As the violence in the Gaza Strip continues into its third week and the civilian death toll mounts, there have been repeated calls for a cessation of hostilities and investigations into possible war crimes. The latest reports claim that white phosphorus smokescreens are being used by Israeli forces in a manner contravening international humanitarian law.
According to The Guardian, intervention by international courts is a likely prospect, given the growing body of opinion that Israel’s actions may constitute violations of international law. The UN General Assembly will convene this week to consider requesting an Advisory Opinion from the International Court of Justice, which ruled in 2004 that the construction of a ‘separation wall’ by Israel constituted a violation of international humanitarian law.
This latest development follows the approval by the UN Human Rights Council on January 12 of a non-binding resolution condemning Israel’s military offensive in Gaza saying it has “resulted in massive violations of human rights of the Palestinian people.” European Union countries abstained and Canada voted against the resolution because while the resolution called for an immediate withdrawal of Israeli forces, it failed to recognise that Israel had acted to stop rocket attacks from Hamas militants in Gaza.
On January 9 the UN High Commissioner for Human Rights Navi Pillay called for accountability with respect to violations of international law. “As a first step credible, independent and transparent investigations must be carried out to identify violations and establish responsibilities,” she said. “Violations of international humanitarian law may constitute war crimes for which individual criminal responsibility may be invoked”.
Citing an incident last week in Zeitoun where up to 30 Palestinians in one house were killed by Israeli shelling, Ms Pillay stressed the “international obligation on the part of soldiers in their position to protect civilians, not to kill civilians indiscriminately in the first place, and when they do, to make sure that they help the wounded. In this particular case these children were helpless and the soldiers were close by”.
The United Nations Security Council passed Resolution 1860 on January 8, calling for “an immediate, durable and fully respected ceasefire, leading to the full withdrawal of Israeli forces from Gaza”. The Security Council expressed its grave concern at the escalation of violence and the deepening humanitarian crisis.
Israel rejected the Resolution, saying it would continue its air and ground strikes in Gaza until its “objectives are reached”, which include destroying Hamas’ military capabilities, ending the rocket fire and preventing it from rearming; Hamas dismissed the Resolution, saying the “interests of the people were not taken into consideration”.
The Resolution was passed with 14 affirmative votes. UK Secretary of State for Foreign and Commonwealth Affairs David Miliband stated following the vote in the Security Council that the new Resolution current responsibility was to chart a course back to Resolution 1850 (2008), in which the Security Council declared its commitment to the irreversibility of the ongoing bilateral negotiations between the Palestinians and Israelis, and supported “their determined efforts to reach their goal of concluding a peace treaty”.
The United States abstained from the vote, with US Secretary of State Condoleezza Rice citing the importance of the outcome of Egyptian mediation efforts as the main reason.
Egypt said its peace talks with Hamas on January 11 were “positive” with the Islamist movement agreeing on the need for an immediate end to the violence in Gaza. Egypt has a ceasefire plan that would allow humanitarian aid into the besieged territory, meetings with Israeli and Palestinian officials and the resumption of Palestinian reconciliation talks. The mediation in Cairo resumed on January 12.
UN Secretary-General Ban Ki Moon is scheduled to arrive in Cairo on January 14. Ban will reiterate his call for an immediate ceasefire and is expected to demand the unrestricted provision of urgent humanitarian assistance to the most vulnerable. Around two-thirds of Gaza’s population are without electricity and the remaining have only an intermittent supply, according to the UN. Hospitals are overcrowded with those injured, and 500,000 people remain without access to running water.
Since the beginning of Israel’s ground offensive in Gaza on January 3, there have been numerous media reports, supported by photographic evidence, about the possible use by Israeli forces of white phosphorous, which is not considered a chemical weapon. Human Rights Watch (HRW) observers documented multiple air-bursts of artillery-fired white phosphorus over what appeared to be the Jabaliya area of Gaza City on 9 and 10 January.
The IDF has denied that it is using white phosphorus in Gaza.
There is evidence that the smokescreen shells have injured Palestinian civilians, causing severe burns. White phosphorus is an incendiary material that causes severe burns when it comes in contact with human skin and its use in conflict zones is restricted inside civilian areas. The potential for harm to civilians is magnified by Gaza’s high population density, among the highest in the world. “Israel should not use it in Gaza’s densely populated areas,” said Marc Garlasco, senior military analyst at HRW.
The use of white phosphorus against civilians is prohibited under international law pursuant to Protocol III of the Convention on the Prohibition of Use of Certain Conventional Weapons. Israel is not a party to the Convention. However it is bound by customary international law, which prohibits the use of weapons that are by nature indiscriminate, and the indiscriminate use of other weapons. White phosphorus munitions are not by nature indiscriminate weapons because they can be directed at specific military objectives and used in ways that minimize incidental loss of civilian life and damage to civilian property. However Israel is bound by the customary law rule that dictates that when incendiary weapons are used, “particular care must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects”. The use of white phosphorus in densely populated areas of Gaza may constitute a violation by Israel of this rule.
HRW has said however that it has no evidence that Israel was using incendiaries as weapons. Israel appeared instead to be using the white phosphorus munitions as “obscurants”, which are chemicals used to conceal military operations. Under the Protocol to the Convention, incendiary weapons do not include such munitions which may have incidental incendiary effects, such as illuminants, tracers, smoke or signalling systems.
Media photographs have demonstrated the technique of ‘air-bursting’ white phosphorus, which spreads 116 burning wafers over an area between 125 and 250 meters in diameter, depending on the altitude. Using this technique as opposed to ground-bursting exposes more civilians and civilian infrastructure to potential harm.
Israel used white phosphorus in its war with Hezbollah in Lebanon in 2006. The US military used the incendiary devices in 2004 during an operation in Fallujah, Iraq.
Amnesty International said on 7 January that both Israeli soldiers and Palestinian fighters are also endangering the lives of Palestinian civilians by using them as human shields.
“Our sources in Gaza report that Israeli soldiers have entered and taken up positions in a number of Palestinian homes, forcing families to stay in a ground floor room while they use the rest of their house as a military base and sniper position,” said Malcolm Smart, of Amnesty International’s Middle East and North Africa Programme. “This clearly increases the risk to the Palestinian families concerned and means they are effectively being used as human shields”.
The use of human shields in conflict is prohibited under Article 51(7) of the Geneva Conventions: “The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations”.
Medical officials in Gaza said the Palestinian death toll in the offensive that Israel began 17 days ago has risen past 900 and includes at least 380 civilians. Israel says 13 Israelis – three civilians hit by rockets and 10 soldiers – have died. The United Nations, relying on Palestinian sources, estimates the number of dead at 758 with 3,100 wounded. According to the Israeli Ministry of Foreign Affairs the rockets fired at Israel from Gaza have caused a total of 4 deaths and 223 wounded among the civilian population since the beginning of the operation.
At least 46 civilians died at the schools in Gaza operated by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) in the two incidents of 5 and 6 January. Following the second incident, the Israeli government claimed that the IDF shelled the school after Palestinian gunmen used the building to launch attacks, but this is disputed. According to Amnesty International, the artillery strike, which killed some 40 Palestinians, including children, and wounded more than 50 others, appears to have been a disproportionate attack and in contravention of international humanitarian law.
On January 10 a health care clinic in Gaza city, funded by Christian Aid, was destroyed by a missile fired from an Israeli F-16 jet. The building had been evacuated just prior to the attack, for which no reason has yet been provided. Christian Aid is one of several major humanitarian, human rights and development organisations urging the European Union to immediately cease any development of its diplomatic ties with Israel to ensure an immediate ceasefire and to allow unimpeded humanitarian access.
The lack of adequate humanitarian access has been a main feature of the conflict. According to HRW, Israel and Egypt have blocked the exit from Gaza of many severely wounded people in urgent need of medical treatment. Israel has permitted only a limited number of critically injured patients to enter Israel since the beginning of the operation. On 3 January, the ICRC called for the safe passage of ambulances into Zeitoun, but only received permission to do so on 7 January. Medics found several corpses and seriously injured civilians and deplored the incident, saying that by failing to care for and evacuate the wounded the Israeli military failed to meet its obligation under international humanitarian law.
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Violence must Stop
United Nations Office of the High Commissioner for Human Rights
Gaza Civilians Endangered by the Tactics of Both Sides
January 8, 2009
Gaza: ICRC demands urgent access to wounded as Israeli army fails to assist wounded Palestinians
International Committee of the Red Cross
January 8, 2009
United Nations Press Conference on the humanitarian situation in Gaza
January 9, 2009
Israel: Stop Unlawful Use of White Phosphorus in Gaza
Human Rights Watch
January 10, 2009
UN Rights Chief calls for independent probe of Gaza violations
January 11, 2009
Israel strikes back against Hamas terror infrastructure in Gaza
Israel Ministry of Foreign Affairs
January 11, 2009
UN Rights Council hits Israel over Gaza
January 12, 2009
Israel may face UN court ruling on legality of Gaza conflict
By Afua Hirsch
The Guardian, January 14, 2009