During the bombardment and invasion of Gaza by Israel in December 2008 and January 2009 the International Association of Democratic Lawyers condemned Israeli actions in Gaza. We issued statements that these actions violated international law, the laws of war and international humanitarian law. IADL also called for Israel to be held accountable for these violations.
The discourse surrounding this bombardment and invasion, however, has included terms not generally understood by and confusing to both the general public and to many lawyers. For example, Israel claimed a right of self defense against rockets from Gaza. Hamas claimed the rockets were sent to break the blockade of Gaza imposed by Israel and the “Quartet.” The Palestinians and much of the world
community have claimed that despite Israel’s withdrawal of troops and settlements in 2005, Gaza remains occupied and controlled by Israel, giving rise to the right to resist occupation and fight for self determination. In that regard, the blockade is not only an act of aggression, it and other actions aimed at controlling the population also violate duties owed to an occupied population under the Fourth Geneva Convention. The massive bombardment and invasion in December 2008 and January 2009 have also been called disproportionate and illegal collective punishment.
This White Paper focuses on Israeli actions for the following reasons. First as a matter of law, there is no parity between occupied and occupier. As an occupied people the Palestinians have the right to resist occupation and, although that right is not unlimited and the use of rockets that strike civilian populations are not condoned, the characterization of Israel’s bombardment and invasion as legitimate self defense improperly implies a fight between countries of equal status. As no equality exists, the legal analysis must be tailored to the conditions. Furthermore, there is an asymmetry in power relations between Israel and the Palestinians in Gaza. Israel’s military might is unparalleled both in the region and in most parts of the world. In comparison to Hamas the Israeli army and its superiority, both in weaponry and technology, make Israel the Goliath in this conflict.
Therefore, we issue this White Paper to explain the legal implications of the bombardment and invasion so that the reasons and legal bases for our condemnation of Israeli bombardment and invasion are clearly understood.
This White Paper is different from other reports on Gaza which have in large measure analyzed the bombardment and invasion of Gaza only from the perspective of the methods used by the Israeli military and whether civilians were illegally targeted or whether weapons used violated laws of war. It seeks to put Israel’s actions into a broader context providing the reader with:
- A. An analysis of Israel’s obligations under the United Nations Charter to have sought a peaceful resolution to this crisis and concluding that having used military force to attack Gaza Israel violated those obligations;
- B. An analysis of the Nuremberg Principles on wars of aggression and the definition of aggression contained in UN General Assembly Resolution 3314, and how the aggression against the people of Gaza violated those principles;
- C. A detailed analysis as to why Israel’s actions do not meet the standards under Article 51 of the UN Charter, for exercising the right of self defense making the bombardment and invasion an illegal aggression;
- D. An analysis of the proportionality principle and apparent violations of that principlealong with a description of apparent violations of Human Rights Law, International Humanitarian Law and International Criminal Law; and
- E. The legal duties the international community have to ensure Israel does not enjoy impunity for its actions.
Download the White Paper: WHITE PAPER ON GAZA