FIU Law Review

Volume 11 Number 1 Article 17

Fall 2015

Defending Israelis or Suppressing Palestinian Self-Determination? An Analysis of Operation Protective Edge Using the Two-Factor Test

Wajiha Rais Florida International University College of Law

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Online ISSN: 2643-7759

Recommended Citation Wajiha Rais, Defending Israelis or Suppressing Palestinian Self-Determination? An Analysis of Operation Protective Edge Using the Two-Factor Test, 11 FIU L. Rev. 255 (2015). DOI: https://dx.doi.org/10.25148/lawrev.11.1.17

This Comment is brought to you for free and open access by eCollections. It has been accepted for inclusion in FIU Law Review by an authorized editor of eCollections. For more information, please contact [email protected]. 37792-fiu_11-1 Sheet No. 131 Side A 04/28/2016 10:11:02 , * 1 1 The The ATIONS 6 N ERRITORY T ]. NITED (July 17, 2014), 2014), 17, (July Wajiha Rais Wajiha ,U On its official official its On On the Israeli Israeli the On 8 3 LOG 4 ALESTINIAN P , IDF B CCUPIED ,O The Operation lasted for fifty fifty for lasted Operation The 1 FFAIRS , www.idfblog.com/facts-figures/rocket-attacks- A Rocket Attacks on Israel from Gaza from Israel on Attacks Rocket LOG Timeline 1,940 Days from Gilad Shalit’s Abduction to , IDF B Israel, Hamas Reach Cease-Fire Deal Brokered by Egypt and the so-called “terror tunnels.” “terror so-called the and 5 DC (July 22, 2014), washington.cbslocal.com/2014/07/22/ ) 4/15/16 8:21 PM UMANITARIAN H In an interview with Fox News, Israeli Prime Prime Israeli News, Fox with interview an In 7 ELETE D , CBS ]. OT N O (D According to the United Nations, 2,131 Palestinians were were Palestinians 2,131 Nations, United the to According note 5. (Oct. 11, 2011), www.haaretz.com/news/diplomacy-defense/timeline-1-940- 2011), 11, (Oct. 2 CBS DC CBS DOCX OORDINATION OF supra C , AARETZ _4.15. (Aug. 26, 2014), www.washingtonpost.com/world/middle_east/israel-hamas-reach-cease- 2014), 26, (Aug. , H Protective Edge Using the Two-Factor Test Test Two-Factor the Using Edge Protective at 2. INAL Defending Israelis or Suppressing Palestinian Suppressing or Israelis Defending The IDF’s Mission in Gaza: Destroy Hamas Terror Tunnels Gaza Emergency Situation Report (as of 4 September 2014, 08:00 hrs) Netanyahu: Some in West Say They Support Israel’s Right to Defend Itself as Long as We OST Self-Determination? An Analysis of Operation of Analysis An Self-Determination? Rocket Attacks on Israel from Gaza Id. DC CBS These tunnels, built by Hamas, reach up to thirty meters below the ground. In 2006, the tunnels tunnels the 2006, In ground. the below meters thirty to up reach Hamas, by built tunnels, These William Booth & Ruth Eglash, Eglash, Ruth & Booth William _F On On July in 7, its offensive Gaza 2014, launched third Israel military in Israel justified the offensive as an act of self-defense against .P J.D. Candidate 2016, Florida International University College of Law. I would like to AIS 4 5 6 7 8 1 2 3 * M K ASH FFICE FOR THE side, seventy-one people died, of whomof died, werepeople four civilians. seventy-one side, “Don’t Exercise That Right” Minister, Minister, Benjamin Netanyahu, reiterated that . . . “Israel is defending its people as any country would under similar circumstances.” (Sept. 4, 2014), www.ochaopt.org/documents/ocha_opt_sitrep_04_09_2014.pdf. 2014), 4, (Sept. “terror tunnels” were a network of Gaza underground to tunnels Israeli that territory. went from fire-deal-brokered-by-egypt/2014/08/26/cc834c02-2d49-11e4-bb9b-997ae96fad33_story.html. six years, dubbed Operation Protective Edge. O 14 - R netanyahu-some-in-west-say-they-support-israels-right-to-defend-itself-as-long-as-we-dont-exercise- [hereinafter that-right indiscriminate rocket attacks www.idfblog.com/blog/2014/07/17/idf-begins-ground-operation-gaza. Protective Edge is to “stop Hamas’ incessant rocket attacks against Israel’s blog, the Israel Defense Forces (IDF) stated that a goal of Operation toward-israel (last visited Mar. 13, 2015) [hereinafter 2015) 13, Mar. visited (last toward-israel days-from-gilad-shalit-s-abduction-to-his-release-1.389452. W days before Israel and Hamas agreed to an Egyptian brokered cease-fire on August 26, 2014. acknowledge Professors Noah Weisbord and writing. and research my assisted Charles Jalloh for providing insight and advice that were used to capture Israeli soldier, Gilad Shalit. His Release killed during the offensive, of whom 1,473 were civilians. C Y 37792-fiu_11-1 Sheet No. 131 Side A 04/28/2016 10:11:02 A 04/28/2016 131 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 131 Side B 04/28/2016 10:11:02 M K OST C Y P The The 13 ! (July 31, 31, (July RIBUNAL ON OW T N UFFINGTON [Vol. 11:255 11:255 [Vol. MERICA A , H USSELL 11 AZEERA 30, R J L EMOCRACY TV (July 27, 2014, 10:32 PM), , A RESS ,www.russelltribunalonpalestine.com/en/ , P ALESTINE note 1. -israel-has-right-to-defend-itself. P supra , similarly found that “people living under under living “people that found similarly 14 FIU Law Review Law FIU ) 4/15/16 8:21 PM RIBUNAL ON T ELETE Obama: “Israel Has the Right to Defend Itself” D The message behind the statements is clear—Israel clear—Israel is statements the behind message The 15 OT 10 (July 30, 2014), www.jewishpress.com/special-features/israel-at-war- 2014), 30, (July N ! (Aug. 6, 2014), www.democracynow.org/2014/8/6/can_israel_claim_self_ Netanyahu: Gaza Operation Will Continue Until Terror Tunnels Are O USSELL Debunking Israel’s Self-Defense Argument OW (D RESS He reiterated this argument the following week in an an in week following the argument this reiterated He , R N P 12 DOCX About Obama: Israel Has Right to Defend Itself EWISH Joseph Lederman, _4.15. while Netanyahu said that the Operation will continue until the the until continue will Operation the that said Netanyahu while 9 , J EMOCRACY (Sept. 24, 2014), www.russelltribunalonpalestine.com/en/wp-content/uploads/2014/09/TRP- 2014), 24, (Sept. Russell Tribunal on Palestine Emergency Session on Gaza Can Israel Claim Self-Defense Against the Territory It Occupies? Int’l Jurist John Dugard See INAL Rocket Attacks on Israel from Gaza from Israel on Attacks Rocket “The Russell Tribunal has no legal status but acts as a court of the people, a Tribunal of of Tribunal a people, the of court a as acts but status legal no has Tribunal Russell “The Steve K. Walz, Dugard, John , D _F How Israel’s actions are characterized carries legal significance. The Not everyone agrees with the characterization of Israel’s actions as AIS 14 15 9 10 11 12 13 ALESTINE tunnels are destroyed. Concl.-Gaza-EN.pdf. (July 14, 5586229.html; 2014, 8:18 PM), www.huffingtonpost.com/2014/07/15/obama-israel-ceasefire_n_ www.presstv.com/detail/2014/07/27/373040/obama interview with Amy Goodman on an episode of D Russell Tribunal on Palestine is defending itself against Palestinian rockets President, and tunnels. Barack United States Obama, itself.” defend to “right Israel’s reaffirmed he Operation, echoed this message when throughout the 2014, 6:00 AM), html. http://america.aljazeera.com/opinions/2014/7/gaza-israel-internationalpoliticsunicc. P 256 civilians” 14 - R operation-protective-edge/netanyahu-gaza-operation-will-continue-until-terror-tunnels-are-neutralized/ 2014/07/30. colonial rule or foreign occupation are entitled to resist occupation” resist to that entitled and are occupation foreign or rule colonial “Israel’s actions of are an those occupying power using force to maintain its occupation and to suppress resistance, rather than a state resorting to force lawfulin self-defense.” about-rtop (last visited Apr. 9, 2015). 9, Apr. visited (last about-rtop use of force in self-defense is an “inherent right” of States under Article 51 Says No conscience, faced with injustices and violations of international law, that are not dealt with by existing international jurisdictions, or that are recognised but continue with complete impunity due to the lack of political will of the international community.. . . [The Tribunal] is composed of eminent people from all . . . . states [Its legitimacy] does not come prestige, professional from interests and a commitment to government fundamental or rights of any the [the] Members political that Tribunal.” constitute party but from the Neutralized defense_against. subjected to acts of aggression by a foreign state or non-state actor. Instead, it should be seen as the action of an occupying power aimed at maintaining its occupation.” self-defense. During the Operation, John “Debunking Dugard Israel’s wrote an Self-Defense op-ed Argument,” titled, in Israel’s offensive “must which [not] be he seen as argued an act that of self-defense by a state 37792-fiu_11-1 Sheet No. 131 Side B 04/28/2016 10:11:02 B 04/28/2016 131 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 132 Side A 04/28/2016 10:11:02 , ATIONAL N Draft Articles jus in bello ORCE BY F 257 257 SE OF U opinion]. Wall AW AND THE L Furthermore, the International Court of of Court International the Furthermore, does not help either since it presumes a a presumes it since either help not does 16 19 ) 4/15/16 8:21 PM NTERNATIONAL advisory opinion, the law of self-defense too is is too self-defense of law the opinion, advisory ELETE ,I D OT Wall N ILSON O While the former purpose behind the use of force is is force of use the behind purpose former the While ]. 135–36 (1988). Analysis of Operation Protective Edge Protective Operation of Analysis (D 18 A. W DOCX The use of force for the purpose of suppressing a people’s people’s a suppressing of purpose the for force of use The 17 OVEMENTS , [2001] Y.B. Int’l L. Comm’n 31, art. 25, U.N. Doc. A/56/10 [hereinafter _4.15. M EATHER Draft Articles on Responsibility of States for Internationally Wrongful Acts, with INAL Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Territory, Palestinian under Council Occupied Security the U.N. in the of Wall a of authorization by force of use the is Construction the exception of other The Consequences Legal H _F This Comment is divided into seven sections. The first provides a brief AIS 16 17 18 19 M K IBERATION on Responsibility of States of Responsibility on Justice (ICJ) confirmedJustice (ICJ) its and a duty to protect has both the right that Israel inhabitants. for Internationally Wrongful Acts, of when force by an occupying protecting power its is inhabitants for and the when legitimate suppressing it self-determination. The second purpose section is argues that of for the illegitimate or purpose international humanitarian law (IHL), of is unsuited to answer the question at issue because it only regulates how war is conducted and is unconcerned with the reasons for the occupation law, use in general, of is wholly force. unsuited to This the Palestinian because section situation it further was argues created that to Palestine did not The involve third liberation section struggles. explains that regulate European occupations, which unlike in light of the ICJ’s unsuited to the Israel-Palestine situation. The fourth section concludes that the doctrine of necessity, codified in the Articles on Responsibility of States struggle for self-determination? Neither the explain how they State arrived at their of respective characterizations of Israel Operation nor Protective Edge. In fact, existing Dugard international law does not provide us with any test, guideline, or legal framework to make this difficult determination. The law, as it currently exists, is inapt at dealing with the interplay of force and self-determination as it takes place in the Israel-Palestine conflict. This law.the in gap this Comment fill two-factorto a test proposes background of the law on self-determination, force including the by right to national use following liberation three sections demonstrate the movements inaptness of existing and law, context of the Israel-Palestine in conflict, to provide an answer the to the occupying question powers. The legal, the latter is illegal. The question, determine which follows, whether is how force does one was protecting employed citizens or for for the the legitimate illegal purpose purpose of of suppressing a people’s L 2015] 14 - R of the U.N. Charter and one of only two exceptions to the Charter’s ban on 2(4). force under Article the use of Chapter VII of the U.N. Charter. Charter. U.N. the of VII Chapter [hereinafter 9) (July 141 ¶ 136, I.C.J. 2004 Opinion, Advisory Commentaries struggle for self-determination, on international the law. other hand, is prohibited under C Y 37792-fiu_11-1 Sheet No. 132 Side A 04/28/2016 10:11:02 A 04/28/2016 132 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 132 Side B 04/28/2016 10:11:02 M K 20 21 22 C Y erga 108 (2d (2d 108 AW L ORCE BY BY ORCE [Vol. 11:255 11:255 [Vol. OWERS 17 (1973). F P SE U NTERNATIONAL I ETERMINATION CCUPYING -D IGHT TO IGHT O R ELF TATES IN S S 26 Although it had contentious contentious had it Although 24 IGHT OF IGHT The concept was only “indirectly “indirectly only was concept The R 27 REATION OF C OVEMENTS AND AND OVEMENTS HE Today, it is “difficult to deny the right of of right the deny to “difficult is it Today, 23 ,T M FIU Law Review Law FIU ) 4/15/16 8:21 PM ELETE VOLUTION OF THE OF VOLUTION D E note 21, at 122, 127. RAWFORD ETERMINATION AND THE AND ETERMINATION OT note 17, ¶¶ 88, 118. C HE N note 21, at 122. The ICJ, in its 2004 advisory opinion, reaffirmed the the reaffirmed opinion, advisory 2004 its in ICJ, The O ,T supra -D , 25 IBERATION note 20, at 20. (D supra L AMES supra ELF , UREDA DOCX supra S , I: S RAWFORD opinion, IGO _4.15. C at 25-6; J 25-6; at at 27. RAWFORD UREDA ATIONAL Id. INAL Id. Id.; Wall A. R S C League of Nations Covenant. —meaning it is a concern of all States. all of concern a is it —meaning N _F The concept of national self-determination has its historical roots in Interestingly, no explicit mention of self-determination appears in the ECTION AIS 20 21 22 23 24 25 26 27 S ed. 2006) (“Self-determination as a legal right or principle threatened to bring about significant changes in the political geography of the world, potentially a not most significant limited exception to the to traditional view the that the creation dismemberment of States of is a matter Empires.. . . of law.”). of not and fact [I]t was principle of self-determination and reiterated omnes its status as a right However, the concept made a popular return after the First The World War. pressures of determination as a decolonization legal right. accelerated the acceptance of self- Self-determination, at the time government; a of government should the reflect the French will of self-determination Revolution, the posed a threat demos. to the established Because order, meant for a long time it self- was considered a political issue and was not accorded a legal status. seventh section concludes with a summary of the argument. summaryargument. a the with of concludes section seventh Self-Determinationto Right The the concept of popular sovereignty proclaimed by the French Revolution. 258 wrongful act, which leads us back to the force question of was whether the in use of fact determination). To wrong answer the question at (i.e., issue, the fifth whether section proposes the it following two-factor test: (1) was was force necessary to used combat the threat to to the occupier’s suppress inhabitants; and (2) self- did force go beyond that which necessary was to combat the threat? The sixth section determineto order in Edge Protective whether Operation in tunnels of threat applies this test to the Israel used force in pursuit of a legitimate security operation or was if its aim to suppress the Palestinians’ struggle for self-determination. The 14 - R beginnings, the principle of self-determination is now “firmly established in international law.” Covenant of the League of Nations. self-determination a true legal status.” 37792-fiu_11-1 Sheet No. 132 Side B 04/28/2016 10:11:02 B 04/28/2016 132 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 133 Side A 04/28/2016 10:11:02 35 The The RAFTING 30 These These D 28 HE ,T In response response In 36 ILLER M 259 259 55–56 (1956). UNTER H AVID note 21, at 125. note 20, at 97. at 20, note OVERNMENT The International Covenant on on Covenant International The 29 -G 31 supra supra , , ELF S UREDA RAWFORD 32 C see PPROACH TO PPROACH ) 4/15/16 8:21 PM A HE ELETE D ,T OT In other words, exactly who or which “peoples” had had “peoples” which or who exactly words, other In N 33 O Analysis of Operation Protective Edge Protective Operation of Analysis note 20, at 96 (quotations omitted); 2 D 2 omitted); (quotations 96 at 20, note note 20, at 28; note 20, at 99. (D ENNINGS 34 DOCX supra supra supra W. J 12–13 (1928). , , , VOR _4.15. I at 99–100. UREDA UREDA IR UREDA INAL Id. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, S. Treaty Treaty S. 1966, 16, Dec. S Rights, Cultural and Social League of Nations Covenant art. 22; S Economic, on U.N. Charter art. 1, ¶ 2, & art. 55. Covenant U.N. Charter art. 1, ¶ 2. International S S S OVENANT _F C Debates in the Coordination Committee during the drafting of the U.N. U.N. the of drafting the during Committee Coordination the in Debates Despite the official recognition of the right to self-determination in the to of self-determination the right recognition the official Despite proposition, the doctrine of seemed reasonable: self-determination. let On the people the decide. because It surface the was people it in cannot fact decide ridiculous until are. people somebody decides who the Nearly Nearly forty years ago a Professor of Political Science who was also President of the United States, President Wilson, enunciated a doctrine which was ridiculous, but which was widely accepted as a sensible The U.N. Charter, on the other hand, does include the word, “self- AIS 28 29 30 31 32 33 34 35 36 M K were territories which, after the First World War, were no longer under the sovereignty of States that previously governed them and its people were not self-government.of capable considered yet Charter reveal problems relating to the meaning of the word “peoples.” to the confusion, the Secretariat clarified in a memorandum that “peoples” U.N. U.N. Charter, it was unclear determination were. for some time who the subjects of self- There were disagreements among States on the use of the word “peoples” and what this meant vis-à-vis the terms “nation” and “state.” 2015] 14 - R measures measures to strengthen universal peace.” Charter states that the purpose of the United Nations (U.N.) is “[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate OF THE OF recognized recognized as applicable to the territories placed under mandate.” Doc. No. 95-19, 6 I.L.M. 360, art. 1 (1967); International Covenant on Civil and Political Rights, Dec. (1967). 1 art. 95-20,368, No. I.L.M. Doc. 6 Treaty S. 1966, 16, the right to self-determination? Sir following: Ivor Jennings eloquently stated the determination,” in Article 1(2) and in the preamble of Article 55. Economic, Social, and Cultural Rights Covenant on (ICESCR) Civil and Political and Rights (ICCPR) also the reaffirm the International right of self-determination.to peoples all C Y 37792-fiu_11-1 Sheet No. 133 Side A 04/28/2016 10:11:02 A 04/28/2016 133 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 133 Side B 04/28/2016 10:11:02 M K C Y The The 49 or in the the in or 43 [Vol. 11:255 11:255 [Vol. However, as as However, 48 50 and Yitzhak Rabin Yitzhak and 42 46 The Court elaborated that the existence of a a of existence the that elaborated Court The 41 FIU Law Review Law FIU ) 4/15/16 8:21 PM note 18, at 94. note 18, at 94. ELETE This is because, traditionally, the right was was right the traditionally, because, is This supra D , 47 In fact, it stated, “[T]he existence of a ‘Palestinian ‘Palestinian a of existence “[T]he stated, it fact, In OT note 17, ¶ 118. note 17, ¶ 118. supra 40 N , O ILSON (D W supra supra Despite the universal recognition and acceptance of a a of acceptance and recognition universal the Despite ILSON 45 W DOCX at 91, 95. EATHER opinion, opinion, Self-determination covers a group of peoples, nations, and and nations, peoples, of group a covers Self-determination _4.15. H at 100. at at 101. at 135–36. at 93–94. 39 37 EATHER Thus, the U.N. Charter not only recognized a peoples’ right to self- to right peoples’ a recognized only not Charter U.N. the Thus, INAL Id. Wall Id. Wall Id. id. See Id. Id. See Id. Id. Former President of the Palestinian Liberation Organization (PLO). Former Prime Minister of Israel. H 38 _F 44 With With regard to the Palestinians, specifically, the ICJ noted in its Historically, Historically, the right to use force was not extended to national Interestingly, however, while a people have a right to self- AIS 39 40 41 42 43 44 45 46 47 48 49 50 37 38 advisory opinion in 2004 that Palestinians are indeed “peoples” with a right to self-determination. liberation movements. people’ is no longer in issue.” Israeli-Palestinian Israeli-Palestinian Interim Agreement on the Strip. West Bank and the Gaza determination, but it also gave the word meaning. “peoples” the broadest possible more more and the more Second to following started colonies gain independence World War, the notion that national liberation movements have a right to use force in pursuit of self-determination began to gain support. The Use of Force by National Liberation MovementsLiberation National by Force of Use The determination, it does not automatically follow that they may use force in pursuit thereof. 260 refers to “group of human beings who may, or may not, comprise states or nations.” 14 - R peoples’ right to self-determination, consensus is lacking on whether force right. that of pursuit in used be can rationale behind the shift domination is contrary to the right of . self-determination. . was then the use of that condemned.”be not should right that secure “[i]f to force the continuance of colonial understood to belong only to States and not to “peoples.” States. Palestinian people has been recognized exchange of letters even between Yasser Arafat by Israel, whether in the 37792-fiu_11-1 Sheet No. 133 Side B 04/28/2016 10:11:02 B 04/28/2016 133 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 134 Side A 04/28/2016 10:11:02 , 56 RAY note note 60 G The The 52 supra , struggle. HRISTINE ILSON The right “is “is right The W 51 The Resolution Resolution The armed 57 261 261 EATHER While many States States many While 58 note 55. note supra by the peoples under colonial colonial under peoples the by , note 18, at 94. RAY G onization, the UNGA passed several supra see , struggle 60 (3d ed. 2008). This ambiguous word formed the standard ILSON 59 W Due to disagreements between States, States, between disagreements to Due 54 ORCE ) 4/15/16 8:21 PM F 53 While a step forward, the resolutions once again again once resolutions the forward, step a While note 18, at 94; ELETE EATHER 61 SE OF SE D , passed in 1960, was the first major resolution on U OT supra N , O Analysis of Operation Protective Edge Protective Operation of Analysis (D note 55. note While it recognized the right of colonial people to struggle struggle to people colonial of right the While recognized it note 55; H ILSON 55 W note 55, at 62. DOCX AW AND THE AND AW supra supra L , , Declaration on the Granting of Independence to Colonial supra _4.15. , at 136. at 96. RAY EATHER RAY G.A. Res. 1514 (XV), U.N. Doc. A/RES/1514 (Dec. 14, 1960); C INAL Id. Id. Id. Id. G H 1965); 20, (Dec. A/RES/2105 Doc. U.N. (XX), 2105 Res. 1, G.A. ¶ 2652, Res. G.A. 1970); 14, G.A. Res. 2105 (XX), ¶ 10, U.N. Doc. A/RES/2105 (Dec. 20, 1965) (emphasis added). (Dec. A/RES/2708 H Doc. U.N. 5, ¶ G (XXV), 2708 Res. G.A. RAY _F The Support for the right of liberation movements to use force in pursuit of Some UNGA resolutions on Portuguese colonies and Namibia AIS 54 55 56 57 58 59 60 61 51 52 53 M K NTERNATIONAL U.N. Doc. A/RES/2652 (Dec. 3, 1970); G.A. Res. 3295 (XXIX), ¶ 3, U.N. Doc. A/RES/3295 (Dec. 13, G 1974); language in subsequent resolutions on the subject throughout the 1960s. the throughout subject the on resolutions subsequent in language Countries and Peoples decolonization. achieve self-determination. division and associated politics Nations are General pronounced Assembly (UNGA) in resolutions the During the 1960s, an era of wide passed decol several on United the subject. resolutions recognizing the legitimacy of liberation movements’ struggle to interpreted “struggle” to mean armed struggle, the colonial powers and the interpretation. this resisted U.S. Then in 1965, the UNGA passed Portuguese, Resolution South African 2105 and Rhodesian (XX) intransigence. in response to however, the condoning the right resolutions to use force as part of the struggle, avoided so as to amongStates. consensus wide achieve a unequivocal language expressly for independence, the resolution made no mention of an I 2015] self-determination seems to be divided along political lines. 14 - R affirmed the legitimacy of the people to struggle for independence “by all means at their disposal.” fell short of unequivocally condoning the right to use force. The ambiguity actively supported by the newly independent States and the States, Eastern Bloc but has confronting never a liberation been movement, accepted or by by an the Western established States.” government “recognize[d] the legitimacy of the rule to exercise their right to self-determination.” 18, at 95. at 18, C Y 37792-fiu_11-1 Sheet No. 134 Side A 04/28/2016 10:11:02 A 04/28/2016 134 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 134 Side B 04/28/2016 10:11:02 M K 69 C Y supra , ILSON W [Vol. 11:255 11:255 [Vol. 62 EATHER Declaration on on Declaration In 1966, for example, the the example, for 1966, In 67 G.A. Res. 3070 (XXVIII), at 78 (Nov. 30, 30, (Nov. 78 at (XXVIII), 3070 Res. G.A. on of the right to use force by see, e.g., Despite the ambiguity, however, the the however, ambiguity, the Despite Just like the language in the UNGA UNGA the in language the like Just 65 68 The ambiguous language of UNGA and and UNGA of language ambiguous The , according to which,to according , 70 FIU Law Review Law FIU ) 4/15/16 8:21 PM 66 . note 18, at 96; 96; at 18, note note 18, at 99. note 18, at 96; S.C. Res. 232, ¶ 4 (Dec. 16, 1966). note 18, at 94–95. ELETE Others like Heather Wilson, however, argue that that argue however, Wilson, Heather like Others D 64 OT supra supra supra supra N , , , , O 63 (D note 55, at 62 ILSON note 55, at 62. ILSON ILSON ILSON W W W W DOCX supra supra , , _4.15. EATHER RAY EATHER RAY EATHER EATHER INAL Id. Id. G.A. Res. 2625 (XXV), U.N. Doc. A/RES/2625 (Oct. 24, 1970); H 1970); 24, (Oct. A/RES/2625 Doc. U.N. (XXV), G 2625 Res. G.A. H G H H H _F of the Charter. the of In 1970, the UNGA passed by acclamation every the State has the duty to deprives refrain peoples from referred any to above forcible in action the principle which elaboration of of the present their right of the exercise to, such forcible action in pursuit against, and resistance to . . self-determination.. In of their right their to self-determination, actions such peoples are entitled and to to receive support seek in accordance with the purposes and principles Conversely, resolutions that expressly recognized the right to use force The United Nations Security Council (UNSC) too passed several AIS 62 63 64 65 66 67 68 69 70 1973); G.A. Res. 39/72 (Dec. 13, 1984). 13, (Dec. 39/72 Res. G.A. 1973); UNSC UNSC passed a resolution recognizing the legitimacy of the “struggle” of the people of Southern Rhodesia. Some took the above language, which was arguably stronger than previous that UNGA of resolutions, as confirmati liberation movements. the language continues to be ambiguousunanimously precisely because “its and more controversial provisions the could be resolution was passed interpreted in a variety of ways.” Principles of International Law International of Principles Meanwhile, developing countries were adopting resolutions in international in international resolutions adopting were countries developing Meanwhile, conferences explicitly recognizing the legitimacy of the right to use force in pursuit of self-determination. note 18, at 98. at 18, note UNSC resolutions, combined with significant countries, but support a from lack Afro-Asian of support from colonial and Western powers for resolutions, it was unclear struggle. peaceful whether “struggle” meant armed or simply were met with resistance from colonial powers and other Western States. 262 achieved. be could amongStates consensus so deliberate was 14 - R debates on the resolutions reveal that most States understood the language armedfor struggle. allow to resolutions using the same ambiguous terms. 37792-fiu_11-1 Sheet No. 134 Side B 04/28/2016 10:11:02 B 04/28/2016 134 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 135 Side A 04/28/2016 10:11:02 74 263 263 Although some States did not openly 71 73 ) 4/15/16 8:21 PM note 18, at 136. ELETE Meanwhile, according to James Crawford—judge Crawford—judge James to according Meanwhile, D 75 OT supra N note 21, at 135–36. , O Analysis of Operation Protective Edge Protective Operation of Analysis note 20, at 343. (D supra ILSON , W DOCX supra For example, since the 1967 war in which Israel occupied occupied Israel which in war 1967 the since example, For , 72 _4.15. at 103. at 111. at 343–44. EATHER RAWFORD UREDA INAL Id. Id. Id. S H C Therefore, while it cannot unequivocally be said that Palestinians Palestinians that said be unequivocally cannot it while Therefore, _F While While the law is unclear on whether national liberation movements Even if some States did not explicitly accept the authority of liberation The fact that the Security Council has never expressly condemned the guerilla activities of the Lebanon] Palestinians can be interpreted as an implied recognition [emanating of their right to from Jordan recover at and least the territories from which they were displaced force. of use the by so do to and hostilities, 1967 June in the In summary, a consensus is lacking on the right of liberation 76 AIS 71 72 73 74 75 76 M K may may use force in pursuit of it their right is to very self-determination, clear in prohibiting an occupying power from using force to suppress the have the right to determination, nor can it unequivocally be said that they do not have such a use force against right. Israel While in the their force. of use their against prohibition clear a lacks also it Palestinians, law struggle lacks for a self- clear allowance Power Occupying an by Force of Use The for the use force by condone the use of force by liberation movements, “they had at least begun to condemn the use of force by the colonial power, movement.” but not the liberation 2015] 14 - R stronger language, reveals an obvious divide based on political and power interests. movements to use force somein acquiescence circumstances. as a matter of law, their actions indicated world supporting it. Nevertheless, “the . . . trend since has 1960 in been particular toward the extension of liberation movements.” the authority to use force to national movements movements to use force for self-determination with colonial powers other and Western States generally opposing such a right while the developing trend in UNSC resolutions to condemn Israeli use of force against “terrorist activities” coming from Jordan and Lebanon but to not similarly condemn illegal. as activity guerilla Arab territories belonging to its neighbors (and at least until 1973), there was a at the ICJ—a non-State entity’s right to use force for self-determination is “legally neutral” in the sense that it is “not regulated by international law at all.” C Y 37792-fiu_11-1 Sheet No. 135 Side A 04/28/2016 10:11:02 A 04/28/2016 135 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 135 Side B 04/28/2016 10:11:02 , M K all C Y An An 82 , ICRC (Aug. 4, [Vol. 11:255 11:255 [Vol. all States are are States all 85 38 (1st ed. 1910). AW L Hence, while Israel may may Israel while Hence, 86 “[T]he use of force to deny the the deny to force of use “[T]he note 19, at art. 26 comm. (5). 77 NTERNATIONAL I supra , All occupations or administrations of of administrations or occupations All 78 Therefore, an occupying power may use use may power occupying an Therefore, 83 ANDBOOK OF ANDBOOK FIU Law Review Law FIU ) 4/15/16 8:21 PM Therefore, sovereignty is not transferred to the the to transferred not is sovereignty Therefore, ,H 80 note 18, at 135. ELETE D Occupation and Other Forms of Administration of Foreign Territory ILSON OT note 17, ¶ 141. note 17, ¶ 141. supra W N , Prolonged belligerent occupations in effect become become effect in occupations belligerent Prolonged O 81 (D supra supra ILSON RAFTON W DOCX and has the status of a pre-emptory norm, pre-emptory a of status the has and G 84 , Because belligerent occupation is a consequence of war, “it is is “it war, of consequence a is occupation belligerent Because opinion, opinion, _4.15. 79 ¶¶ 88, 118. 88, ¶¶ at 135–37, 147. EATHER EORGE Occupation and International Humanitarian Law: Questions and Answers INAL Id. Wall Id. States of Responsibility on Articles Draft Wall Id. H G (ed.), Ferraro Tristan _F In summary, unlike the ambiguous nature of the law on the right of An occupying power is not prohibited from using force under AIS 78 79 80 81 82 83 84 85 86 77 force for certain purposes, but must never use force to suppress a people’s struggle for self-determination. In fact, because self-determination is a right erga omnes 264 people’s struggle for self-determination. 14 - R occupier also “has the right, and indeed the protect duty the life to of respond, its in citizens.” order to national liberation movements to use force, the law very clearly prohibits an occupying power from employing force Meanwhile, an occupying power to can use force suppress for certain other self-determination. purposes including protecting its population from attacks. use force to protect its civilians from Palestinian attacks, it cannot use force to suppress the Palestinians’ struggle for self-determination. The question that follows is, how does one know whether Israel is using force to protect its civilians or to suppress Palestinian self-determination? The following prohibited from suppressing this right whether by forceful or non-forceful means. territory by foreign powers are supposed international law recognizes the to state of occupation, such a state has always be temporary. Even though been understood as a obligated to temporary withdraw condition. from A hostilities. occupied belligerent territories occupier upon the is cessation of 2008), www.icrc.org/eng/resources/documents/misc/634kfc.htm. 2008), free exercise of a people’s right principles to of self-determination is international contrary law.” to the ICRC (Mar. 2012), www.icrc.org/eng/assets/files/publications/icrc-002-4094.pdf; Hague Regulations, 43. art. occupying power. annexations, in violation of international law. international of violation in annexations, circumstances. Rather, because an occupying power has the obligation ensure to public order and safety, it may use police force to that end. not political in its effects.” 37792-fiu_11-1 Sheet No. 135 Side B 04/28/2016 10:11:02 B 04/28/2016 135 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 136 Side A 04/28/2016 10:11:02 ., It It TR AND AND 89 C The The 88 jus in 90 ELLUM B 51, 72 (2012) (2012) 72 51, ESOURCE or occupation occupation or US AD ROSS J C , ICRC R ED 265 265 R CCUPATION 91 O jus in bello OF THE THE OF . EV AW OF AW R legal regime and the law of of law the and regime legal L L ’ ELATIONSHIP BETWEEN ]. NT R , 94 I AND THE jus in bello ELLO ) 4/15/16 8:21 PM ISTINCTION AND B D Preoccupied with Occupation: Critical Examinations of the ELETE HE D ,T US IN US OT note 17, ¶ 101. J N Preoccupied with Occupation with Preoccupied O Analysis of Operation Protective Edge Protective Operation of Analysis II: Origin of the Twin Terms Jus ad Bellum/Jus in Bello (D supra KIMOTO is the legal regime which regulates the conduct of war. of conduct the regulates which regime legal the is O DOCX It was historically meant only to regulate European European regulate to only meant historically was It 87 legal regime is triggered once an armed conflict begins. conflict armed an once triggered is regime legal opinion, ECTION _4.15. 8 (2011). S EIICHIRO INAL Id. Wall Yutaka Arai-Takahashi, Arai-Takahashi, Yutaka K Kolb, Robert legal regime offers no relevant guidance since it only governs how ELLO _F Jus in bello This section looks at the B AIS 87 88 89 90 91 M K US IN US Historical Development of the Law of Occupation Jus in Bello in Jus ICJ confirmed in its 2004 advisory opinion that international humanitarian Occupiedthe lawto Territory. applicable Palestinian is [hereinafter Arai-Takahashi, [hereinafter question that is at issue in this Comment. This section finds that the bello force is used once an armed conflict begins, and is motives unconcerned behind with the the use of force. The central however, is question concerned with only the motives of the State of Israel behind its of this Comment, use of force, and whether those motives are the protection of its civilians or the suppression of Palestinian self-determination. This section that the law also of occupation, in finds general, is inapt at dealing with the question at hand because occupation law developed outside the context of colonial occupations. occupation. It explores the two in search of guidance to help answer the occupations, which self-determination.of issues account into take not does law occupation were not colonial occupations, and, therefore, (Oct. 31, 1997), www.icrc.org/eng/resources/documents/article/other/57jnuu.htm. 1997), 31, (Oct. J 2015] 14 - R three sections explore existing bodies of law (i.e., law, law of self-defense and answer the to this question. Because existing law does not provide doctrine any relevant of necessity) in guidance, search Section V of the Comment of proposes some factors to help answer an question. the is also referred to as international which humanitarian law is (IHL), the codified bulk Convention, and Additional Protocols I of and II. The treaties, which form the in The core of IHL, are Hague considered customary international law. Regulations, This means the treaties that are binding on the States even if they are not a Fourth party to them. The jus in bello Geneva C Y 37792-fiu_11-1 Sheet No. 136 Side A 04/28/2016 10:11:02 A 04/28/2016 136 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 136 Side B 04/28/2016 10:11:02 M K C Y jus in instead. instead. jus in bello [Vol. 11:255 11:255 [Vol. 97 . to both victim and and victim both to jus ad bellum Just Wars, Wars of Aggression and 523, 533–36 (2002). 96 ROSS jus ad bellum ad jus C ED jus in bello R OF THE . EV R is not a legal basis for the legitimate use of of use legitimate the for basis legal a not is seeks to safeguard, is the protection of of protection the is safeguard, to seeks L FIU Law Review Law FIU ’ ) 4/15/16 8:21 PM legal regime is applicable to the Occupied Occupied the to applicable is regime legal 95 NT ELETE D , 84 I 84 , it is irrelevant to the question at issue in this this in issue at question the to irrelevant is it OT 92 N rules of warfare apply to all parties to the conflict conflict the to parties all to apply warfare of rules note 89, at 14–24; Francois Bugnion, Bugnion, Francois 14–24; at 89, note O note 89, at 11. note 89, at 29. jus in bello note 93, at 541. (D jus in bello is unconcerned with the reasons for using force but only only but force using for reasons the with unconcerned is jus in bello supra supra supra , , , supra DOCX in its use of force against the aggressor State. The underlying underlying The State. aggressor the against force of use its in In other words, just because a State waged an illegal war war illegal an waged State a because just words, other In The equal applicability of of applicability equal The _4.15. 93 at 15. 94 KIMOTO jus in bello KIMOTO KIMOTO INAL Id. Id. O O Bugnion, O rules of war regardless of the legality of their initial resort to force. _F The otherwise lawful method of warfare by an aggressor State does not does State methodlawful aggressor otherwise an by The warfare of While While the Jus in bello Additionally, all partiesall Additionally, armedan respect to to bound are conflict It is impossible to demand that an adversary respect the laws and AIS 92 93 94 95 96 97 jus in bello become unlawful merely because it violated becomemerelyit unlawful because Comment because force. It merely regulates how war is waged and is reasons unconcerned for with waging the war, let alone whether those reasons are illegitimate. Such legitimate concerns or fall under the domain of against another State, this does not mean that the victim State is not bound by In fact, regardless of the legitimacy of their use of force or their status as victim or aggressor. aggressor ensures that civilians of the aggressor State are protected just like victimthe State. of civilians 266 14 - R International Humanitarian Law Humanitarian International Palestinian Palestinian Territory, occupying power can illegitimate abide by purpose IHL of but still suppressing employ a force for people’s the struggle for self- with with regulating conduct of hostilities once an armed conflict has begun. It is, therefore, irrelevant to the question whether an occupying force power used to protect its civilians or to suppress self-determination. The the aggressor State would lack any incentive to restrict its military conduct IHL. to according customs of war while at the same time declaring that every one of its will acts be treated as a war crime because of aggression. of war a of context the the in out carried mere fact that the act was bello This helps ensure that the obligations aggressor just State cannot because flout its its military initial resort actions to of force a considered illegal by was virtue of the illegality of its initial resort to force, then unlawful. State, If who all unlawfully resorted to force, were civilians. interest, which 37792-fiu_11-1 Sheet No. 136 Side B 04/28/2016 10:11:02 B 04/28/2016 136 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 137 Side A 04/28/2016 10:11:02 98 The The 99 NTERNATIONAL I ONTINUITY AND Such ideas ideas Such ]. :C 102 note 17, ¶¶ 78, 118 118 78, ¶¶ 17, note 267 267 supra It is, therefore, inapt inapt therefore, is, It CCUPATION CCUPATION 101 O O opinion, opinion, NTERACTION WITH I note 87, at 72; Martti Koskenniemi, Koskenniemi, Martti 72; at 87, note note 87, at 55. AW OF AW AW OF . 13, 30 (2008). 30 13, . L L supra EV HE is irrelevant for purposes of the the of purposes for irrelevant is , supra , HE ,T .LR ,T see also Wall SR AW AND THE L AKASHI principles of military necessity and and necessity military of principles , 41 I 41 , -T AKAHASHI RAI jus in bello -T ) 4/15/16 8:21 PM RAI note 18, at 20; 20; at 18, note A ELETE Revolutionaries waged wars in other countries in in countries other in wars waged Revolutionaries UMANITARIAN D H 103 supra Because existing occupation law developed outside outside developed law occupation existing Because OT , jus in bello N Preoccupied with Occupation with Preoccupied UTAKA Preoccupied with Occupation 100 O Analysis of Operation Protective Edge Protective Operation of Analysis (D Y ILSON (2009) [hereinafter A W DOCX AW L Matthew Saul, Research Fellow at the Norwegian Centre for Human Rights and Lecturer NTERNATIONAL _4.15. I . EATHER See Id See generally Arai-Takahashi, Arai-Takahashi, INAL IGHTS H R _F One would assume that the most obvious law to consult for limits on Ideas of liberalism and freedom from monarchical rule laid the AIS 100 101 102 103 98 99 M K UMAN HANGE OF at Durham University, U.K., Symposium on the Functional Approach to the Strip Occupation of and the the Gaza Right to Self-Determination (Apr. tional-approach-to-the-occupation-of-the-gaza-strip-and-the-right-to-self-determination 25, 2012), http://opiniojuris.org/2012/04/25/the-func (stating, “both Hague Law and determination”) Geneva Law were created before the emergence of the legal right to self- law of occupation, on the other hand, occupations, was which created to unlike regulate the European occupation liberation struggles. of Palestine, did not involve However, even the law of occupation, in general, is not central applicable to question the of this conflict. This Comment is because the as Israel-Palestine conflict overlap.” liberation it is national of wars and occupation a belligerent which . . . “situation relates in to the Israel-Palestine swept across Western Europe from the end of the eighteenth century to the middle of the nineteenth century, challenging order of the the continent. monarchical political C H the use of force by an occupying power is the law of occupation. 2015] proportionality may indicate a motive that is other civilians. than Generally, the however, protection of Commentthis that question poses. Occupation of Law The 14 - R Occupied Zone—”A Zone of Reasonableness”? of Zone Zone—”A Occupied determination. Its compliance (or non-compliance) with IHL says nothing about its motives for resorting to force. At most, it gross may be argued violation that a of (finding that Palestinian territory east of the Green line is occupied by Israel and that Palestinians are a self-determination). to right the have who “people” foundation for the development of the law of occupation. to deal with issues of force in the context of self-determination, which conflict. Israel-Palestine the in exist do order to oust the ruling monarchy and liberate the oppressed local the context of colonial occupations involving liberation struggles, not take it into account the right of self-determination. does C Y 37792-fiu_11-1 Sheet No. 137 Side A 04/28/2016 10:11:02 A 04/28/2016 137 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 137 Side B 04/28/2016 10:11:02 M K C Y note note The The Thus, Thus, note 100. note in the the in 113 114 112 supra [Vol. 11:255 11:255 [Vol. 107 25 (2d ed. 2012). L. 195, 199 (2005). (2005). 199 195, L. L ’ note 87; Koskenniemi, 87; note NT note 87, at 55. note 87, at 74. CCUPATION Preoccupied with Occupation, supra O .J.I supra supra EO This new conceptualization of of conceptualization new This , , 111 AW OF AW L , 36 G 36 , FIU Law Review Law FIU Thus, ousting of the sovereign did not transfer transfer not did sovereign the of ousting Thus, ) 4/15/16 8:21 PM 1791; Arai-Takahashi, 110 Thus, the occupying revolutionaries did not face face not did revolutionaries occupying the Thus, NTERNATIONAL I ELETE D 105 HE note 100, at 26. note 100, at 30. OT note 108, at 69. ,T N The Occupation of Iraq of Occupation The However, these “occupations [of non-European non-European [of “occupations these However, Preoccupied with Occupation with Preoccupied Occupation with Preoccupied O Preoccupied with Occupation,with Preoccupied supra supra supra (D 115 supra , ONSTITUTION OF DOCX C ENVENISTI Since the revolutionaries waged war not to annex territory but B In fact, the 1791 French Constitution stated, “[T]he French French “[T]he stated, Constitution French 1791 the fact, In 104 Territory was no longer seen as belonging to the king, but rather rather but king, the to belonging as seen longer no was Territory Occupation was meant to be temporary and, therefore, did not not did therefore, and, temporary be to meant was Occupation _4.15. 108 ENVENISTI YAL RENCH 109 106 Id. Id. B Arai-Takahashi, E 43, art. War of F Time in Persons Civilian of Arai-Takahashi, Protection the Koskenniemi, to Relative Gregory H. Fox, Convention Geneva Arai-Takahashi, Koskenniemi, INAL _F It is not as if European powers at the time were not engaged in After the French Revolution, occupation became distinct from AIS 106 107 108 109 110 111 112 113 114 115 104 105 conquest. occupation law developed, as a theory distinct from conquest, newly order. the territorial emerging and political European to manage occupations for the purpose of resistance from liberation movements. annexing In fact, the period territory of the collapse of in which the European monarchical political order was also the height of imperialism they faced and colonialism. occupying power merely fills a “temporary vacuum created by the ousting of the local government conditions and for maintain[s] the its bases latter’s of return power are until mutually the agreed upon.” resistance resistance from the occupied population and there was no tension between the two. lead to liberation struggles. The law of occupation developed in this context order. territorial European new managingthe of way a as nation renounces the undertaking conquests, of and any it war will with people.” never a use view of its making forces against the liberty sovereignty of to any the occupying power. 87, at 55. at 87, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 135 [hereinafter Fourth Geneva Convention]. Convention]. Geneva Fourth [hereinafter 3516, 135 U.S.T. U.N.T.S. 6 75 1949, 12, Aug. 268 population. 14 - R Fourth Geneva Convention whereby custodian the of the occupying occupied territory power who must is preserve the does simply status quo not and a have the sovereign authority to change existing laws. sovereignty forms the basis of the “conservationist principle” as belonging to the people. territories] that led to colonial control were placed outside the constraints of to liberate the local population, the revolutionaries’ interests were aligned with those of the locals. 37792-fiu_11-1 Sheet No. 137 Side B 04/28/2016 10:11:02 B 04/28/2016 137 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 138 Side A 04/28/2016 10:11:02 T OF ’ This This EP D 123 ¶ 80 (2009). TATES S shows that that shows Furthermore, Furthermore, 124 121 NITED 269 269 CCUPATION O at 72. , note 87 note 87. ELLIGERENT note 98, at 44; U 44; at 98, note B 27–10, ¶ 432 (1956). (1956). 432 ¶ 27–10, supra supra , The foundation of belligerent belligerent of foundation The , supra , 122 AW OF AW L ANUAL M note 113, art. 68. IELD CCUPATION :F O In fact, until the period of decolonization in in decolonization of period the until fact, In note 18, at 20. ) 4/15/16 8:21 PM supra 118 Hence, the law of occupation was never never was occupation of law the Hence, NTERNATIONAL Since sovereignty was a “gift of civilization,” the the civilization,” of “gift a was sovereignty Since supra I ELETE AW OF ARFARE , D 117 L 116 HE W Its rules on the use of force cannot be appropriately appropriately be cannot force of use the on rules Its 120 OT HE ,T N It is, therefore, unsuited to the Israeli occupation of of occupation Israeli the to unsuited therefore, is, It Preoccupied with Occupation with Preoccupied ILSON 125 O Preoccupied with Occupation with Preoccupied AND ,T Analysis of Operation Protective Edge Protective Operation of Analysis W L (D 119 note 101. note 101. INSTEIN DOCX D AKASHI AW OF AW EATHER supra supra L -T H at 53. at _4.15. at 74. HE RAI ORAM Id. Id. See ,T Saul, Arai-Takahashi, A Fourth Geneva Convention, Y Saul, Arai-Takahashi, INAL _F The Law of Occupation, for example, permits the occupying power to RMY AIS 116 117 118 119 120 121 122 123 124 125 A M K from and before the legal right to self-determination stands in stark contrast to the law of self-determination, which bans the use of force to suppress a people’s struggle for self-determination. The contrast, which is due to the fact that the law of occupation developed separately require the occupied people to allegiance) whereby swear the an occupied must oath behave in of a peaceful take obedience manner, not part (albeit not in hostilities and obey the occupying power. occupied inhabitants who sabotage military institutions of power the occupying may be punished by death. THE the mid-twentieth century, the law of occupation was considered a largely European project. 2015] 14 - R Palestinian Territory, which is both a belligerent occupation and a struggle liberation. national for occupation law is ill-suited liberation struggles. to colonial occupations involving national occupation, writes Yoram Dinstein, is the “power of the bayonet.” the law of occupation.” law of occupation, which preserved the sovereignty of the occupied people, was applied only to “civilized” European nations and not to “uncivilized” non-European nations. applied to the Israeli occupation of Palestine as they were never regulate meant such an to occupation. We, therefore, cannot look towards the law of occupation for an answer occupying to power the is question, for determination. when the use illegitimate of force purpose by of an suppressing self- developed developed to movements. In fact, the deal legal right of emerged self-determination after the with creation of occupation law. colonial occupations involving liberation C Y 37792-fiu_11-1 Sheet No. 138 Side A 04/28/2016 10:11:02 A 04/28/2016 138 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 138 Side B 04/28/2016 10:11:02 M K C Y jus [Vol. 11:255 11:255 [Vol. The Court Court The 126 terrorism, and the the and terrorism, EFENSE -D ELF S international AW OF AW L HE . It, therefore, cannot be relied upon to answer FIU Law Review Law FIU ) 4/15/16 8:21 PM 127 III: T note 17. ELETE D OT provides valuable insight into the applicability (or (or applicability the into insight valuable provides supra N O ECTION jus in bello (D as an act of self-defense against terror attacks emanating emanating attacks terror against self-defense of act an as S 128 opinion, DOCX _4.15. ¶ 141. ¶ 122. and the the and See Wall See Id. Id. INAL _F The International Court of Justice’s (ICJ) advisory opinion on the If not the law of occupation, perhaps the law of self-defense can help What What are the legal arising consequences from the of construction the wall being built by Israel, Palestinian the occupying Territory, Power, including in the in described in Occupied the and report of the Secretary-General, considering around the rules East Jerusalem, and as principles of international Convention law, of including 1949, the resolutions? and Assembly Fourth relevant Geneva Security Council and General Israel justified its construction of the wall, which as planned Even though the construction of the wall was a non-forceful measure AIS 126 127 128 lack thereof) of the to law Israeli of measuresself-defense taken in response to terror attacks emanating from Palestinian territory. Legal Consequences of the Palestinian Territory Construction of a Wall in the Occupied the question that is at issue in this comment.this in issue at is that question the inapplicable to the Israel-Palestine conflict because Article 51 traditionally does not encompass armed attacks by non-state Resolutions actors, 1368 and Security 1373 Council only refer to self-defense argument causes an impermissible confusion between the ad bellum shed some light on the issue of when force used by an occupying power is legitimate and when it is for the illegitimate purpose determination. The seems law of self-defense to be the obvious legal regime of suppressing self- to consult given that self-defense is the justification that Israel presents for Operation Protective Edge—not surprisingly since other than U.N. Security Council authorization, it is the only legally valid reason force. for States to use This section finds, however, that the law of self-defense is 270 14 - R addressed the following question in its opinion: its in question following the addressed certainly inapplicable to its forceful measures.forceful its to inapplicable certainly as opposed to the forceful relevant measures used to in Operation Gaza, the inapplicable Protective to opinion Israel’s Edge. non-forceful is responses still to If terror attacks, the then it is law of self-defense is incorporated about sixteen percent of the West Bank between the wall and the Green Line, 37792-fiu_11-1 Sheet No. 138 Side B 04/28/2016 10:11:02 B 04/28/2016 138 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 139 Side A 04/28/2016 10:11:02 .J. 135 130 M An An . 132 , 99 A State separate opinion opinion separate suggesting that that suggesting 137 Wall 131 271 271 Today’s international international Today’s 134 ) 4/15/16 8:21 PM ELETE D It relied on Article 51 of the U.N. Charter, which which Charter, U.N. the of 51 Article on relied It This resolution was passed under Chapter VII of the the of VII Chapter under passed was resolution This OT 129 N 136 O Self-Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the note 132, at 63. Analysis of Operation Protective Edge Protective Operation of Analysis Toward Authoritativeness: The ICJ Ruling on Israel’s Security Wall (D L. 62, 63 (2005). 63 62, L. supra L DOCX ’ NT ¶ 138. ¶ _4.15. ¶139. ¶ 116. .J.I Indeed, before the attacks on the World Trade Center, one would would one Center, Trade World the on attacks the before Indeed, Id. Id. Id. M Legal Consequences of the Construction of a Wall in the West Bank, Advisory Opinion, Opinion, Advisory Bank, West the in Wall a of Construction Murphy, the Sean of Consequences Legal Falk, Richard S.C. Res. 1368, U.N. Doc. S/RES/1368 (Sept. 12, 2001) [hereinafter S.C. Resolution 1368]. S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001) [hereinafter S.C. Resolution 1373]. Murphy, INAL 133 _F The Court has been criticized for failing to explain how it arrived at However, global reality today is different and it is long recognized that that recognized long is it and different is today reality global However, L. 42, 51 (2005). 51 42, L. AIS 130 131 132 133 134 135 136 137 129 , 99 A 99 , L ’ M K NT this conclusion given requirements that relating the language to of the Article legal 51 personality itself of has the no attacker. of Judge Kooijmans]. Judge of Article 51 self-defense can only be invoked against an attack by a by attack an against invoked be only can self-defense 51 Article is not novel but has been the generally accepted interpretation for over fifty years. explanation is unnecessary because the Court’s interpretation of Article 51 affirms States’ inherent right to defend themselves from armed attacks. The same month, the Security 1373, which also reaffirmed the inherent right to Council self-defense in the context unanimously passed Resolution of acts of terrorism. The ICJ, however, found that Article 51 had because the attacks are not “imputable to a foreign State,” “no relevance in this case” I 2004 I.C.J. 136, ¶ 141 (July 9) (separate opinion of Judge Kooijmans) [hereinafter 2015] 14 - R ICJ? from the West Bank. U.N. Charter and is binding upon all least U.N. member since States. 2001, Therefore, “state at practice appears actor.” non-state a by an attack to self-defense in responding to support the permissibility of not have imagined that non-state actors could be capable of employing the States. of purview the within been only traditionally has that force of kind “any interpretation of the U.N. Charter should allow for the evolution of the especially setting, global a with changing in accord U.N.] [the Organization in the area of international peace and security.” which reaffirmed in the individual context and collective of self-defense in the accordance with attacks the Charter.” “the inherent right of community does not hesitate to acknowledge the right of States to defend themselves against armed attacks from non-state actors. The day after terror the attacks on the World Pentagon, the U.N. Trade Security Council unanimously passed Resolution Center 1368, and the failed attack on the C Y 37792-fiu_11-1 Sheet No. 139 Side A 04/28/2016 10:11:02 A 04/28/2016 139 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 139 Side B 04/28/2016 10:11:02 M K L ’ 145 C Y NT .J.I M In fact, fact, In 138 , 99 A [Vol. 11:255 11:255 [Vol. Consequently, Consequently, 146 144 L.J. 569 (2005); Ruth Wedgewood, However, it rejected this this rejected it However, L opinion, despite adopting a a adopting despite opinion, ’ note 132. 139 NT Words My Mother Never Taught Me “In I note 133, ¶ 36. Wall supra supra ORNELL L. 76, 82 (2005). (2005). 82 76, L. L ’ , 38 C NT , that “have to be kept radically apart.” .J.I Several critics are baffled by the Court’s Court’s the by baffled are critics Several reveals that the distinction is well-founded. well-founded. is distinction the that reveals M Combating Terrorism: Does Self-Defense Include the Security note 138; Murphy, 138; note FIU Law Review Law FIU 140 ) 4/15/16 8:21 PM 142 note 136. , 99 A 99 , ELETE supra supra Insofar as terror attacks emanate from within within from emanate attacks terror as Insofar D note 17, ¶¶17, note 138–39. ¶139. 17, note note 17, ¶ 139; Iain Scobbie, Scobbie, Iain 139; ¶ 17, note OT 143 N jus ad bellum O supra supra supra (D ; Emanuel Gross, id. DOCX , , Wedgewood, , but a closer reading of the Court’s opinion and Judge Judge and opinion Court’s the of reading closer a but opinion, opinion, opinion, separate opinion of Judge Kooijmans, and the the and 141 _4.15. Wall Wall See, e.g. Wall Wall Wall See, e.g. Wall Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Territory, Palestinian Territory, Occupied the in Wall Palestinian a of Occupied S.C. Resolution 1373, the in Construction Wall the a of of Consequences Construction the Legal of Consequences Legal INAL _F The Fourth Geneva Convention civilian permits populations, forcible subject to measures strict against limits. rights That of an exhausts Occupying Power. the A State legal may not use all of under its powers the Fourth Geneva Convention and the Laws of War decide and that then those powers are inadequate and invoke the more general right of self-defense, which belongs to the jus ad bellum, in humanitarianinternational law. of constraints the avoid order to Contrary Contrary to several critics of the ICJ’s There is yet another reason, not discussed by the Court in its opinion, AIS 139 140 141 142 143 144 145 146 138 traditional traditional interpretation of Article 51, the Court did not dismiss the right of a State to defend itself against armed attacks by non-state actors. distinction, territory occupied and controlled by Israel, “[t]he situation . . . is different from that contemplated by Security Council resolutions.” Palestine elaborated this point in its writtenstatement:its in point this elaborated Palestine 2004 I.C.J. Pleadings 1, at 44–452004). at 23, 1, (Feb. Pleadings I.C.J. 2004 L. 52 (2005). (2005). 52 L. Barrier? The Answer Depends on Who You Ask 272 Kooijmans’ separate opinion 14 - R argument because the attacks at issue emanated from within, territory not that outside, Israel controls. The language of Security Council Resolutions 1368 and Israel relied, refers 1373, to “international on terrorism” which affects which “international peace and security.” The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self-Defense the Court found that either. resolutions Israel could not invoke self-defense under these for why Article 51 self-defense is inapplicable to Israel. In its oral statement to the ICJ, Palestine argued that invoking self-defense as construction justification of the for Wall causes “an impermissible confusion” between the jus in bello the Court explicitly considered Israel’s self-defense argument under U.N. Security Council Resolutions 1368 and 1373. Defense of the International Court” International the of Defense 37792-fiu_11-1 Sheet No. 139 Side B 04/28/2016 10:11:02 B 04/28/2016 139 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 140 Side A 04/28/2016 10:11:02 152 149 . The jus ad Israel is is Israel 148 , jus in bello 273 273 By relying on on relying By jus in bello and the the and Invoking self-defense as as self-defense Invoking 147 . 150 , which allows for wider scope of jus in bello jus ad bellum 153 ) 4/15/16 8:21 PM jus ad bellum What Gross fails to realize is that the Court Court the that is realize to fails Gross What 151 ELETE note 144, at 84. D note 17, ¶ 95 (finding that the Fourth Geneva Convention, which applies applies which Convention, Geneva Fourth the that (finding 95 ¶ 17, note note 17, ¶ 141. OT N supra note 89, at 34. O note 144, at 84. note 144, at 84. Analysis of Operation Protective Edge Protective Operation of Analysis supra supra (D note 138, at 574. supra , supra supra DOCX Scobbie, supra terrorism, and the self-defense argument causes an an causes argument self-defense the and terrorism, opinion, opinion, opinion, see _4.15. ; KIMOTO Wall Id. Wall O Scobbie, Gross, Scobbie, INAL self-defense instead of military necessity in in necessity military of instead self-defense _F The right to take defensive measures in response to entail threats that these does must qualify not or should be justified as measures taken in self-defense under Article 51 of the Charter. To equate simplythe to two confuse is the legal with the linguistic denotation of the term “defense.” Just as “negligence,” in law, does not mean “carelessness” but, rather, refers to an elaborate doctrinal structure, so “self-defense” refers to a complex doctrine that has a much more restricted scope than “defense.” of notions ordinary On an important cannot Israel rely on side Article note, 51 just because The law of self-defense is inapplicable to the Israel-Palestine conflict AIS 147 148 149 150 151 152 153 M K self-defense does not mean that it cannot take Emanuel Gross frustratingly writes, defensive “[T]he central question—which the ICJ measures at all. failed to recognize—was whether against Israel terrorist had attacks.” the right to defend itself to respond [to terror attacks] in order to protect the life of its citizens.” unequivocally acknowledged that Israel “has the right, and indeed the duty, trying to “set aside IHL obligations” and “take a wider military action.” The Court merely found that such a right cannot be based on Article 51 of U.N.the Charter. Once an armed conflict has begun, passed as the State has already resorted to force. the time to invoke self-defense has because Article 51 traditionally does not encompass armed attacks by non- state actors. Security Council Resolutions international 1368 and 1373 only refer impermissible confusion between the to law of self-defense, therefore, cannot be relied upon to answer the question comment.this in issue at is that justification for Israeli measures against terror attacks is a misuse of the two regimes.abovementionedlegal Written Statement Submitted by Palestine, ¶ 1555.pdf. 534 (Jan. 29, 2004), www.icj-cij.org/docket/files/131/ 2015] bellum 14 - R to armed conflicts, applies to the Occupied Palestinian Territory). Territory). Palestinian Occupied the to applies conflicts, armed to Self-defense Self-defense is a part of the action than military necessity under C Y 37792-fiu_11-1 Sheet No. 140 Side A 04/28/2016 10:11:02 A 04/28/2016 140 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 140 Side B 04/28/2016 10:11:02 M K 159 C Y UNCH P Even Even 161 OUNTER [Vol. 11:255 11:255 [Vol. , C (Dec. 31, 2014), 2014), 31, (Dec. With its new new its With 162 EWS N , BBC Before Palestine’s status status Palestine’s Before advisory opinion, Palestine 163 Wall note 19, art. 25. supra , In any case, the right to take defensive defensive take to right the case, any In 156 In fact, the ICJ considered the construction construction the considered ICJ the fact, In FIU Law Review Law FIU ) 4/15/16 8:21 PM 155 ELETE D note 17, ¶ 139. note 17, ¶¶ 142–43. note 161. OT An Interview with Richard Falk on the Crisis in Gaza N O note 144, at 78. supra supra supra (D Since its status upgrade, Palestine has signed onto at least least at onto signed has Palestine upgrade, status its Since supra 160 DOCX discussed in the next section, which is recognized by by recognized is which section, next the in discussed opinion, opinion, In 2004, when the ICJ issued its _4.15. ¶ 195. 154 Wall Id. Draft Articles on Responsibility of States of Responsibility on Articles Draft Wall Id. 158 Press Release, General Assembly, General Assembly Votes Overwhelmingly to Accord Accord to Overwhelmingly Votes Assembly General Assembly, General Release, Press Klippenstein, Ken Court, Criminal International the of Prosecutor The Prosecutor, Klippenstein, the of Office Release, Press Scobbie, INAL _F Just because Israel does not have a right under Article 51 does not not does 51 Article under right a have not does Israel because Just Since the Court’s opinion in 2004, Palestine has gained non-member Instead of Article 51, Israel can potentially rely on the doctrine of see Palestinians Sign Up to Join International Criminal Court AIS 158 159 160 161 162 163 154 155 156 157 157 was arguably not a “State.” Its status at the only that U.N. of an General “observer entity,” which Assembly was first was accorded to it in 1974. before the status upgrade, however, Palestine was recognized as a State by 130 governments and had joined the United Nations Educational, Scientific and Cultural Organization (UNESCO) as a member State. (Aug. 13, 2014), gaza; www.counterpunch.org/2014/08/13/an-interview-with-richard-falk-on-the-crisis-in- mean it has no right to protect its civilians under other legal doctrines. doctrines. legal other under civilians its protect to right no has it mean observer State status at the consequences U.N. General for Assembly, the which applicability could interpreted Article of 51 have to apply only to armed attacks from one State Article against 51 self-defense. another. The ICJ In 2012, by a Assembly vote of voted 138 to in upgrade observer favor State. Palestine’s and status 9 against, to the that U.N. of General non-member international international customary law. fifteen international treaties, which are available only to States. Palestine “Non-Member Observer State” Status in United Nations, U.N. Press Release GA/11317 (Nov. 2012). 29, 274 necessity, 14 - R www.bbc.com/news/world-middle-east-30645462 (writing that the PA signed on to twenty international treaties). status, Palestine was also able to accede to the Rome Statute, granting the International Criminal Court committed on (ICC) Occupied Palestinian Territory. jurisdiction to investigate crimes 51. measures measures is not to legally equivalent the right under of Article self-defense of the wall under the doctrine of necessity, but found the doctrine could not be availed because the chosen route of West the Bank, thereby wall—running significantly deep impairing into Palestinians’ movement the and resulting in the destruction of their property—was not the only means that Israel had to protect its interests. 37792-fiu_11-1 Sheet No. 140 Side B 04/28/2016 10:11:02 B 04/28/2016 140 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 141 Side A 04/28/2016 10:11:02 , , jus in Regardless of of Regardless against another. another. against 168 275 275 (Jan. 17, 2015, 11:30 AM), AM), 11:30 2015, 17, (Jan. State does not claim that the the that claim not does opinion suggests that the the that suggests opinion AZEERA J L Israel Wall , A as well as the rules of warfare in in warfare of rules the as well as ) 4/15/16 8:21 PM ELETE , Office of the Prosecutor, ICC, at 2 (Apr. 3, 2012), www.icc-cpi.int/ D It also accepted Palestine as a member State party to to party State member a as Palestine accepted also It note 17, ¶ 139 (emphasis added). OT After Palestine’s status upgrade, however, the ICC ICC the however, upgrade, status Palestine’s After N 165 O 164 jus ad bellum Analysis of Operation Protective Edge Protective Operation of Analysis supra (D 166 DOCX 167 opinion, _4.15. Palestinian Authority Becomes Official Member of the International Criminal Court Situation on Registered Vessels of Comoros, Greece and Cambodia Article 53(1) Report Situation in Palestine ICC to Probe Possible War Crimes in Palestine Wall Wall INAL (Apr. 1, 2015, 10:36 AM), www.haaretz.com/news/diplomacy-defense/1.650013?utm_ AM), 10:36 2015, 1, (Apr. _F or IHL, then force was probably legitimate and not for the illegitimate Furthermore, the language of the ICJ Despite Palestine’s status upgrade, however, Article 51 likely still does does still likely 51 Article however, upgrade, status Palestine’s Despite With its status upgrade, Palestine is most likely a State for purposes of of purposes for a State likely most is Palestine upgrade, status its With AIS 165 166 167 168 164 M K AARETZ source=Facebook&utm_campaign=Echobox&utm_medium=Social. www.aljazeera.com/news/middleeast/2015/01/icc-probe-possible-war-crimes-palestine-2015116151720 780168.html. Fatou Bensouda, Opens a Preliminary Examination of the Situation in Palestine, 2015). 16, (Jan. ICC-OTP-20150116-PR1083 I.C.C. Press Release 2015] 14 - R NR/rdonlyres/9B651B80-EC43-4945-BF5A-FAFF5F334B92/284387/SituationinPalestine030412ENG. pdf. Office of the Prosecutor, ICC, ¶ 16 (Nov. 53%281%29-Report-06Nov2014Eng.pdf. 6, 2014), www.icc-cpi.int/iccdocs/otp/OTP-COM-Article_ more states.” more proportionality in bello self-determination. suppressing of purpose not apply because the terror attacks at issue are not attributable to the State of Palestine. They are terror attacks launched by Hamas and some Bedouin groups in the Gaza Strip while the recognized authority of the the territory Palestinian is Authority led by President Mahmoud Abbas. The therefore, do attacks, not constitute an armed attack by one The ICC also stated, in an status Article upgrade, 53(1) that Report the Israel-Hamas issued conflict after “do[es] Palestine’s definition not of meet an the international basic armed conflict as a conflict between two or Article 51. If Article 51 self-defense applies, then it follows that as long as Israel’s use of force was in line with the principles of necessity and Court found Article 51 Palestine irrelevant to be not a State because but rather the because “ attacks Court against did it not find are imputable to a foreign State.” upgrade, the ICC refused to open an investigation because Palestine was not a “State” within the meaning of the Rome Statute and, therefore, lacked the ICC jurisdiction. the Romethe Statute. has opened a Palestinian territory. preliminary investigation into crimes committed on Palestine’s objective legal status, it seems Israel cannot avail itself self-defense argument of while simultaneously the denying Palestine’s status as a State. H C Y 37792-fiu_11-1 Sheet No. 141 Side A 04/28/2016 10:11:02 A 04/28/2016 141 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 141 Side B 04/28/2016 10:11:02 . M K , 8 EV 172 or or C Y L. R INISTRY Yuval Yuval L M ’ 170 NT SRAEL [Vol. 11:255 11:255 [Vol. .U.I jus in bello , I M A (2009), http://jcpa.org/ , 25 Why Is Israel’s Presence in FFAIRS .A Therefore, he concludes concludes he Therefore, UB P 171 FOR FOR . TR has been the subject of much much of subject the been has C Avinoam Sharom, 169 see also ERUSALEM as well as the rules of war in in war of rules the as well as , J FIU Law Review Law FIU ) 4/15/16 8:21 PM opinion in 2004, Israel has disengaged from the the from disengaged has Israel 2004, in opinion ELETE D L. 369 (2006); OT Wall N O Faraway, So Close: The Legal Status of Gaza After Israel’s Disengagement jus ad bellum (D note 171. (Apr. 20, 2005), www.mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/israels% 2005), 20, (Apr. , Israel’s exercise of control over border crossings, the DOCX supra UMANITARIAN FFAIRS H _4.15. A L ’ See generally Israel’s Disengagement Plan: Renewing the Peace Process See id. See Yuval Shany, Shany, Yuval Shany, INAL NT I _F Gaza’s legal status has been under dispute since Israel withdrew its based on the scope and degree of control that Israel has retained over the territory of Gaza following the 2005 disengagement – inter including, alia territorial sea adjacent to the Gaza Strip, and the airspace of Gaza; its periodic military incursions within Gaza; areas within Gaza its near the border where Israeli settlements used to be; enforcement of no-go and its regulation of the local monetary market based on the Israeli Since the ICJ’s AIS 169 170 171 172 OREIGN OF OF F IHL. 2005. in strip the in settlements dismantled and Gaza from military that Israel can no longer be regarded as the occupying power in Gaza. OF 20disengagement%20plan-%20renewing%20the%20peace%20process%20apr%202005.aspx. no longer occupies the international community, Gaza including the ICC, strip. are of the On opinion that Gaza occupy to continues Israel the other hand, many in the Other scholars have argued under other theories and rationale for why Israel text/Occupation-Sharon.pdf (concluding that occupation law does not text/Occupation-Sharon.pdf apply to (concluding Gaza); that occupation Elizabeth Samson, Is Gaza Occupied? Redefining the Status of Gaza Under International Law Y.B. 915 (2010). 915 276 14 - R have a valid self-defense justification for Operation Protective Edge. Once again, if the self-defense argument applies, then it follows probably that force was legitimate as long proportionality in as it met the principles of necessity and Shany conducts a comparative analysis of the degree exercised of by Israel and the Palestinian Authority (PA) and finds that the effective PA control has greater powers of government than Israel. debate. If Gaza Resolutions is 1368 and 1373 are inapplicable, but if it is not, then Israel still may considered to be under Israeli control, then Gaza Gaza Strip, which could Resolutions 1368 and affect 1373. The Court the rejected the self-defense applicability argument under of Resolutions 1368 and 1373 Security because the Council West Bank is control; under Israeli so, in the whether case Gaza is still under of the control of Israel. Operation Gaza’s status as occupied Protective territory Edge, since the Israel’s question disengagement is the Territories Still Called “Occupation”? 37792-fiu_11-1 Sheet No. 141 Side B 04/28/2016 10:11:02 B 04/28/2016 141 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 142 Side A 04/28/2016 10:11:02 , , and and UMAN Wall (Jan. 1, 1, (Jan. 174 , H TSELEM , B’ (Apr. 24, 2012), http:// 2012), 24, (Apr. 277 277 URIS J opinion to Gaza, it it Gaza, to opinion 173 since the international international the since Is Gaza Still Occupied and Why PINIO Wall State , O This Comment will proceed proceed will Comment This 175 note 12; Lisa Hajjar, supra ) 4/15/16 8:21 PM Israel: Disengagement Will Not End Gaza Occupation ELETE D Duggard, (July 14, 2014), www.jadaliyya.com/pages/index/8807/is-gaza-still- 2014), 14, (July note 17, ¶ 139. Disingenuous “Disengagement”: Israel’s Occupation of the Gaza Strip OT N O Analysis of Operation Protective Edge Protective Operation of Analysis supra (D see also within the international community is that Israel remains an an remains Israel that is community international the within ADALIYYA DOCX The Gaza Strip: Israel’s Obligations Under International Law , J (Oct. 29, 2004), www.hrw.org/news/2004/10/28/israel-disengagement-will-not-end- 2004), 29, (Oct. opinion, _4.15. The Resolutions refer to the inherent right of self-defense in the the in self-defense of right inherent the to refer Resolutions The Situation on Registered Vessels of Comoros, Greece and Cambodia Article 53(1) Report Situation on Registered Vessels of Comoros, Greece and Cambodia Article 53(1) Report ATCH Wall Valentina Azarov, Azarov, Valentina 176 INAL W _F Because Israel continues to occupy Gaza, “[t]he situation . . . is It is beyond the scope of this Comment to fully analyze the debates on currency and control of taxes and customsduties. and taxes of control and currency After extending the ICJ’s analysis in the note 165, ¶ 16 (emphasis added). note 165, ¶ 27; 27; ¶ 165, note AIS 174 175 176 173 M K IGHTS prevalent prevalent view seems that Article 51 self-defense is not applicable to the Gaza Strip either. Even though Palestine has now gained a from attack armed an constitute not State do Hamas status, attacks launched by recognize Palestine to be a State while the opinion language suggests that of such recognition the is a Court’s prerequisite to invoking Article 51 self-defense. Nor do Security Council Resolutions 1368 or 1373 seem to apply since they launched refer from Gaza emanate from to within territory that Israel international continues to control. terrorism while terror attacks community does not recognize Palestine. Even Hamas if the as international the community did, legitimate still Israel authority does of not while assuming this prevalent view. view. prevalent this assuming while different from that contemplated by Security Council resolutions [1368 and 1373].” Gaza’s legal status, especially when the “overwhelming consensus” “ occupying power under international law.” R 2015] 14 - R supra context of “international terrorism” but insofar territory which do not constitute international terrorism. Israel controls, they as attacks emanate from Thus, because Israel continues to control Gaza, attacks launched from Gaza do not constitute international terrorism. Therefore, just how 1368 Resolutions and 1373 did not apply to fromGaza. launched are that attacks to apply not do they so Bank, terror attacks emanating from the West and the Protective Function of the Law of Belligerent Occupation 2015), www.btselem.org/gaza_strip/israels_obligations. 2015), gaza-occupation; opiniojuris.org/2012/04/24/disingenuous-disengagement-israels-occupation-of-the-gaza-strip-and-the-pr otective-function-of-the-law-of-belligerent-occupation (“[T]he vigorous academic debate concerning the current status of the Gaza Strip has arrived at an overwhelming consensus over the territory.”) occupied remains Strip fact that the Gaza occupied-and-why-does-it-matter; supra Does It Matter? C Y 37792-fiu_11-1 Sheet No. 142 Side A 04/28/2016 10:11:02 A 04/28/2016 142 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 142 Side B 04/28/2016 10:11:02 M K 1 1 179 C Y and and 184 [Vol. 11:255 11:255 [Vol. A State may may State A In that case in in case that In incident, which which incident, The doctrine of of doctrine The 177 186 178 Gabcikovo-Nagymaros Caroline ECESSITY Furthermore, it cannot be be cannot it Furthermore, interests, today it also also it today interests, N 181 L. 337, 340 (2004–05). 340 337, L. L ’ State note 19, art. 25 cmt. (5). note 19, art. 25. note 19, at art. 25. Necessity has been invoked to to invoked been has Necessity 183 supra supra supra RANSNAT , , , OCTRINE OF OCTRINE note 180. .J.T D supra 185 HE OLUM FIU Law Review Law FIU C ) 4/15/16 8:21 PM Is State of Necessity a Principle of Customary International Law? , 43 , IV: T ELETE D 53 (2007) (writing that State practice does not support the assertion, assertion, the support not does practice State that (writing (2007) 53 , the law of occupation, or the law of self-defense, note 17, ¶¶ 140–43. L OT ’ N The doctrine can only be invoked under strict strict under invoked be only can doctrine The NT O The Plea of “Necessity” in International Legal Discourse: Humanitarian I supra (D 180 ECTION S ROIT DOCX D Sarah Heathcote, Heathcote, Sarah jus in bello opinion, 182 _4.15. at art. 25(2)(a)–(b). Contra Id. States of Responsibility on Articles Draft Id. Wall States of Responsibility on Articles Draft Draft Articles on Responsibility of States of Responsibility on Articles Draft Gabcikovo-Nagymaros Project (Hung./Slovk.), 1977 I.C.J. 7 (Sept. 25). Johnston, Ian Gabcikovo-Nagymaros Project, INAL decision. ELGE DE _F B An early successful case of necessity was the While the plea of necessity was historically only related to the concept concept the to related only historically was necessity of plea the While If not The doctrine of necessity precludes the wrongfulness of a State’s act AIS 178 179 180 181 182 183 184 185 186 177 EVUE invoke the doctrine of necessity if the only way that a State can protect an “essential interest” against a “grave an imminent peril” is by not fulfilling an international obligation of relatively less significance. is usually wrongly referred to as a case of self-defense. 1837, British forces destroyed a United States vessel carrying recruits and arms to Canadian insurgents who wanted to rebel against the British Crown. of self-preservation and encompasses other human security essential interests. necessity is codified Internationally Wrongful Acts, in which was adopted by the International Law the Articles Commission in 2001. It is also on recognized as customary international law Responsibility of as States confirmed by for the ICJ for Project the first time in its prevalent in judicial decisions, that the doctrine of necessity is customary international law).international customary is necessity decisions,of judicial doctrine in the prevalent that Intervention and Counter-Terrorism and Intervention 278 14 - R invoked if “the international obligation in question excludes the possibility of invoking necessity” or “the necessity.” State has contributed to the situation of then perhaps the doctrine of necessity question of can whether an help occupying power used shed force to some protect its civilians light or on to suppress the self-determination. The doctrine of necessity is also known as “state of necessity,” “essential necessity.” interests doctrine,” and the “plea of that is not in conformity with international obligations. safeguard essential interests such as protecting the environment conditions defined in Article 25 of the Articles. ensuring the safety of civilians. of safety the ensuring R 37792-fiu_11-1 Sheet No. 142 Side B 04/28/2016 10:11:02 B 04/28/2016 142 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 143 Side A 04/28/2016 10:11:02 L ’ 194 NT I The The The The 188 195 AW OF The ICJ ICJ The L case since since case 196 HE T The particular particular The Wall in , 193 279 279 United States Secretary Secretary States United 187 189 228 (1956). 228 note 19, art. 25. note 19, art. 26. note 19, art. 25 cmt.(2). opinion, for example, considered considered example, for opinion, PINIONS supra supra supra , , , O Wall , 1841–1842 vol. 30 at 194 (1857), http://hdl.handle.net/ (1857), 194 at 30 vol. 1841–1842 , AW L The essential interest that Israel was was Israel that interest essential The 191 APERS P ) 4/15/16 8:21 PM TATE ELETE S D note 17, ¶¶ 140–43. OT NTERNATIONAL Circumstances Precluding Wrongfulness: Necessity N The ICJ in the the in ICJ The O , 2 I 2 , Analysis of Operation Protective Edge Protective Operation of Analysis OREIGN One of those conditions is that the wrongful act be “the “the be act wrongful the that is conditions those of One supra (D 190 F AIR 192 N DOCX C M 491, 5002010). eds., al. et Crawford (James opinion, _4.15. at 196. at 142. at art. 26 cmt. (5). ORD RITISH AND Id. States of Responsibility on Articles Draft Wall Id. States of Responsibility on Articles Draft States of Responsibility on Articles Draft Id. B L Heathcote, Sarah INAL _F It is important to note that the ICJ did not address the fact that Israel In order to safeguard against abuse, the plea is only accepted on an AIS 187 188 189 190 191 192 193 194 195 196 M K ESPONSIBILITY whether Israel could rely on the doctrine of necessity for its construction of the wall in the West Bank. its construction violated the preemptory norm of self-determination. route of the wall, the ICJ found, was not the only means at Israel’s disposal to safeguard its interest. Israel could have, for example, built the wall on its Westmiles the of into Bank. instead Green Line the of side could never successfully invoke the plea of necessity in the safeguarding was the safety of its civilians. However, the ICJ found that the facts of the case did not meet the strict conditions can be under invoked. which necessity Article Article 26 of the Articles excludes the possibility of invoking the plea of necessity “is if not the in wrongful conformity an act with obligation arising under a preemptory norm of general international law.” R 2015] 14 - R commentaries to the Articles explicitly determination list respecting as the an right to example derogation self- is of possible even a under preemptory the doctrine norm of necessity. from which no The British justified the “necessity of self-defence destruction and self-preservation.” of the vessel by referring to the found that the wall “severely impedes the exercise by the Palestinian people of its right to self-determination and is therefore a breach of Israel’s 2027/mdp.35112103940203. exceptional basis. only way for the State to safeguard an essential interest.” of State Webster stated in his message to Congress, “This government can never concede to any foreign Government the power, except in a case of the most urgent and extreme necessity, of invading its territory.” incident was finally settled governments agreed that “a strong overpowering in necessity may arise when 1842 when maymustprinciple suspended.” and great be this the British and American C Y 37792-fiu_11-1 Sheet No. 143 Side A 04/28/2016 10:11:02 A 04/28/2016 143 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 143 Side B 04/28/2016 10:11:02 M K C Y opinion opinion [Vol. 11:255 11:255 [Vol. Wall EST T The doctrine of of doctrine The 198 ACTOR is inapplicable to the the to inapplicable is -F WO T Jus in bello Given that the Court had already already had Court the that Given 197 FIU Law Review Law FIU ) 4/15/16 8:21 PM ELETE , occupation law, the law of self-defense, nor the D NTRODUCTION TO THE TO NTRODUCTION note 17, ¶ 122. OT N O V: I But how is one to know whether force in Operation Operation in force whether know to one is how But supra (D opinion, for example, the construction of the wall was was wall the of construction the example, for opinion, 199 DOCX instance of the wall in the West Bank, the the Bank, West the in wall the of instance jus in bello Wall opinion, ECTION ¶¶ 132–34. _4.15. S ¶ 140. Wall Id. Id. INAL _F Neither Neither Nevertheless, even though the plea of necessity was unsuccessful in In the particular AIS 197 198 199 doctrine of necessity offer appropriate guidance to determine whether force used by an occupying power was to protect its people’s civilians or right to suppress to a self-determination. Protective Edge was wrongfully used to suppress the Gazans’ struggle for self-determination? This is the very question that this answer. Even Comment determining seeks whether the to plea of necessity is excluded under Article 26 requires a preliminary determination of whether force the violated preemptory norm of doctrine of the necessity itself right necessitates answering the to question at issue self-determination. this Comment. It, therefore, does in not help to determine whether force by Applying an the occupying power was determination. used to protect civilians or to suppress self- 280 obligation to respect that right.” 14 - R necessity was considered by the ICJ only after the wrongfulness of the wall was established. concluded concluded that the preemptory norm—it was wall unnecessary for it violated to even necessity conduct analysis. the the The plea plea of is right unavailable if preemptorynorm. the to wrongful act self-determination—a violates a the long as it does not violate the obligation to respect the Palestinians’ right to self-determination in the process. In effect this means that the doctrine necessity of does not help answer the protect civilians or to suppress question self-determination. This is because necessity whether force was used precluding to the wrongfulness of an act presumes a wrong act, which brings us back to the question self-determination). suppressing of purpose whether force was in fact wrong (i.e., for the wrong because it Convention and the Hague Regulations, including violated the destruction of private several provisions property of the of occupied inhabitants, as the well as International several Fourth Covenant on provisions the Civil and of Political Rights. the Geneva shows that Israel can in principle rely terror attacks emanating from the Occupied Palestinian on Territory. That is as necessity to use force against 37792-fiu_11-1 Sheet No. 143 Side B 04/28/2016 10:11:02 B 04/28/2016 143 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 144 Side A 04/28/2016 10:11:02 case, for for case, Wall 281 281 note 136. supra ) 4/15/16 8:21 PM The Court did not refer to any law or legal test test legal or law any to refer not did Court The note 135; SC Resolution 1373, ELETE 202 D supra note 17, ¶ 121. OT N O Analysis of Operation Protective Edge Protective Operation of Analysis supra (D It determined so after carefully considering all facts and and facts all considering carefully after so determined It As for the doctrine of necessity, it presumes a wrong act, act, wrong a presumes it necessity, of doctrine the for As DOCX 201 200 opinion, _4.15. ¶ 116. Wall Id. SC Resolution 1368, INAL _F It follows, therefore, that tackling the question would require a factual This Comment proposes a two-factor test to help with the factual AIS 200 201 202 M K arguments both defending the wall (including the argument that the wall is a temporary structure to conflict) be and opposing it. dismantled upon a final resolution to the 2015] 14 - R U.N. Security Council Resolutions international 1368 and terrorism 1373, from Occupied which Palestinian Territory extends non-State (including to Gaza) is actors, Israel. within Attacks the emanating from control within relevant of the Occupied Palestinian Territory, because therefore, the do Resolutions. not constitute “international terrorism” under the question at hand conducted since once it they have merely begun, and behind the governs use of is force. Furthermore, occupation unconcerned how law in general with is inapt to armed the motives deal hostilities with the question are since it developed occupation outside and, therefore, does not the account for self-determination. The context law of colonial of self-defense, Article 51 of the U.N. Charter specifically, is inapplicable against attacks launched by Hamas since it is not a State actor and Article 51 is traditionally interpreted as applying only to force used by against one State another. Nor is the new conceptualization of self-defense under determination on a case-by-case example, basis. found that The the wall ICJ in the in West right Bank to self-determination because it the violated created a “fait acompli,” which the would Palestinians’ eventually become annexation.” permanent and be “tantamount to de facto which brings us back to the question of whether force (i.e., was indeed was wrong it used to regimes suppress or self-determination?). doctrines directly None or of even issue these indirectly legal answers in the this question at Comment. hand. at issue determiningthe Neither forms an appropriate legal basis for self-determination. determination. The test involves the following two factors: necessary (1) to was combat the force threat to Israel’s inhabitants; and (2) did force go beyond that which was necessary to combat the threat? “Necessary” under as the basis for its determination, which we now know legal is because basis such does a not exist. A similar determine factual whether determination force is used required in to Operation legitimate purpose of Protective protecting civilians or for suppressing the struggle for Edge was for the C Y 37792-fiu_11-1 Sheet No. 144 Side A 04/28/2016 10:11:02 A 04/28/2016 144 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 144 Side B 04/28/2016 10:11:02 M K C Y jus ad ETHERLANDS necessity. necessity. [Vol. 11:255 11:255 [Vol. If force goes goes force If jus in bello , 41 N jus ad bellum 203 proportionality is is proportionality jus ad bellum Jus in bello affair, “the act justified by the necessity ...... necessity the by justified act “the affair, FIU Law Review Law FIU ) 4/15/16 8:21 PM ELETE Necessity and the Use of Force: A Special Regime D OT Caroline N O (D DOCX L. 11, 15 (2011). (2011). 15 11, L. _4.15. L ’ Nicholas Tsagourias, Tsagourias, Nicholas INAL necessity, the factors do not form a legal basis for the use of force. force. of use the for basis legal a form not do factors the necessity, NT I _F Nor should the two-factor test be confused with The two-factor test should not be confused with either the doctrine of The second factor should not be confused with When When it comes to the second factor, if an occupying power is indeed AIS 203 OF exhaustive list of factors that a fact-finder may purpose of the employ use of to force by determine an occupying power. the Sequentially, the two- necessity. of doctrine the than analysis the comesin test earlier factor beyond that which was necessary to protect inhabitants, then the excess is self-determination.suppressing illegitimatethe of for purpose likely necessity precluding the wrongfulness of an act or doctrine the of conditions the of some to similar is test two-factor the While of necessity, the legal status and the different. While the doctrine of necessity is customary international law that purpose of the two are completely precludes the wrongfulness of an act, the two-factor test is simply a non- used by Israel was indeed for the purpose of Gazans’self-determination.the to suppress right aimto its was whether protecting its inhabitants or necessity. While the two seem extremely similar in their that— just are content, factors The purpose. and they status legal their in are different wholly factors. They simply help purpose make behind the a use factual of force determination bellum by regarding an occupying the power. Unlike This Comment has already established that Israel cannot rely on any legal basis, except the doctrine of necessity, to use force against attacks launched by Hamas in Gaza. The factors simply help determine whether the force Y.B. protecting its inhabitants, it would use only so much force as is necessary to combat the threat and no more. The concept is similar to Daniel Webster’s statement during the it.” within clearly kept and necessity that by limited be must 282 the first factor available. means If force was that not necessary to no protect means inhabitants of protection were because available and viable other feasible, then this is an indication non-forceful that alternatives were force determination. was The condition that alternative means be feasible for anticipates situations when other the means may be available but not illegitimate feasible for reasons such as temporal constraints. A threat may purpose be imminent while non-forceful of implement. to time take may means suppressing self- 14 - R proportionality as the two seem very similar. concerned with whether the harm to civilian life and property was 37792-fiu_11-1 Sheet No. 144 Side B 04/28/2016 10:11:02 B 04/28/2016 144 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 145 Side A 04/28/2016 10:11:02 : HE IVES , T L Jus in 204 Were Gaza EIGHING (July 17, 2014), 2014), 17, (July W LOG 283 283 EST TO EST UNNELS T T , IDF B S ’ ACTOR AZA -F note 207 (citing leader of Hamas’ Qassam —G WO T supra (Aug. 11, 2014), http://972mag.com/were-gaza- 2014), 11, (Aug. DGE E AG M They run across the border from Gaza Gaza from border the across run They Could Israeli Soldiers, Not Civilians, Be the Target of the These tunnels, built by Hamas, reach up to 206 It was through a tunnel that Hamas had had Hamas that tunnel a through was It , 972 205 208 although it is more likely that the target of the the of target the that likely more is it although ) 4/15/16 8:21 PM note 207; Yalin, (Jens Ohlin et al. eds., forthcoming 2016), www.academia.edu/ 2016), forthcoming eds., al. et Ohlin (Jens PPLYING THE PPLYING 207 (July 29, 2014, 1:03 PM), www.timesofisrael.com/soldiers-not- PM), 1:03 2014, 29, (July ROTECTIVE A Theory of Jus in Bello Proportionality, in ELETE AR P D W supra OT SRAEL VI: A I N O Analysis of Operation Protective Edge Protective Operation of Analysis (D IMES OF DOCX IVILIANS IN PERATION ECTION S , T O &C _4.15. Inside the Tunnels Hamas Built: Israel’s Struggle Against New Tactic in Gaza War The IDF’s Mission in Gaza: Destroy Hamas Terror Tunnels Aaron Klein & Mitch Ginsburg, (Aug. 2, 2014, 10:16 AM), www.theguardian.com/world/2014/aug/02/tunnels-hamas-israel- AM), 10:16 2014, 2, (Aug. Klein & Ginsburg, Ginsburg, & Klein Adil Ahmad Haque, Haque, Ahmad Adil INAL _F The two factors are simply that a considerations fact-finder should take proportionality, in other words, tries to weigh the cost to civilian life life civilian to cost the weigh to tries words, other in proportionality, One of the officially stated purposes of Operation Protective Edge was AIS 205 206 207 208 204 M K UARDIAN OMBATANTS could be wholly disproportional to the military advantage sought and yet be hand. at threat the combat to necessary is which that of limits the within into account when making a factual determination on the the use purpose of force by an behind occupying power. They help ground the analysis and provide some level of uniformity in analyses from case to case. The factors neither are conclusive in and exhaustive list of factors of to consider when making themselves a factual determination. nor do Rather, they should be they used alongside other relevant considerations, if constitute any, an issue.at occupation the of context larger the within viewed be should and bello and property against the military gain factors proposed achieved. in this Comment, The however, does not second consider the harm of to the two civilian life or property at all. Nor does it involve a weighing of against the harm the military advantage gained. Rather, concerned with the whether the force used, second regardless of whether or factor not it was is only proportional to the military advantage sought, went beyond that which was necessary to combat the threat at hand. The harm from the use of force struggle-gaza-war. to destroy the “terror tunnels.” tunnels-built-to-harm-israeli-civilians/95279. thirty meters below the ground. tunnels were Israeli soldiers. www.idfblog.com/blog/2014/07/17/idf-begins-ground-operation-gaza. G 2015] 14 - R C Attack Tunnels? Brigade’s interest in targeting Israeli soldiers over civilians). over soldiers Israeli targeting in interest Brigade’s proportional proportional to the direct and concrete military advantage sought. civilians-are-tunnel-infiltration-goals-says-senior-intelligence-source; Emanual Tunnels Yalin, Built to Harm Israeli Civilians? 11341774/A_Theory_of_Jus_in_Bello_Proportionality. into Israeli territory. According to Israeli Prime Israeli Minister army, Netanyahu, and other the Israeli officials, the “sole civilians, Israeli kill to purpose” was of the tunnels C Y 37792-fiu_11-1 Sheet No. 145 Side A 04/28/2016 10:11:02 A 04/28/2016 145 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 145 Side B 04/28/2016 10:11:02 , M K 218 C Y supra (Mar. (Mar. , Tunnels-to- , UNISPAL ATIONAL (Aug. 14, 2014, 2014, 14, (Aug. N [Vol. 11:255 11:255 [Vol. note 6. HE (Aug. 7, 2012, 5:15 5:15 2012, 7, (Aug. General Sisi of of Sisi General , T MERICA 216 OST supra A P , AZEERA J According to the Israeli Israeli the to According L ERUSALEM The tunnel trade with Egypt Egypt with trade tunnel The 212 , A , J 215 All tunnels leading into Israel opened opened Israel into leading tunnels All 209 In some cases, Egypt flooded the tunnels. the flooded Egypt cases, some In note 207. Reports on tunnels leading to Israeli kindergartens kindergartens Israeli to leading tunnels on Reports 207. note FIU Law Review Law FIU ) 4/15/16 8:21 PM Gaza’s Tunnel Paradox 217 210 supra ELETE !(Aug. 5, 2014), www.democracynow.org/2014/8/5/ceasefire_after_ 2014), 5, !(Aug. D OW OT N N Early Failure to Detect Gaza Tunnel Network Triggers Recriminations in O (D DOCX .J. (Aug. 10, 2014), www.wsj.com/articles/gaza-tunnel-network-fuels-recriminations- 2014), 10, (Aug. .J. EMOCRACY The tunnels to Egypt were used to smuggle in goods after Israel Israel after goods in smuggle to used were Egypt to tunnels The Gaza Ceasefire: After 1,800+ Dead, What Led Israel to Stop the Assault—And What T S _4.15. ; ; Klein & Ginsburg, (Aug. 13, 2014), http://mondoweiss.net/2014/08/kindergartens-propaganda-netanyahu. D 214 Egypt Moves to Seal off Gaza Smuggling Tunnels Id. Id. Inside the Tunnels Hamas Built: Israel’s Struggle Against New Tactic in Gaza War Egyptian Military Says It Destroyed 1,370 Gaza Smuggling Tunnels Is the Closure of the Tunnels from Egypt Further Suffocating the Gaza Economy? Timeline 1,940 Days from Gilad Shalit’s Abduction to His Release His to Abduction Shalit’s Gilad from Days 1,940 Timeline Alejandra Azuero-Quijano, Azuero-Quijano, Alejandra Asa Fitch et al., al., et Fitch Asa INAL ALL This discovery was made after Israel had already launched launched already had Israel after made was discovery This 213 _F Applying the first factor of the two-factor test, it is clear that the use of While While Israel had known about the existence of the tunnels “for some 211 , W AIS 213 214 215 216 217 209 210 211 212 ONDOWEISS force was not necessary to combat the threat posed by the tunnels because of the availability of viable fourteen non-forceful tunnels that connected to Israel, alternatives. there were around 1,400 While that lead there were to Egypt. military, military, there were forty such tunnels Israel. of which fourteen connected to within a few hundred meters of the Israel-Gaza border, communities.civilian into and none opened in-israel-1407714903. and other civilian areas were later Kindergartens discovered Propaganda to Netanyahu be Peddled to false. NYT James and North M CNN & Is Exploded Phil by Weiss, Israeli News Site 284 kidnapped Israeli soldier, Gilad Shalit, in 2006, who was later released 2011 in in a prisoner swap deal. 14 - R (Feb., 2014), https://unispal.un.org/pdfs/WFP_SpFocus-GazaTunnels.pdf. 2014), (Feb., Comes Next? Israel 12, 2014, destroyed-1-370-gaza-smuggling-tunnels. 8:49 PM), www.thenational.ae/world/palestinian-territories/egyptian-military-says-it- PM), www.jpost.com/Middle-East/Egypt-moves-to-seal-off-Gaza-smuggling-tunnels. time,” it was not aware of just how was. vast and effective the tunnel system 6:00 AM), http://america.aljazeera.com/opinions/2014/8/gaza-tunnel-siegeisraelidfblockade.html. AM), 6:00 Egypt neutralized the threat of the tunnels by simply sealing them off at the Egyptian side of the border. where they gunned down sixteen Egyptian border guards. was was essential for Gaza’s economy following the imposition of the siege in 2007. In one incident, militants also used the tunnels to cross into Egypt Hamas rocket fire to destroying the tunnels. Operation Protective Edge. Upon discovery of some the Israeli officials, tunnels, the objective according of the to operation shifted from stopping imposed a siege on Gaza, development of an active underground trade. which crippled its economy and led to the note 206. note 37792-fiu_11-1 Sheet No. 145 Side B 04/28/2016 10:11:02 B 04/28/2016 145 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 146 Side A 04/28/2016 10:11:02 HE note note , T supra , The lack of of lack The (Feb. 21, 2013), 2013), 21, (Feb. 226 285 285 ONITOR M L Following Operation Operation Following Amnesty International International Amnesty A 224 225 was completely unnecessary to to unnecessary completely was 223 Striking the schools, which resulted resulted which schools, the Striking 221 222 July 30, 2014), www.amnesty.org/en/news/israelgaza-attack- ( ) 4/15/16 8:21 PM ELETE D Gaza Crisis: A Closer Look at Israeli Strikes on UNRWA Schools OT N Egypt Floods Gaza’s Smuggling Tunnels, O Analysis of Operation Protective Edge Protective Operation of Analysis NTERNATIONAL (D I DOCX MNESTY _4.15. note 217. , A See Israel/Gaza: Attack on U.N. School in Gaza a Potential War Crime That Must Be Early Failure to Detect Gaza Tunnel Network Triggers Recriminations in Israel Gaza Ceasefire: After 1,800+ Dead, What Led Israel to Stop the Assault—And What Comes Id. Id. Id. Id. (Aug. 8, 2014, 2:31 PM), www.theguardian.com/world/2014/aug/08/-sp-gaza-israeli-strikes- PM), 2:31 2014, 8, (Aug. It had spent several years and a significant amount of money on the the on money of amount significant a and years several spent had It Raya Jalabi et al., al., et Jalabi Raya Abeer Ayyoub, Ayyoub, Abeer INAL It was not as if using force was the better or more effective option. option. effective more or better the was force using if as not was It _F 219 supra In fact, non-forceful measures were available to Israel for years before Applying the second factor of the two-factor test, the force used by 220 , AIS 220 221 222 223 224 225 226 218 219 M K UARDIAN in the deaths of forty-seven civilians, these were not the schools that Israel targeted. combat the threat posed by the tunnels. rocket It attacks, was the also second unnecessary to stated stop purpose since the schools of were not Operation housing Hamas Protective members or rockets. Edge, While the UNRWA found Hamas rockets stored in some of the agency’s schools, un-school-gaza-potential-war-crime-must-be-investigated-2014-07-30. 212. In fact, because the tunnels were deep shells. bombsartillery to or vulnerable below the ground, they were not Next? G gaza_assault_leaves_1800. 2015] 14 - R Investigated Protective Edge, Amnesty International published a report, which revealed “a pattern of frequent Israeli civilian homes, sometimes killing entire families.” attacks using large aerial bombs to level www.al-monitor.com/pulse/en/contents/articles/originals/2013/02/egypt-floods-gaza-tunnels.html#. www.al-monitor.com/pulse/en/contents/articles/originals/2013/02/egypt-floods-gaza-tunnels.html#. Egypt did not have to go into Gaza and use threat. tunnel the with deal devastating force in order to Operation Protective Edge. The Israeli Defense Ministry was considering digging a moat around Gaza to stop 2000. the tunnels as far back as the year Israel went beyond that which was necessary to combat the threat posed by the tunnels, indicating a motive other than the neutralization of a threat to its inhabitants. For example, Israel times multiple Palestinians displaced struck (UNRWA) Agency sheltering schools United Nations Relief Works despite the fact that the UNRWA had informed the Israeli schools’ military coordinates multiple of times. the found that some of the attacks served no military purpose. military purpose for the strikes on homes goes beyond that which was unrwa-schools. idea. C Y 37792-fiu_11-1 Sheet No. 146 Side A 04/28/2016 10:11:02 A 04/28/2016 146 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 146 Side B 04/28/2016 10:11:02 , , M K 230 231 C Y Four of of Four 228 [Vol. 11:255 11:255 [Vol. Yossi Wolfson, see (Mar. 7, 2015), www.nytimes.com/ 2015), 7, (Mar. IMES , N.Y. T Israeli soldiers also shot dead four four dead shot also soldiers Israeli 229 FIU Law Review Law FIU ) 4/15/16 8:21 PM ELETE D OT Winds of War in Gaza Gaza Crisis: Palestinian Death Toll Climbs Past 500 as Hospital Is Hit N O (D ! (Sept. 12, 2014), www.democracynow.org/2014/9/12/the_untold_story_of_the_ DOCX OW (July 21, 2014), www.theguardian.com/world/2014/jul/21/gaza-crisis-obama-ceasefire- 2014), 21, (July N _4.15. Following Operation Cast Lead in 2008-2009, Israeli Prime Prime Israeli 2008-2009, in Lead Cast Operation Following Israeli soldiers allegedly drew an imaginary, arbitrary red line line red arbitrary imaginary, an drew allegedly soldiers Israeli The Untold Story of the Shejaiya Massacre in Gaza: A Former Israel Soldier Speaks Out Id. Id. Id. Peter Beaumont, Beaumont, Peter Kristof, Nicholas 232 INAL 227 _F Other considerations that support this finding are certain statements Therefore, the use of force was not necessary to combat the threat Furthermore, at least 120 Palestinians were killed during the Shujaiyah UARDIAN AIS 227 228 229 230 231 232 G EMOCRACY HE 2015/03/08/opinion/sunday/nicholas-kristof-winds-of-war-in-gaza.html?_r=1; fighting-goes-on. unarmed members of the Shamaly family after breaking into their home. went far beyond that which was necessary to destroy the tunnels (or even to stop the rocket attacks), indicating that the motive behind the use of force lives. Israeli of protection the somethingthan was other officials Israeli policies. Israeli official and certain made by officials Israeli have themselves stated their intentions to suppress the Gazans’ struggle for self-determination or destroy their openly national admitted liberation by movement. Ministry, It that Israeli the aim is of officials, Israel’s policy towards Gaza is including to miserable make for Gazans that life it forces those them so to turn against the government of in the Hamas. Defense A fifth member of the Shamaly family was among shot the rubble while for he his family was members searching during a temporary ceasefire. The indiscriminate force used in Shujaiyah went well was beyond necessary to that combat the which threat of either the tunnels or Hamas rockets. The intentional targeting of civilians nothing without towards military purpose the achieves end members in order to protect Israeli The inhabitants. excessive of use of force destroying the without military tunnels purpose indicates a or motive other killing than lives. Israeli the Hamas protection of posed by the tunnels as Israel could have simply sealed them off or flooded them like Egypt did. Additionally, in several instances, the force Israel used 286 necessary to combat the threat of the tunnels (or even the threat Hamas posed This rockets). a indicates motive other by than the of protection Israeli lives. assault. 14 - R D T Mohammed Mohammed Fathi Al Areer’s brothers, including sibling, his were mentally shot disabled in cold blood. shejaiya. and shot anyone who crossed it, whether civilian or combatant. 37792-fiu_11-1 Sheet No. 146 Side B 04/28/2016 10:11:02 B 04/28/2016 146 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 147 Side A 04/28/2016 10:11:02 ET HE , T (May , YN legal legal OST (Aug. 30, 30, (Aug. P , CNN (Mar. OST P opinion that that opinion But to return return to But (Oct. 17, 2012), 2012), 17, (Oct. 236 Israel Used “Calorie UFFINGTON Wall jus in bello 287 287 , H , ERUSALEM UARDIAN , J G HE , T 235 (Jan. 21, 2008), http://electronicintifada.net/ 2008), 21, (Jan. ONCLUSION Toppling or weakening the resistance resistance the weakening or Toppling Meanwhile, in 2001, a camera caught caught camera a 2001, in Meanwhile, NTIFADA I 233 234 VII: C ) 4/15/16 8:21 PM Gaza on Brink of Implosion as Aid Cut-off Starts to Bite LECTRONIC ECTION E ELETE S D HE Israel’s PM Netanyahu: No Palestinian State on My Watch OT N , T O Netanyhu: Toppling Hamas Remains an Option Analysis of Operation Protective Edge Protective Operation of Analysis (D Ya’alon Reiterates: Israel Chose Not to Topple Hamas During Gaza Op DOCX _4.15. Netanyahu in 2001: America Is a Thing You Can Move Very Easily Very Move Can You Thing a Is America 2001: in Netanyahu (Apr. 15, 2006), www.theguardian.com/world/2006/apr/16/israel; www.theguardian.com/world/2006/apr/16/israel; 2006), 15, (Apr. Herb Keinon, Keinon, Herb McLaughlin, Elliot Zitun, Yoav INAL _F As the law currently stands, no legal basis exists to ground an answer When considering the above in light of the fact that the occupation has has occupation the that fact the of light in above the considering When (Sept. 30, 2014), www.ynetnews.com/articles/0,7340,L-4576235,00.html. AIS 233 234 235 236 M K UARDIAN EWS Count” to Limit Gaza Food During Blockade, Critics Claim 2014), www.jpost.com/Israel-News/Politics-And-Diplomacy/Netanyahu-Toppling-Hamas-remains-an- option-372828. to the question of whether force used by an occupying power was purpose of for protecting the its inhabitants or for suppressing a people’s struggle for self-determination. Although the ICJ concluded in the IHL applies to the Occupied Palestinian Territory, the surrounding circumstances, seems to be people. its defending than defending its occupation rather to a “calm” effectively means to return to a situation of no resistance while the siege and control of Gaza’s borders, Insofar as the aim was waters, for the Palestinians to and give up any and all airspace resistance continues. and acquiesce to their condition, it is a violation of the obligation to respect their right to self-determination. Echoing John Duggard’s conclusion, purpose the of Israel’s use of force, in light of the two-factor test and content/economic-warfare-gaza/7308; 16, 2015), www.cnn.com/2015/03/16/middleeast/israel-netanyahu-palestinian-state. 2015), 16, G N Economic Warfare in Gaza 2015] 14 - R capacity of an elected government (and also a liberation group) is probably the clearest violation determination. of Most recently, Israeli Prime the Minister Netanyahu said obligation in an interview in March of 2015 to that as long as he is in power, he will not allow respect the the creation of a right Palestinian State. to self- Minister Minister Netanyahu stated that the operation should have lasted longer so the IDF could have toppled Hamas. been running for forty-eight years, it becomes even more likely that the aim of Operation Protective Edge was not simply to protect Israelis, but rather to stop Palestinian resistance all together. The head of the IDF’s Planning Division stated that the aim of Operation Protective Edge was to return to the status quo, which he described as a “calm in the south.” www.theguardian.com/world/2012/oct/17/israeli-military-calorie-limit-gaza. 25, 2011), www.huffingtonpost.com/2010/07/16/netanyahu-in-2001-america_n_649427.html?. 2011), 25, Netanyahu describing how he manipulated the peace process in a way that void. and null Accords Oslo the left have would C Y 37792-fiu_11-1 Sheet No. 147 Side A 04/28/2016 10:11:02 A 04/28/2016 147 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 147 Side B 04/28/2016 10:11:02 M K C Y Jus in bello [Vol. 11:255 11:255 [Vol. FIU Law Review Law FIU ) 4/15/16 8:21 PM ELETE D OT N O (D DOCX _4.15. INAL _F Absent an appropriate legal basis, answering the question requires a AIS of tunnels (or even the threat posed by Hamas rockets). Both these factors are indicators of an intent to protect suppress Israeli Palestinian resistance inhabitants. rather When than including considered how long the within occupation has the lasted, statements made larger officials, by the crippling Israeli siege context, of Gaza, and certain official Israeli policies, it becomes even more likely that force was part of a larger policy to suppress Palestinian self-determination. Operation Protective Edge, it appears, was Israelis. defending than rather occupation the defending about case-by-case factual determination. The purpose proposed in this of Comment, is to the assist with that two-factor factual determination and test, provide some level of uniformity in analyses from case to case. Application of the two-factor test to the issue of shows tunnels leading that from Israel Gaza likely to Israel used force suppress during Palestinian resistance rather Operation than to Protective protect its Edge inhabitants. Using to bombs and artillery shells to destroy the tunnels, resulting in a large number of casualties, was not the only viable means with which Israel could combat the threat of the tunnels. Israel could have simply sealed the tunnels at end its or flooded them like excessive and went Egypt beyond that which did. was necessary to Additionally, combat the threat the force used was Palestine as a State, and even if it did, the attacks were launched by Hamas, which is a non-State actor. Nor does defense the under new U.N. conceptualization of Security self- Council Resolutions 1368 encompasses and armed 1373, attacks which by non-State actors, apply attacks since emanate from the territory within relevant the control of Israel. Therefore, they do not constitute Resolutions the refer. type Lastly, while of the Israel’s “international doctrine use of force, of it terrorism”does not necessity form an can appropriate to legal basis apply to analysis ground which to of the the issue at necessity presumes play a wrong in act, which this brings us Comment back whether force used by to an occupying power was indeed wrong (i.e., either. whether the question of The doctrine of self-determination). to right the suppress to used was it 288 regime is irrelevant to the question posed in only deals this with Comment. how warfare is conducted once an armedand is struggle not begins concerned with the motives behind the use of force. law Nor of occupation, is in the general, relevant to this question because the law of occupation was developed outside the context of colonial occupations and, thus, does not take into account issues of self-defense self-determination. is The law an of inappropriate legal Article basis 51 of the U.N. to Charter self-defense traditionally only applies to an ground an analysis armed since attack by one State against another. Israel does not recognize 14 - R 37792-fiu_11-1 Sheet No. 147 Side B 04/28/2016 10:11:02 B 04/28/2016 147 Side Sheet No. 37792-fiu_11-1