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Bannupriya A/P Veleysamy

The legal qualification of Israel - Palestinian conflict. Discuss.


1.0 Introduction
The conflict of Israel Palestinian can be related to the International Humanitarian Law.
Before further discussing on International Humanitarian Law, the status of statehood of Palestine
must be determined. This is because the issue of Palestinian statehood has been debated for over
sixty years between Israel and the Palestinians. Palestine seeks for recognition as a state to end
the entire disputes with Israel and also for their society to live safely and peacefully. However,
it has to be noted that both in law and act, Palestine is a nation but not a state. This
matter can be proved via two dominant theoriesthe declarative theory and the constitutive
theory.
The declarative theory was first codified in the Montevideo Convention on the Rights and
Duties of States, signed at Montevideo, Uruguay on December 26, 1933. According to article 1
of the Montevideo Convention on Rights and Duties of States 1933, provides that The state as a
person of international law should posses the following qualifications: A permanent population;
A defined territory; Government; and Capacity to enter into relations with other States.
The idea is that once these qualifications are fulfilled, the entity automatically may be
considered a state. As in the case of Palestine, the criteria of defined territory and government
was challenged as there was foreign occupation and Palestine government did not exercise
sufficient authority over its territories.
On the other hand, the constitutive theory of sovereignty requires recognition by other
states as a prerequisite for statehood. Reference is often made to the fact that Palestine has
already been recognised by a number of states (129, as of January 27 2012), is a member of
many different international organisations and has diplomatic status in various different
countries. And the fact that the General Assembly recognised the Declaration of Independence
by the Palestinian National Council of November 15, 1988 in Resolution 43/177 is seen as

further evidence of recognition of the state. Only the USA and Israel had voted against
recognition, Germany abstained. Therefore, Palestine could not be recognized as a state.
It is an armed conflict of non-international character since Palestine is not a state. however,
it has to be noted here that whether the conflict in Palestine is of an international or a noninternational character, customary international humanitarian law is still applicable to the use of
force by both Israel and the Palestinians.
International humanitarian law is a set of rules which protects persons who do not take part
in the hostilities, for instance civilians, medical personnel, and workers. Its main objective is to
limit and prevent human suffering in times of armed conflict.
2.0 International Humanitarian law Violation
Under this violation, it can be said that Israel had violated the 2 principles under
Humanitarian Law namely, the distinction and discrimination principle, and the use of illegal
weapons and forces principle.1
As for distinction and discrimination principle, it was provided under The 4th Geneva
Convention, Articles 3, 4, 27, and 33 for the treatment of civilians by parties to an armed
conflict. In addition to that, the Lieber Code 1863, The Hague Convention 1907, UN General
Assembly Resolution 2444 (1968), General Assembly Resolution 3318 (1974) and Israels own
Law of War Booklet, all confirm the imperative nature of the duties of distinction and
discrimination during an armed conflict and if it was violated, it constitutes grave breaches to
the International Humanitarian Law. Israel had violated this principle during their invasion on
the Gaza Strip over the course of Operation Cast Lead (OCL). During that time, Israel not only
targeted many civilians but also the facilities and infrastructure despite their obligation under
International Humanitarian Law to limit all those destruction. Although, Israel argued that the
attack were in places that most likely be an important strategic position for Hamas militants, but
it was clear that it was only a mere excuse because the school, zoo, and UN headquarters are
certainly impossible for Hamas militants to store their weapons and supplies. Even if it is,
1

Joseph S. Amditis, War Crimes In Gaza: Operation Cast Lead in International Law, (New Jersey: Rutgers
University Press, 2012) p. 11

International Humanitarian Law does not allow the destruction of universities or other civilian
targets simply because they are the symbols of enemys authority. 2 This can be seen in Article
23(G) of the Hague Conventions 1907, where it prohibits the destruction or seizure of the
enemys property, unless such destruction be imperatively demanded by the necessity of war.3
Therefore, the radical thought or assumption of enemys based on those civilian places, cannot
be the grounds for a targeted attack on a civilian.
The second principle under Humanitarian Law that Israel had violated is use of illegal
weapons and forces principle. Under this principle, parties to the armed conflict are not allowed
to use any means necessary to inflict damage on the opposition. Article 35(2) of The Geneva
Conventions (Protocol 1) 1977, prohibits weapons, projectiles, and materials and methods of
warfare of a nature that cause superfluous injury or unnecessary suffering. 4 In addition
Article 51(5)(b) of the same protocol, further defining the indiscriminate attack as an attack
which may be expected to cause incidental loss of civilian life, injury to civilian, damage to
civilian objects, or a combination thereof, which would be excessive in relation to concrete and
direct military advantage anticipated.5
The types of weapons that were used during Operation Cast Lead prove the violation of
International Humanitarian Law committed by Israeli forces. There are three types of illegal
weapons used, namely, the White Phosphorus (WP) Shells, Flechettes, and Dense Inert Metal
Explosives (DIMEs). For instance, the White Phosphorus (WP) Shells, contain highly volatile
chemicals that burn at extremely high temperatures (usually it reaches until 5000F). WP will
produce thick smoke that often used to conceal tactical movement. The effect of WP shells is
very devastating that is why it is on the list of weapons and projectiles prohibited by
International Law. WP shells will burn deeply through muscle and human bones and flesh once a
person made in contact with the smoke. It will continue to burn until the person deprived of
oxygen.
2

The 4th Geneva Convention

Art. 23(G), HAGUE IV

Protocol Additional To Geneva Conventions OF 12 AUGUST 1949, [PROTOCOL 1] 1977.

Ibid.

3.0 International Law War Crimes / Armed Conflict Violation


Humanitarian principle in Article 3 common to 1949 Geneva Convention constitute the
foundation of respect for human persons in cases of non-international armed conflicts. The
article states clearly that each party to the conflicts is bound by its provision. It means that not
only the state party but also rebels, non state parties, are bound by the principle in the common
Article 3. Additional Protocol II of 1977 is developed to supplement common article 3. The
scope of application of the protocol is stated in Article 1 as follows:
1. This Protocol ... shall apply to all armed conflicts which are not covered by ... (Protocol I )
and which take place in the territory of a High Contracting Party between its armed forces and
dissident armed forces or other organized armed groups which, under responsible command,
exercise such control over a part of its territory as to enable them to carry out sustained and
concerted military operations and to implement this Protocol.
2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence and other acts of a similar nature, as not being armed
conflicts.

The Israel - Palestine conflict is said to come within the scope of Additional Protocol II because
it involves hostilities between both parties.

The fundamental rules of international humanitarian law are the military necessity, distinction,
proportionality, and humanity which are applicable to all armed conflicts. In
addition, international human rights law continues to apply extraterritorially during
armed conflicts to the extent that derogations have not been made.

Based on the principle of military necessity,6 the Law of Armed Conflict permits the parties
to an armed conflict to take the measures necessary to weaken the militarys power in order to
win the conflict subject to the virtue that civilians would not be targeted but only restrict their
movements. In the current case, Israel did not follow the principle of military necessity during
the armed conflict with Hama militants as during the attack of Gaza, the sole intention of Israel
was to destroy and kill their civilian rather than targeting to weaken the military. What is the
principle of military necessaity? How to prove the real intention of Israel in this case?
The principle of distinction is the idea of humanity. Article 48 of Additional Protocol I
conferred that, the parties to the conflict must at all times distinguish between civilians and
combatants and only direct their operation against the military objectives. What is the
characteristic of civilin and combatant? How to differentiate them based on law? As in the
current case, Israel is said have violated the principle of distinction in international humanitarian
law because Israel has cause serious injury to the public when they have attacked Gaza by firing
rocket which caused the death of 41 civilians on 09.07.2014.
The principle of proportionality is an attempt to balance the conflicting concepts of military
necessity and humanity and is most important in the reduction of incidental or collateral
damage caused by military operations. Launching an attack which may be expected to cause
incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the concrete and direct military advantage
anticipated, is prohibited. As in the current case, Israel has caused serious injury to the civilians
during their attacks civilian and caused them to lose their shelter and even caused death. This
clearly shows that the attack was not incidental at all and they did expect the damage and injury
to the civilians to be excessive judging by their use in illegal weapons that bring destructions
fatality and it was aimed at the civilians crowd instead of projected it to the Hamas military. You
can also cite the example of killing the children.

Mark Ami-El, Hamas, the Gaza War and Accountability, under International Law: Updated Proceedings of an
International Conference on June 18, 2009 (Jerusalem: Jerusalem Centre for Public Affairs and the Konrad
Adenauer Stiftung, 2011), p. 23

The last principle that need to be followed during the armed conflict, is the principle of
humanity. Article 7 of Rome Statute of International Criminal Court defines crimes against
humanity as a widespread or systematic attack directed against any civilian population, with the
knowledge of the attack. Hence the principle of humanity is only turn as a crime against
humanity if it was breach in a way that it was committed not as an act of State sovereignty by
which a State attack for freedom, racial, national, religious, rights or life of a person or group of
persons. In the Operation Cast Lead by Israel, the principle of humanity was shown to have been
breached since their violence action was not an act of State sovereignty but more like isolated
criminal acts and strictly limited to those of a widespread, systematic nature.
Therefore, based form the provisions and all four principles under the Law of Armed
Conflict, it have been proved that almost all requirements necessary in order to allege that Israel
have committed War Crime have been met.
4.0 Conclusion
As what have been proven above, several if not all the requirements necessary in order to
allege that Israel committed war crimes or crimes against humanity during Operation Cast
Lead have been met. However, the real question in can Israel be held liable under International
Law? Israel defended them by using article 51 of UN Charter that recognised the existence of an
inherent right of self-defence in the case of armed by one state to another. 7 What is the
requirement for the party to raise for self-defence? Try to distinguish with the position in Israel
itself. And, is it proportionate for Israel to raise fo self defence? Study more on the proportionate
test. The power of the weapon/nuclear used compare with the weapon/nuclear kena dari Palestine.
Although UN Security Council have the power under Chapter 7 of UN Charter to
implement special tribunals in order to pursuit the international justice against Israel, but the
approval of it will depends upon the unanimous approval of the permanent members of the
Council which in pursuant to article 27(3) of the UN Charter.8 It was was stated in the case of
Nicaragua that the Court finds that in customary international law, there is no rule permitting the
7

Charter Of United Nations, Chapter IV

See supra note 16.

exercise of collective self-defence in the absence of a request by the State which regards itself
as the victim of an armed attack. The United States was under an obligation to make reparation
to Nicaragua for all injury caused to Nicaragua by the breaches of obligations under international
law. as u stated just now, Israel is a nation, can it be brought to International Criminal Court for
the accusation?
However, since Israel has a very powerful ally on their side, which is the United State,
none of the resolutions passed by the UN Security Council that was against Israel were supported
by United States. With the NO vote that was casted by United States, the journey to pursue
justice and convict Israel of a war crimes seems to be an impossible dreams. However, the fact
that it was not prosecuted does not alter or remove characterisation of such under International
Law.

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