INTRODUCTION
Israel recently was reported to launch attacks towards the Gaza City in Palestine (Al-Jazeera, 2009). Where unnumbered civilians were killed in the attack, the spokesman for Israeli government Mark Regev denied any wrongful conduct on behalf of Israel (Regev, 2009). He further maintained that if the Hamas organization does not stop the firing of rockets on South Israel, they shall take actions as deemed necessary to defend Israel i.e. including mass murder. Nevertheless, it must be noted that international law (hereinafter referred to as "IL") is a body of rules governing the relations between states (Oppenheim, 1996). Every States including Israel is bound to follow IL. However, question arose whether the attack made was in accordance with IL so much so that they can deny liability even if they had to commit genocide and war crimes?
This paper shall reveal on how far does the statement made by Israel is in line with IL. Although IL recognizes that a state may defend itself if being threatened, I strongly believe that the attack made by Israel was disproportionate, beyond the act of self defense and violated numerous rights relating to protection of civilian population.
MILITARY NECESSITY & PROPORTIONALITY
States are prohibited to resort to use of force when settling disputes amongst themselves (Article 2 (4) of the United Nations Charter , 1945). This further means that we are not allowed declaring war as a measure of dispute settlement. However, in most times war still occur although there is a prohibition in doing so. Thus, IL still governs the conduct during war or armed conflict to provide protection to combatants as well as civilians. If an armed attack is conducted on the basis of military necessity, by such reason, it admits all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war (Article 15 General Order 100 , 1863). The first argument I came up with is that Israel cannot justify its attack on Palestine based on military necessity.
To put up military necessity as a defense for killing civilians is not an easy task (Fenrick, 1982). It is clear under the IL that attack against civilian population is strictly prohibited (Article 51 (2) of Protocol 1 to the Geneva Conventions, 1949). In order to use defense of necessity, constant care shall be taken to spare the civilian population and civilian objects (Article 57 of Protocol 1 to the Geneva Conventions, 1949). Those who plan or decide upon an attack shall do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives. They must also take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects. However, if damage is so probable to be cause from the attack, they shall refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. The attacking force is not the only one with responsibilities towards the civilian population. It enjoins the parties, to the maximum extent feasible, to remove the civilian population from the vicinity of military objectives, to avoid locating military objectives within or near densely populated areas and to take other precautions to protect the civilian population (Article 58 of Protocol 1 to the Geneva Conventions, 1949).
So far as the real situation is concerned, Israel failed to observe the above stated obligations. To worsen the situation, Israel was reported to attack the United Nations building situated in Palestine where the building was protected by IL and they shouldn't have attacked it (Youtube, 2009). So far, there is yet no reason for Israel to rely on military necessity if rules of IL were not complied with. With regards to the defense of military necessity, it must be noted that necessity must also be intertwined with proportionality. A military commander is not entitled to cause collateral injury to noncombatants or damage to civilian objects which is disproportionate to the military advantage derived from an operation. It means that an attack must be directed only at a military objective and none others.
If we were to look at the current situation, there are duties on behalf of Israeli commanding officers to stop the attack on Palestine if the attack would cause civilian casualties. Furthermore, to attack civilian population would definitely render the attack disproportionate and its destruction definitely does not offer any effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, does not offers a definite military advantage to Israel.
SELF-DEFENSE
Concerning right to self-defense, I strongly believe that Israel cannot justify itself under self-defense committing such crimes. The right of individual or collective self-defense may be exercised if an armed attack occurs against a Member of the United Nations (Article 51 of Charter of the United Nations, 1973). However, the right of self-defense must be exercised with compliance to two elements. "The person acts reasonably to defend himself or herself or another person or…property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected…" (Article 31 of Rome Statute of the International Criminal Court, 1999).
Based on the abovementioned authority, there must be an imminent and unlawful use of force and the act must be proportionate to the degree of danger for self-defense to be rendered legitimate. In order to determine whether there was an imminent threat to Israel, it is proper for us to refer to the cease-fire declared by Israeli Prime Minister Ehud Olmert. He said "Beginning at 0200 [0000 GMT], Israel will cease its actions against the terrorist organisations in the Gaza Strip and will remain deployed in the Gaza Strip and its environs... If our enemies decide that the blows they have already suffered are not enough and they wish to continue fighting, Israel will be ready for that scenario and will feel free to continue responding with force…" (BBC News, 2009).
However, later there was a report confirmed by a Palestine Legislator Dr. Mustafa Barghouti that Israel that broke the cease-fire by killing six Gazans on 4th January 2009 (Barghouti, 2009). After heavy inquiries and investigations by the media, Israel finally admitted that there were no rockets fired from Hamas during the period of the cease-fire (Youtube, 2009). They fired at the Gazans on mere suspicion that the Gazan were digging tunnel to kidnap Israeli soldiers.
If we were to look at the conduct of Israel, it seems that there was no imminent or unlawful use of force caused to Israel. However, Israel was the one to break the cease-fire and further killed six civilians which under IL is prohibited to do so. As such, we cannot say that there exist any imminent threat to Israel's safety and the attack made by Israel was disproportionate since it had caused unnecessary civilian casualties.
VIOLATION OF INTERNATIONAL LAW
It may be argued by Israel that their attack was legal because it was a necessity to defend themselves. There was a report that Israel attacked United Nations schools where the refugees were placed and caused loss of civilian lives (Bannoura, 2009). It is clear that such a place is protected under IL and cannot be an object of attack. However, a protected object may cease to be protected if it turned into a military objective.
Military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage (Article 52 (2) of Protocol 1 to the Geneva Conventions, 1949). If an attack is directed not at military objectives, then it is considered disproportionate and should not be done. Israel claimed that their soldiers attacked the United Nations schools because there were people attacking from the interior side of the building. "We face a very delicate situation where the Hamas is using the citizens of Gaza as a protective vest," Israel Defense Forces spokesman Brig. General Avi Benayahu said after the incident (CNN, 2009). When such a situation occurs, by attacking the United Nations school shall render its neutralisation to offer a definite military advantage to Israeli army so that the war may be ended. Thus, the school becomes a legitimate military objective and may be attacked.
Despite Israel counter arguing that the objects of attack were military objectives, I believe that it cannot justify the attack due to violation of numerous rights to civilian protection. If we were to refer to Shimoda case in which Japanese plaintiffs who had been injured by the atomic bombings of Nagasaki and Hiroshima sued the Japanese government which they alleged to be illegal. The Japanese government in its defense argued that the bombings were legal because it became the major factor to bring the surrender and would have prevented many more casualties. However, the Court ignored such defense and held that Nagasaki and Hiroshima cannot be military objectives because it cannot justify the noncombatants casualties (Ryuichi Shimoda et al. v. The State, 1964).
It was reported that Israel had used chemical weapons during the attack (Utusan Malaysia, 2009). The use of chemical weapon is prohibited under customary international law and it causes civilian casualties (Hague Declaration (IV,2) concerning Asphyxiating Gases, 1899). In the case of Tadic, the international community condemned Iraq's use of chemical weapons against the Kurds (Dusco Tadic, 1994). The United Kingdom stated that this use was a violation of the Geneva Gas Protocol and international humanitarian law.
Furthermore, Israel was reported to have attacked buildings dedicated to religions such as mosque and caused 11 Palestinians including 1 child killed during such attack (Al-Jazeera, 2009). According to Article 8 (2) (b) (ix) of the Rome Statute, intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected amounts to war crimes (Article 8 (2)(b)(ix) of the Rome Statute of the International Criminal Court, 1999).
As such, I vehemently believe that these gross violation of civilian rights cannot justify the attacks made by Israel. Civilians must be given the utmost protection and their rights cannot be ignored for Israelis personal goals.
The principle in the law of armed conflict can be seen in Islam whereby Islam always practices the rule of proportionality in war. In Surah Al-Maidah 5:45 which states "And We ordained for them in that [Torah]: A life for a life, and an eye for an eye, and a nose for a nose, and an ear for an ear, and a tooth for a tooth, and a [similar] retribution for wounds; but he who shall forgo it out of charity will atone thereby for some of his past sins. And they who do not judge in accordance with what God has revealed - they, they are the evildoers!"
According to Dr Sheikh Wahbeh M. al-Zuhili, Jihad is lawful in Islam as a necessity to suppress aggression. It was prescribed in the second year of the Hijrah after Muslims had patiently borne for fourteen years the harm done to them by the pagans. The proof can be found in God Almighty's words: "To those against whom war is made, permission is given (to fight),
because they are wronged, and verily, God is Most Powerful for their aid. (They are) those who have been expelled from their homes in defiance of right, (for no cause) except that they say, 'Our Lord is God'." The divine words, "they were wronged", and "those who have been expelled from their homes" illustrate the reason for the legality of war, namely that Muslims are oppressed by others (the unbelievers). (Al-Zuhili, 2005).
CONCLUSION
The above discussion proves my thesis statement that Israel does not have any legal grounds to defend itself against the war crimes committed towards Palestine. Hence, there are several suggestions that I may pose to settle this problem. First, Israel may enter into negotiation or agreement with Palestine to stop the hostilities and immediately declare cease-fire. This is one method recognised under the Charter of the United Nations whereby States are to settle disputes through negotiations, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice without causing threat to international peace and security (Article 33 (1) of the Charter of the United Nations, 1973).
However, in the event that peaceful measure of dispute resolution fail to be observed by Israel and Palestine, IL offers another method that is unfavourable to most States. By virtue of Article 13 of the Rome Statute of International Criminal Court (ICC) 1999, the Prosecutor of ICC shall have the power to prosecute Israelis' commanding officers responsible for directing attacks against civilian population and installations causing massive destruction and loss of lives. The ICC is the most effective International Court for the time being as its jurisdiction is triggered not at the discretion of disputing States. On the contrary, jurisdiction of International Court of Justice (ICJ) may only be triggered by consent of both State Parties in which Israel may refuse to submit itself to the jurisdiction of the ICJ.
In a nutshell, IL must be respected by all States in this world. Although IL provides protection such as the defence of necessity and self-defense to States, it must not be misused where the lives of civilians are at stake. IL must not be exploited to justify criminal act of oneself.
REFERENCES
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Orignal From: Israel Should Not Have Legalised Its Attack On Palestine
