Hamas,The Gaza War and Accountability under International Law / Symposium

Session One: The Limitations of International Law in Handling the War on Terrorism

Chairman: Adv. Sigall Horovitz, Legal Officer, International Criminal Tribunal for Rwanda; PhD Candidate, Hebrew University
Daniel Taub, Director, General Law Division, Ministry of Foreign Affairs
Prof. Yoram Dinstein, Law Faculty, Tel Aviv University
Prof. George P. Fletcher, Columbia Law School
Prof. Gerald Steinberg, Executive Director, NGO Monitor; Bar-Ilan University; Jerusalem Center Fellow
Dr. Roy S. Schondorf, Legal Consultant to Debevoise & Plimpton LLP, Israel

Session 2: International Law and Military Operations in Practice

Chairman: Maj.- Gen. (res.) Yaakov Amidror, Program Director, Institute for Contemporary Affairs, Jerusalem Center
Col. Pnina Sharvit-Baruch, Law Faculty, Tel Aviv University; Former Head of the International Law Department, Military Advocate General's Office
Col. Richard Kemp, Former Commander, British Forces in Afghanistan
Col. (res.) Adv. Daniel Reisner, Former Head of the International Law Department, Military Advocate General's Office; Herzog Fox, Neeman and Co.
Major Gil Limon, International Law Department, Military Advocate General's Office; Former Legal Advisor for the Israeli Mission to the United Nations

Summaries of the Presentations:

Daniel Taub:
Taub described four considerations when entering a conflict: military necessity, necessary distinction, proportionality and humanity. These issues were prominent in the Gaza war with the debate focused on how to achieve a balance between upholding international law and responding to military necessity on the ground.

During the Gaza War, the conditions were particularly complex due to Hamas’ violation of international humanitarian law. Examples included dressing as civilians, using human shields, placing rockets among the civilian population, and booby traps in residential areas. He emphasized that a military objective does not cease to be one if it is located inside a civilian population. This makes the work of the IDF difficult because it has to fight within a civilian population against a group that does not abide by international law.

Click here to view the powerpoint presentation Daniel Taub presented at the conference.

Professor Yoram Dinstein:
Professor Dinstein spoke about the issue of terrorism in international law. How does international law define a terrorist organization? One who perpetrates acts that cause the death or damage to civilians who do not participate in hostile events in order to intimidate a civilian population or cause the government to change its policies.

Countries, though, differentiate between terrorists. One country cares more about the terrorists that are trying to harm its own population than a similar scenario in a different country. After the terrorist acts on 9/11, the international community says that a country is allowed to fight against a non-state actor.

Who is defined as a combatant? Civilians according to international law are those who don't take "direct part" in combat. If someone is in the process of committing a terror act and is caught, he is directly connected. This becomes complicated, though, because Hamas does not dress in uniform and hides among civilian populations.

Many argue that the international community needs to find new paradigms to set international law. Dinstein stated that that won’t happen because they won’t be accepted by governments or by other actors. He argued that the problem isn’t with the law itself but with the lawyers and the judges who are implementing the law. Abuse of universal jurisdiction is one example of the problem.

George Fletcher:
Article 51 of the UN Charter underlines the basis for legitimate use of force. It doesn’t matter if aggression is conducted by a state, group or other actor. Self-defense is at the core of this issue.

Another principle aspect of the discussion is human dignity in the law of war. It is often left out of the discussion, yet it is essential. States must have human dignity and therefore must defend their borders against attacks. When missile attacks are tolerated, the government of Israel forfeits its human dignity.

Fletcher believes Israel should welcome critique. If the Palestinian Authority sued Israel, then they would open themselves up for related cases on crimes that they have committed. The war crimes that they have committed have never been called to court.

The only way that these issues will be dealt with is if the other side can be held to the same standard to which Israel is.

Gerald Steinberg:
Steinberg discussed NGO “Lawfare” versus Israel. NGOs have become active in determining agendas for the media and the diplomatic community. The point of their lawsuits against Israel is to link Israel with war crimes. This was clearly stated in the Durban Conference.

This situation interferes with anti-terror operations and limits the right to self-defense. This is antithetical to the legal process. It impinges on state sovereignty.

In the case of the Goldstone Gaza inquiry, which sought to investigate Israeli war crimes, their reports were based fully on NGO reports and they were accompanied by Hamas members. This is not the proper process for a legal investigation.

Pnina Sharvit-Baruch:
International law is flexible and adapts itself to changes in the world. It is based on practices of countries in the international community. What happens when there is an enemy who is not defined as a country, who uses non-conventional practices in a crowded area with many civilians, and does not respect international law? Can you use force to hurt the enemy or to stop them from hurting you? After 9/11 there was no question. Working against terror became an issue of law enforcement.

The subject of the conference is if the rules of war are applicable to fighting terror and there are some who say no. These people argue that international law was created when there was reciprocity and both sides carried out the law. Sharvit-Baruch argued that the laws are still appropriate but they need to be adapted. Saying that the laws are not longer relevant hurts Israel’s case as well as the people on the ground. The laws are there in order to protect those who are not involved in the battle.

International law is developed according to practices. It changes based on what is happening in the field. These laws must be based on precedents, what already exists. There is flexibility in every law. One example is the law of proportionality. This principle is very flexible. There is a balance between reality and the goal of the mission.

When people say that Israel does not need to work within this framework, they create a fallacy in the media that it doesn’t. In fact, Israel abides by all the laws. Israel must engage in greater discourse with professional bodies such as the Red Cross. It needs to publish what exactly it does on the ground and what it doesn’t do. International law will only change and adapt to reality if there is information on the various practices and recommendations on how it should be changed.

Richard Kemp:

Click here to read the full manuscript of Richard Kemp's presentation.

Terror groups do not ignore laws of armed conflicts. They know that their enemies are bound by these laws and try to exploit that. On a practical level they use civilian sites and on a strategic level they use manipulative means. He gave the example of Afghanistan where instead of using the air force to fight in crowded areas, they brought in ground troops. This type of strategy puts the British troops in danger but upholds a humanitarian approach. Terrorist organizations train women and children to act as insurgents.

With the principle of proportionality, the army must create a balance between avoiding civilian causalities, minimizing the effect on the hearts and minds of the civilian population, eliminating the enemy, and preventing casualties among its own soldiers. The challenge is to kill the enemy and to win the trust of the people. Further complications of this matter are technological failures in war.

Israel must be transparent and must bring in the media whenever possible and let them see the soldiers doing their job. This puts a human face on war. They must show the abuses of the enemy.

Israel must be proactive in preventing adverse stories in the media. It must establish “rapid rebuttal units” which rush to establish the facts and get them to the media. If they are unaware or unsure of the facts they must say so. In addition, Israel must be sure to investigate all mistakes that are made. “Mistakes are not war crimes.”


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