A Legal Exploration of the 2014 Gaza Conflict

44 The Undergraduate Law Review at New York University Vol III: Issue II lawless waR: Katherine Alexandra Yusko New York University I. Introduction In the summer of 2014, the Israeli Defense Forces and the Palestinian militant group Hamas engaged in one of the most devastating episodes in the unprecedented for the struggle between these parties – raised serious questions and sparked investigations into the militant conduct of both sides. The United Nations published an investigation report in 2015 declaring that both the State of Israel and Palestinian militant groups may have participated in serious international legal violations and, in certain cases, war crimes during the 2014 escalation.1 Rejected by both of the feuding parties, the UN’s investigation report represents only one of many inquiries into the facts and legalities of the 2014 Gaza War, which levied steep consequences upon both sides. Israelis were left dead, with upwards of 11,000 Palestinians and up to 1,600 Israelis injured. Approximately 65% of Palestinian casualties were civilian.2 In Gaza, approximately 18,000 housing units were destroyed, leaving 108,000 people homeless and 28% of the population displaced, while $25 million worth of civilian property was damaged in Israel.3,4 than 6,000 Israeli airstrikes and nearly 5,000 Gazan rockets.5 Reports investigating the details of these numbers have come to mixed conclusions about the legal and moral validity of each side’s actions. This article explores the legal framework employed by the UN, the Israeli government, and participating Palestinian militant groups to justify or condemn the actions taken the warring parties since. Taking into account the passage of time since the events of 2014 and the lack of change in conduct on both ends, this examination of the used to evade accountability. II. The United Nations Independent Inquiry Gaza Report establishes that “Israel and the Palestinian armed groups [relevant] to referring to the 1907 Hague Relations, the four Geneva Conventions of 1949, and their Additional Protocols I and II as standard, internationally recognized statutes Spring 2020 Lawless War 45 for armed conduct. The report concludes that, based on Article 42 of the 1907 Hague Regulations, Gaza remains under the occupation of the State of Israel, and to the situation.6 The investigative commission describes three main principles on the conduct of hostilities, as outlined by Additional Protocol I: (1) The principle of distinction distinguish between civilians and civilian objects on the one hand, and combatants and military objectives on the other. Attacks may only be directed against the latter... (2) The principle of proportionality prohibits attacks that are expected to cause incidental loss of life or injury to civilians or damage to civilian objects, which would be excessive in relation to the concrete and direct military advantage anticipated. (3) The principle of precautions in attack requires all parties to take all feasible measures to avoid and in any event to minimize incidental loss of civilian life, injury to civilians and damage to civilian objects...7 The United Nations investigation ultimately found that both the Israeli Defense Forces (IDF) and the involved Palestinian militant groups were likely in serious violation of these principles. As far as offenses on the Palestinian side, the commission condemns the militants’ use of rocket, mortar, and tunnel attacks against Israeli civilians as a terror mechanism, given the lack of any military advantage to be gained through these attacks and based on statements made by such groups.8 Such acts are deemed illegal under international humanitarian law (embodied largely in the Geneva Conventions and the two Additional Protocols), and the targeting of civilians is in violation of Palestinian armed groups are also accused of carrying out military operations from highly populated locations as well as from civilian buildings, such as hospitals and schools, which violates the principle of precautions. They are further criticized for the illegal use of civilian presence – “human shields” – to protect military assets. In addition, the report notes their failure to evacuate the civilian population from IDF warnings that they should leave the area before an attack – though it is worth noting that the report does not consider these “roof-knocks” or other means of 9,10 The Israeli Defense Forces, however, are also charged with the potential violation of the principle of distinction based on numerous accounts of Gazan 11 The report condemns 6 United Nations Human Rights Council, supra note 1, at 9-10. 7 Id. at 11. 8 Id. at 9-10. 9 Id. at 16. 10 Id. at 14. 11 Id. at 15. 46 The Undergraduate Law Review at New York University Vol III: Issue II the IDF’s extensive use of targeted airstrikes on residential buildings, noting that buildings and that the timing of attacks in the early morning and evening increased the likelihood of residents being home – especially during Ramadan, when much of 12 In addition, these attacks were largely carried out in “densely populated areas,” meaning that the expected civilian casualties would have been high. According to the report, these factors “indicate that the Israel Defense Forces may not have done everything feasible to avoid or limit civilian casualties,” thus violating the principle of precautions and potentially the principle of distinction. Furthermore, because the expected military gain was not great enough to warrant such excessive destruction and civilian casualties, the report suggests that the IDF may also have violated the principle of proportionality.13 The IDF is further criticized for its extensive use of explosive weaponry in these dense areas and near protected buildings – such as hospitals and shelters – sometimes during the enactment of the and potential targeting of civilians.14 It is worth noting that the aforementioned “densely populated areas” appear to be central to the offenses of both sides. The Gaza Strip itself is a small, densely civilians. To its credit, the commission acknowledges this reality and recognizes that full precautionary measures were not taken “to the maximum extent feasible” by either side.15 among others, as breaches of international law and as potential war crimes if their 16 Thus, this that their opponents and (supposedly) impartial critics condemned. III. The Palestinian Defense the religious and the political, with the occasional convergence. Leading militant groups, including Hamas and the Palestinian Islamic Jihad (PIJ), tend to operate, on characterized by much of the international community as acts of terror. Like many religions, Islam does not condone senseless violence, but it does allow for self- defense. Hamas leadership has used this sanction to rationalize its defense of 12 Id. at 9. 13 Id. at 10. 14 Id. at 12. 15 Id. at 15. 16BBC News (June 22, 2015), https:// www.bbc.com/news/world-middle-east-33223365. Spring 2020 Lawless War 47 Palestinian dignity, pride, and physical health against Israeli degradation.17 Other jihad, considered by Islamic casualties as possible on the enemies of Islam” – in this case, the Israelis.18 Thus, Hamas and a number of other militant groups do not operate within the framework Islamic law, which they perceive to be much higher. because, as one might expect, they do not hold as much authority in an international court of law. To refute Israel’s and the UN’s charges against them, militant parties Gaza, as opposed to a larger spiritual war. For instance, in response to the Israeli statement cites testimonies from the Israeli organization “Breaking the Silence” and an interview with a UNWRA spokesperson as contradictory evidence.19 Responding to the internationally recognized taboo on indiscriminate weaponry, some argue that the limited weaponry of armed Palestinian groups impedes their capacity to make precise, targeted attacks on non-civilian actors and assets. Furthermore, a Hamas statement emphasizes that the few Israeli civilian casualties were the mistaken victims of “modest weaponry” while claiming that Israel used highly advanced precision weaponry to intentionally kill two thousand Palestinian civilians.20 However, the UN investigation declines Hamas a pardon, noting that a lack of precision weaponry does not remove a party’s obligation to avoid civilian targets and indiscriminate attacks.21 In response to this legal obligation, some militants offer a view expressed by Mahmoud al-Zahar, the co-founder of Hamas: “all Israelis are potential soldiers. They are all potential killers of Palestinians. When Israelis kill our women and children, are they not terrorists?”22 This chilling sentiment touches on another common defense of Palestinian militants’ actions – that the rockets and civilian attacks are simply a response to Israeli aggression and oppression and that their legal violations are responses to Israeli legal violations. As one of Hamas’ founding members, Abdel Aziz al-Rantisi, explained to one author: “you think we are the aggressors. That is the number one misunderstanding. We are not; we are the victims.”23 17 Mark Juergensmeyer, terror in the minD of goD: the globAl riSe of religioUS ViolenCe, 3rD eD. 82 (2017). 18 Shaul Mishal and Avraham Sela, the pAleStiniAn hAmAS: ViSion, ViolenCe, AnD CoexiStenCe 77 (2006). 19 “A Press Statement: On the Israeli Report Regarding the 2014 Aggression on Gaza,” The Islamic Resistance Movement HAMAS – Palestine (June 15, 2015), https://hamas.ps/en/post/63/a- press-statement-on-the-israeli-report-regarding-the-2014-aggression-on-gaza. 20 Ibid. 21 United Nations Human Rights Council, supra note 1, at 9. 22 Michael Shaw Bond, the poWer of otherS 75 (2015). 23 Juergensmeyer, supra note 17, at 75. 48 The Undergraduate Law Review at New York University Vol III: Issue II IV. The Israeli Defense According to an IDF statement on the events of Operation Protective Edge, attacks were carried out in response to increased rocket activity from the Gaza Strip with the aim of restoring security in southern Israel.24 This statement of purpose from that of the Palestinian narrative.

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