Prof.Weiner and Avi Bell have produced a paper that “explores the many international legal issues raised by the Palestinian-Israeli tension along Gaza’s borders.” In other words, this paper is the definitive answer to all the questions one may have concerning international law, and Israel’s legal justification for operations against Palestinian terrorism. The Palestinians are duty bound to observe international law as well, something of which the media and the IC appears willing to overlook. KGS
Palestinian terrorists in Gaza continue to launch rocket and mortar attacks on Israeli civilians and, in response, Israel has re-imposed a number of controls at its border with Gaza.3 At times Israel has responded to the projectile and terrorist attacks emanating from Gaza by reducing the fuel and electricity that it supplies to that region. An upsurge in Palestinian attacks led to more intensified Israeli military action in Gaza which commenced as this study went to press.4
As with every flare-up of the Arab-Israeli conflict, the air is thick with accusations of violations of international law. The halls of the United Nations resound with voices objecting to the alleged illegality of Israel’s behavior, and legal “experts” have taken to the airwaves to raise accusations of wrongdoing.5
For instance, UN Under-Secretary-General for Humanitarian Affairs John Holmes asserted that “the effective Israeli isolation of Gaza…amounts to collective punishment and is contrary to international humanitarian law.”6 Similarly, organizations such as Amnesty International have issued erroneous and misguided criticism, including “condemning” Israel’s imposition of all “blockades” on the Gaza Strip as “collective punishment.”7 Jeremy Hobbs, Director of Oxfam International, called on Israel “immediately [to] lift its inhumane and illegal siege.”8
This briefing paper explores the many international legal issues raised by the Palestinian-Israeli tension along Gaza’s borders.
This briefing paper explores the many international legal issues raised by the Palestinian-Israeli tension along Gaza’s borders. It first examines legal issues raised by Palestinian conduct and then turns to legal issues raised by Israeli conduct. As will be demonstrated, criticisms of Israeli behavior such as mentioned above lack any basis in international law. By contrast, criticisms that ought to be voiced about illegal Palestinian behavior are markedly rare.
Consequently, each one of the 6,000 attacks by Palestinian terrorists on civilian targets in Israeli towns is a war crime. Both the terror squads carrying out the attacks, as well as their commanders, bear criminal responsibility for these war crimes. Indeed, criminal responsibility for these crimes extends up the chain of command to the most senior officials in the terror groups who have approved these rocket attacks. Under the rules of command responsibility, senior Hamas leaders such as Khaled Mashal, who ordered a continuation of the rocket attacks in response to “Zionist crimes,”20 are among the parties guilty of war crimes.21
The Palestinian attacks, because they are intended to kill or seriously injure civilians in order to intimidate a population, are also terrorist acts within the scope of the International Convention for the Suppression of the Financing of Terrorism.22
So long as the acts are committed by non-nationals of the target state,23 Articles 2(4)-(5) extend liability to all those who:
»» attempt to commit;
»» participate as accomplices;
»» direct or organize terrorist acts; or
»» contribute to acts by terrorist groups with the knowledge of the groups’ intent to commit terror or with the aim of furthering their goals.
Thus, international law considers a large number of Palestinians related to the attacks to be terrorists: the squads of militants actually carrying out the rocket attacks, all those who assist the squads with organization or financing, and all those who finance the terrorists – such as the Palestinian Authority – since they are aware of the intent of the terror squads to carry out terrorist acts. The Palestinian attacks must also be seen as terrorist attacks under a related international convention: the International Convention for the Suppression of Terrorist Bombings. This convention makes it a crime to bomb public places (such as city streets) with the intent to kill civilians. This relates to bombings carried out by persons that are non-nationals of the state of which the victims are nationals.24
Also under this Convention, the Palestinian attackers are considered international terrorists and Israel is required to assume criminal jurisdiction over them. Additionally, other states party to the Convention – such as the U.S., Russia, Turkey and France – must cooperate in helping to combat such Palestinian terrorist acts. More here.