The Gaza Strip: Israel, its foreign policy, and the Goldstone Report.

• Author: Sterio, Milena
• Position: Symposium: Lawfare

At the end of 2008, Israel launched a three-week military offensive in the Gaza Strip (Operation Cast Lead), during which Israel carried out over 2,360 air strikes and numerous ground assaults over Gaza, causing the death of approximately 1,300 Palestinians, and wounding over 5,000 individuals. The Gaza conflict sparked numerous allegations of war crimes and international humanitarian law violations by both Israel and Hamas. Thus, the Human Rights Council (HRC) appointed a U.N. Fact Finding Mission on the Gaza Conflict (Goldstone Mission) led by prominent international jurist Richard Goldstone. The Goldstone Mission issued the Goldstone Report in September 2009, concluding that both Israel and Hamas committed international law violations by indiscriminately targeting civilians. It is a fair assertion that the Goldstone Report was met by controversy. Israel and its most important allies, such as the United States, have condemned the Report and have questioned its veracity and authenticity. Arab states, as well as other, less Israel-friendly states, have hailed the Goldstone Report as an important international legal document shedding light on international humanitarian law violations committed by Israeli forces and calling into question the Israeli policy over Gaza. This Article will attempt to illuminate the above debate, by examining the history of Israel and its policy vis-a-vis the Gaza Strip, Operation Cast Lead itself and its aftermath, as well as the relevant provisions international humanitarian law as they apply to the Gaza Strip. This Article will conclude that the Goldstone Report, despite all the controversy surrounding it, nonetheless represents an invaluable contribution to international humanitarian law and to international relations in their application to the volatile Middle East region.

1. INTRODUCTION II. ISRAEL AND GAZA: HISTORY, POLICY AND WAR III. OPERATION CAST LEAD IV. INTERNATIONAL HUMANITARIAN LAW AND ITS APPLICABILITY TO GAZA A. Duty of Distinction or Discrimination 1. Israeli failure to distinguish between civilian and non-civilian targets. 2. Liberal rules of engagement 3. Indiscriminate use of weapons B. The Principle of Proportionality 1. Israeli use of illegal and/or indiscriminate weapons 2. Overall death and destruction in Gaza. IV. THE GOLDSTONE REPORT: FACT-FINDING, CONCLUSIONS, RECOMMENDATIONS V. THE IMPORTANCE OF THE GOLDSTONE REPORT IN INTERNATIONAL LAW VI. CONCLUSION I. INTRODUCTION

   On May 31, 2010, Israeli commandoes stormed an "activist" ship, sailing in a flotilla of ships that were carrying aid and other activists to the Gaza Strip, which had been blockaded by Israel and Egypt since 2007. (1) The activists were attempting to draw international support for Gaza, and to spark further condemnation of the Israeli blockade. (2) In the raid, nine passengers were killed by the Israeli commandoes, dozens of activists were wounded, and several Israeli soldiers were shot. (3) International reaction was swift; most countries condemned Israel, and even the U.S. President, Barack Obama, voiced deep regret over the raid. (4) Accounts of what exactly happened on the morning of May 31 vary. Israel claimed that the activists fired first at Israeli soldiers, causing Israel to fire in self-defense, while activists claimed the Israeli commandoes illegally boarded the activist ship and opened fire. (5) What is undoubted is that Israel was involved in yet another international incident involving Gaza where its soldiers opened fire and killed several individuals. The May 31 incident fits into an existing paradigm of internationally questionable Israeli military policy over Gaza, and portrays Israel once again as the potential aggressor and occupier over the Gaza strip. (6)

   In fact, at the end of 2008, Israel launched a three-week military offensive in the Gaza Strip (Operation Cast Lead), during which Israel carried out over 2,360 air strikes and numerous ground assaults over Gaza, causing the death of approximately 1,300 Palestinians, and wounding over 5,000 individuals. (7) The Gaza conflict sparked numerous allegations of war crimes and international humanitarian law violations by both Israel and Hamas. (8) Thus, the Human Rights Council (HRC) appointed a U.N. Fact Finding Mission on the Gaza Conflict (Goldstone Mission) led by prominent international jurist Richard Goldstone. The Goldstone Mission issued the Goldstone Report in September 2009, concluding that both Israel and Hamas committed international law violations by indiscriminately targeting civilians. (9) The Goldstone Report requested that the U.N. Security Council call on both Israel and Hamas to conduct investigations into war crimes allegations over the Gaza conflict and recommended that if such investigations were not undertaken, the Security Council should refer the Gaza situation to the International Criminal Court (ICC) Prosecutor. (10) The HRC accepted the Goldstone Report's recommendations, and called upon all parties to ensure their implementation. (11)

   It is a fair assertion that the Goldstone Report was met by controversy. Israel and its most important allies, such as the United States, have condemned the Report and have questioned its veracity and authenticity. (12) Arab states, as well as other, less Israel-friendly states, have hailed the Goldstone Report as an important international legal document shedding light on international humanitarian law violations committed by Israeli forces and calling into question the Israeli policy over Gaza. (13) This Article will attempt to illuminate the above debate, by examining, in Part II, the history of Israel and its policy vis-a-vis the Gaza Strip. In Part III, this Article will briefly describe Operation Cast Lead, the events that preceded it, the actual warfare, and its aftermath. Part IV of this Article will focus on international humanitarian law, and specifically, the violations thereof that have been alleged in Gaza. Part V will describe the Goldstone Report, its main conclusions, and the reasoning behind such conclusions. Ultimately, Part VI will attempt to place the Goldstone Report in the larger context of international law, by analyzing its contributions to international humanitarian law, its reliance on the ICC, and its implications for foreign policy in the Middle East. This Article will conclude that the Goldstone Report, despite all the controversy surrounding it, nonetheless represents an invaluable contribution to the body of international law and to international relations in their application to the volatile Middle East region.

2. ISRAEL AND GAZA: HISTORY, POLICY AND WAR

   The Gaza Strip used to be part of the British Mandate for Palestine, and was destined to become part of a larger Palestinian Arab state. (14) However, that plan never materialized, and Gaza fell under Egyptian administration after the first Arab-Israeli war in 1948. (15) In the so-called Six Day War of 1967, Israel seized control of the Gaza Strip, establishing a military government in this region. (16) Israel's claim was that since Israel did not displace a sovereign state when it took control over Gaza, Gaza was not an "occupied" territory within the meaning of international law. (17) Thus, Israel claimed that Gaza was simply "administered" by Israel. (18) This position, however, was rejected by the international community, which came to view Israel as an occupier. (19)

   In 2005, Israel dismantled its settlements and withdrew its landbased military forces from Gaza.20 Consequently, Israel reaffirmed its claim that Gaza was not an occupied territory, and that Israel had no specific obligations toward the Gazan population.21 This position is untenable under international law. Article 42 of the 1907 Hague Regulations (Hague Regulations) sets forth the "effective control" test for establishing occupation.= Under this test, "[T]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority is established and can be exercised"23 Under this test, however, the presence of permanent military forces is not required in the occupied territory. The Nuremberg Tribunal, in applying this test, held that occupation continues, even though the occupier has withdrawn its military forces from the occupied territory, if the occupier can reenter the occupied territory and exercise effective control at will.24 Israel certainly retains the ability to re-enter Gaza, and to exercise effective control over this territory at will.25 Israel maintains authority over Gaza pursuant to the Revised Disengagement Plan.26 Moreover, Israel patrols Gaza's airspace, Israeli naval ships patrol Gaza's territorial waters, and Israel regularly conducts military operations within Gaza itself.27 Operation Cast Lead, mentioned above, was yet another example of Israeli military operations in Gaza after the former's "disengagement" from Gaza.28 Finally, Israel is in full control over the movement of people and goods to and from Gaza and is able to shut crossings from Gaza at will.29 Israel controls Gaza's telecommunication networks, electricity, and sewage systems, as well as its population registry.30 The latter allows Israel to determine which individuals will be accorded, and denied, legal residency in Gaza. (31) Thus, the degree of control, which Israel still exercises over Gaza, clearly demonstrates that Israel has not ended its occupation of Gaza.

   As an occupier, Israel has specific international legal obligations toward the people of Gaza. These obligations are detailed in several treaties, including the Hague Convention (II) respecting the Laws and Customs of War on Land and the Hague Regulations of 1907, the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949 (Fourth Geneva Convention), as well as in customary norms of international law. (32) "As a general matter...