Richard Falk to UN Human Rights Council – IDF war on Gaza not justified by self-defense

The Geneva-Based UN Human Rights Council (HRC) is today discussing the report it requested on the IDF Operation Cast Lead in Gaza from U.S. Professor Richard Falk, the HRC’s Special Rapporteur on Human Rights in the occupied Palestinian territory.

In an “advanced unedited” copy of the report, dated 17 March 2008, Falk took issue with Israel’s contention that the 22-day IDF military operation against Gaza was in “self-defense”. This document can be read in full here .

Falk, in the report, questioned the legal justification for Israel’s use of force, given the circumstances (particularly, the nature of the Palestinian threat to Israel), and the diplomatic alternatives available. The IDF Operation may have been a crime against peace, Falk said.

To determine whether or not this was so, Falk said, there should now be an “expert inquiry” — and not just another further “investigation”. And, he wrote, “despite the apparent one-sidedness of the Gaza attack, allegations of war crimes on both sides of the conflict should be taken into account”.

Falk stated that “Ideally, Israel, as the sovereign State exercising control over the territory where the alleged offences took place, should be the locus of judicial assessment, whether by its normal criminal law procedures or through the establishment of a special ad hoc process – but … this is extremely unlikely to take place”.

In addition, he said, it is “disquieting” that the Government of Israel has declared its intention to shield members of its armed forces from any repercussions for their war-time conduct: “Such sentiments seem inconsistent with any expectation of serious official cooperation with a proposed investigation. It may be necessary, given this prospect, to place greater reliance on respected nongovernmental organizations compiling evidence and submitting reports, and on formal interviews with qualified observers and witnesses”.

Falk also wrote that “It is further recommended that the underlying claim of Israel that it was acting in self-defence be evaluated in relation to the contention that such an attack violated Article 2 paragraph 4 of the Charter of the United Nations and amounted to an act of aggression under the circumstances, and whether the reliance on disproportionate use of force or the inherently indiscriminate nature of the military campaign should be treated as a criminal violation of international customary and treaty law.”

He wrote that “It is a requirement of international customary law, as well as of the Charter of the United Nations, Article 2 paragraph 4 interpreted in the light of Article 1 paragraph 1 that recourse to force to resolve an international dispute should be a last resort after the exhaustion of diplomatic remedies and peaceful alternatives, even in circumstances where a valid claim of self-defence exists, absent a condition of urgency, assuming for the moment that an occupying power can ever claim a right of self-defense … In the context of protecting Israeli society from rockets fired from Gaza, the evidence overwhelmingly supports the conclusion that the ceasefire in place as of 19 June 2008 had
been an effective instrument for achieving this goal, as measured by the incidence of rockets fired and with regard to Israeli casualties sustained”.

And, he stated, “The continuing refusal of Israel to acknowledge Hamas as a political actor, based on the label of ‘terrorist organization’ has obstructed all attempts to implement human rights and address security concerns by way of diplomacy rather than through reliance on force. This refusal is important for reasons already mentioned, namely, that the population density in Gaza means that reliance on large-scale military operations to ensure Israeli security cannot be reconciled with the legal obligations under the Fourth Geneva Convention to protect to the extent possible the safety and well-being of the occupied Gazan population”.

Falk wrote that “If for the sake of argument, however, the claim of self-defence and defensive force is accepted, it would appear that the air, ground, and sea attacks by Israel were grossly and intentionally disproportionate when measured against either the threat posed or harm done, as well as with respect to the disconnect between the high level of violence relied upon and the specific security goals being pursued. This legal sentiment is authoritatively expressed in Article 51(5)(b) of the Protocol I of the Geneva Conventions, in which prohibited disproportionate attacks are defined as ‘an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’. Israel did little to disguise its deliberate policy of disproportionate use of force, thereby acknowledging a refusal to comply with this fundamental requirement of international customary law. The Prime Minister of Israel was quoted after the ceasefire by the press agency Reuters as saying: ‘The Government’s position was from the outset that if there is shooting at the residents of the south, there will be a harsh Israeli response that will be disproportionate’. To the extent that the Prime Minister’s comment reflects Israeli policy, it was a novel and blatant repudiation of one of the most fundamental aspects of international law governing the use of force“.

Falk noted that “There exists here a complex and unresolved issue as to whether an occupying power can claim ‘self-defence’ in relation to an occupied society, and whether its use of force, even if excessive, and of a border-crossing variety, can be regarded as ‘aggression’. Israel seems to be barred from relying on its status as occupier considering that it claims that the occupation has ended, but of course the inquiry report need not respect that interpretation of the legal” …

On the nature of Israel’s occupation of Gaza, Falk wrote elsewhere in the report that “With regard to Gaza there is a further concern with respect to the nature of the legal obligations of Israel towards the Gazan population. Israel officially contends that after the implementation of its disengagement plan in 2005 it is no longer an occupying power, and therefore is not responsible for observance of the obligations set forth in the Fourth Geneva Convention. That contention has been widely rejected by expert opinion, by the de facto realities of effective control, and by official pronouncements by for instance the United Nations High Commissioner for Human Rights and the Secretary-General (A/HRC/8/17), the General Assembly in its resolutions 63/96 and 63/98 and the Security Council in its resolution 1860. Since 2005, Israel has completely controlled all entry and exit routes by land and sea and asserted control over Gazan airspace and territorial waters. By imposing a blockade, in effect since the summer of 2007, it has profoundly affected the life and well-being of every single person living in Gaza. Therefore, regardless of the international status of the occupied Palestinian territory with respect to the use of force, the obligations of the Fourth Geneva Convention, as well as those of international human rights law and international criminal law, are fully applicable”.

Falk also wrote that “Not every violation of human rights or infraction of the Geneva conventions constitutes a war crime or a crime of State. Moreover, criminal intent, by way of mental attitude or through circumstantial evidence, must be established. In essence, ‘grave breaches’ of the Geneva Conventions as defined in article 147 of the Fourth Geneva Convention normally provide a legal foundation for allegations of war crimes. It is to be noted that the role of international criminal law is to identify and implement the fundamental obligations of international humanitarian law in wartime, but also to take account of severe violations of human rights arising from oppressive patterns of peacetime governance”.

Falk stated that the pre-existing Israeli military-administered blockade of Gaza is in massive violation of the Fourth Geneva Convention, suggesting the presence of war crimes and possibly crimes against humanity.

And, Falk wrote: “the most important legal issue raised by an investigation of the recent military operations concerns the basic Israeli claim to use modern weaponry on a large scale against an occupied population living under the confined conditions that existed in Gaza. This involves trying to establish whether, under the conditions that existed in Gaza, it is possible with sufficient consistency to distinguish between military targets and the surrounding civilian population. If it is not possible to do so, then launching the attacks is inherently unlawful, and would seem to constitute a war crime of the greatest magnitude under international law. On the basis of the preliminary evidence available, there is reason to reach this conclusion. Considering that the attacks were directed at densely populated areas, it was to some extent inevitable and certainly foreseeable that hospitals, religious and educational sites and United Nations facilities would be hit by Israeli military ordinance, and that extensive civilian casualties would result. As all borders were sealed, civilians could not escape from the orbit of harm. For authoritative and more specific conclusions on these points, it will be necessary to mount an investigation based on knowledge of Israeli weaponry, tactics and doctrine to assess the degree to which, in concrete cases, it would have been possible, given the battlefield conditions, to avoid non-military targets and to spare Palestinian civilians to a greater extent. Even without this investigation, on the basis of available reports and statistics, it is possible to draw the important preliminary conclusion that, given the number of Palestinian civilian casualties and degree of devastation of non-military targets in Gaza, the Israelis either refrained from drawing the distinction required by customary and treaty international law or were unable to do so under the prevailing combat conditions, making the attacks impossible to reconcile with international law”.

Falk said, in the report, that “There is no way to reconcile the general purposes and specific prescriptions of international humanitarian law with the scale and nature of the Israeli military attacks commenced on 27 December 2008. The Israeli attacks with F-16 fighter bombers, Apache helicopters, long-range artillery from the ground and sea were directed at an essentially defenceless society of 1.5 million persons. As recent reports submitted to the Council by the Special Rapporteur emphasized, the residents of Gaza were particularly vulnerable to physical and mental damage from such attacks as the society as a whole had been brought to the brink of collapse by 18 months of blockade that restricted the flow of food, fuel, and medical supplies to sub-subsistence levels and was responsible, according to health specialists, for a serious overall decline in the health of the population and of the health system. Any assessment under international law of the attacks of 27 December should take into account the weakened condition of the Gazan civilian population resulting from the sustained unlawfulness of the pre-existing Israeli blockade that violated articles 33 (prohibition on collective punishment) and 55 (duty to provide food and health care to the occupied population) of the Fourth Geneva Convention. Considering the obligation of the occupying Power to care for the well-being of the civilian occupied population, mounting a comprehensive attack on a society already weakened by unlawful occupation practices would appear to aggravate the breach of responsibility described in the above owing to the difficulties of maintaining the principle of distinction … It is not a matter of mistakes and fallibility, but rather a massive assault on a densely populated urbanized setting where the defining reality could not but subject the entire civilian population to an inhumane form of warfare that kills, maims and inflicts mental harm that is likely to have long-term effects, especially on children that make up more than 50 per cent of the Gazan population”.

And he wrote that not allowing civilians in Gaza to have an option to seek refuge by leaving the war zone during the operation was unlawful In addition, unlawful weapons and combat tactics may have been used.

Falk stated that “In an unprecedented belligerent policy, Israel refused to allow the entire civilian population of Gaza, with the exception of 200 foreign wives, to leave the war zone during the 22 days of attack that commenced on 27 December. As the United Nations High Commissioner for Refugees stated on 6 January 2009, Gaza is “the only conflict in the world in which people are not even allowed to flee.” All crossings from Israel were kept closed during the attacks, except for rare and minor exceptions. By so doing, children, women, sick and disabled persons were unable to avail themselves of the refugee option to flee from the locus of immediate harm resulting from the military operations of Israel. This condition was aggravated by the absence of places to hide from the ravages of war in Gaza, given its small size, dense population and absence of natural or man-made shelters.

“International humanitarian law has not specifically and explicitly at this time anticipated such an abuse of civilians, but the policy as implemented would suggest the importance of an impartial investigation to determine whether such practices of ‘refugee [maybe this should instead read refuge] denial’ constitute a crime against humanity as understood in international criminal law. The initial definition of crimes against humanity, developed in relation to the war crimes trials after the Second World War, is “murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population”. More authoritative is the definition contained in Article 7(1)(k) of the Rome Statute, according to which crimes against humanity includes “inhumane acts (…) intentionally causing great suffering, or serious injury to body or to mental or physical health.” Refugee [Refuge would probably be a better word here] denial under these circumstances of confined occupation is an instance of “inhumane acts”, during which the entire civilian population of Gaza was subjected to the extreme physical and psychological hazards of modern warfare within a very small overall territory. It should be kept in mind that this restriction on free movement, to escape from the war zone, was imposed on a population already severely weakened by the effects of the blockade.

“The small size of Gaza and its geographic character also operated to deny most of the population remaining within its borders of an opportunity to internally remove itself from the combat zones. In this sense, the entire Gaza Strip became a war zone, although the actual combat area on the ground was more limited. In effect, leaving Gaza was the only way to remove oneself to a position of safety. In this respect, the option to become an internally displaced person was, as a practical matter, unavailable to the civilian population, although some civilians sought relative safety in shelters that were made available on an emergency basis for a tiny fraction of the population, mainly through the efforts of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) and other United Nations and Non-Governmental Organizations’ efforts. In some situations the shelters were not always treated as sanctuaries by the Israeli armed forces. Six UNRWA emergency shelters were damaged during Operation Cast Lead.

“Furthermore, given such emergency conditions, it seemed feasible to establish temporary refugee camps either in southern Israel or in neighboring countries for the duration of the attacks. This course of action had allowed almost one million Kosovars (almost half the civilian population) to obtain temporary refuge in the neighbouring former Yugoslav Republic of Macedonia during the bombing by the North Atlantic Treaty Organization in 1999. It seems evident that, had Serbia denied the Kosovo population such a refugee option by controlling egress, it would have been accused of inhumane behaviour and criminality by the world community. It would seem that the law of war and international human rights law, for the sake of the protection of civilian innocence in wartime situations, needs to affirm the right of every non-combatant civilian to become a refugee, or at least to have the right to seek such a status, especially if the conditions for an internal “refugee” option are not present.

“Such an affirmation does not address the related question as to whether neighbouring countries have a legal duty to accommodate, to the extent feasible and at least temporarily, civilians seeking to escape from an ongoing war zone. It would seem at the very least that Israel as occupying Power and belligerent party had such a legal obligation. In a general way, such an obligation is set forth in articles 13 to 26 of the Fourth Geneva Convention. Especially relevant are article 15 which looks to the establishment of ‘neutralized zones’ to shelter the civilian population from ‘the effects of war’, article 16 which imposes a special duty to accord the sick and wounded, as well as expectant mothers, ‘particular attention and respect’, and article 24 which imposes a duty on the occupying Power to protect any children under 15 who are orphans or separated from their families, and obliges it to ‘facilitate the reception of such children in a neutral country for the duration of the conflict’…

“Confining the civilian population to the war zone also makes it more difficult, if not impossible, to sustain consistently the distinction between military and civilian targets, in combat situations. It also complicates an assessment of claims made by Israel that Hamas used civilians as human shields, and used civilian sites such as schools and mosques from which to engage in resistance. If civilians could not leave the war zone under such crowded conditions, some degree of intermingling would necessarily occur, especially in life and death situations”.

Falk stressed that “Israeli security and the realization of the Palestinian right of self-determination are fundamentally connected, and that the recognition of this aspect of the situation suggests the importance of an intensified diplomatic effort, respect by all parties of relevant international law rights, and implementation of the long deferred Israeli withdrawal from occupied Palestine as initially prescribed by the Security Council in its resolution 242 (1967). Until such steps are taken the Palestinian right of resistance within the limits of international humanitarian law and Israeli security policy will inevitably clash, giving rise to ever new cycles of violence”.

Falk said that “As long as Palestinian basic rights continue to be denied, the Palestinian right of resistance to occupation within the confines of international law and in accord with the Palestinian right of self-determination is bound to collide with the pursuit of security by Israel under conditions of prolonged occupation. In this respect, a durable end to violence on both sides requires an intensification of diplomacy with a sense of urgency, and far greater resolve by all parties to respect international law, particularly as it bears on the occupation as set forth in the Fourth Geneva Convention. Furthermore, it is important to acknowledge that the time has long passed for the implementation of Security Council resolution 242 (1967) requiring Israel to withdraw from Palestinian territories, for Israel to close unlawful settlements, desist from efforts to alter the demographics of East Jerusalem, respect the advisory opinion on the Wall of the International Court of Justice of 2004, and bring the occupation to a genuine end, either through negotiations or by unilateral action”.

Falk recommended that “It be recognized that the Palestinian right of resistance under international law within the limits of international humanitarian law continually collides with Israeli security concerns as occupying Power, requiring basic adjustments in the relationship of the parties premised on respect for the legal rights of the Palestinian people; and that sustainable peace in Gaza requires the permanent lifting of the blockade in the short term, and a diplomatic process that seeks peace in accordance with the requirements of international law in the long term”.

The Special Rapporteur also called for “action in response to the denial by Israel of entry to him on 14 December 2008”. See our earlier posts on 15 December here and on 19 December
here. In his conclusion, Falk recommended that “An advisory opinion on the obligations of a Member State to cooperate with special procedures of the Human Rights Council in relation to the application of Article 56 of the Charter of the United Nations and the relevant provisions of the Convention on the Privileges and Immunities of the United Nations be requested”

After the presentation of his report, and some discussion in the Human Rights Council, Falk will be giving a press conference in Geneva from 18:15 – 19:00 tonight.

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