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A. The Ongoing Armed Conflict with Hamas
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| 36 |
Israel has been engaged in an ongoing armed conflict with Hamas and other Palestinian terrorist organisations since the massive outbreak of armed terrorist violence and hostilities in October 2000, what the Palestinians have termed the Al Aqsa Intifadah. The terrorist attacks against Israelis have included suicide bombings in the heart of Israeli cities, shooting attacks on vehicles, murders of families in their homes, and unrelenting rocket and mortar fire on Israeli towns and villages — all told resulting in the deaths of more than 1,100 Israelis, the wounding of thousands more, and the terrorisation of millions. |
| 37 |
Hamas has launched terrorist attacks on Israel’s civilian population as a weapon of choice in order to achieve its strategic goals – to disrupt negotiations between Israel and the Palestinian Authority and to prevent a peaceful resolution of the conflict in the Middle East. Hamas has sought to paralyse normal civilian life. By murdering Israelis and threatening civilian communities in Israel. Hamas has pushed its agenda as expressed in its founding Charter, namely, to destroy and inflict terror upon civilian communities in Israel, and Hamas has sought to promote its long-term political agenda, as stated in its Charter, to exterminate the State of Israel and establish a Muslim state over all the territory of historic “Palestine.”(16) The Hamas Charter begins by declaring that “Israel will arise and continue to exist until Islam wipes it out,” and rejects all “[peace] initiatives, the so-called peaceful solutions and international conferences,” because they “contradict the Islamic Resistance Movement’s ideological position.” It emphasises that “there is no solution to the Palestinian problem except Jihad . . . the international initiatives, suggestions and conferences, they are an empty waste of time, and complete nonsense.”(17) And it calls for the killing of Jews because they are Jews.(18) In other words, Hamas does not acknowledge the right of Israel to exist, nor any role for diplomacy, either direct or indirect. Its Charter espouses a militantly anti-Semitic world view, stating that “[n]o war takes place anywhere in the world without [the Jews] behind the scenes having a hand in it.”(19) |
| 38 |
Hamas has chosen, in particular, to launch extensive and almost incessant rocket and mortar attacks against civilian communities in Southern Israel. For the eight years preceding the Gaza Operation at issue in this Paper, Hamas and other terrorist organisations (such as “Palestinian Islamic Jihad” and the “Popular Resistance Committees”) launched more than 12,000 rockets and mortar rounds from the Gaza Strip at the towns in Southern Israel. The daily attacks began in 2000 and have continued since that time with only brief respites in the violence. |
| 39 |
In August 2005 Israel withdrew from the Gaza Strip, terminating its civilian and military presence there. Hamas exploited this disengagement to promote its terrorist agenda and publicly endorsed terrorism as the preferred tool for achieving its political goals. For instance, on 30 March 2007 Hamas spokesman Ismail Radwan issued a call to “liberate Palestine” by attacking and killing Jews rather than by engaging in diplomatic efforts.(20) |
| 40 |
In June 2007 Hamas executed a violent and bloody coup d’état in the Gaza Strip, persecuting some of the leaders and members of Fatah and the legitimate Palestinian Authority, neutralising the Palestinian Authority’s military and political power and setting up a radical Muslim entity in its place. Since then, Hamas’ control of Gaza has been due not to the election of 2006, but to the coup. The new entity, aided and abetted by Iran and Syria, wages an ongoing terrorist campaign against Israel, and operates separately and in defiance of the legitimate Palestinian Authority in the West Bank. Hamas has fortified the Gaza Strip as a launching pad for terrorist attacks against residential communities in Southern Israel.
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B. Hamas' Increasing Attacks on Israel During 2008
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| 41 |
Following Hamas’ violent takeover of the Gaza Strip, the frequency and intensity of rocket and mortar attacks on Israel increased dramatically. In 2008 alone, nearly 3,000 rockets and mortars were fired,(21) despite the six relatively calm months of the lull (“Tahadiya”), (22) which Hamas and other terrorist organisations used to rearm and prepare for the next round of hostilities. On 19 December 2008, Hamas unilaterally terminated the lull and resumed the use of the Gaza Strip as a launching pad for terrorist activities. Consequently, Israeli civilians, confronted with daily attacks on their homes, schools, kindergartens, shops, clinics, factories and other civilian infrastructure, raced to bomb shelters several times a day and lived in constant fear of where the next rockets would hit. |
| 42 |
Responding to the ongoing threat of rocket and mortar attacks on civilian communities in Southern Israel, Israeli authorities took a variety of measures to protect its citizens and to reduce the risk to civilians, with special attention being given to sensitive facilities, such as educational institutions and hospitals. These efforts included the establishment of public shelters and fortification of public institutions, as well as the instruction of the population in risk how to act in times of emergency. |
| 43 |
In light of the growing number of rocket attacks in the latter part of 2008, the Israeli Government and the Home Front Command stepped up the efforts to protect Israeli citizens living within range of rocket fire. On 7 December 2008, the Government decided to approve a special budget to fortify existing shelters in localities within a 4.5 kilometre range of the Gaza border at a cost of 327 million NIS (83 million U.S. Dollars). This project was carried out with the cooperation of various government agencies, including the Ministry of the Interior and the Ministry of Construction and Housing, which provided expedited permits to allow local municipalities to execute the decision.(23) |
| 44 |
Furthermore, the Home Front Command distributed informational booklets to all homes within rocket range. These booklets included emergency contact numbers, updated instructions on how to choose and build a “safe space” within a house, as well as thorough instructions on behaviour during rocket and mortar attacks. Civilians were instructed regarding behaviour in a variety of situations, including while driving, while at home and while in an open space. Depending on their distance from Gaza, citizens were advised regarding the amount of time available to seek shelter from the moment a siren sounded. Road signs were posted along roads within rocket range, advertising a designated radio station which broadcast the siren in the event of rocket fire. Signs clearly marking the nearest shelter were posted in all public spaces, including supermarkets, shopping malls, educational facilities, government buildings and hospitals. |
| 45 |
To ensure accessibility to this information by all the citizens under the threat of rocket and mortar attacks, the Home Front Command provided detailed instructions online in Hebrew, Arabic, English, Russian, Amharic, French and Thai. Instructional videos on “How to Behave in a Qassam Rocket or Mortar Attack” were also available online in a number of languages.(24) During the operation in Gaza, the Home Front Command also published detailed daily instructions regarding the necessary precautions. Civilians were discouraged from gathering outside and encouraged to always stay close to a fortified shelter. Schools that did not have adequate shelters and facilities were shut down for the duration of the campaign. |
| 46 |
The Home Front Command used the most sophisticated equipment to detect the launching of rockets and sounded air raid sirens whenever a rocket launch was detected. These sirens could, at most, provide advance notice seconds before a rocket struck, and had no way of providing advance warning when a mortar was launched. Nevertheless, were it not for such warnings, as well as the use of other measures discussed above, the human casualties from Hamas’ bombardment undoubtedly would have been substantially greater. Even so, many people and buildings have survived by pure chance. The number of such close calls is enormous. As of July 2008, before the escalation that led to the Gaza Operation, nearly 92 percent of the residents of Sderot (a city of nearly 20,000 persons) had heard or seen a rocket land nearby, 56 percent had shrapnel fall on their homes, and 65 percent knew someone who had been injured.(25) |
| 47 |
During these eight years of fire, the impact on the Israeli population of the daily barrage of rockets was debilitating. The tactics are termed “terrorism” for a reason. Studies have documented an entire generation of children traumatised by the terror of rocket strikes and thehelplessness of adults to ensure their safety.(26) Hamas increased the terror engendered by its attacks by timing them to coincide with the time when children were on their way to school in the morning or were returning in the afternoon. |
| 48 |
Hamas’ attacks inflicted death, injury and extensive property damage,(27) forced businesses to close and terrorised tens of thousands of residents into abandoning their homes. Statistics do not capture the full impact of these terrorist acts.(28)
|
| 49 |
Over time, Hamas extended the range of the rocket fire, by late 2008 reaching as far as some of Israel’s largest cities, including Ashkelon (with a population of over 110,000), Ashdod (with a population of 210,000) and Be’er Sheva (with a population of over 185,000), and threatening one million Israeli civilians — almost 15 percent of the Israeli population — as well as Israeli strategic installations, such as major electricity and gas-storage facilities. Hamas frequently fired rockets towards these installations, even though some of these facilities served the Palestinian population in Gaza. The following map illustrates the increasing range of Hamas’ daily rocket attacks, super-imposed upon a map of Southern Israel identifying some of the major population centres exposed to such attacks. |
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► More than 200 Israeli cities and towns are within range of Hamas rockets from Gaza |
| 50 |
These rocket attacks were intended to reach strategic sites, such as the Ashdod port and power stations in Ashkelon and Ashdod, a direct hit on which would cause substantial harm. Hospitals within target range included the Barzilai Medical Center in Ashkelon (with capacity of 500 hospitalisation beds) and the Soroka University Medical Center in Be’er Sheva (with a capacity of 1,000 hospitalisation beds). Educational institutions within the 40-kilometre rocket range of Hamas’ mortar and rocket attacks included the Ben-Gurion University in Be’er Sheva (almost 20,000 students) and several academic colleges. One of these colleges — Sapir Academic College (with more than 8,000 students) has been regularly targeted by Hamas, and on 27 February 2008, a Qassam rocket killed an Israeli citizen in the college compound. There are also 2,200 primary and secondary schools within the range of the rockets. These institutions include 1,701 kindergartens (with 52,226 children) and 499 schools (with 196,466 children). There are a total of 248,692 students within rocket range. |
| 51 |
Had the onslaught of rocket attacks continued unabated, it was only a matter of time before a direct hit on a school, hospital or other public facility would have caused extensive loss of life. It was inevitable that civilian casualties, economic loss and the overall impact of these terrorist assaults would have mounted. |
| 52 |
To stop the attacks, Israel exhausted a variety of non-military options before launching air and later ground operations against Hamas in December 2008 and January 2009. In the eight years preceding Israel’s decision to launch the Gaza Operation, Israel sent dozens of letters to the Secretary General of the United Nations and the President of the Security Council, describing the Qassam rocket shelling of Israeli town and cities and suicide attacks on Israeli civilians.(29) Israel sent similar letters to the Under-Secretary General for Political Affairs and to the United Nations High Commissioner on Human Rights.(30) In the year 2008 alone, Israel sent 29 letters to the U.N. Secretariat, regarding the increasing toll in Israel of Hamas’ rocket and mortar attacks and other Palestinian violence and terrorism.(31) |
| 53 |
These letters documented the escalation of rocket and mortar shell attacks launched from the Gaza Strip and targeting the civilian population in Southern Israel. Seeking to preserve the Tahadiya (lull) negotiated in June 2008 through Egyptian mediators, these letters repeatedly affirmed Israel’s desire to find a non-violent solution in the face of this ongoing and intensifying terrorist activity. They also, however, referenced Israel’s inherent right to defend itself and its citizens from such armed attacks, and stated that Israel would not indefinitely tolerate a situation where Israeli citizens became de facto hostages of a terrorist organisation. Israel repeatedly noted the persistence of terrorist attacks even after its disengagement from the Gaza Strip. |
| 54 |
These letters were accompanied by numerous other diplomatic overtures, including through intermediaries, as well as public statements of Israeli officials and appeals by Israel’s Ambassadors and representatives at the various U.N. bodies, primarily the Security Council. They were a clear indication of Israel’s genuine will, not only to caution against the escalating situation, but also to exhaust all diplomatic channels prior to its realisation that it was necessary to launch a wide-ranging military operation in Gaza. |
| 55 |
In withdrawing from the Gaza Strip in 2005, Israel sought to de-escalate the conflict, and advance prospects for coexistence. Hamas, however, rejected coexistence, proclaiming its unyielding hostility to peace and its commitment to violence. |
| 56 |
On 25 June 2006, Palestinians terrorists from Gaza attacked an Israeli army post on the Israeli side of the southern Gaza Strip border after crossing into Israel through an underground tunnel near the Kerem Shalom border crossing. During the attack the terrorists killed two IDF soldiers, wounded four others and captured the Israeli soldier Corporal Gilad Shalit. Since his abduction more than three years ago, Shalit has been held by Hamas incommunicado in an undisclosed location. Other than a single audio tape with Shalit sending a message appealing for his release, no sign or indication regarding his condition was conveyed by Hamas. Furthermore, throughout this period, all representatives, including the ICRC, have been denied any access to Shalit.(32) Appeals for his release made by other prominent members of the international community have also been rejected by Hamas. |
| 57 |
In addition to its many diplomatic appeals to end Hamas’ attacks on Israel, Israel joined several members of the international community in instituting economic sanctions against Hamas, while at the same time endeavouring to supply the Palestinian population with humanitarian relief.(33) Canada, the European Union, and the United States all designated Hamas as a terrorist organisation for purposes of sanctions, and Australia has so designated Hamas’ military wing, the Izz al-Din al-Qassam Brigades.(34) |
| 58 |
Neither Israel’s diplomatic overtures, nor its pleas to the international community, nor sanctions imposed by numerous States, were able to stop the rocket attacks. |
| 59 |
Hamas obtained military supplies through a vast network of tunnels and clandestine arms shipments from Iran and Syria. During this period in which Israel sought a diplomatic solution, the terrorist organisations in the Gaza Strip, with Hamas at the forefront, worked intensively to enlarge and upgrade their military capabilities and infrastructure.(35) These organisations abused the Tahadiya to smuggle in vast quantities of weapons through tunnels running under the border with Egypt.(36) They accelerated and enhanced their training, enlarged their underground network of tunnels used for smuggling and enabling terrorist attacks, acquired advanced weaponry, developed weapons of their own, and increased the range and lethality of their rockets. |
| 60 |
On Friday, 19 December 2008, Hamas unilaterally announced the end of the Tahadiya, launching dozens of Qassam and longer-range Grad rockets against Israeli population centres. On 24 December 2008, the U.N. Secretary-General strongly condemned Hamas’ actions and warned of further harm to civilians if the attacks did not cease immediately.(37) On that same day, 24 December 2008, thirty more rockets were launched into Israel.(38) Hamas’ actions forced the residents of Southern Israel to resume a life of fear, with no sign that the attacks would abate and every indication they were intensifying. Some residents with the means to do so fled their homes for the relative safety of locations further north. Other civilians could not afford to leave, and led most of their daily life in underground shelters. Schools were often closed, as were many workplaces. |
| 61 |
Hamas persisted in launching its rockets and mortar rounds at Israel. And, once the IDF began the Gaza Operation, Hamas stepped up its bombardment of Israeli towns even further, vowing that it would not stop shelling Israeli civilians. During this time alone, Hamas hit 101 of the 200 Israeli towns and villages in rocket range with a total of 617 rockets and 178 mortar shells. These included:
- 25 towns within 7 kilometres of the Gaza Strip border – most rockets in this range hit the town of Sderot (19,400 residents) and the Kibbutzim A’lumin, Gevim and Mefalsim.
- 44 towns within 7-20 kilometres of the Gaza Strip border – most rockets in this range hit the towns of Ashkelon (110,000 residents) and Netivot (26,100 residents).
- 32 towns more than 20 kilometres from the Gaza Strip border – most rockets in this range hit the towns of Be’er Sheva (over 185,000 residents) and Ashdod (210,000 residents –the 5th largest city in the State of Israel).
- Other major towns that suffered rockets attacks during the operation were Kiryat Gat (47,900 residents), Rahat (43,300 residents), Yavne (32,300 residents), Ofakim (24,700 residents) and Kiryat Malachi (19,700 residents). Schools in the affected areas remained closed through most of the Gaza Operation.
|
| 62 |
On 27 December 2008, one of the longer-range Grad rockets killed 58-year-old Beber Vaknin of Netivot.(39) Two days later, two civilians going about their day were killed by similar rockets.(40) On 30 December 2008, a Hamas rocket landed in a kindergarten classroom in Be’er Sheva, one of Israel’s main cities, luckily causing no injuries because it fell late in the day after the children had left.(41) In total, during the Gaza Operation, close to 800 rockets and mortar rounds landed on Israeli territory, killing 4 civilians, injuring 182 others, and terrorising nearly a million civilians, both Jews and Arabs, who were forced to flee beyond the range of the rockets or else to live their lives within the range of Hamas rocket attacks. |
| 63 |
Hamas attacks were often so indiscriminate that they even inflicted casualties on the Palestinian population. In the month of December 2008 alone, the following examples were reported:
- On 6 December 2008, four rockets fired at the Kerem Shalom crossing fell on the Rafah Crossing with Egypt;(42)
- On 20 December 2008, two five-year-old Palestinian children in Beit Hanoun were wounded by the explosion of a rocket that fell in the Gaza Strip;(43)
- On 24 December 2008, a rocket fell on the house of Imad al-Drimli in the Tel al- Hawa district of Gaza City;(44)
- On 26 December 2008, an explosion in Beit Hanoun killed two girls, aged 5 and 13, and wounded a Palestinian man;(45)
- Between 27 and 31 December 2008, the first five days of Israel’s air offensive, about 6.5 percent of the rockets fired by Hamas at Israel fell in the Gaza Strip.
|
| 64 |
None of these casualties can be attributed to Israeli action. Instead, they serve to demonstrate the wholly indiscriminate nature of Hamas’ attacks and total disregard of human lives, including the Palestinian population under their control. |
| 65 |
Furthermore, rocket fire aimed at Israel also damaged U.N. humanitarian installations inside Gaza. For instance, according to a U.N. investigation into damage to U.N. property during the Gaza Operation:
“In the case of the WPF Karni Warehouse, the Board concluded that the most serious damage sustained was caused by a rocket fired by a Palestinian faction, most likely Hamas, which was intended to strike in Israel, but which fell short.”(46) |
| 66 |
In sum, the rocket attacks launched by Hamas and other terrorist organisations from the Gaza Strip against Israel inflicted deliberate and intimidating damage on both sides of the Gaza border. Aside from the physical injuries and the deaths those attacks caused, hundreds of thousands of Israeli civilians have been forced to live in a permanent state of fear from a daily barrage of rockets threatening their homes, schools and hospitals. While Hamas’ rockets did not always hit their intended targets, they achieved their terrorist objective of causing indiscriminate destruction, sparing nothing and no one within their range.
|
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| C. |
Israel's Right and Obligation to Defend Itself and Its Citizens from Attack
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| 67 |
In these circumstances, there is no question that Israel was legally justified in resorting to the use of force against Hamas. As explained above, this resort to force occurred in the context of an ongoing armed conflict between a highly organised, well-armed, and determined group of terrorists and the State of Israel. The Gaza Operation was simply the latest in a series of armed confrontations precipitated by the attacks perpetrated without distinction against all Israeli citizens by Hamas and its terrorist allies. In fact, over the course of this conflict, Israel conducted a number of military operations in the West Bank and the Gaza Strip, to halt terrorist attacks. |
| 68 |
Even apart from the eight years of ongoing armed conflict, which justified Israel’s resort to force both previously and during the Gaza Operation, Hamas’ intensified armed attacks on Israel and its citizens during 2008 independently justified Israel’s response to defend its citizens. All States have the inherent right to defend themselves against armed attacks. This right is recognised by customary international law, and is further confirmed in Article 51 of the United Nations Charter. (47) |
| 69 |
A State’s right of self-defence extends beyond attacks by other States. (48) Even before the U.N. Charter, customary international law recognised the right of self-defence against non-State actors, such as armed groups launching attacks of significant scale and scope.(49) The United Nations Security Council invoked the right of self-defence in the wake of the September 11 attacks on the United States, calling upon the international community to combat such terrorism perpetrated by non-State actors.(50) When organised groups rather than standing armies launch attacks against a State, they trigger a State’s right to self-defence if “such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces.”(51) |
| 70 |
There is no question that Israel faced an “armed attack” within the meaning of customary international law or Article 51 of the U.N. Charter, and has the right to use force against Hamas in self-defence.(52) |
| 71 |
Israel’s overall use of force against Hamas during the Gaza Operation was also proportional to the threat posed by Hamas. International law “does not require a defender to limit itself to actions that merely repel an attack; a state may use force in self-defence to remove a continuing threat to future security.”(53) Under the customary international law principle of proportionality, a state may use defensive measures necessary to avert on-going attacks or preserve security against further similar attacks.(54) This assessment focuses on “the scale of the whole operation,”(55) not specific incidents of targeting. |
| 72 |
In conclusion, the Gaza Operation was justified as an act of self-defence in response to Hamas’ escalating rocket and mortar attacks against Israel during 2008. In any case, Israel’s right to use force against Hamas was triggered years ago, when Palestinian terrorist organisations, including Hamas, initiated the armed conflict which is still ongoing. The current operation was another regrettable stage in this conflict.
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D. Hamas' Military Capabilities in Gaza
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| 73 |
Hamas’ military capabilities necessarily defined the challenges Israel faced in its efforts to stop Hamas’ attacks, and they explained the types of force Israel used in its targeted three-week operation in Gaza.(56) |
| 74 |
Since violently seizing power in the Gaza Strip, Hamas’ leadership in Gaza has operated through a “political bureau” which in turn directs the movement’s military wing, the Izz al-Din al-Qassam Brigades, and the internal security forces. The Hamas leadership has accelerated the military build-up of both these armed forces in preparation for a military confrontation with the IDF. As of December 2008, there were more than 20,000 armed operatives, directly subordinate to the Hamas military wing or designated to be integrated into its forces during an emergency. In addition to Hamas, Israel faced a sizeable military force of several thousand operatives from terrorist organisations such as the Palestinian Islamic Jihad, the Popular Resistance Committees, Fatah/Al-Aqsa Martyrs Brigades groups and the Army of Islam. |
| 75 |
Hamas has organised its forces into semi-military formations throughout the Gaza Strip and deployed them in territorial brigades and designated units. Each territorial brigade has more than 1,000 operatives divided into battalions. They regularly conduct large-scale training operations in the Gaza rip and also train in Iran and Syria. These forces have received advanced weaponry, upgraded rockets and advanced anti-tank weapons. They prepared for attacks to be mounted against the IDF, including any attempt by Israel to quell the rocket attacks, by constructing underground systems for fighting and concealment throughout the Gaza Strip, developing powerful Improvised Explosive Devices (“IEDs”) and placing them on or near locations where IDF activities were anticipated. |
| 76 |
Hamas continued to expand the vast underground network of tunnels running through the Gaza Strip, not only to serve as smuggling routes, but also to facilitate attacks on IDF forces operating in the Gaza Strip. The tunnels were also designed to neutralise some of the IDF’s capability to damage the Hamas military infrastructure and to give Hamas’ armed forces an operational shield during prolonged, extensive fighting. Additionally, Hamas designated tunnels for terrorist attacks against IDF posts and villages near the border fence. It dug others as bait for IDF forces. In an interview with Al-Hayat on 17 December 2007, Abu Obeida, the spokesman for Hamas’ Izz al-Din al-Qassam Brigades, said:
“Our defence plan is based, to a great extent, on rockets which have not yet been used and on a network of ditches and tunnels dug under a large area of the [Gaza] Strip. The [Israeli] army will be surprised when it sees fighters coming up out of the ground and engaging it with unexpected equipment and weapons…”(57) |
| 77 |
Hamas’ military capabilities in 2008 included both its armed forces and its internal security forces. The armed forces in the military-terrorist wing (the Izz al-Din al-Qassam Brigades) included more than 15,000 operatives, according to Hamas’ own claims.(58) In the event of an escalation in the conflict with Israel, Hamas designated the internal security forces to join the armed resistance against the IDF. In the initial stages, they were to provide primarily logistical and intelligence support. In broader and lengthier hostilities, such as occurred between December 2008 and January 2009, the internal security forces were to supplement the fighting units of the Izz al-Din al-Qassam Brigades and confront the IDF, even at the expense of weakening their capabilities to deal with internal security matters. Many Hamas operatives played a dual role by joining both the internal security forces and the Izz al-Din al-Qassam Brigades.(59) |
| 78 |
In December 2008, Hamas’ internal security forces included more than 13,000 operatives, many of them also members of the Izz al-Din al-Qassam Brigades, as detailed further below. These forces are divided into five primary forces: the “Police” (formerly the Executive Force, which also includes the elite unit, the Rapid Intervention Force, and the Naval Police); the Internal Security Service; the Security and Protection Force; the National Security and the Civil Defence Service. |
| 79 |
The core of Hamas’ internal security forces is the “Police,” which in 2008 included more than 6,000 members armed with Kalashnikov or M-16 assault rifles, hand grenades and anti-tank weapons. The Naval Police included hundreds of operatives carrying light arms and various IEDs and was involved in shooting at Israel Navy patrol boats. The Internal Security Service, also numbering in the hundreds of operatives, was responsible for dealing with suspected collaborators, gathering information on individuals suspected of anti-Hamas activities, torturing and interrogating detainees. The Security and Protection Force was responsible for guarding important Hamas individuals and institutions, while the National Security Service, with a membership of several hundred, was deployed mainly along the Philadelphi route (60) and responsible for border security and control of smuggling |
| 80 |
These various forces were heavily armed. Before the Gaza Operation began in December 2008, Hamas had amassed substantial stockpiles of weapons and munitions, most smuggled into Gaza through tunnels under the border with Egypt and some independently produced or obtained after Hamas took over the security forces of the Palestinian Authority in June 2007. Hamas weapons capabilities included foreign manufactured rockets (122mm artillery rockets with the range of 20km [Grad] and 40 km); locally made rockets (Qassam series); mortars, both imported and locally made; anti-tank weapons; locally manufactured IEDs; foreign manufactured mines; machine guns, automatic rifles; anti-aircraft weapons; night vision equipment; listening equipment for intelligence gathering; advanced communications equipment; and huge quantities of ammunition. |
| 81 |
The extent of this arms build-up by Hamas is indisputable. Hamas itself has displayed its weaponry on television and the Internet, including (for example) the following photographs of anti-aircraft weaponry: |
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Anti-aircraft weapons in the hands of Hamas.
Left: Picture posted by the Izz al-Din al-Qassam Brigades’ information department on YouTube (6 December 2007);
Right: Image of an anti-aircraft machine gun in the hands of a Hamas operative (Source: Al-Aqsa TV, 24 December 2007) |
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PA weapons seized by Hamas: 14.5mm anti-aircraft machine guns (Source: Al-Aqsa TV, 24 December 2007) |
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Left: Photo of 14.5mm anti-aircraft machinegun, posted by the Izz al-Din al-Qassam Brigades on YouTube (11 January 2008); Right: 14.5mm anti-aircraft machinegun hidden under a green net (Source: Al-Aqsa TV, 24 December 2007) | |
| 82 |
Hamas’ military build-up crucially increased the urgency of Israeli action to stop the attacks
|
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E. Stages of the Operation
|
| 83 |
On 27 December 2008, after exhausting other alternatives and after issuing warnings that Israel would attack if the rocket and mortar assault from Gaza did not stop, the IDF launched a military operation against Hamas and other terrorist organisations in the Gaza Strip. The Operation was limited to what the IDF believed necessary to accomplish its objectives: to stop the bombardment of Israeli civilians by destroying and damaging the mortar and rocket launching apparatus and its supporting infrastructure, and to improve the safety and security of Southern Israel and its residents by reducing the ability of Hamas and other terrorist organisations in Gaza to carry out future attacks.(61) The Gaza Operation did not aim to re-establish an Israeli presence in the Gaza Strip. |
| 84 |
The Gaza Operation commenced with aerial operations on 27 December 2008. These focused on Hamas terrorist infrastructure, as well as rocket and mortar launching units. The Israel Air Force (“IAF”) targeted military objectives, including the headquarters from which Hamas planned and initiated operations against Israel, command posts, training camps and weapons stores used in the planning, preparation, guidance and execution of terrorist attacks. In carrying out its strikes, IAF used sophisticated precision weapons to minimise the harm to civilians, given Hamas’ practice of basing their operations in densely populated areas. As described further in Section V.C(4) below, the extensive precautions adopted by Israel to protect civilians during this conflict — often at the expense of military advantage and at the risk of Israeli soldiers — sought to meet the most demanding standards of modern military operations. |
| 85 |
On 3 January 2009, one week into the Gaza Operation and facing the continued rocket and mortar attacks on Israeli civilians, the IDF commenced a ground manoeuvre. Despite initial reluctance, a ground manoeuvre was necessary because, despite the Israeli aerial attacks, Hamas refused to stop firing on Israeli localities. Moreover, continued reliance on aerial strikes alone — in light of Hamas’ tactic of taking cover within the densely populated areas of Gaza — would have likely resulted in significant numbers of Palestinian civilian casualties. Ground forces entered the Gaza Strip with naval and air support. The objectives of this manoeuvre included undermining Hamas’ terrorist infrastructure, taking control of rocket and mortar launching sites and reducing the number of attacks on Israeli territory. The IDF expanded the ground manoeuvre on 10 January 2009, entering deeper into the Gaza Strip, with the objective of dismantling terrorist infrastructure and taking control of rocket launching sites in the heart of the urban areas. |
| 86 |
The Gaza Operation ended on 17 January 2009 (after 22 days in all) with Israel’s implementation of a unilateral ceasefire. Subsequently, IDF troops began their withdrawal from the Gaza Strip, which they completed on 21 January 2009 in accordance with Security Council Resolution 1860.(62) Since then, and even during the Gaza Operation itself, Israel has sought to provide and facilitate humanitarian assistance to Palestinians of the Gaza Strip. |
| 87 |
The Gaza Operation was demonstrably effective in achieving its military objectives. As the chart below demonstrates, the level of rocket and mortar attacks on Israeli towns decreased significantly even during the three weeks of the Gaza Operation: |
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 |
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Rocket and mortar shells fired at Israel during the Gaza Operation between 27 December 2008 and 17January 2009 |
| 88 |
Since the end of the Gaza Operation, rocket and mortar attacks have continued to be lower than before the Operation, as illustrated below: |
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Rocket and mortar shells fired at Israel since the end of the Gaza Operation |
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| FOOTNOTES |
(17) Hamas Charter, art. 13. The Oxford English Dictionary (2d ed. 1989) defines Jihad as “[a] religious war of Muslims against unbelievers in Islam, inculcated as a duty by the Koran and tradition.”
(18) Hamas Charter, art. 7.
(19) Hamas Charter, art. 22.
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(21)See Intelligence and Terrorism Information Center, Summary of Rocket Fire
and Mortar Shelling in 2008, 1 January 2009, available at http://www.terrorism-info.org.il/malam_multimedia/English/eng_n/pdf/ipc_e007.pdf.
(22) On 17 June 2008, after several months of indirect contacts between Israel and Hamas through Egyptian mediators, Egypt and Hamas individually announced that a lull arrangement had been reached between Israel and the Palestinians in the Gaza Strip. The lull arrangement was based on unwritten understandings and called for the cessation of the fighting in the Gaza Strip.
(23) Based on information currently available, Israel's investment in shielding and protecting schools and civilians' houses between the years 2005 – 2011 will amount to approximately 1,798 million NIS ($461 million). In 2008 alone, 260.5 million NIS ($66.79 million) were invested in such shielding, while 630 million NIS ($161.5 million) were further allocated for civilian shielding projects during 2009, 277 million NIS ($71 million) during 2010 and 200 million NIS ($51.3 million) during 2011.
(26) According to one study of the psychological effects on the residents
of Sderot, “children aged seven to 12 suffered most, with 74% experiencing
extreme fear, 67% refusing to talk or visit places that remind them of an attack, and 57% enduring nightmares and other sleep difficulties.” Id.
(27) Based on information currently available, due to the incessant
deliberate rocket and mortar attacks on Southern Israel, between 2006
and July 2009, approximately 13,000 compensation claims due to property
damage were submitted to the Israel Tax Authority, and approximately
410 million NIS ($105 million) was granted, of which approximately
290 million NIS ($74.3 million) was a direct result of the Gaza Operation.
It is estimated that the damages will amount to approximately
500 million NIS ($128.2 million). As for direct damage caused to buildings
or property as a result of a rocket or mortar attacks, 2,400 claims,
amounting to a total of approximately 31 million NIS ($7.95 million) were
submitted in 2008, in addition to 2,300 additional claims between January
and July 2009, of which a total of approximately 25 million NIS ($6.4 million)
was granted thus far.
(28) Reports from NGOs and the press have confirmed the physical
and mental toll taken on Israeli civilians, from attacks that were deliberately
directed at the civilian population. See, e.g., Personal Stories, Natal: Israel
Trauma Center for Victims of Terror and War,
available at http://natal.org.il/English/?CategoryID=260.
(29) See, e.g., Letters of 3 October 2000 (U.N. Doc.
S/2000/937
• A/55/441), 7 October 2000 (U.N. Doc. S/2000/970
• A/55/460), 11 October 2000 (U.N. Doc. S/2000/980
• A/55/470), 12 October 2000 (U.N. Doc. S/2000/985),
20 October 2000 (U.N. Doc. S/2000/1007
• A/55/508), 2 November 2000 (U.N. Doc.
S/2000/1065
• A/55/540), 20 November 2000 (U.N. Doc. S/2000/1108
• A/55/634), 22 November 2000 (U.N. Doc. S/2000/1114
• A/55/641), 29 December 2000 (U.N. Doc. S/2000/1252
• A/55/719), 1 January 2001 (U.N. Doc. S/2001/1198
• A/56/706), 2 January 2001 (U.N. Doc. S/2001/2
• A/55/725), 23 January 2001 (U.N. Doc. S/2001/71
• A/55/742), 25 January 2001 (U.N. Doc. S/2001/81
• A/55/748), 2 February 2001 (U.N. Doc. S/2001/103
• A/55/762), 9 February 2001 (U.N. Doc. S/2001/125
• A/55/777), 13 February 2001 (U.N. Doc. S/2001/132
• A/55/781), 14 February 2001 (U.N. Doc. S/2001/137
• A/55/787), 2 March 2001 (U.N. Doc. S/2001/187
• A/55/819), 6 March 2001 (U.N. Doc. S/2001/193
• A/55/821), 7 March 2001 (U.N. Doc. S/2001/197
• A/55/823), 14 March 2001 (U.N. Doc. S/2001/24
• A/55/730), 19 March 2001 (U.N. Doc. S/2001/244
• A/55/842), 26 March 2001 (U.N. Doc. S/2001/278
• A/55/858), 27 March 2001 (U.N. Doc. S/2001/280
• A/55/860), 29 March 2001 (U.N. Doc. S/2001/291
• A/55/863), 16 April 2001 (U.N. Doc. S/2001/364
• A/55/901), 23 April 2001 (U.N. Doc. S/2001/396
• A/55/910), 1 May 2001 (U.N. Doc. S/2001/435
• A/55/924), 9 May 2001 (U.N. Doc. S/2001/459
• A/56/69), 11 May 2001 (U.N. Doc. S/2001/473
• A/56/72), 18 May 2001 (U.N. Doc. S/2001/506
• A/56/78), 25 May 2001 (U.N. Doc. S/2001/524
• A/56/80), 30 May 2001 (U.N. Doc. S/2001/540
• A/56/81), 4 June 2001 (U.N. Doc. S/2001/555
• A/56/85), 11 June 2001 (U.N. Doc. S/2001/580
• A/56/91), 13 June 2001 (U.N. Doc. S/2001/585
• A/56/92), 18 June 2001 (U.N. Doc. S/2001/604
• A/56/97), 19 June 2001 (U.N. Doc. S/2001/611
• A/56/98), 21 June 2001 (U.N. Doc. S/2001/619
• A/56/119), 2 July 2001 (U.N. Doc. S/2001/656
• A/56/131), 3 July 2001 (U.N. Doc. S/2001/662
• A/56/138), 13 July 2001 (U.N. Doc. S/2001/696
• A/56/184), 17 July 2001 (U.N. Doc. S/2001/706
• A/56/201), 26 July 2001 (U.N. Doc. S/2001/737
• A/56/223), 27 July 2001 (U.N. Doc. S/2001/743
• A/56/225), 6 August 2001 (U.N. Doc. S/2001/768
• A/56/272), 7 August 2001 (U.N. Doc. S/2001/770
• A/56/275), 9 August 2001 (U.N. Doc. S/2001/775
• A/56/280), 10 August 2001 (U.N. Doc. S/2001/780
• A/56/286), 14 August 2001 (U.N. Doc. S/2001/787
• A/56/294), 28 August 2001 (U.N. Doc. S/2001/825
• A/56/324), 30 August 2001 (U.N. Doc. S/2001/834
• A/56/325), 5 September 2001 (U.N. Doc. S/2001/840
• A/56/331), 10 September 2001 (U.N. Doc. S/2001/858
• A/56/346), 17 September 2001 (U.N. Doc. S/2001/875
• A/56/367), 20 September 2001 (U.N. Doc. S/2001/892
• A/56/386), 25 September 2001 (U.N. Doc. S/2001/907
• A/56/406), 4 October 2001 (U.N. Doc. S/2001/938
• A/56/438), 5 October 2001 (U.N. Doc. S/2001/943
• A/56/444), 8 October 2001 (U.N. Doc. S/2001/948
• A/56/450), 17 October 2001 (U.N. Doc. S/2001/975
• A/56/483), 19 October 2001 (U.N. Doc. S/2001/990
• A/56/492), 25 October 2001 (U.N. Doc. S/2001/1011
• A/56/506), 30 October 2001 (U.N. Doc. S/2001/1023
• A/56/514), 6 November 2001 (U.N. Doc. S/2001/1048
• A/56/604), 13 November 2001 (U.N. Doc. S/2001/1071
• A/56/617), 28 November 2001 (U.N. Doc. S/2001/1121
• A/56/663), 29 November 2001 (U.N. Doc. S/2001/1133
• A/56/668), 3 December 2001 (U.N. Doc. S/2001/1141
• A/56/670), 4 December 2001 (U.N. Doc. S/2001/1150
• A/56/678), 27 December 2001 (U.N. Doc. S/2001/1262
• A/56/758), 4 January 2002 (U.N. Doc. S/2002/25
• A/56/766), 11 January 2002 (U.N. Doc. S/2002/47
• A/56/771), 16 January 2002 (U.N. Doc. S/2002/73
• A/56/774), 17 January 2002 (U.N. Doc. S/2002/79
• A/56/778), 18 January 2002 (U.N. Doc. S/2002/86
• A/56/781), 22 January 2002 (U.N. Doc. S/2002/104
• A/56/788), 24 January 2002 (U.N. Doc. S/2002/115
• A/56/793), 29 January 2002 (U.N. Doc. S/2002/126
• A/56/798), 8 February 2002 (U.N. Doc. S/2002/155
• A/56/814), 13 February 2002 (U.N. Doc. S/2002/164
• A/56/819), 19 February 2002 (U.N. Doc. S/2002/174
• A/56/824), 20 February 2002 (U.N. Doc. S/2002/185
• A/56/828), 27 February 2002 (U.N. Doc. S/2002/208
• A/56/843), 4 March 2002 (U.N. Doc. S/2002/222
• A/56/854), 5 March 2002 (U.N. Doc. S/2002/233
• A/56/857), 11 March 2002 (U.N. Doc. S/2002/252
• A/56/864), 12 March 2002 (U.N. Doc. S/2002/257
• A/56/867), 15 March 2002 (U.N. Doc. S/2002/280
• A/56/876), 19 March 2002 (U.N. Doc. S/2002/293
• A/56/880), 22 March 2002 (U.N. Doc. S/2002/301
• A/56/884), 25 March 2002 (U.N. Doc. S/2002/302
• A/56/886), 27 March 2002 (U.N. Doc. S/2002/315
• A/56/889), 28 March 2002 (U.N. Doc. S/2002/322
• A/56/891), 1 April 2002 (U.N. Doc. S/2002/337
• A/56/895), 2 April 2002 (U.N. Doc. S/2002/345
• A/56/898), 3 April 2002 (U.N. Doc. S/2002/348
• A/56/899), 8 April 2002 (U.N. Doc. S/2002/360
• A/56/905), 11 April 2002 (U.N. Doc. S/2002/373
• A/56/912), 12 April 2002 (U.N. Doc. S/2002/415
• A/56/909), 1 May 2002 (U.N. Doc. S/2002/503
• A/56/936), 8 May 2002 (U.N. Doc. S/2002/533
• A/56/940), 22 May 2002 (U.N. Doc. S/2002/572
• A/56/957), 23 May 2002 (U.N. Doc. S/2002/583
• A/56/964), 24 May 2002 (U.N. Doc. S/2002/584
• A/56/965), 30 May 2002 (U.N. Doc. S/2002/604
• A/56/967), 5 June 2002 (U.N. Doc. S/2002/620
• A/56/970), 14 June 2002 (U.N. Doc. S/2002/669
• A/56/983), 19 June 2002 (U.N. Doc. S/2002/683
• A/56/992), 21 June 2002 (U.N. Doc. S/2002/696
• A/56/995), 10 July 2002 (U.N. Doc. S/2002/743
• A/56/1001), 17 July 2002 (U.N. Doc. S/2002/775
• A/56/1006), 19 July 2002 (U.N. Doc. S/2002/800
• A/56/1008), 26 July 2002 (U.N. Doc. S/2002/841
• A/56/1014), 31 July 2002 (U.N. Doc. S/2002/852
• A/56/1016), 1 August 2002 (U.N. Doc. S/2002/859
• A/56/1018), 7 August 2002 (U.N. Doc. S/2002/893
• A/56/1021), 14 August 2002 (U.N. Doc. S/2002/919
• A/56/1025), 19 August 2002 (U.N. Doc. S/2002/1049
• A/57/419), 25 August 2002 (U.N. Doc. S/2002/1076
• A/57/431), 27 August 2002 (U.N. Doc. S/2002/1089
• A/57/438), 10 October 2002 (U.N. Doc. S/2002/1134
• A/57/463), 23 October 2002 (U.N. Doc. S/2002/1186
• A/57/495), 30 October 2002 (U.N. Doc. S/2002/1214
• A/57/579), 1 November 2002 (U.N. Doc. S/2002/1220
• A/57/585), 7 November 2002 (U.N. Doc. S/2002/1224
• A/57/592), 13 November 2002 (U.N. Doc. S/2002/1241
• A/57/601), 15 November 2002 (U.N. Doc. S/2002/1260
• A/57/615), 25 November 2002 (U.N. Doc. S/2002/1295
• A/57/625), 29 November 2002 (U.N. Doc. S/2002/1308
• A/57/632), 11 December 2002 (U.N. Doc. S/2002/1347
• A/57/642), 2 January 2003 (U.N. Doc. S/2002/1440
• A/57/697), 6 January 2003 (U.N. Doc. S/2003/9
• A/57/703), 14 January 2003 (U.N. Doc. S/2003/46
• A/57/706), 17 January 2003 (U.N. Doc. S/2003/62
• A/57/710), 29 January 2003 (U.N. Doc. S/2003/110
• A/57/719), 12 February 2003 (U.N. Doc. S/2003/171
• A/57/729), 26 February 2003 (U.N. Doc. S/2003/225
• A/57/741), 5 March 2003 (U.N. Doc. S/2003/252
• A/57/745), 11 March 2003 (U.N. Doc. S/2003/299
• A/57/750), 1 April 2003 (U.N. Doc. S/2003/395
• A/57/770), 25 April 2003 (U.N. Doc. S/2003/502
• A/57/799), 1 May 2003 (U.N. Doc. S/2003/517
• A/57/804), 6 May 2003 (U.N. Doc. S/2003/527
• A/57/807), 12 May 2003 (U.N. Doc. S/2003/540
• A/57/810, 20 May 2003 (U.N. Doc. S/2003/557
• A/57/815), 2 June 2003 (U.N. Doc. S/2003/603
• A/57/820), 13 June 2003 (U.N. Doc. S/2003/645
• A/57/839), 20 June 2003 (U.N. Doc. S/2003/662
• A/57/842), 10 July 2003 (U.N. Doc. S/2003/699
• A/57/846), 13 August 2003 (U.N. Doc. S/2003/809
• A/57/858), 10 September 2003 (U.N. Doc. S/2003/873
• A/57/862), 9 October 2003 (U.N. Doc. S/2003/972
• A/58/424), 14 January 2004 (U.N. Doc. S/2004/33
• A/58/682), 30 January 2004 (U.N. Doc. S/2004/80
• A/58/697), 25 February 2004 (U.N. Doc. S/2004/142
• A/58/721), 2 March 2004 (U.N. Doc. S/2004/172
• A/58/726), 16 March 2004 (U.N. Doc. S/2004/212
• A/58/736), 16 March 2004 (U.N. Doc. S/2004/211
• A/58/735), 3 May 2004 (U.N. Doc. S/2004/350
• A/58/780), 8 June 2004 (U.N. Doc. S/2004/465
• A/58/837), 28 June 2004 (U.N. Doc. S/2004/521
• A/58/850), 13 August 2004 (U.N. Doc. S/2004/647
• A/58/870), 30 August 2004 (U.N. Doc. S/2004/702
• A/58/881), 24 September 2004 (U.N. Doc. S/2004/757
• A/59/380), 2 November 2004 (U.N. Doc. S/2004/880
• A/59/548), 11 January 2005 (U.N. Doc. S/2005/14
• A/59/667), 19 January 2005 (U.N. Doc. S/2005/40
• A/59/678), 28 February 2005 (U.N. Doc. S/2005/130
• A/59/717), 15 April 2005 (U.N. Doc. S/2005/250
• A/59/781), 19 May 2005 (U.N. Doc. S/2005/327
• A/59/805), 7 June 2005 (U.N. Doc. S/2005/375
• A/59/829), 8 June 2005 (U.N. Doc. S/2005/457
• A/59/873), 23 June 2005 (U.N. Doc. S/2005/410
• A/59/854), 13 July 2005 (U.N. Doc. S/2005/452
• A/59/870), 29 August 2005 (U.N. Doc. S/2005/552
• A/59/905), 26 September 2005 (U.N. Doc. S/2005/609
• A/60/382), 27 September 2005 (U.N. Doc. S/2005/610
• A/60/385), 17 October 2005 (U.N. Doc. S/2005/655
• A/60/435), 27 October 2005 (U.N. Doc. S/2005/680
• A/60/448), 5 December 2005 (U.N. Doc. S/2005/756
• A/60/580), 5 December 2005 (U.N. Doc. S/2005/757
• A/60/581), 31 March 2006 (U.N. Doc. S/2006/205
• A/60/742), 26 May 2006 (U.N. Doc. A/ES-10/334
• S/2006/336), 12 June 2006 (U.N. Doc. S/2006/382
• A/60/885), 26 June 2006 (U.N. Doc. S/2006/436
• A/60/905), 30 June 2006 (U.N. Doc. S/2006/463
• A/60/913), 5 July 2006 (U.N. Doc. S/2006/485
• A/60/931), 10 July 2006 (U.N. Doc. S/2006/502
• A/60/935), 10 October 2006 (U.N. Doc. S/2006/798
• A/61/507), 14 November 2006 (U.N. Doc. S/2006/887
• A/61/574), 15 November 2006 (U.N. Doc. S/2006/891
• A/61/578), 24 November 2006 (U.N. Doc. S/2006/916
• A/61/594), 5 December 2006 (U.N. Doc. S/2006/941
• A/61/608), 19 December 2006 (U.N. Doc. S/2006/1000
• A/61/647), 26 December 2006 (U.N. Doc. S/2006/1029
• A/61/681), 19 January 2007 (U.N. Doc. S/2007/23
• A/61/705), 7 February 2007 (U.N. Doc. S/2007/60
• A/61/729), 22 February 2007 (U.N. Doc. S/2007/101
• A/61/755), 7 March 2007 (U.N. Doc. S/2007/129
• A/61/787), 4 September 2007 (U.N. Doc. S/2007/524
• A/61/1038), 12 December 2007 (U.N. Doc. S/2007/728
• A/ES-10/406), 19 December 2007 (U.N. Doc. S/2007/750
• A/ES-10/407), 15 January 2008 (U.N. Doc. A/62/647-S/2008/24),
4 February 2008 (U.N. Doc. A/62/673 - S/2008/72), 8 February 2008
(U.N. Doc. A/62/685 - S/2008/86), 11 February 2008 (U.N. Doc.
A/62/688 - S/2008/90), 27 February 2008
(U.N. Doc. A/62/710 - S/2008/132), 13 March 2008 (U.N. Doc.
A/62/735 - S/2008/169), 27 March 2008
(U.N. Doc. A/62/770 - S/2008/209), 9 April 2008
(U.N. Doc. A/62/797 - S/2008/233), 18 April 2008
(U.N. Doc. S/2008/261), 22 April 2008 (U.N. Doc. A/62/812 - S/2008/269),
25 April 2008 (U.N. Doc. A/62/820 - S/2008/277), 9 May 2008
(U.N. Doc. A/62/839 - S/2008/311), 12 May 2008 (U.N. Doc.
A/62/840 - S/2008/316), 14 May 2008 (U.N. Doc. A/62/843 -
S/2008/328), 5 June 2008 (U.N. Doc. A/62/857 - S/2008/367),
24 June 2008 (U.N. Doc. S/2008/420), 22 December 2008
(U.N. Doc. S/2008/807), 24 December 2008 (U.N. Doc. S/2008/814).
(30) See, e.g., Letters of 13 March 2008, 18 December 2008, 29 December 2008.
(31) See, e.g., Letters of 15 January 2008 (U.N. Doc. A/62/647-S/2008/24),
4 February 2008 (U.N. Doc. A/62/673 - S/2008/72), 8 February 2008
(U.N. Doc. A/62/685 - S/2008/86), 11 February 2008 (U.N. Doc.
A/62/688 - S/2008/90), 27 February 2008 (U.N. Doc. A/62/710 - S/2008/132),
13 March 2008 (U.N. Doc. A/62/735 - S/2008/169), 27 March 2008
(U.N. Doc. A/62/770 - S/2008/209), 9 April 2008 (U.N. Doc. A/62/797
- S/2008/233), 18 April 2008 (U.N. Doc. S/2008/261), 22 April 2008
(U.N. Doc. A/62/812 - S/2008/269), 25 April 2008 (U.N. Doc.
A/62/820 - S/2008/277), 9 May 2008 (U.N. Doc. A/62/839 - S/2008/311),
12 May 2008 (U.N. Doc. A/62/840 - S/2008/316), 14 May 2008 (U.N. Doc.
A/62/843 - S/2008/328), 5 June 2008 (U.N. Doc. A/62/857 - S/2008/367),
24 June 2008 (U.N. Doc. S/2008/420), 22 December 2008 (U.N. Doc.
S/2008/807), 24 December 2008 (U.N. Doc. S/2008/814).
(33) For the legal analysis of these measures, see Jaber Al-Bassiouni v.
The Prime Minister of Israel, HCJ 9132/07 (30 January 2008).
(34) See Currently listed entities, Public Safety Canada, available at
http://www.publicsafety.gc.ca/prg/ns/le/cle-en.asp (Canada); Anton
La Guardia, Hamas is added to EU’s blacklist of terror, Telegraph,
12 September 2003, available at http://www.telegraph.co.uk/news/worldnews/middleeast/
israel/1441311/ Hamas-is-added-to- EUs-blacklist-of-terror.html
and EU blacklists Hamas political wing, BBC News, 11 September 2003,
available at http://news.bbc.co.uk/2/hi/middle_east/3100518.stm
(the European Union); Country Reports on Terrorism 2005, United States
Department of State, April 2006, at ¶¶ 132-136 and 183, available at http://www.state.gov/documents/organization/65462.pdf and U.S. Welcomes
European Union Designation of Hamas as Terrorists, United States Department
of State, 6 September 2003, available at http://www.america.gov
/st/washfile-english/2003/September/20030906173844ynnedd0.1619074.html
(the United States); and Listing of Terrorist Organisations,
Australian National Security, available at
http://www.nationalsecurity.gov.au/agd/www/nationalsecurity.nsf/
AllDocs/ 95FB057CA3DECF30CA256FAB001F7FBD?
OpenDocument (Australia).
(37) The Secretary-General of the United Nations issued the
following statement on 24 December 2008:
The Secretary-General is gravely concerned about the situation in
Gaza and southern Israel and the potential for further violence and
civilian suffering if calm is not restored. He condemns today's rocket
attacks on southern Israel and calls on Hamas to ensure that rocket
attacks from Gaza cease immediately.
See “New York, 24 December 2008 - Statement attributable to the
Spokesperson for the Secretary-General on the Situation in Gaza
and southern Israel,” available at
http://www.un.org/apps/sg/sgstats.asp?nid=3631.
(46) U.N. General Assembly, Letter dated 4 May 2009 from the Secretary-General addressed to the President of the Security Council : Summary by the Secretary-General of the report of the United Nations Headquarters Board of Inquiry into certain incidents in the Gaza Strip between 27 December 2008 and 19 Jan 2009 (hereafter “U.N. BoI Report”),
15 May 2009, A/63/855–S/2009/250, at ¶ 89, available at
http://www.unhcr.org/refworld/docid/4a292c8dd.html . |
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(47) U.N. Charter, art. 51 (confirming “the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security”).
(48)See, e.g., Christopher Greenwood, Terrorism: The Proper Law and the Proper Forum, in 79 International Law and the War on Terror 353, 355 (Fred L. Borch & Paul S. Wilson eds., 2003) (“Nothing in the text or the drafting history of the Charter suggests that ‘armed attack’ is confined to the acts of states . . . Nor has state practice or the jurisprudence of international tribunals since the adoption of the Charter espoused a formalistic distinction between acts of states and acts of terrorist and other groups in determining what constitutes an armed attack.”); Thomas M. Franck, Terrorism and the Right of Self-defense, 95 Am. J. Int’l L. 839, 840 (2001) (declaring it “inconceivable” that States should not be allowed to exercise the same right of self-defence against non-State actors as they would have against other States); see also Chatham House, “Principles of International Law on the Use of Force by States in Self-Defence,” International Law Programme, ILP WP 05/01, at 2, 11-13 (2005) (hereafter “Chatham House Principles”) (conclusion by a group of prominent experts that Article 51 “applies also to attacks by non-state actors,” provided such attacks are “large scale” and that the State hosting the attacking actors is “unable or unwilling to deal with the non-state actors itself”). See also Institut de Droit International, 10A resolution (Tenth Commission), Present Problems of the Use of Armed Force in International Law - Self Defence, 27 October 2007.
(49) See, e.g., Letter from Daniel Webster to Lord Ashburton (6 August 1842), quoted in 2 John Bassett Moore, A Digest of International Law 412 (1906) (providing guidelines for customary international law on the use of force in self-defence, in the context of defence against a non-State actor).
(50) United Nations Security Council Resolution 1368 (12 September 2001) (recognizing “the inherent right of individual or collective self-defence,” in connection with “threats to international peace and security caused by terrorist acts”); United Nations Security Council Resolution 1373 (28 September 2001) (noting that “international terrorism constitute[s] a threat to international peace and security” while “reaffirming the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in resolution 1368”) (emphasis added).
(51) Bruno Simma, The Charter of the United Nations: A Commentary, vol. I, at 800 (3d ed. 2002).
(52) In its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion, I.C.J. reports 2004, at 136), the International Court of Justice, asserted, ipse dixit, and without any persuasive rationale, that the attacks launched by Palestinian terrorist organisations against Israel could not qualify as an armed attack under Article 51 of the U.N. Charter. This unsubstantiated assertion in the Advisory Opinion has met with widespread criticism from academic commentators and indeed from other judges of the court. See separate opinion of Judge Higgins, at 15 (¶ 33); declaration of Judge Buergenthal, at 242 (¶ 6); separate opinion of Judge Kooijmans, at 229‑230 (¶ 35); see also S. D. Murphy, “Self-Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ?,” 99 AJIL 62 62-63 (2005),
(53) Sean Murphy, Principles of International Law 447 (2006).
(54) Rosalyn Higgins, Problems and Process: International Law and How We Use It, at 232 (1995) (stating the proportionality of military action “cannot be in relation to any specific prior injury — it has to be in relation to the overall legitimate objective, of ending the aggression”); see also Chatham House Principles at 10. Judge Christopher Greenwood has confirmed that the law does not mandate that “the degree of force employed in self-defence must be no greater than that used in the original armed attack.” Christopher Greenwood, Essays on War in International Law 80 (2006). The late Judge Roberto Ago likewise wrote that “[i]t would be mistaken . . . to think that there must be proportionality between the conduct constituting the armed attack and the opposing conduct. The action needed to halt and repulse the attack may well have to assume dimensions disproportionate to those of the attack suffered.”(Id. (quoting Judge Ago).
(55) Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), ICJ Rep. 2003, ¶ 77.
(59) For detailed analysis, see Intelligence and Terrorism Information Center, Mounting evidence indicates that during Operation Cast Lead (and in ordinary times) members of Hamas’ internal security forces served as commanders and operatives in Hamas’ military wing, 24 March 2009, available at http://www.terrorism-info.org.il/malam_multimedia/English/eng_n/html/hamas_e067.htm. See also legal analysis at V.C(3)(b).
(60) Philadelphi is the term commonly used to describe the security route along the border between Gaza and Egypt. |
(61) This broader objective is no different than the objective that NATO articulated for using force in the former Yugoslavia, which was to “[d]amage Serbia’s capacity to wage war against Kosovo in the future or spread the war to neighbors by diminishing or degrading its ability to wage military operations.” NATO Bombings, Final Report to the ICTY Prosecutor, ¶ 45 (quoting the Cohen, Shelton Joint Statement on Kosovo).
(62) Resolution 1860 was adopted by the Security Council on 8 January 2009 and called – inter alia – uponMember States to intensify efforts to provide arrangements and guarantees in Gaza in order to sustain a durable ceasefire and calm, including to prevent illicit trafficking in arms and ammunition and to ensure the sustained reopening of the crossing points. | |
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