C. Knoop De onrechtmatige daad is een fenomeen waar zelfs in het dagelijks leven vaak over wordt gesproken. Dat komt omdat het gemakkelijk is om je een...
Guido de Been
After the abduction and killing of three young Israeli citizens on June 12th 2014, allegedly perpetrated by the Palestinian Sunni Islamic organization Hamas, war has again been waged in the seemingly never-ending conflict between Israel and the Palestinian territories. The amount of violence that followed the abduction has been questioned by the international community, and questions of Israel’s right to defend itself in such a way have been raised.
Israel is bombed nearly constant by rockets fired from the Gaza Strip and claims it is acting in self-defence only[i]. The fact that Israel has the right to defend itself from foreign threats is completely uncontroversial: article 51 of the United Nations (UN) charter states that any sovereign state has the right to defend itself against a foreign invasion until further notice by the UN. However, the simple statement that Israel has a right to defend itself against attacks made by Hamas is an oversimplification of the situation. The question whether or not Israel should defend itself by the use of force or not is a legitimate one.
The conflict in perspective
The 2014 unrest in Gaza is part of a larger conflict, the so-called Arab-Israeli conflict, that has been wagging ever since the founding of the state of Israel in 1948. Throughout the years several conflicts have been fought out between Israel, often supported by so-called western states in some way, and a variety of Arab nations and coalitions. Among others, major conflicts have included the 1948 Arab-Israeli war, the 1956 Suez crisis, the 1967 Six-day war, the 1973 Yom Kippur war, the First- and Second Intifada and since 2006 the “Gaza-conflict” which has itself had several stages of violence and cease-fire. What marked many of these conflicts is the shifting of borders beyond the original of 1948, almost always favourable to Israel, and the relocation of large parts of the Arabian population. This is especially true for the 1967 conflict.
Two highly important conflicts were the conflicts in 1948 and 1967. After the founding of the state of Israel in 1948 on what was then known as the British Mandate a war between Israel and the surrounding Arabian countries erupted.[ii] Hundreds of thousands of Palestine citizens fled to neighbouring countries like Syria, Lebanon and Jordan but also to the surrounding area, The West Bank and the Gaza Strip. In 1967 another war broke out between Israel and the surrounding countries and, after coming out victorious, Israel expanded its territory into the West Bank, Gaza Strip and eastern Jerusalem.[iii] This expansion of Israel along with the forced relocation of the Arab population let to the founding of the Palestine Liberation Organisation or PLO. PLO is, however, a non-religious organization, much to the dismay of a part of the Islamic inhabitants of the area. This in turn led to the founding of the religiously inspired Hamas organisation in 1987, during the conflict known as the First Intifada. This organisation is central to the current unrest in the Gaza strip.
Founded in 1987, Hamas is a Sunni Islamic organisation that has the goal of liberating the Middle-East from what they describe as the Israeli occupation of Holy Lands.[iv] It has been designated a terrorist organisation by most western countries. These include the European Union, which bases the capability of such a list on article 15 and 34 of the Treaty on the functioning of the European Union, and the United States.[v][vi] This designation limits the financial capabilities of the group and its members and gives the possibility of revoking members passports. Since terrorism has no clear definition the exact criteria to get on the list of designated terrorist groups is not clear and seems at first sight a bit arbitrary.
Hamas has an associated military wing called the Al-Qassam brigades, which has launched suicide attacks and, more recently, rocket attacks against Israel. Because these attacks indiscriminately targeted Israeli civilians they have been classified as war crimes by many nations and organisations such as Human Rights Watch.[vii] As stated in Hamas ’charter the “elimination” of the state of Israel is the organisations main goal. The demands as laid down in the charter, which includes the desire to establish an Islamic state on what is now the state of Israel, may be considered somewhat radical at first. Whether the organisation actually only desires these specific demands in 2014 is unlikely as they have most importantly stated more recently that a cease-fire may work if Israel retreats to the 1967 borders and allows Palestinian citizens who have been driven of their land since 1948 to return home.[viii]
The occupation in International Law
What now does international law say about the situation in Israel? As stated earlier, after the founding of the State of Israel there was a subsequent attack by a host of Arab Nations. International Law prohibits such attacks from being made in article 2 of the UN Charter. The article prohibits states from attacking other sovereign states or even threatening to attack in their international relations. Only when a state is provoked, for instance when an invasion is taking place, or, as stated in art 43 of the UN Charter, has a UN backed mandate is the use of force allowed. Some countries and legal scholars, however, suggest that pre-emptive attacks are also allowed according to international law.[ix] For this reason, the exact legal status of the 1948 war remains unclear.
What is clear however, is the legal status of the territorial expansion of the State of Israel since the 1967 Six-day war. After the Six-day war Israel expanded its territory into the Gaza Strip, the West Bank and eastern Jerusalem. In many of these territories Israel has deliberately build settlements, often to accommodate the more religious part of their population.[x] The status of these settlements is very clear: the UN, as well as most of the world countries consider these settlements to be illegal. This has been stated in several UN resolutions, namely resolution 446, 452, 465 and 471. Israel denies that these settlements are illegal, given the fact that according to Israel the territories had no legal sovereign power before the occupation and the area is thus disputed.[xi] This is in some way a true statement but it covers the fact that before the state of Israel was founded it was also an occupied territory which led to its disputed status in the first place. By settling their own population into occupied territory, whether voluntarily or by force, is in itself not allowed by article 49 of the fourth Geneva Convention.
The ongoing conflict has also resulted in other problems. Officially Palestine is not a sovereign state. Citizens of these non-sovereign territories can thus not actually be citizens of any state.[xii] For this reason Palestinian citizens are for the most part stateless and are thus highly limited in their travel capabilities and enjoy fewer protection. Israel has also been blocking sea entrance to areas such as the Gaza Strip and it thus has no free access to international waters.[xiii] The conflict has also left a large part of the population without land and resources.
The occupation itself has also been a violation of International Law. The United Nations Security Council Resolution 242 clearly forbids the acquisition of territory through the use of warfare.[xiv] The Resolution, which was established after the Six-day war, states that the Israeli expansion violates the surrounding states sovereignty and calls for “Withdrawal of Israeli armed forces from territories occupied in the recent conflict” . Israel thus clearly violates international law in the occupied territories.
The current conflict
The 2014 Gaza conflict is not unique. Previous conflicts between Hamas and Israel have taken place in almost every year since 2006 and it can thus be seen as a continuing conflict with intermediate breaks. The escalation of the conflict followed after Hamas had been elected into the government of Palestine in 2005 and 2006.
The number of civilian fatalities during the conflict is high, but disputed. Although several organizations claim that the number of civilian casualties could very well be up to 80% of the total number of fatalities, Israel claims that the majority of the fatalities are combatants.[xv] It also claims that Hamas uses people as “human shields” for protection or to increase the death toll of civilians for propaganda purposes.[xvi] No convincing evidence for this claim has been provided besides videos that show Hamas using rocket launching installations from areas with a high civilian population.[xvii] Though it might very well be true that Hamas fires from civilian areas, the claim that Hamas deliberately uses its citizens as human shields is an unlikely claim. First, the times of rural warfare have long been passed and urban warfare has over the years become the norm resulting in high civilian casualties in almost every conflict. Second, the Gaza Strip is a small area with an extraordinarily high population density of 5000 people per square kilometer.[xviii] In such an environment it is hard not to fight in areas with large amounts of citizens.
Israel and its right to defend itself
As stated before, Israel is fully entitled to defend itself from foreign threats, as is any sovereign nation. The question however is whether this means Israel is automatically entitled to defend itself by the use force. We have established that Israel is in clear violation of International Law, only Israel itself seems to dispute this. Resolution 242 forbids the acquisition of territory through military conquest and art. 49 of the fourth Geneva Convention forbids the transferring of the population to occupied areas. Because Israel so clearly violates international law we can question who the original aggressor in this conflict is. The original demands of Hamas can be considered outrageous and a security threat to the state of Israel. However, over the years Hamas has severely weakened its demands and has stated that it will accept a ten year truce if Israel retreats to the 1967 borders and they allow for Palestinian citizens to return home. These demands are completely in line with International Law.
Furthermore, the Israeli Defence Forces, or IDF, outweighs Hamas in military strength by an incredible amount. IDF has an annual budget of almost 20 billion dollars and is also backed by the United States Armed Forces, possibly the most powerful army ever to have existed.[xix] The Al-Qassam brigade however is a relatively small force which uses mostly homemade rockets to attack Israel. The amount of actual threat to the state of Israel is thus questionable.
There is little controversy over the fact that Israel may defend itself. We have seen however that Israel is not just defending itself but is clearly expanding its territory overtime. The use of force r can be considered unnecessary and Israel can perfectly defend itself by retreating from the occupied territories.
[vii] Gaza: Palestinian Rockets Unlawfully Targeted Israeli Civilians”. hrw.org/news/. Human Rights Watch.
[viii] Efraim Inbar. Israel’s National Security: Issues and Challenges Since the Yom Kippur War. Routledge, Dec 21, 2007. p. 193
[ix] Clark, A.A. International law and Preemptive use of military force The Center for Strategic and International Studies and the Massachusetts Institute of Technology The Washington Quarterly 26:2 pp. 89–103.
[x] Gilbert, M. (1979). The Arab-Israeli Conflict. Weidenfeld and Nicolson
[xii] Shiblak, A. (2006). Stateless Palestinians. Forced Migration Review, 26(2006), 8-9.
[xiii] Migdalovitz, C. (2010, June). Israel’s Blockade of Gaza, the Mavi Marmara Incident, and Its Aftermath. Library of congress Washington Dc Congressional Research Service
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