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 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 published an investigation report in 2015 declaring that both the State of 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 , which levied steep consequences upon both sides. were left dead, with upwards of 11,000 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, , 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 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 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. A statement released by the Israeli Ministry of Foreign Affairs asserted that Israel’s actions during the 2008 Gaza War were “right and obligation to defend itself and its citizens from attack.”25 Indeed, there is a powerful simplicity to this assertion; it is a government’s foremost duty to protect its people, particularly when the vast majority of its people belong to a group violently persecuted throughout history. Another powerful defense is that of Israel’s war against “terrorist organizations” in the and that of Israeli civilians.26 Not unlike Hamas’ aforementioned rationale, Israeli arguments maintain that the use of such force against Gazan militants is legitimate because “each and every [Palestinian] missile constitutes a crime against humanity.”27 By distinguishing Hamas and other militant groups as terrorists, Israel maintains its position as the victim of extrajudicial, non-state violence that alters or perhaps invalidates their obligations under international law. To address the UN’s accusations, Israel employs a series of more tangible, IDF attacks carried out during Operation Protective Edge were fully within the law. According to this document, the IDF never permitted any civilian targeting, and the extensive civilian casualties and property damage were both overstated by 28 Additionally, the IDF “has developed strict procedures and oversight for compliance with the Law of levels of command in order to “ensure that all commanders have the information necessary for compliance.”29 Furthermore, the Ministry of Foreign Affairs’ report stresses that Israel carried out a serious and thorough investigation of the charges against the IDF, led by Israel’s Military Advocate General (MAG), and found that “the actions of IDF forces did not raise grounds for a reasonable suspicion of criminal misconduct,”

24 “Operation Protective Edge,” Israeli Defense Forces, https://www.idf.il/en/minisites/wars-and- operations/operation-protective-edge-julyaugust-2014/. 25 Israeli Ministry of Foreign Affairs, the operAtion in gAzA: fACtUAl AnD legAl ASpeCtS 26 (2009), https://mfa.gov.il/MFA_Graphics/MFA%20Gallery/Documents/GazaOperation%20w%20 Links.pdf. 26 Id. at 1. 27 “Operation Protective Edge: War Crimes,” (June 2017), https://www. jewishvirtuallibrary.org/operation-protective-edge-war-crimes. 28 Israeli Ministry of Foreign Affairs, the 2014 gAzA ConfliCt: fACtUAl AnD legAl ASpeCtS 217 (2015), https://mfa.gov.il/ProtectiveEdge/Pages/default.aspx. 29 Id. at 138. Spring 2020 Lawless War 49 thus rejecting the notion that any legal violations were enacted on Israel’s part.30 In these cases, the Israeli defense does not attempt to justify actions condemned by the UN – it simply denies that these actions were ever taken. Thus, the Israeli defense here circumvents international law by contending that these violations never occurred and therefore argues that there is no crime to which the law might apply. Ultimately, the IDF and the Israeli legal system understand their actions as defensive and within the bounds of international law, independent of the offenses committed by the other side.

V. Present Day past suggest that, in spite of the global criticism toward both sides, there has not been substantial change in either side’s military conduct or ideology. One possible explanation is the interesting and concerning pattern which appears in both parties’ other are grounds for their own retaliation in kind (though Palestinian armed groups do not argue as strongly for the validity of their own actions under international law and instead stress their victimhood, whereas Israel attempts to prove that its actions are, in fact, legal). This self-perpetuating cycle of violence, defense, and accusation the 2014 War in Gaza. The escalation began when the IDF launched a targeted attack into Gaza, killing a senior commander of the Palestinian Islamic Jihad and his wife. indiscriminately into Israel from the Gaza Strip, and the IDF carried out a number left 111 total wounded and 34 Palestinians dead, including a family whose ties to militant groups are in question.31 The incident is suspiciously familiar: it was a brief and psychological harm. One attack provoked another – and another – until a cease- In the six years since the 2014 War, countless rebuttals and accusations have been published regarding the actions and rationales of both sides, but it is clear that little has changed on the ground. Neither side has been held accountable by any substantial force; NGOs such as B’Tselem have denounced Israel’s MAG-led questioned Israel’s ability to thoroughly and objectively conduct investigations.32,33 Meanwhile, Gaza-based militant groups are subject to hardly any force of

30 Id. at 241. 31BBC News (November 14, 2019), https:// www.bbc.com/news/world-middle-east-50414810. 32 “Whitewash Protocol: The So-Called Investigation of Operation Protective Edge,” B’Tselem (September 2016), https://www.btselem.org/publications/summaries/201609_whitewash_protocol. 33 United Nations Human Rights Council, supra note 1, at 165. 50 The Undergraduate Law Review at New York University Vol III: Issue II accountability, even out of reach of the Palestinian Authority.34 legal offenses and militant groups who refuse to be governed by international law. Israel continues to use the “terrorism paradigm” to delegitimize the Palestinian cause, while Palestinian armed groups continue to unapologetically violate basic tenets of international law, and civilians on both ends must live with the resulting violent reality.35 Leadership on both ends hesitates to recognize their role in the change in the conduct of the Israeli military and Palestinian militant groups points not command” actors, and so lacks an effective means of holding nations and non- state actors accountable for their actions.36 It follows that much of the international community has turned a blind eye to the offenses of one party or both. The and its apparent existence out of reach of the law underscore a troubling reality that perhaps exists in plain sight: the law is only as strong as the nations that enforce it, and it is only powerful when the people rise up to wield it.

34 Id. at 177. 35 2014), http://www.alhaq.org/advocacy/6628.html. 36 Noura Erakat, JUStiCe for Some: lAW AnD the QUeStion of pAleStine 4 (2019).