IDF claims that these initiatives prove the IDF's continued commitment to the rule of law
and to its commitment to international law obligations445. However it is necessary, in
accordance with Article 17 of the Rome Statute446 to demonstrate that these investigations
were conducted independently and impartially. As such, if the Court were to decide, during its
preliminary examination that this was not the case with the proceedings carried out within
Israel or were it to determine that the proceedings were carried out with the aim of shielding
the person concerned from criminal responsibility447, the case would be admissible.
Additional admissibility issues may arise in relation to the principle of ne bis in idem, under
Article 20 (3) of the Rome Statute. To determine admissibility in accordance with this principle,
the same requirements would apply as in the case of the principle of complementarity: namely
inability or unwillingness to prosecute. An assertion by the ICC Chief Prosecutor that the Israeli
judiciary, or at least the judicial system within the IDF, is not impartial and independent would
obviously be a politically fraught finding. In addition, Israel would likely challenge such a
finding based on the fact that Israel is not a State Party to the Rome Statute and is not
cooperating with the ICC in its preliminary examination- consequently it would be doubtful
that such a conclusion could be drawn without access to members of the judiciary within Israel
and the appropriate research materials and data held by the IDF and Israeli judicial and
military systems. In any case, the allegation made by the UN Commission of Inquiry regarding
the failure of the Israeli authorities (and Hamas) to genuinely investigate the violations alleged
is of significance to the ICC preliminary examination.
The reports conclusions on the failures of Israel and Hamas to seriously investigate alleged war
crimes will likely get the ICCs immediate attention.448
As evidenced by Ban Ki-Moons statement above and the conclusions drawn by a wide range of
NGOs449 Hamas is very unlikely to conduct any investigations into its own conduct and thus the
Office of the Prosecutor will likely find Hamas to be unwilling to conduct its own investigations.
445
Israel Ministry of Foreign Affairs, IDF investigating exceptional incidents from Operation Protective
Edge, 10 September 2014, available online at:
http://mfa.gov.il/MFA/ForeignPolicy/IsraelGaza2014/Pages/IDF-investigating-exceptional-incidentsfrom-Operation-Protective-Edge-10-Sep-2014.aspx
446
Article 17, 2(c), Rome Statute of the International Criminal Court, 1998
447
Article 17, 2(a), Rome Statute of the International Criminal Court, 1998
448
Fred Abrahams, a researcher at Human Rights Watch,
http://www.theguardian.com/world/2015/jun/22/un-gaza-war-report-likely-bolster-internationalcriminal-court-inquiry
97
In spite of the claims made by the IDF, a number of concerns regarding structural and
substantive shortcomings in the Israeli judicial system, in particular with regard to war crimes
and military law have, nonetheless, been expressed by a number of Israeli NGOs. A report450
published by the Israeli human rights NGO Yesh Din details these lacunae. This report
acknowledges that certain offences in the Israeli criminal code are essentially analagous to the
tabulation of war crimes under Article 8(2) of the ICC Statute. Nonetheless these offences are
not generally referred to as war crimes in Israeli law and the report identifies a number of
offences which are considered to be war crimes internationally but which are not currently
tried as such under Israeli criminal law (in particular in the military justice system) and
recommends that additional legislation be drafted in Israel to incorporate those war crimes
which are currently absent from the country's laws. This is particularly problematic in relation
to Israels willingness to conduct genuine investigations and prosecutions under the principle
of complementarity as prosecuting individuals for grave breaches of international
humanitarian and criminal law under the current Israeli laws may not satisfy the ICC
complementarity test given that many war crimes are not explicitly included in Israeli
legislation and the definition of many of those crimes which do appear in domestic legislation
is not identical to those definitions used by the ICC in its Statute and Elements of Crimes.
Additionally the sentence for any prosecutions under the current Israeli law may be deemed
insufficient given the gravity of these crimes.
In addition this report points out that a recent legislative amendment451 which reduces (even
retrospectively) the length of the criminal record of those soldiers convicted or carrying out an
offence (including war crimes) undermines the punishment for these grave crimes and creates
a risk that an international tribunal would not consider that erasing the criminal record of an
individual prosecuted for commissioning war crimes could significantly erode the protection
from prosecution at the international level provided to the defendant under the principles of
complementarity and ne bis in idem.
This significant reduction of the length of the criminal record of defendants who were convicted
of committing acts that are war crimes undermines the principle that imposes a grave stigma
on crimes of this sort and on the criminals convicted of them. Furthermore, this legislation and
449
there is no indication that the Palestinian authorities are investigating violations by Palestinian
armed groups, Amnesty International, (n 1)
450
Yesh Din, Lacuna, War crimes in Israeli law and court-martial rulings, July 2013, available online at:
http://www.yesh-din.org/userfiles/file/Position%20Papers/Yesh%20Din%20-%20Lacuna%20%20war%20crimes%20in%20Israeli%20Law%20and.pdf
451
Amendment No. 61 of the Military Justice Act (Israel), March 2011
98
the justification given for it significantly undermine the protection that the principle of
complementarity could provide defendants convicted of offenses that are within the jurisdiction
of the ICC.452
Given the above, should the OTP decide to assess admissibility after deciding that it has
jurisdiction, in spite of the barriers identified, it would be in the interests of the Israeli
authorities to provide evidence to prove the genuineness of the investigations carried out. If
the IDF MAG was to provide the ICC OTP with this evidence the issues outlined above could be
scrutinised with regard to admissibility in light of the ongoing and completed national
proceedings. Of particular importance is the allegation by Yesh Din that certain war crimes are
not tried as such under Israeli law. With regard to evidence provided to challenge admissibility
in a previous case, the ICC prosecutor held that:
it remains unclear whether the national offences described in the [Admissibility Challenge]
cover all aspects of the offences which are the subject of the case before the Court, such that
there continues to be insufficient information and evidence to demonstrate the actual contours
of the case at the national level.453
An admissibility challenge "must be able to show what is being investigated by the State (the
contours or parameters of the case)." 454 If there is no parallel between the offences under
national law and the violations of the Rome Statute alleged, it is thus difficult to envisage such
an admissibility challenge being successful. What is being investigated, or indeed, has been
investigated by the IDF may not therefore be considered to be identical to the alleged offences
under the Rome Statute. Nonetheless, in the Al-Senussi admissibility challenge, despite
accusations that there was a lack of independence and impartiality455 in carrying out the
national investigations, that the judiciary in Libya was manifestly biased456 against Al-Senussi
and that fundamental procedural rights457 had been violated, the ICC Pre-Trial Chamber held
that Libya was not unwilling to carry out genuine investigations and thus declared the case
inadmissible under Article 17(l)(a) of the Statute. This was the case despite the fragile security
situation and fragmented government structures in Libya. As such it is clear that the ICC should
objectively examine the genuineness of the Israeli judicial proceedings and should not
necessarily come to the conclusion that the state is unwilling to genuinely carry out
452
Yesh Din, (n 450), p. 54

The Prosecutor v Simone Gbagbo, Decision on Cte dIvoires challenge to the admissibility of the case
against Simone Gbagbo, ICC-02/11-01/12, ICC Pre-Trial Chamber, 11 December 2014, para. 17
454
Ibid. para. 33
455
The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Decision on the admissibility of the
case against Abdullah Al-Senussi, ICC-01/11-01/11, ICC Pre-Trial Chamber, 11 October 2013, para. 181
456
Ibid.
457
Ibid. para. 234
453
99
investigations at the national level, despite the accusations made by Yesh Din, inter alia, as
stated above. Consequently it should be reiterated once again that it is in the interests of the
Israeli authorities to provide the necessary evidence to prove genuineness and thus
successfully challenge admissibility.
Are the crimes grave (gravity test) enough to warrant the intervention of the world's
permanent war crimes tribunal?
Article 5 of the Rome Statute458 lists those crimes over which the ICC has jurisdiction. The
alleged breaches of international law which took place in the summer of 2014 in Israel and
Gaza are likely to fall under the definitions of genocide, crimes against humanity and/or war
crimes, in accordance with the Rome Statute- this will be discussed in more detail below. The
court cannot yet exercise jurisdiction over the crime of aggression. Following the amendment
to the Rome Statute proposed at the Review Conference of the Rome Statute of the
International Criminal Court in Kampala, Uganda in June 2010, the ICC will be able to exercise
jurisdiction over this crime from 2017. In any case the allegations that Israels actions
constitute an act of aggression may not be substantiated. In accordance with the definition of
aggression provided by the amended ICC Statute459 and UNGA Resolution 3314460 aggression
constitutes a manifest violation of the Charter of the United Nations and is done so manner
inconsistent with the Charter of the United Nations. This definition would appear to
encompass offensive actions which are not justified or carried out in the interests of lawful
self-defence. The argument has been made that unless military action can be proven to be
unjustified by necessity461 a war cannot be held to be aggressive in nature. In other words,
states can reasonably be expected to lawfully defend their citizens through the use of military
force. Israel states that it launched Operation Protective Edge in response to an escalation in
rocket fire from Gaza into its territory. As such the necessity and proportionality of the IDFs
actions should certainly be analysed however it is unlikely, given the documented cases of
rockets being fired from Gaza before the IDF began airstrikes and the subsequent ground
operations, that evidence to prove the crime of aggression could be produced. The allegations
458
Full text reproduced in Annex IV

Article 8 bis, Rome Statute of the International Criminal Court, 1998
460
United Nations General Assembly Resolution 3314 of 14 December 1974
461
David Daoud, (n 280)
459
100
regarding genocide, as outlined in the chapter on the CPPCG, as well as those IHL violations
which may amount to war crimes or comes against humanity, will likely pass the gravity test.
Will it not be against the interest of justice if the ICC intervenes?
The phrase interests of justice in Article 53 of the ICC Statute is not precisely defined and the
decision of the OTP in this regard may be reviewed by the Pre-Trial Chamber. One of the
possible interpretations of this phrase is that of the effect of the ICC investigation on the
domestic context, namely on national investigations and enquiries and in the situation of Israel
and Palestine, on the complex ongoing political and diplomatic peace negotiations. In this
regard the focus on recourse to the ICC by the Palestinians, perhaps to the detriment of other
legal avenues, has been strongly criticised as being misguided at best and damaging to the
ongoing peace negotiations at worst. The US government, for its part, has claimed that
launching an ICC investigation against Israelis would be entirely counterproductive and
would badly damage the atmosphere,462 a reference to the fragile ongoing peace
negotiations, often brokered by US representatives. In this context the ICJ advisory opinion463
made an important relevant point- any such impact on the peace negotiations caused by an ICJ
advisory opinion or, if we extrapolate this principle, an ICC preliminary examination, is likely to
be largely unsubstantiated and hypothetical. There is no reasonable basis to assume that
judicial involvement in a politicised situation should be avoided. In addition the OTP has
previously pointed out that there is a difference between the interests of justice and the
interests of peace464, namely that the Prosecutor is not mandated to investigate or resolve
issues related to peace and reconciliation rather that her objective is to ensure that the
perpetrators of core crimes under the Rome Statute are prosecuted. Consequently it is unlikely
that the OTP would consider that it is not in the interests of justice to open an investigation,
should the issues regarding jurisdiction and admissibility, as explained above, be resolved at
the preliminary examination stage.
462
Jen Psaki, Spokesperson , U.S. Department of State, Daily Press Briefing, Washington DC, January 5,
2015, available online at: http://www.state.gov/r/pa/prs/dpb/2015/01/235595.htm
463
464
ICC OTP, Policy Paper on the Interests of Justice, September 2007, available online at: www.icccpi.int/iccdocs/asp_docs/library/organs/otp/ICC-OTP-InterestsOfJustice.pdf
101
c) Breaches by Hamas
Alleged breaches under the ICC Statute:
1. Directly and publicly inciting genocide under Article 25, 3(e)
2. Genocide under Article 6
3. War crimes under Article 8
Genocide
States are under an erga omnes obligation to prevent the crime of genocide given the
extensive prohibition of the crime in international law. No derogation from this obligation can
ever be permitted and as such it is considered a jus cogens465 norm of international customary
law. This has been confirmed by the European Court of Human Rights:
The Court has recognised the prohibition of genocide as a rule of jus cogens 466
The prohibition of the commission of genocide is thus clearly a jus cogens norm and shall
therefore prevail over most other rules of international law. However, it is worth pointing out
that an obligation to prohibit the commission of genocide is not necessarily identical to an
obligation to actively prevent genocide. It has been argued that there is indeed such a positive
obligation however in the ICJ advisory opinion an interesting point was made with regard to
the applicability of the relevant rules of international law:
the States parties to the Geneva Convention relative to the Protection of Civilian Persons in
Time of War of 12 August 1949 are under an obligation, while respecting the United Nations
Charter and international law, to ensure compliance by lsrael with international humanitarian
law as embodied in that Convention. 467
Consequently it appears that compliance with any obligation arising under Common Article 1
of the Geneva Conventions, in particular with regard to actively preventing genocide, is not
necessarily a jus cogens norm and does not prevail over other obligations under international
law but is subject to those other obligations468 although the prohibition of genocide most
465
ICJ, Advisory Opinion on Reservations to the Convention on Genocide Case (1951), ICJ Rep .15, p. 23
European Court of Human Rights, Stichting Mothers of Srebrenica and Others v. The Netherlands,
2013, para. 157
467
Palestinian Territory (Request for advisory opinion), 9 July 2004, para. 159
468
Manuel Ventura & Dapo Akande, Blog of the European Journal of International Law, Mothers of
Srebrenica: The Obligation to Prevent Genocide and Jus Cogens Implications for Humanitarian
466
102
certainly is an accepted jus cogens norm. As such both Hamas and the IDF can be said to have
been obliged during the 2014 summer conflict, in accordance with a jus cogens norm of
international customary law, to prohibit (although arguably not to actively prevent) genocide.
Under the ICCs Elements of Crimes document469 the material elements of a crime are to be
committed with intent and knowledge. The existence of intent and knowledge will be inferred
from relevant facts and circumstances. The mens rea of genocide is generally understood as
the intent to destroy470 a national, ethnical, racial or religious group (also known as the dolus
specialis) together with the general intent as regards the specific genocidal act (killing,
imposing measures intended to prevent births, etc.). These two components should normally
be proven separately and are both essential. They have been described as being, respectively,
a volitional (intent) and/or a cognitive or intellectual (knowledge) element 471.
In establishing whether Hamas actions can constitute genocide the two components of mens
rea must therefore be identified. As described in the chapter on the CPPCG Hamas repeatedly
publicly and directly called for genocide to be perpetrated472, using language reminiscent of
that used in cases tried in the ICTR473. Hamas both publicly and directly incited genocide,
through the use of songs, TV shows, press releases and publications and arguably committed
genocidal acts by killing Israelis, through the use of indiscriminate rockets. The statements
Intervention, September 6, 2013, available online at: http://www.ejiltalk.org/ignoring-the-elephant-inthe-room-in-mothers-of-srebrenica-is-the-obligation-to-prevent-genocide-jus-cogens/

469
2, 3, General introduction, Elements of Crimes, International Criminal Court 2011
470
Article 6 (a) (3), Elements of Crimes, International Criminal Court 2011
471
Kai Ambos, International Review of the Red Cross, What does intent to destroy in genocide mean? ,
http://www.genocidewatch.org/images/Articles_What_does_intent_to_destroy_in_genocide_mean.pdf
472
See, inter alia, Itamar Marcus and Nan Jacques Zilberdik, PMW Bulletins Hamas: Killing Jews is
worship of Allah, November 27, 2012, available online at: palwatch.org/main.aspx?fi=157&doc_id=8091;
The gun is our only response to [the] Zionist regime [This] is the generation of the missile, the tunnel
and suicide operations Palestine is from the sea to the river, from Rosh HaNikra to Rafah...We will
never recognize the usurper Zionist government and will continue our jihad-like movement until the
liberation of Jerusalem, a range of quotes attributed to Ismail Haniyeh, a senior Hamas official and
former President of the Palestinian National Authority, IDF Blog, 8 years, 8 Quotes by Hamas Leader
Ismail Haniyeh, February 19 2014, available online at: https://www.idfblog.com/hamas/2014/02/19/8years-8-quotes-hamas-leader-ismail-haniyeh/; Middle East Media Research Institute, Hamas TV Song in
Hebrew: Annihilate all the Zionists, Exterminate the Coackroaches' Nest, July 10 2014, available online
at: www.memritv.org/clip_transcript/en/4341.htm; Video available at: https://youtu.be/1-Ouqp-YI-A;
Caroline Glick, The Jerusalem Post, Our world: The popular Palestinians, July 15 2014, available online at:
http://www.jpost.com/Opinion/Columnists/Our-world-The-popular-Palestinians-362943
473
Sentence), ICTR-99-52-T, International Criminal Tribunal for Rwanda (ICTR), 3 December 2003, available
online at: http://www.refworld.org/docid/404468bc2.html
103
made by Hamas throughout the conflict regarding the targets of their attacks474 being Israeli
Jews, taken together with the examples of direct and public incitement are very likely to fulfil
the criteria for the dolus specialis of genocide: Hamas, through its charter, its actions and its
words, repeatedly calls for the destruction of Israel and encourages, promotes, rewards and
incites violence against Israelis to achieve this objective. The firing of rockets into Israel is the
practical manifestation of a genocidal charter. Causing the deaths of Jewish Israelis was the
stated objective of this assault. As stated above, if Israel did not have the technological
capabilities to deflect and repel these attacks the civilian death toll would have been
significantly higher. Thus this action constitutes the actus reus of genocide. Under the ICC's
Elements of Crime document Hamas would arguably fulfil all four elements required for
genocide by killing under Article 6(a): Hamas's actions caused the death of more than one
person, those persons belonged to a national (Israeli) and ethnical/racial/religious (Jewish)
group, Hamas has repeatedly called for the annihilation475 of Jewish Israelis so clearly
intended to destroy this group and this conduct both took place in the context of a manifest
pattern of similar conduct against that group (a campaign of rocket attacks, tunnel attacks,
suicide bombings, stabbings etc. over many years) and the conduct itself (large numbers of
rockets and mortars being fired at civilians) could certainly have caused the (at least partial)
destruction of the group. As such there is significant evidence of genocide and incitement to
genocide having been perpetrated by Hamas.
War crimes
Intentionally directing attacks against the civilian population476 and civilian objects477 and
intentionally launching an attack in the knowledge that it will cause incidental loss of life and
474
our rockets are aimed at the Hebrews, the murderers, the Israelis, the criminalsour missiles
accurately target the homes of the Israelis and the Zionists, Hamas Spokesman Fawzi Barhoum, The
Middle East Media Research Institute, Hamas to Israeli Arabs: Have No Fear, Our Missiles Target Only
the Hebrews, July 11 2014, available online at: www.memri.org/clip_transcript/en/4350.htm; All Zionist
cities will be targeted daily until all of our demands are met, @qassamenglish, 8 August 2014. Account
currently suspended. Also reported on page 26 of Human Rights Council, (n 23)
475
Middle East Media Research Institute, Hamas Official Ahmad Bahr Preaches for the Annihilation of
Jews and Americans, August 10 2012, available online at:
http://www.memritv.org/clip_transcript/en/3538.htm and
https://www.youtube.com/watch?v=ygbJDcOTjjw; Middle East Media Research Institute, Hamas Leader
Mahmoud Al-Zahhar Justifies Persecution of Jews in History and Declares That Jews "Are Headed to
Annihilation.", November 5, 2010, available online at: www.memritv.org/clip_transcript/en/2676.htm
476
Article 8(2)(b)(i) of the ICC Statute
477
Article 8(2)(b)(ii) of the ICC Statute
104
damage to civilian objects that is excessive in relation to the concrete and direct overall
military advantage anticipated478 are war crimes under the ICC Statute.
A crime occurs if there is an intentional attack directed against civilians (principle of distinction)
(Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the
incidental civilian injuries would be clearly excessive in relation to the anticipated military
advantage (principle of proportionality) (Article 8(2)(b)(iv).479
Hamas rocket attacks deliberately and indiscriminately targeted Israeli civilian population
centres in the south of the country...Hamas deliberately fired missiles at Ben Gurion
International Airport, disrupting and threatening international civil air traffic...There is no
doubt that all of these attacks constitute war crimes.480
Jurisprudence481 has shown that an indiscriminate attack may be held to be a deliberate
attack, for the purposes of establishing whether war crimes have been committed. The rockets
fired by Palestinian armed groups during the conflict targeted civilians, at best, indiscriminately
and, in many cases emphatically and deliberately.
In addition the extra-judicial torture and execution of alleged collaborators by Hamas is a war
crime under the definitions of wilful killing (Article 8 (2)(a)(i)), torture(Article 8 (2)(a)(ii)) and
depriving a protected person of the rights of fair and regular trial (Article 8 (2)(a)(vii)) in the
Rome Statute.
The torture and summary killing of people in captivity including suspected informers or
collaborators are, when committed in the context of an armed conflict, serious violations of
international humanitarian law, constituting war crimes.482
extrajudicial executions constitute a violation of article 3 common to the 1949 Geneva
Conventions, and therefore amount to a war crime.483
There is therefore significant evidence pointing to the possibility of war crimes having been
carried out by Hamas on several counts: intentionally directing attacks against civilians484 and
civilian objects485, carrying out attacks which caused an excessive loss of life in comparison to
478
Article 8(2)(b)(iv) of the ICC Statute

Letter from Luis Moreno Ocampo, 9 February 2006, available online at: http://www.icccpi.int/NR/rdonlyres/F596D08D-D810-43A2-99BBB899B9C5BCD2/277422/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf
480
High Level International Military Group, (n 275)
481
482
483
484
Article 8(2)(b)(i) of the ICC Statute
485
Article 8(2)(b)(ii) of the ICC Statute
479
105
the military advantage anticipated486, wilful killing487, torture488and depriving a protected

person of the rights of fair and regular trial489.
d) Breaches by the IDF

Alleged breaches under the ICC Statute:
1. War crimes under Article 8
At least 142 families lost three or more members in an attack on a residential building during
the summer of 2014, resulting in 742 deaths. The fact that Israel did not revise its practice of
air-strikes, even after their dire effects on civilians became apparent, raises the question of
whether this was part of a broader policy which was at least tacitly approved at the highest
level of government490.
In order to conduct an investigation into the lawfulness of the actions of the IDF in Gaza the
ICC would have to demonstrate Israels unwillingness or inabilitygenuinely to prosecute491.
This provision of the Rome Statute provides the Court with a certain scope to assess the
objective quality of a national proceeding, but setting a standard no higher (but no lower) than
that the proceedings be carried out genuinely492. Inability would not apply in the case of
Israel as the country has a functioning judicial system and has carried out investigations into
the alleged breaches. Unwillingness may however be explored by the Court. This would
require an analysis of whether the investigations493 carried out in Israel can be held to be
independent, impartial and genuine.
...where transgressions and errors are alleged these cases are subject to rigorous, transparent
investigation and if necessary criminal proceedings and punishment. The Israeli military legal
system includes a number of robust checks and balances, on which we were briefed; including
486
Article 8(2)(b)(iv) of the ICC Statute

Article 8 (2)(a)(i) of the ICC Statute
488
Article 8 (2)(a)(ii) of the ICC Statute
489
Article 8 (2)(a)(vii) of the ICC Statute
490
United Nations Office of the High Commissioner for Human Rights, UN Gaza Inquiry finds credible
allegations of war crimes committed in 2014 by both Israel and Palestinian armed groups, 22 June 2015,
available online at:
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16119&LangID=E#sthash.jFgt
mMZm.dpuf
491
Article 17(1)(b), Rome Statute of the International Criminal Court, 1998
492
ICC, Informal expert paper, The principle of complementarity in practice, 2003, available online at:
http://www.icc-cpi.int/NR/rdonlyres/20BB4494-70F9-4698-8E30907F631453ED/281984/complementarity.pdf
493
Namely those carried out by the IDF itself, IDF Military Advocate General: Decisions of the IDF MAG
Regarding Exceptional Incidents that Allegedly Occurred During Operation 'Protective Edge'- Update No.
4, 11 June 2015, available online at: http://www.law.idf.il/163-7353-en/Patzar.aspx
487
106
oversight by the countrys widely respected supreme civil judiciary.494If the ICC holds that it has
jurisdiction and that the situation is admissible, in spite of the procedural concerns outlined
above, the evidence available in various reports, notably those published by the UN
Commission of Inquiry, B'Tselem, Alkarama and Amnesty International indicates that there is
significant proof of war crimes having been committed, in accordance with the definitions
provided in the ICCs Elements of Crimes document. In particular, given the widespread
damage to civilian infrastructure there may be an especially strong case for the war crime of
destruction and appropriation of property495 and for the war crime of excessive incidental
death, injury, or damage496. The attack on the Gaza Strips sole power plant in particular
collectively punished Gazas population and could amount to a war crime. 497 The IDF claimed
that it did not intentionally strike the plant, rather that a Hamas rocket may have. In any case
the IDF opened an investigation into this event498. As described above, however, access to IDF
data regarding military objectives and targets would be necessary in order to definitively
assess whether the strikes, inter alia, on residential properties, schools and hospitals could be
considered excessive in relation to the concrete and direct overall military advantage
anticipated and to establish whether the war crimes mentioned above were committed. It is
thus essential, preferably at the preliminary examination stage, that the IDF provide the ICC
with this information and also that the Israeli judiciary furnish proof of the genuineness of its
investigations and prosecutions by providing evidence of a sufficient degree of specificity and
probative value499. Without access to this information the only conclusion that can reasonably
be reached is that proposed by the UNHRC Commission of Inquiry:
there are strong indications that these attacks could be disproportionate, and therefore
amount to a war crime.500
494
High Level International Military Group, (n 275)

Article 8 (2) (a) (iv), Elements of Crimes, International Criminal Court 2011
496
Article 8 (2) (b) (iv), Elements of Crimes, International Criminal Court 2011
497
Amnesty International, Israel/Gaza: Attack on UN school in Gaza a potential war crime that must be
investigated, 30 July 2014, available online at:
https://www.amnesty.org/en/articles/news/2014/07/israelgaza-attack-unschool-gaza-potential-warcrime-must-be-investigated/; Human Rights Watch, Gaza: Widespread Impact of Power Plant Attack,
http://www.hrw.org/news/2014/08/10/gaza-widespread-impact-power-plant-attack
498
Mitch Ginsburg, Times of Israel, IDF general: Israel did not target Gazas power plant, July 30, 2014,
http://www.timesofisrael.com/idf-general-israel-did-not-target-gazas-power-plant/
499
The Government of Libya's Appeal against Pre-Trial Chamber I's 'Decision on the admissibility of the
case against Saif Al-Islam Gaddafi', ICC-01/11-01/11-350 (OA 4), para.135
500
Human Rights Council, Advance Edited Version, Report of the independent commission of
inquiry established pursuant to Human Rights Council resolution S-21/1, A/HRC/29/52, 22 June 2015,
p.10
495
107
7. The Goldstone Report and the United Nations Independent

Commission of Inquiry on the 2014 Gaza Conflict
a) Conclusions of the Goldstone Report and implications of the subsequent
retraction of key findings by Justice Goldstone- relevancy to Operation
Protective Edge
Among the concluding recommendations of the Goldstone Report were the following:
Israel shouldensure that the principles of proportionality, distinction, precaution and nondiscrimination are effectively integrated in all such guidance and in any oral briefings provided
to officers, soldiers and security forces, so as to avoid the recurrence of Palestinian civilian
deaths, destruction and affronts on human dignity in violation of international law.
The Mission recommends that Palestinian armed groups undertake forthwith to respect
international humanitarian law, in particular by renouncing attacks on Israeli civilians and
civilian objects, and take all feasible precautionary measures to avoid harm to Palestinian
civilians during hostilities501
As mentioned above some of the findings of the report were later partially withdrawn by
Justice Goldstone who headed the report. Goldstone stated, inter alia, that:
The allegations of intentionality by Israel were based on the deaths of and injuries to civilians in
situations where our fact-finding mission had no evidence on which to draw any other
reasonable conclusion. While the investigations published by the Israeli military and recognized
in the U.N. committees report have established the validity of some incidents that we
investigated in cases involving individual soldiers, they also indicate that civilians were not
intentionally targeted as a matter of policy. 502
Goldstone lamented the fact that information later published and made available to him,
mainly by the Israeli authorities, was not provided at the time the report was being drafted.
This, he claimed, would have made for a very different document503. Unfortunately Israel did
not cooperate with the 2014 Commission either, citing the allegedly biased nature of its
mandate and of the Office as a whole. As such the information received by the Commission
may be reasonably expected to be similarly limited in scope. The criticism levelled at both the
Goldstone report and the 2014 report are similar: the reports are one-sided, perhaps partially
501
The Goldstone Report, XXXI. Recommendations, available online at: http://image.guardian.co.uk/sysfiles/Guardian/documents/2009/09/15/UNFFMGCReport.pdf

502
503
Richard Goldstone, Washington Post, Reconsidering the Goldstone Report on Israel and war crimes, 1
April 2011, available online at: http://www.washingtonpost.com/opinions/reconsidering-the-goldstonereport-on-israel-and-war-crimes/2011/04/01/AFg111JC_story.html
108
as a result of the bias in the organisation recognised by Justice Goldstone himself but mostly as
a result of Israels failure to cooperate and provide the evidence and data needed to make
conclusive and well-informed observations and recommendations. Goldstones claims that the
report would have been very different with Israeli cooperation are echoed by Judge
McGowan Davis statement that the 2014 report would also have been different if Israel had
cooperated504.
b) An assessment of the United Nations Independent Commission of Inquiry on

the 2014 Gaza Conflict
The United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict was
established by Resolution A/HRC/RES/S-21/1505 which described the mandate of the
Commission as follows:
an independent, international commission of inquiry, to be appointed by the President of the
Human Rights Council, to investigate all violations of international humanitarian law and
international human rights law in the Occupied Palestinian Territory, including East Jerusalem,
particularly in the occupied Gaza Strip, in the context of the military operations conducted since
13 June 2014.506
Israel refused to cooperate with this Commission, citing the council's obsessive hostility
towards Israel, the committee's one-sided mandate and the publicly expressed anti-Israel
positions of the committee's chair.507 It should be pointed out that this Commission sought to
engage with both Israel and Hamas in order to conduct its investigation, however neither party
officially contributed to or collaborated with the investigation. As explained in the conclusion, I
believe that this failure to cooperate with the 2014 Commission is misguided, in particular on
the Israeli side, as was the States failure to cooperate with the Goldstone Commission.
Nonetheless any such cooperation would have been voluntary in any case as the United
Nations Human Rights Council has no power to compel a state to take part in such an
investigation. This is clear both from Resolution A/HRC/RES/S-21/1 which established the 2014
504
Barak Ravid, Haaretz, Head of UN Gaza probe tells Haaretz: Main message is Israel cant drop one-ton
bomb on a neighborhood, June 23 2015, available online at: www.haaretz.com/news/diplomacydefense/.premium-1.662603
505
506
Ibid. Article 13
507
Israel Ministry of Foreign Affairs, Israel will not cooperate with UNHRC investigative committee, 13
November 2014, available online at: http://mfa.gov.il/MFA/PressRoom/2014/Pages/Israel-will-notcooperate-with-UNHRC-investigative-committee-13-Nov-2014.aspx
109
Commission as well as from Resolution A/RES/60/251508, through which the General Assembly
established the Human Rights Council. The stated rationale for establishing the Council was to
promote human rights and address violations through a process of dialogue, education,
cooperation and capacity-building509. In accordance with the scope of its mandate, it thus has
no authority to obligate a state to participate in its activities nor is it authorised to sanction or
coerce a state which fails to take part in one of its initiatives. It is not a judicial organ and
cannot, therefore, make legally binding proclamations. In addition, by their very nature the
UNHRC independent commissions of inquiry are to function autonomously and thus, while the
2014 Commission requested to visit the region and was refused entry by the Israeli authorities
this decision does not trigger any legal consequences for Israel at the international level as a
United Nations Member State. In particular state responsibility cannot be applied to this
scenario as the states in question are not bound to cooperate with the UN Human Rights
Councils Independent Commission of Inquiry, for the reasons mentioned above, and so cannot
be held to have breached their international obligations. The states in question do not have
binding legal relations with the Commission and the Council that created it and as such failing
to collaborate with this Commission is not an internationally wrongful act and does not
constitute a breach of an international obligation of the state510 as no such obligation exists
under international law. Indeed, Israel has never held one of the Council's 47 seats, nor is it
obliged to and in the past Israel has even temporarily ceased all cooperation with the UNHRC
as a whole for a period of time511, without any legal ramifications. There is thus clearly no
obligation on states to cooperate with the Council as an entity, and certainly not to participate
in individual mandates.
Israel512, and others such as Hillel Neuer of UN Watch, criticised the Human Rights Council
Resolution and the Commission it established as being clearly biased given that, before any
investigations had been conducted or any information had been gathered, it preemptively
508
Resolution adopted by the General Assembly, 60/251. Human Rights Council, 3 April 2006
Ibid.
510
Acts, with commentaries, 2001, Article 2 (b)
511
Ravid, Barak, Haaretz, Israel Cuts Contact With UN Rights Council, to Protest Settlements Probe,
March 2012, available online at: http://www.haaretz.com/news/diplomacy-defense/israel-cuts-contactwith-un-rights-council-to-protest-settlements-probe-1.420786
512
Israel Ministry of Foreign Affairs, Israeli response to the UNHRC Commission of Inquiry, 22 June 2015,
available online at: http://mfa.gov.il/MFA/PressRoom/2015/Pages/Israeli-response-to-the-UNHRCCommission-of-Inquiry-22-Jun-2015.aspx
509
110
declares Israel guilty513. The Resolution mentions only the grave violations of the human
rights of the Palestinian civilian population and makes no reference to Hamas or any of its
activities targeting Israel and Israeli citizens.
In addition, in accordance with the procedure recommended in the Fourth Geneva
Convention514 for investigations into alleged violations of international humanitarian law, any
such investigation must be requested by a party to a conflict, the composition of the members
of the panel carrying out the investigation must be decided on between the interested parties,
or they must agree to appoint an umpire who will decide on the procedural aspects of the
enquiry. Thus, from a procedural perspective, the unilateral determination of the members of
the Commission and its mandate by the UN, or any other third party, does not comply with this
process.
According to a press release issued on 23rd December 2014, and following criticism and
allegations of bias against Israel, the Commission explicitly stated that it intends to investigate
violations carried out by Hamas as well as by the IDF:
The Commissioners wish to make it clear that they interpret this mandate to include
investigations of the activities of Palestinian armed groups in Gaza, including attacks on Israel,
as well as the Israeli military operation in the Gaza Strip...The Commission of Inquiry is looking
at a broad range of alleged violations committed by all parties, and is considering the full range
of human rights, including economic, social and cultural rights.515
The full report of the Commission was published on 22 June 2014. In many ways the findings of
the Commission reflect the violations of international law by both Hamas and the IDF
documented by numerous NGOs, in particular Amnesty International, B'Tselem and Human
Rights Watch. Many of the findings also closely match the conclusions I have drawn in this
dissertation. One particular allegation in the report, however, appears to be based on an
inherently flawed interpretation of a basic principle of international humanitarian law. The
report states on several occasions516 that rockets and mortars launched from Gaza were
513
Hillel Neuer, The Tower, Why the Schabas Report Will Be Every Bit as Biased as the Goldstone Report,
March 2015, available online at: http://www.thetower.org/article/why-the-schabas-report-will-beevery-bit-as-biased-as-the-goldstone-report/
514
Article 149, Fourth Geneva Convention
515
United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict, UN Commission of
Inquiry on Gaza hears moving testimony, seeks access, available online at
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15456&LangID=E#sthash.8pi
W5Rfo.V5SZKIZi.dpuf
516
See, inter alia, the factual assessment (pp.25-28) of Rocket, mortar and tunnel attacks against
locations in Israel, Human Rights Council, (n 23)
111
allegedly (albeit rudimentarily) configured so as to target military objectives (such as tanks,

military convoys and military bases) in Israel. However this finding is entirely negated by two
facts: firstly the weapons used by Hamas are, by their own admission and that of countless
NGOs517 and even the Secretary General of the UN itself518, not sophisticated enough to be
capable of accurately targeting a military objective. As such the use of these weapons is a
violation of the prohibition of using weapons which employ a method or means of combat
which cannot be directed at a specific military objective519. The report does go on, rather
paradoxically, to acknowledge this fact, calling the weapons unguided and inaccurate520. As
such it is illogical that such a weapon could be guided or targeted in any way. Secondly the
Commission acknowledges that Palestinian armed groups announced that they intended to
attack population centres in Israel.521 As already discussed this constitutes a deliberate attack
against civilians, emphatically prohibited under IHL522 and as clear a breach of the principle of
discrimination as one can imagine.
Criticism of the report has centred around the fact that those involved in the investigation are
not experts in international humanitarian law and military law and that they did not have
sufficient information available regarding the military decisions made.
It is impossible rigorously to analyze whether a given strike or set of strikes complies with IHL
without a detailed investigation of what the operators and commanders in the moment knew
and why they decided to act as they didWithout knowing who the target was, what
calculations as to civilian deaths commanders made, and what the expected military
advantage of the strike was, a rigorous investigation simply cant be done.523
Both Hamas and Israels immediate reactions to the report were overwhelmingly negative.
Prime Minister Netanyahu criticised the allegedly flawed and biased524 nature of the report,
517
For example, Human Rights Watch, Palestinian Rockets Unlawfully Targeted Israeli Civilians,
December 24, 2012, available online at: https://www.youtube.com/watch?v=m5CtAGRa3SI#t=34
518
Remarks to the press with Israeli Defense Minister Moshe Ya'alon, Secretary-General Ban Ki-moon,
Tel Aviv (Israel), 22 July 2014
519
520
521
Ibid, p.26
522
Articles 48, 51(2) and 52(1) of Additional Protocol I
523
Benjamin Wittes, Yishai Schwartz, Lawfare blog, What to Make of the UN's Special Commission
Report on Gaza?, June 24 2015, available online at: www.lawfareblog.com/what-make-uns-specialcommission-report-gaza
524
Peter Beaumont, The Guardian, UN accuses Israel and Hamas of possible war crimes during 2014
Gaza conflict, 22 June 2015, available online at: www.theguardian.com/world/2015/jun/22/un-accusesisrael-and-hamas-of-possible-war-crimes-during-2014-gaza-war
112
dismissing its conclusions outright as a waste of time525, while Hamas rejected the
Commissions findings regarding its own violations, claiming that its rockets and mortars were
aimed at Israeli military sites, not at civilians526 and welcomed the reports findings relating to
the IDF. Avi Dichter, former Israeli Minister of Internal Security and Shin Bet527 director,
strongly condemned the Israeli governments refusal to cooperate with the Commission and its
subsequent dismissal of its findings, stating that:
Israel blew an opportunity to weigh in on the issue. Israel did not allow UN investigators into
the Gaza Strip to investigate claims of war crimes during Operation Protective Edge, nor did it
cooperate with their investigation in Israel.528
I concur with this statement and believe that Israels failure to cooperate with the Commission
damages the credibility of the IDFs claims and denies it the opportunity to put forth its
arguments to defend its actions and to provide evidence and data to support them. In many
cases, given the technological capacities of the IDF, it is only through the provision of detailed
information on the military objectives targeted in specific attacks, information possessed
solely by the IDF and the Israeli authorities, that any conclusive and definitive judgment can be
made as to the merit of claims of compliance with international law by the IDF or, indeed,
allegations of violations thereof. Similarly, releasing the large amounts of information held by
the IDF on Hamas rocket launch sites and other military sites would give significant weight to
allegations of unlawful conduct made against Hamas. As such it is unfortunate and regrettable
that Israel did not cooperate with this investigation. In addition Hamas did not cooperate with
the investigation- the only information from the Palestinian side was provided by the
authorities in the West Bank who have limited access to Gaza. Nonetheless the report did
attempt to, taking into account the obvious limitations caused by the above, assess and
condemn violations committed by both sides in a more objective way than its predecessor did.
525
Barak Ravid, Haaretz, UN commission finds evidence of war crimes by Israel, Hamas during 2014 Gaza
war, June 22 2015, available online at: http://www.haaretz.com/news/diplomacy-defense/1.662389
526
Peter Beaumont, The Guardian, UN accuses Israel and Hamas of possible war crimes during 2014
Gaza conflict, 22 June 2015, available online at: www.theguardian.com/world/2015/jun/22/un-accusesisrael-and-hamas-of-possible-war-crimes-during-2014-gaza-war
527
Israel Internal Security Agency
528
Times of Israel, Israel erred in blowing off UN, Dichter says, June 23 2015, available online at:
www.timesofisrael.com/liveblog_entry/israel-erred-in-blowing-off-un-dichter-says/
113
8. Summary of breaches of international law identified

a) Violations of international law by Hamas:
International humanitarian law:
Significant evidence supporting the following violations:
Failing to comply with the principles of distinction and military necessity under Articles
48, 51(2) and 52(1)(2) of Additional Protocol I by:
launching indiscriminate attacks against civilians (Article 51(4) of the 1977 Additional
Protocol I);
objects and military objectives (Article 48);
failing to comply with the requirement to avoid locating military objectives in densely
populated areas and to remove the civilian population and civilian objectives from the
vicinity of military objectives under Article 58 of Additional Protocol I;
and directing attacks against non-military objectives (Article 52 of the 1977 Additional
Protocol I).
Breaching Article 3 common to the four Geneva Conventions of 1949 (acts of violence
to life and person against persons taking no active part in the hostilities).
Breaching Article 51(2) of Additional Protocol I by spreading terror among the civilian
population.
Failing to provide effective advance warning of those attacks which may affect civilians
under Article 57(2)(c) of 1977 Additional Protocol I.
Some evidence supporting the following violations:
Using human shields (Article 28 of the 1949 Geneva Convention IV, Article 51(7) of the
1977 Additional Protocol I).
International human rights law:

Right to life: UDHR Article 3, ICCPR Article 6(1)
Right to fair trial: UDHR Article 10, ICCPR Article 14

114
Right not to be subject to torture, or to cruel, inhuman or degrading treatment or

punishment: UDHR Article 5, ICCPR Article 7, CAT Article 2(1)
Right not to be arbitrarily arrested or detained: UDHR Article 9, ICCPR Article 9(1)
CRC Article 6 (1), (2) (inherent right to life and right to survival and development);
CRC Article 19 (1), (obligation to protect the child from all forms of physical or mental
International criminal law:

Directly and publicly inciting genocide under Article 25, 3(e) of the ICC Statute;
The crime of genocide under Article 6;
The crime of war crimes under Article 8 (in particular intentionally directing attacks
against civilians and civilian objects, carrying out attacks which caused an excessive
loss of life in comparison to the military advantage anticipated, wilful killing, torture
and depriving a protected person of the rights of fair and regular trial).
b) Violations of international law by IDF:

International humanitarian law:
Launching indiscriminate attacks not justified by military necessity (Article 51(5)(b) of

failing to fully comply with the principle of precautions in attack (Article 57 (1));
and failing to fully comply with the requirement to protect civilian objects under
Article 52(2).
International human rights law:

115
Right to freedom of assembly and association: UDHR Article 20 (1), ICCPR Article 21, 22
Right to freedom from discrimination: UDHR Article 7, ICCPR Articles 4, 20(2) and 26
CRC Article 6 (1), (2) (inherent right to life and right to survival and development)
CRC Article 19 (1), (obligation to protect the child from all forms of physical or mental
International criminal law:

War crimes under Article 8 (in particular the war crime of destruction and
appropriation of property and the war crime of excessive incidental death, injury, or
damage).
116
9. Conclusions- predictions and suggestions

In February of 2015 a federal court in the USA found the Palestinian Authority and the
Palestine Liberation Organization liable in relation to having provided support for six terrorist
attacks in Israel and ordered the groups to pay compensation to the victims families totalling
US$218.5 million. The lawsuit529, filed in 2004, related to terrorist acts, including a bombing in
the Hebrew University in 2002 and a suicide bombing of a bus in Jerusalem in 2004, carried
out in Israel (responsibility for both of these attacks was claimed by Hamas 530). Under the U.S.
Anti-Terrorism Act of 1992531, American victims of terrorism are able to bring a lawsuit
against the alleged perpetrators of the crimes, even if they did not occur within the USA; the
plaintiffs in this case were ten American families affected by the wave of terrorist acts in
Israel in the early 2000s. The verdict in this case is of note given that it proves that the
Palestinian government authorities can be held responsible for supporting, inciting or indeed
being directly involved in terrorism and hostilities against Israeli civilians. In this lawsuit the
PLO and Palestinian Authority denied wrongdoing, stating that they should not be held
responsible for the actions of a handful of extremist individuals532 who were allegedly acting
independently of any state support. This is of note given that, in contrast, in the case of
Hamas533 actions, during the summer of 2014, there was little to no attempt made to contest
the assertion that it was Hamas policy to directly, deliberately or indiscriminately target
Israeli civilians by means of rocket fire from Gaza, even before the Israeli armed forces
launched their military operation. The Israeli Foreign Minister claimed that this verdict
demonstrated that terrorism is an integral part of the structure of the Palestinian
529
Submission to the United States District Court for the Southern District of New York, January 15 2004,
available online at:http://online.wsj.com/public/resources/documents/complaintPAPLO.pdf
530
Israel Ministry of Foreign Affairs, Suicide bombing of Egged bus no 19 in Jerusalem-29-Jan-2004, 29
January 2004, available online at:
mfa.gov.il/MFA/ForeignPolicy/Terrorism/Palestinian/Pages/Suicide%20bombing%20of%20Egged%20bu
s%20no%2019%20in%20Jerusalem%20-.aspx and Los Angeles Times, Blast Kills 7 at University in
Jerusalem, August 01, 2002, available online at: articles.latimes.com/2002/aug/01/world/fg-mideast1
531
Antiterrorism Act, 18 U.S.C. 2331
532
Wall Street Journal, Jury Finds Palestinian Authority, PLO Liable for Terrorist Attacks in Israel a Decade
Ago, 23 February 2015, available online at: http://www.wsj.com/articles/jury-finds-palestinianauthority-plo-liable-for-terrorist-attacks-in-israel-a-decade-ago-1424715529
533
Which, it must be recalled is the governing authority in the Gaza Strip and whose military wing, the
Izz ad-Din al-Qassam Brigades, has repeatedly claimed responsibility for and publicly praised rocket fire
into Israel.
117
Authority.534 In any case, it would appear that this verdict may lead to an increasing number
of lawsuits against government organisations that allegedly facilitate or fund terrorist acts. In
the case of the ICC investigation into the situation in Palestine, it should thus be clear that
Hamas actions and statements will be carefully scrutinised, alongside the IDFs conduct and
that, in all likelihood, Hamas will be found to be responsible for serious breaches of
international law, on a number of counts535. By consistently releasing statements claiming that
Tel Aviv or other civilian population centres are the target of their rocket fire, Hamas is
demonstrating that its intent is explicitly to commit war crimes and to violate international
law. Hamas, as the ruling authority in the Gaza Strip, must take responsibility for upholding
international law and must punish those who fail to comply with its requirements.
Also of note is the fact that, in the past, Iranian officials have claimed 536 that, while the Iranian
government had not supplied Hamas with rockets directly, it had provided the Palestinians
with technical guidance and support in developing weapons, especially those weapons with a
longer range, designed specifically to target the major civilian population centres within
Israel. As the conviction of former Liberian president Charles Taylor by the Special Court for
Sierra Leone on 26 April 2012 has clearly demonstrated, if military equipment or information
is provided to a party with the knowledge that it is likely to be used to commit war crimes,
the party supplying said expertise or weaponry can be deemed to be aiding and abetting said
war crimes537. Consequently any legal proceedings brought against Hamas could also
implicate the backers of their military actions against Israel and could culminate in findings of
violations of international law by other parties, such as Iran, as well as by Hamas itself.
The numerous reports compiled by the IDF and the Israeli government, as well as by Amnesty
International, are useful in providing context and potential evidence related to the crimes
alleged to have been committed by Hamas while the reports of a number of Israeli NGOs 538
534
Israel Ministry of Foreign Affairs, FM Liberman on the US court decision, Palestinian Authority
responsible for terror, 23 February 2015, available online at:
http://mfa.gov.il/MFA/PressRoom/2015/Pages/FM-Liberman-on-the-US-court-decision-23-Feb2015.aspx
535
Namely those violations identified in the summary above, inter alia.
536
The Guardian, Iran supplied Hamas with Fajr-5 missile technology, 21 November 2012, available
online at: http://www.theguardian.com/world/2012/nov/21/iran-supplied-hamas-missiletechnology?INTCMP=SRCH
537
Human Rights Watch, Gaza: Palestinian Rockets Unlawfully Targeted Israeli Civilians, December 24,
2012, available online at: http://www.hrw.org/news/2012/12/24/gaza-palestinian-rockets-unlawfullytargeted-israeli-civilians
538
In particular Breaking the Silence and B'Tselem
118
and of several international NGOs539 provide comprehensive details on alleged violations

committed by the IDF. In this particular conflict a large amount of the reports issued are
distinctly one-sided and biased in their objectives and in the evidence they choose to put
forward. As such, relying on any single source as ultimately authoritative will tend to produce
a less balanced conclusion. Given this fact, in this dissertation I have, while acknowledging the
inherent difficulty in collecting accurate and reliable data on the allegations of violations of
international law in this region, attempted to use a wide range of sources, in particular those
which feature testimonies of civilians and combatants directly involved in the conflict, to
draw my conclusions and make my recommendations. As has been demonstrated in this
dissertation, numerous violations of international humanitarian, criminal and human rights
law were undoubtedly committed during the hostilities of summer 2014, by both the IDF and
Hamas. The evidence used to substantiate these allegations has been drawn from a wide
range of media, NGOs, international organisations and other stakeholders, based in Israel,
Palestine and elsewhere. The issue of whether or not these violations constituted specific
crimes under various international human rights, humanitarian and criminal law regimes has
been approached in a systematic manner, outlining the ways in which each allegation does or
does not, as the case may be, comply with the provisions of the relevant legislation and
jurisprudence. An attempt has also been made to outline some of the obstacles and barriers
to the rule of law in what is a highly politicised, highly complex conflict.
The findings presented here essentially echo those of the UN Commission of Inquiry in as far
as there is evidence of serious violations of international public law having been committed
by both sides to the conflict.
the commission was able to gather substantial information pointing to serious violations of
international humanitarian law and international human rights law by Israel and by
Palestinian armed groups.540
Amnesty International concluded one of its reports on the 2014 conflict with the following
statement:
They [the Palestinian Authorities] should seek to ensure that the cases documented in this
report, among others, are investigated impartially and independently and that, wherever
539
In particular Amnesty International and Human Rights Watch

p.19
540
119
there is sufficient admissible evidence, suspected perpetrators are brought to justice in

proceedings that fully respect international fair trial standards. 541
An independent and impartial international investigation into the conflict and the violations
alleged to have occurred, in this dissertation and in the many reports and articles from which
I have drawn in assembling my arguments, is truly the only way to end impunity in Israel and
Palestine and to ensure that the IDF and Palestinian militants are held accountable for their
actions. However both sides must contribute to and collaborate with any such investigation in
order to ensure that it is accurate, impartial and properly and fully informed. Given Israels
historic distrust in the OHCHR and the UNHRC, which may, as outlined in earlier chapter, be at
least partially justified, it is unsurprising that these bodies have not tended to produce a
balanced and fair assessment of the Israeli-Palestinian conflict. Additionally Israels refusal to
cooperate with the UN Commission of Inquiry may have been part of the reason why the final
report of the 2014 Commission focused somewhat disproportionally on alleged violations
committed by the IDF, rather than on a more comprehensive and just analysis of both parties
to the conflict. As the Chairperson of the Commission, Judge McGowan Davis stated following
the release of the report I certainly think it would have been different if Israel had
cooperated542. The impartiality of Israeli military investigations into alleged violations of
international law has been questioned, as described above. It is also highly unlikely that Hamas
will conduct impartial and independent investigations. As stated by Amnesty International:
In view of the failure of previous Palestinian inquiries to examine violations by armed groups,
the continuing divisions between the national consensus government and the Hamas
authorities in Gaza, and the failure to initiate investigations into Palestinian violations more
than six months after the 2014 conflict, the prospects for credible domestic investigations on
the Palestinian side do not look good.543
To date, more than nine months after the end of armed conflict, neither the Palestinian
government in Ramallah nor the Hamas authorities in Gaza have opened any investigations
into the serious abuses under international humanitarian law and international human rights
law committed by Hamas forces and Palestinian armed groups during the 50-day conflict, nor
held anyone responsible for those abuses to account. 544
Recourse to the ICC would thus seem a more appropriate, not to mention a more judicially
effective option, of ensuring that the rule of law is implemented and those responsible for
541

Barak Ravid, Haaretz, Head of UN Gaza probe tells Haaretz: Main message is Israel cant drop one-ton
bomb on a neighborhood, June 23 2015, available online at: www.haaretz.com/news/diplomacydefense/.premium-1.662603
543
544
542
120
any substantiated violations are brought to justice. Nonetheless there are difficulties, too,
with this route, given primarily, that Israel is not a signatory of the Rome Statute. Israel's
criticism of the Rome Statute centres around its failure to designate terrorism as a crime and
the inclusion of a war crime it interprets as singling out its settlements in the West Bank 545.
These criticisms may be well founded however, by refusing to collaborate with the ongoing
ICC preliminary examination and any subsequent investigation the prosecutor decides to
open, Israel is almost guaranteeing that Hamas violations of international law will, again, be
given less focus and less emphasis than those of the IDF. Given the above, Israel should
consider the pending ICC preliminary examination as an opportunity, rather than a threat. As
stated by the UN Commission of Inquiry, the IDF released insufficient information regarding
the specific military objectives of its attacks546. This fact clearly and understandably had a
significant effect on the findings of the Commission in its report. The Commission did
acknowledge, however, that this may at least partially be due to the fact that said information
is likely to be classified and jeopardize intelligence sources547. Consequently, were Israel to
cooperate with the Office of the Prosecutor of the ICC, rather than refuse to engage with the
preliminary examination and potential investigation, the State could provide the Court with
its abundant evidence on alleged Hamas crimes as well as with detailed documentation
defending its military operations, namely the exact data that the UN Commission of Inquiry
did not receive. In addition, regarding the safety of intelligence sources and those providing
testimony, the ICC has a special Victims and Witnesses Unit which provides protection and
support to those appearing before the Court. This may encourage any individuals and groups
who did not feel able to cooperate with the UN Commission, to provide the Court with
information. Israeli cooperation would ensure that the ICC would, under the term situation,
investigate and possibly condemn and prosecute the actions of Palestinian armed groups as
well as of IDF and Israeli government officials. By fully cooperating with the Court Israel could,
of course, influence the information received by the Prosecutor, meaning that the Court
would have a much broader and more comprehensive understanding of events in summer
2014, and this could potentially have an impact on the outcome of any investigation. As
mentioned in earlier chapters, Israel has conducted a large number of its own
545
the transfer of parts of the civilian population of an occupying power into occupied territory, Article
8, 2. (b)(viii) Rome Statute of the International Criminal Court
546
p.19
547
Ibid.
121
investigations548 and, if the State truly believes in the impartiality and genuineness of the
investigations carried out, it should be willing and able to provide the ICC with its conclusions
and the information used to draw said conclusions. The ICC should therefore comply with the
principles of ne bis in idem and complementarity, and respect the findings of the Israeli
judicial process, should these judgments be considered genuine. In order to find the
situation of Palestine admissible, the ICC would essentially have to declare that Israels
investigations have not been carried out in a genuine manner, something which may be
unlikely. However this would arguably be more likely to happen if Israel does not share its
findings, in a transparent manner, with the Office of the Prosecutor and, presumably, would
be a less preferable option for Israel. As such it seems to be in the interests of the Israeli
authorities to cooperate fully with the preliminary examination of the ICC.
Even if the court decides that Gaza-related complaints merit investigation, any trial must be
carried out in coordination with Israel's justice system, which is currently investigating more
than a dozen cases related to the Gaza war. Given Israels well-respected courts, some
observers say the ICC will find it easier to try cases accusing Hamas of indiscriminately shelling
Israeli civilians than to take on the IDF.549
Israel can also benefit from cooperation with the Court by using it as an opportunity to
present its case internationally and to have its arguments and evidence 550 scrutinised and
assessed in a transparent manner. Unlike the UNHRC and the OHCHR, the ICC is a purely
judicial entity. As such, its investigations should not and must not be tainted by any political
considerations, bias or prejudice against any party. Israel should thus present its case at the
ICC and trust in Fatou Bensoudas assurances that her office will work impartially to prosecute
those responsible for committing mass crimes that shock the conscience of humanity.
Bensouda must act on legal merit alone, something which could actually turn out to be to the
relative benefit of Israel and detriment of Hamas.
548
In particular the investigation into some of the most serious allegations, Israel Ministry of Foreign
Affairs, Operation Protective Edge: Investigation of exceptional incidents - Update 2, Decisions of the IDF
Military Advocate General, 7 December 2014, available online at:
http://mfa.gov.il/MFA/ForeignPolicy/IsraelGaza2014/Pages/Operation-Protective-Edge-Investigation-ofexceptional-incidents-7-Dec-2014.aspx
549
Benny Avni, Newsweek, The Future of The Hague May Hinge on the War in Gaza, 13 January 2015,
available online at: http://www.newsweek.com/israel-palestine-hague-international-criminal-courtmahmoud-abbas-298891
550
Notably its key reports on the conflict: State of Israel, The 2014 Gaza Conflict, factual and legal
aspects, May 2015, available online at:
http://mfa.gov.il/ProtectiveEdge/Documents/2014GazaConflictFullReport.pdf and Israel Ministry of
Foreign Affairs, (n 169)
122
My mandate as prosecutor is nonetheless clear: to investigate and prosecute crimes based on

the facts and exact application of the law in full independence and impartiality. 551
It has recently been reported by numerous Israeli media sources that, although Israel is still
not officially collaborating with the ICC preliminary examination, the states policy regarding
the Court has evolved somewhat and it has been reported552 there is now ongoing, unofficial
partial cooperation between the Israeli authorities and the ICC OTP. An Israeli official is
reported to have claimed that the state has initiated a dialogue with the OTP and that:
"it would be proper to present the prosecutor and her staff with the Israeli position
concerning the courts lack of authority in a direct fashion, so that not only Palestinian claims
are heard."553
In particular this engagement is believed to be focusing on providing information to the ICC
regarding the Court's alleged lack of jurisdiction and regarding Israel's ability to conduct its
own internal investigations.554 Although the scope of this discussion with the ICC appears
limited, it is to be encouraged nonetheless, for the reasons mentioned above.
In addition to cooperating with the ICC, there is a valid argument for requesting an advisory
opinion from the ICJ during or even after the ICC preliminary examination. As mentioned
above, the ICJ is able to produce a comprehensive and authoritative judicial opinion on an
issue referred to it. In accordance with Article 65 of the Statute of the ICJ, the Court can issue
an advisory opinion on a legal question referred to it by a number of bodies, including the UN
SC and GA. As such the Israeli authorities and/or the Palestinian authorities could potentially
ask that the UN SC or GA make such a request555 in order to provide a legal opinion from an
authoritative Court (as opposed to the quasi-judicial UN Commission of Inquiry) and could
provide the entity making the request with all of the necessary documentation. An ICJ
advisory opinion would provide comprehensive, independent and impartial legal guidelines
for both parties to the conflict, and would also provide crucial context to the ICC preliminary
551
Fatou Bensouda, (n 115)

Ravid, Barak, Haaretz, Exclusive: Israel Decides to Open Dialogue With ICC Over Gaza Preliminary
Examination, July 9 2015, available online at: http://www.haaretz.com/news/diplomacydefense/.premium-1.665172
553
Judah Ari Gross, The Times of Israel, Israel to engage with ICC over war crimes probe, July 9, 2015,
available online at: www.timesofisrael.com/israel-to-engage-with-icc-over-war-crimes-probe/
554
Nitsan Keidar, Arutz Sheva, Policy Shakeup: Israel Partially Cooperates With the ICC, September 7
2015, available online at: www.israelnationalnews.com/News/News.aspx/197919#.VhJn3fmqqkr
555
Perhaps by lobbying SC members such as the US, France or the UK, which have historically been
closely involved with the situation in Israel and Palestine and are keen to find a solution to the conflict in
the region
552
123
examination and potential investigation. It is also a less threatening avenue to explore, given
that the Court is not criminal and penal in nature and does not try individuals and would give
both sides the opportunity to have the entirety of their legal arguments and points of view
scrutinised, while an ICC investigation, in contrast, will focus only on establishing whether a
narrow range of core crimes have been committed. In any case an ICJ advisory opinion could
even speed up the preliminary enquiry at the ICC by providing an analysis of salient juridical
points. In this way it could function as an authoritative legal supplement to the semi-judicial
report produced by the UN Commission of Inquiry, in informing and assisting the ICC.
10. Concluding recommendations

In conclusion the following recommendations are made to both the Israeli and Palestinian
authorities:
-conduct transparent, genuine, impartial and independent investigations at the national
level, which comply with internationally recognised norms, into the array of violations of
international humanitarian, human rights and criminal law allegedly committed, as identified
and discussed in this dissertation. In particular, exercise national criminal jurisdiction556 to
seek out, investigate and prosecute those responsible for the grave breaches of the Geneva
Conventions as identified in this dissertation, and in the numerous reports cited;
-fully cooperate with the ongoing ICC preliminary examination in order to ensure that the
Office of the Prosecutor receives a comprehensive, full picture of the events of summer 2014
and is thus able to draw balanced, well-founded conclusions. In particular the Israeli
authorities should provide the ICC with proof of the genuineness of the investigations carried
out by the IDF into violations of international law at the preliminary examination stage, and
should make available the information they possess on military objectives and the expected
military advantage for all strikes which resulted in civilian deaths, should the preliminary
examination result in an investigation;
-explore the possibility of requesting an advisory opinion from the ICJ in order to obtain
greater legal clarity as regards the merits or lack thereof of the parties respective allegations
556
In accordance with the aut dedere aut judicare obligation under the First Geneva Convention, Article
49; Second Geneva Convention, Article 50; Third Geneva Convention, Article 129; Fourth Geneva
Convention, Article 146 and ICRC Customary IHL Rule 158.
124
and defences and to provide the OTP of the ICC with an impartial, judicial assessment of the
situation;
-submit truthful and accurate state reports to the relevant human rights treaty monitoring
bodies, in particular to the Committee against Torture, the Committee on the Rights of the
Child and the Human Rights Committee and encourage and support a wide range of national
and regional civil society organisations in doing the same through shadow reports;
-subsequently, fully implement the recommendations made by these bodies in response to
the state and shadow reports received.
125
11. Annex I: a chronological timeline of relevant events before, during

and after Operation Protective Edge
May 15th 2014-Two Palestinian teenagers are killed by the IDF557 in the West Bank on
May 15th, 2014.
June 12th 2014- Three Israeli teenagers were abducted and later murdered in the West
Bank558. Israel suspected that Hamas was behind the kidnapping559, as retaliation for
the death of the two Palestinian teenagers on May 15th.
July 2nd 2014- A Palestinian teenager from East Jerusalem was murdered in what
seemed to be an act of revenge for the three murdered Israeli teenagers560. Amid
heightened tensions there were numerous violent clashes between the IDF and
Palestinians, mainly in the West Bank.
June-July 2014- The number of rockets launched by Palestinian armed groups into
Israel drastically increased during June and July 2014. A network of tunnels into Israeli
territory was also discovered, adding to the prevailing sense of insecurity561.
July 7th, 2014- Eighty rockets are fired into Israel from Gaza on 7 July, according to the
IDF.562
July 8th, 2014- Operation Protective Edge officially launched563.
July 17th 2014- The IDF begins ground operations in order to destroy the tunnel
system.
July 20th, 2014- On what was the deadliest day564 in the conflict for both sides 187
targets were struck in Gaza by Israel, 87 rockets were launched from Gaza into Israel,
and there were 122 Palestinian deaths and 16 Israeli deaths.
557
Human Rights Watch, Israel: Killing of Children Apparent War Crime Based on Witnesses, Video, Boys
Posed No Threat to Soldiers JUNE 9, 2014, available online at
http://www.hrw.org/news/2014/06/09/israel-killing-children-apparent-war-crime
558
The Jerusalem Post, Search for Israeli teens ends in tragedy, July 1st 2014, available online at
http://www.jpost.com/National-News/LIVE-BLOG-The-search-for-the-kidnapped-teens-359360
559
CNN, Israeli authorities identify the suspects in teens' kidnapping, June 27th 2014, available online at
http://edition.cnn.com/2014/06/26/world/meast/israel-kidnapped-teenagers-hamas/
560
Adiv Sterman, Times of Israel, Six Jewish extremists arrested in killing of Jerusalem teen, July 6 2014,
available online at: www.timesofisrael.com/suspects-arrested-in-killing-of-east-jerusalem-teen/
561
562
IDF Spokesperson twitter post, 7 July 2014, available online at
https://twitter.com/IDFSpokesperson/status/486281540091924480
563
Spencer Ho and Yifa Yaakov, Times of Israel, Israel hits Hamas, Islamic Jihad leaders after rockets land
north of Tel Aviv, July 8 2014, available online at: www.timesofisrael.com/israel-pounds-dozens-of-gazatargets-in-major-counteroffensive/
126
July 24th, 2014- A school run by the United Nations that was being used as a shelter
was hit by explosions, killing at least 16 people565.
July 28th 2014- A tunnel from Gaza into Israel is used by Hamas to attack and kill five
IDF soldiers566.
August 5th 2014- Israel withdraws ground troops from Gaza after having completed
the demolition of 32 militant-dug tunnels567.
26th August 2014- A ceasefire holds and the conflict is considered to have come to an
end568. The death toll is estimated at 2,192 Palestinian casualties (of whom 1,523
have been identified as civilians, including 519 children) and 71 Israelis569, while
17,125 Palestinians and 2,629 Israelis are estimated to have suffered injuries570.
564
Anne Barnard and Isabel Kershner, New York Times, Neighborhood Ravaged on Deadliest Day So Far
for Both Sides in Gaza, JULY 20, 2014, available online at
http://www.nytimes.com/2014/07/21/world/middleeast/gaza-israel.html
565
Ben Hubbard and Jodi Rudoren, New York Times, Blasts Kill 16 Seeking Haven at Gaza School, JULY
24, 2014, available online at http://www.nytimes.com/2014/07/25/world/middleeast/despite-talk-of-acease-fire-no-lull-in-gaza-fighting.html
566
Chaim Levinson and Gili Cohen, Haaretz, Hamas releases video of tunnel infiltration into Israel, July
29, 2014, available online at: www.haaretz.com/news/diplomacy-defense/1.607925
567
LA Times, New Gaza cease-fire begins as Israel withdraws troops, August 5 2014, available online at:
http://www.latimes.com/world/middleeast/la-fg-israel-withdraws-troops-as-72-hour-gaza-truce-begins20140805-story.html
568
Ynetnews, Quiet night in southern Israel as Gaza ceasefire holds, 27 August 2014, available online at:
http://www.ynetnews.com/articles/0,7340,L-4564561,00.html
569
df
570
OCHA, Fragmented Lives, Humanitarian Overview 2014, March 2015, available online at:
reliefweb.int/sites/reliefweb.int/files/resources/annual_humanitarian_overview_2014_english_final.pdf
127
12. Annex II: alleged breaches to be assessed

I have thematically grouped the alleged violations in order to simplify the assessment of their
compliance with international law, as follows. I have chosen to assess a number of events I
consider to be representative and illustrative of the type of alleged breaches of the various
branches of international law committed by each party. Therefore this is not intended to be an
exhaustive list of all alleged violations, rather it is a general, representative overview of the
types of violations assessed.
a) Alleged breaches by Hamas:

Firing rockets and mortars at Israeli civilians and civilian targets:
The UN estimates that 4,881 rockets and 1,753 mortars were fired from Gaza towards
Israel between 8 July and 26 August 2014.571 As a result of the type of weapons used
(unable to be accurately guided towards a specific target) this rocket fire
indiscriminately targeted civilians. Additionally, in many cases, according to Hamas the
rocket fire was deliberately intended to target Israeli civilians and civilian areas.
According to the Israeli Ministry of Health 1,600 civilians in Israel, including more than
270 children, were treated at hospitals for various types of injuries suffered during
rocket and mortar attacks.572 A total of six civilians (one child) and 66 soldiers were
killed in Israel during the hostilities.573
Damage to civilian infrastructure (private homes, public buildings and educational

facilities). Around 224 rockets and mortars are estimated to have hit Israeli residential
areas, resulting in significant damage to civilian property.574
571
UN Department of Safety and Security (UNDSS), cited in Addendum to Report of the United Nations
High Commissioner for Human Rights on the implementation of Human Rights Council resolutions S-9/1
and S-12/1: The human rights situation in the Occupied Palestinian Territory between 12 June and 26
August 2014, including the escalation of hostilities between the State of Israel and Palestinian armed
groups in Gaza, A/HRC/28/80/Add.1, 26 December 2014, p. 8.
572
573
574
YNet, Operation Protective Edge in numbers, 27 August 2014, available online at:
128
Incidents involving children:
Mortar attack which killed Daniel Tregerman, a four year old Israeli, on 22 August
2014575.
Rocket attack on a civilian home in Ashkelon on August 26 2014 leaving three children
(and around seventeen adults) injured 576.
Death of thirteen civilians, eleven of them children in the al-Shati refugee camp on 28
July as a result of a rocket fired from within the Gaza Strip577. This took place during a
temporary humanitarian ceasefire.
b) Alleged breaches by Israel/IDF:

Incidents involving civilians and civilian infrastructure:
Attack on the Fun Time Beach Caf- July 9, 2014, an Israeli attack on the Fun Time
Beach coffee shop on the beach near Khan Yunis, in southern Gaza, killed nine civilians,
including two 15-year-old boys, and wounded three, including a critically injured 13year-old, survivors and family members told Human Rights Watch.578
The death of four children killed by shell fire on a Gaza beach on July 16th 2014.579
The July 20 bombing of the Abu Jame family home in the southern Gaza city of Khan
Younis, which, according to a report by Amnesty International580, killed 25 members of
a family, 19 of them children,
575
Al-Qassam Brigades, Information Office, Al-Qassam Brigades bomb enemy positions and settlements
with 12 mortar shells, 22 August 2014, available online (in Arabic) at:
576
Israel Ministry of Foreign Affairs, Operation Protective Edge: Israel under fire, IDF responds, 26 August
2014, available online at: http://mfa.gov.il/mfa/foreignpolicy/terrorism/pages/rise-in-rocket-fire-fromgaza-3-jul-2014.aspx
577
578
Human Rights Watch, July 16, 2014, Israel/Palestine: Unlawful Israeli Airstrikes Kill Civilians,
Bombings of Civilian Structures Suggest Illegal Policy, available online at
http://www.hrw.org/news/2014/07/15/israelpalestine-unlawful-israeli-airstrikes-kill-civilians
579
580
129
The strike on the al-Dali building in which 18 children reportedly died in a single
attack581.
24 July 2014, Israeli shelling of UNRWA shelter in Beit Hanoun (designated as an

emergency shelter) results in 13 civilian deaths and 200 injuries.582
Significant damage to civilian infrastructure throughout Gaza, including private homes,

the power station and numerous hospitals and mosques.
581
BTselem (n 167), p.25

Al Haq, UNRWA Emergency Shelter Bombed: 13 Civilians Killed and 200 Injured, 26th July 2014,
available online at: http://www.alhaq.org/advocacy/topics/gaza/834-unrwa-emergency-shelterbombed-13-civilians-killed-and-200-injured
582
130
13. Annex III: Acronyms used

ACRI- Association for Civil Rights in Israel
CAT- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment
CPPCG- Convention on the Prevention and Punishment of the Crime of Genocide
GA- United Nations General Assembly
ICRC- International Committee of the Red Cross
ICTR- International Criminal Tribunal for Rwanda
ICTY- International Criminal Tribunal for the former Yugoslavia
IDF- Israel Defence Forces
IHL- International Humanitarian Law
MAG- [IDF] Military Advocate General
OCHA- United Nations Office for the Coordination of Humanitarian Affairs
OHCHR- Office of the United Nations High Commissioner for Human Rights
PLO- Palestinian Liberation Organization
SC- United Nations Security Council
UNHRC- United Nations Human Rights Council
UNRWA- United Nations Relief and Works Agency for Palestine Refugees in the Near East
131
14. Annex IV: Citations of legislation

Article I, Montevideo Convention on the Rights and Duties of States 1933
The state as a person of international law should possess the following qualifications: a ) a
permanent population; b ) a defined territory; c ) government; and d) capacity to enter into
relations with the other states.
The presence or movements of the civilian population or individual civilians shall not be used to
render certain points or areas immune from military operations, in particular in attempts to
shield military objectives from attacks or to shield, favour or impede military operations. The
Parties to the conflict shall not direct the movement of the civilian population or individual
civilians in order to attempt to shield military objectives from attacks or to shield military
operations.
In order to ensure respect for and protection of the civilian population and civilian objects, the
Parties to the conflict shall at all times distinguish between the civilian population and
combatants and between civilian objects and military objectives and accordingly shall direct
their operations only against military objectives.
Article 18 of the Fourth Geneva Convention, 1949
Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity
cases, may in no circumstances be the object of attack, but shall at all times be respected and
protected by the Parties to the conflict.
Article 5, Rome Statute of the International Criminal Court, 1998
The jurisdiction of the Court shall be limited to the most serious crimes of concern to the
international community as a whole. The Court has jurisdiction in accordance with this Statute
with respect to the following crimes:
(a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of
aggression
132
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Operation 'Protective Edge': An analysis of alleged breaches of

Christopher Patrick Fitzsimons BA(Hons) PGCert MA GDL

This dissertation is submitted in partial fulfilment of the degree

Faculty of Laws, University of Malta

Submitted July 2015

Operation 'Protective Edge': An analysis of alleged breaches of

Online publications ................................................................................................ 139

This dissertation will objectively assess these alleged

violations, mainly by analysing and applying primary sources of international law. In

2. Research methodology and research objective

3. Context: background, procedural

a) Political, legal and historical background to Operation Protective Edge

exaggerated or even fabricated34. Hamas is also considered to be a terrorist organisation by

b) Palestinian statehood and the accountability of Hamas

c) The International Court of Justice Advisory Opinion of 2004 (Legal

Jurisdictional issues and statehood

Under Article 12, paragraph 1 of the UN Charter

The applicability of international law in occupied territories:

United Nations Security Council Resolution 1515, S/RES/1515, 19 November 2003

d) Responsibility for breaches of international law

e) The International Criminal Court- background in the Arab-Israeli conflict

This is also made clear in Article 25 (4) of the Rome Statute

f) Article 12(3) Declaration of the Palestinian Authority and subsequent

g) Bias, political pressure and censorship as impediments to the rule of law

Eugene Kontorovich, (n 106)

Foreign Press Association, Statements 2014, available online at:

Amnesty International, (n 57)

4. International Humanitarian Law

a) An objective assessment of breaches of international humanitarian law under

Additional Protocol I, Article 50(1)

Amnesty International, (n 1), p.4

Human Rights Council, (n 23), p.28

which happen to not be sophisticated enough so as to be capable of being configured to target

Fred Abrahams, (n 195)

Amnesty International, (n 1), p.17

State of Israel, (n 152), p.85

Human Rights Council, (n 23), p.29

c) Breaches by the IDF

State of Israel, (n 152), p.55

. Inter alia, the evidence for this

Article 51(5)(b) of the 1977 Additional Protocol I

Human Rights Council, (n 23), p.64

Additional Protocol 1 Article 85

Article 57(2)(c) of Protocol I

Human Rights Council, (n 23), p.64

5. International Human Rights Law

a) An objective assessment of breaches of international human rights law under

b) Breaches of the International Bill of Human Rights by Hamas

Right to life: UDHR Article 3, ICCPR Article 6(1)

Amnesty International, (n 57), p.39

c) Breaches of the International Bill of Human Rights by the IDF

Right to freedom of expression: UDHR Article 19, ICCPR Article 19(2)

d) An objective assessment of breaches of international human rights law under

e) Breaches of the Convention on the Prevention and Punishment of the Crime

automatically, by birth, in a continuous and often irremediable manner369). In addition Jewish

Ibid. para. 511

f) Breaches of the Convention on the Prevention and Punishment of the Crime

g) An objective assessment of breaches of international human rights law under

Human Rights Council, (n 23), p.64

Amnesty International, (n 288), p.8

h) Breaches of the Convention on the Rights of the Child by Hamas

both in relation to Palestinian and Israeli children.

Amnesty International (n 1), p.29