Effective and advance warning? : a legal assessment of the conduct of roof knocking in Gaza

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‘Effective and advance warning’:

A legal assessment of the conduct of roof knocking in Gaza

By Vivian Camphuijsen

Amsterdam, May 2015

University of Amsterdam | Faculty of Law | LL.M. International and European Law Track Public International Law (2014-‐2015) | Master Thesis (final version) Submitted 29-‐05-‐2015 | Supervised by Dhr. Prof. Dr. T.D. Gill

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Table of Contents

LIST OF ABBREVIATIONS ... 3

INTRODUCTION ... 4

1. THE CONFLICT IN GAZA ... 10

1.1 DISENGAGEMENT PLAN AND THE STATUS OF THE TERRITORY ... 11

1.2 ELECTIONS 2007 ... 11

1.3 OPERATION CAST LEAD, DECEMBER 2008 ... 12

1.4 OPERATION PILLAR OF DEFENSE, NOVEMBER 2012 & OPERATION PROTECTIVE EDGE, JULY 2014 ... 13

2. THE APPLICABLE LEGAL FRAMEWORK ... 13

2.1 THE APPLICABILITY OF IHL ... 14

2.2 THE APPLICABILITY OF IHRL ... 15

2.4 CONCLUSION ... 17

3. INTERNATIONAL HUMANITARIAN LAW ... 17

3.1 SOURCES OF INTERNATIONAL HUMANITARIAN LAW ... 18

3.2 TYPES OF ARMED CONFLICT ... 18

3.2.1 International armed conflict ... 19

3.2.2 Non-‐international armed conflict ... 19

3.3 BELLIGERENT OCCUPATION ... 20

3.4 DISTINCTION BETWEEN IAC AND NIAC IN THE CURRENT SITUATION ... 22

3.5 A FOCUS ON CUSTOMARY IHL ... 24

4. DETERMINATION OF CUSTOMARY IHL ... 26

4.1 CUSTOMARY IHL ... 26

4.1.1 Usus ... 27

4.1.2 Opinio Juris sive necessitatis ... 28

5. PROVISIONS OF CUSTOMARY INTERNATIONAL HUMANITARIAN LAW ... 29

5.1 PRINCIPLE OF DISTINCTION ... 30

5.2 THE PRINCIPLE OF PROPORTIONALITY ... 35

5.3. THE OBLIGATION TO TAKE FEASIBLE PRECAUTIONS ... 37

6. ROOF KNOCKING IN PRACTICE ... 42

6.1 WHAT IS ROOF KNOCKING, WHAT IS ITS PURPOSE AND HOW IS IT CONDUCTED? ... 42

6.2 CRITICISMS ON THE CONDUCT OF ROOF KNOCKING ... 44

7. A LEGAL ASSESSMENT OF THE CONDUCT OF ROOF KNOCKING I: ATTACK ... 46

7.1 THE DEFINITION OF “ATTACK” UNDER IHL ... 47

7.2 THE CONDUCT OF ROOF-‐KNOCKING AS AN “ATTACK” ... 49

7.2.1 The principle of distinction in practice ... 50

7.2.2 The principle of proportionality in practice ... 51

8. A LEGAL ASSESSMENT OF THE CONDUCT OF ROOF KNOCKING II: ADVANCE WARNING ... 56

8.1 PRECAUTIONARY MEASURES ... 56

8.2 ROOF KNOCKING AS AN ‘EFFECTIVE ADVANCE WARNING’ ... 58

8.2.1 The recipient ... 58

8.2.2 The temporal aspect ... 59

8.2.3 The method ... 59

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8.5 CONCLUSION ... 62 CONCLUSION ... 63 BIBLIOGRAPHY ... 65

List of abbreviations

AP I Additional Protocol I to the Geneva Conventions 1949 AP II Additional Protocol II to the Geneva Conventions 1949

EU European Union

ICJ International Court of Justice

ICRC International Committee of the Red Cross

ICTY International Criminal Tribunal for the former Yugoslavia IDF Israeli Defence Force

IHL International Humanitarian Law

IHRL International Human Rights Law

UN United Nations

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Introduction

The protection of civilians and civilian objects during armed conflicts is one of the core purposes of humanitarian law, a branch of international law also known as the law of armed conflict and the law of war.1

The law related to the use and application of armed force (the jus ad bellum) must be separated from IHL (the jus in bello). These two bodies of law must be clearly distinguished. The former sets forth the criteria for the use of force as an instrument of national policy or self-‐defence, asking when a state may use force. The latter, the jus in bello, answers the question on how force may be used once an armed conflict exists.2_{This
thesis
will
focus
on
IHL
or,
in} other words, on the jus in bello.

Formally speaking, IHL consists of two bodies of law, namely Hague law and Geneva Law. Hague law regulates hostilities, including the targeting of individuals and objects and provides for prohibitions or restrictions to the means and methods of warfare. Geneva law provides protection for categories of people who are particularly vulnerable, such as the sick, the wounded and those with a ‘prisoner of war status’. These two bodies of law have merged in contemporary IHL and cannot be strictly separated these days.

Though IHL places emphasis on protection of the civilian population, it is recognized that not all civilian casualties are unlawful. It is generally accepted that injuries may occur as a result of a lawful attack, under the condition that parties to the conflict try to minimize, as far as possible, the injuries to civilians as a result of a military attack. Following this condition, several principles that originate from international customary law may be

distinguished: One of the “cardinal principles” of IHL and one of the

1_{Schmitt,
Michael
N.
(1999)
‘The
Principle
of
Discrimination
in
21st
Century
Warfare’,
Yale} Human Rights and Development Journal: Vol. 2: Iss. 1, Article 3., p.2

2_{Schmitt,
Michael
N.
(1999)
‘The
Principle
of
Discrimination
in
21st
Century
Warfare’,
Yale} Human Rights and Development Journal: Vol. 2: Iss. 1, Article 3., p.3

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“intransgressible” principles of international customary law that protects persons and objects is the principle of distinction.3_{Related
to
this
are
the} principle of prohibition on indiscriminate attacks, the principle of proportionality and precautionary measures.4_{Each
of
these
components
can} be found in customary law and are codified in AP I to the Geneva Conventions (hereinafter: AP I).

The principle of distinction, codified in articles 48, 51(2) and 52(2) of AP I, refers to the requirement of distinguishing between civilians and military targets.5_{Parties
are
prohibited
to
carry
out
direct
attacks
against
civilians
and} must make all possible efforts to spare human lives, by distinguishing civilians from combatants and objects from military targets.6

The ICRC underlines that according to article 51(3) AP I and common article 3 to the Geneva Conventions, civilians lose their immunity from being directly attacked “for such time as they take a direct part in hostilities”.7_Civilian objects lose their immunity once they become lawful military targets: Once intelligence has verified the fact that a civilian building is being used for a military purpose, that building becomes a lawful military target.8

Related to the principle of distinction are;

-‐ The prohibition on indiscriminate attacks9_{,
which
prohibits
attacks
that}

cannot be directed at specific military objectives or whose effects cannot be limited.

3_{Legality
of
the
Threat
or
Use
of
Nuclear
Weapons,
Advisory
Opinion,
I.C.J.
Reports
1996,
p.}

226, International Court of Justice (ICJ), 8 July 1996, para. 434

4_{Gaston,
E.L.’Laws
of
War
and
21st
Century
Conflict’,
International
Debate
Education}

Association, 2012, p. 80

5_{Gaston,
E.L.’Laws
of
War
and
21st
Century
Conflict’,
International
Debate
Education}

Association, 2012, p. 80

6_{Protocol
Additional
to
the
Geneva
Conventions
of
12
August
1949,
and
Relating
to
the}

Protection of Victims of International Armed Conflicts (Protocol I), adopted by Conference June 8, 1977, 1125 U.N.T.S. 3, Article 52(1)

7_{Henckaerts,
Jean-‐Marie
&
Doswald-‐Beck,
Louise,
ICRC
Customary
International}

Humanitarian Law, Volume I: rules (2005), Cambridge University Press, p. XXXV

8_{D.
Daoud
,Everything
you
need
to
know
about
international
law
and
the
Gaza
war,
in:
the}

Tower Magazine, September 2014,

available at: http://www.thetower.org/article/everything-‐you-‐need-‐to-‐know-‐about-‐ international-‐law-‐and-‐the-‐gaza-‐war/

9_{Protocol
Additional
to
the
Geneva
Conventions
of
12
August
1949,
and
Relating
to
the}

(6)

-‐ The rule of proportionality10_{requires
parties
to
draw
up
a
balance
when}

they engage in an attack upon a military objective and this attack is likely to affect civilians. The balance should be struck between ‘the concrete and direct military advantages anticipated’ and ‘the incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof’. If the latter appears to be excessive in relation to the military advantages, the law prohibits the attack.11

-‐ The principle of precautionary measures requires parties to take all feasible precautions to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.12_{Article
57(2)
AP
I
gives} a non-‐limitative list of precautions.13_{Many
states
have
interpreted
the
duty
to} take “feasible” precautions as being limited to those precautions which are executable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.14_{Protocol
II,} III and amended protocol II to the Convention on Certain conventional Weapons define feasible precautions in the same terms.15

One of the required precautions is codified in article 57(2)(c) AP I and demands that “Effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.”16

10_{Protocol
Additional
to
the
Geneva
Conventions
of
12
August
1949,
and
Relating
to
the}

Protection of Victims of International Armed Conflicts (Protocol I), Article 51(5)(b) and repeated in Article 57

11_{Protocol
Additional
to
the
Geneva
Conventions
of
12
August
1949,
and
Relating
to
the}

Protection of Victims of International Armed Conflicts (Protocol I), Article 51(5)(b). See: Practice related to Rule 14; Proportionality in Attack.

Available at: https://www.icrc.org/customary-‐ihl/eng/docs/v2_cha_chapter4_rule14

12_{See
Customary
IHL,
Rule
15;
Precautions
in
attack.}

Available at: https://www.icrc.org/customary-‐ihl/eng/docs/v1_cha_chapter5_rule15

13_{Protocol
Additional
to
the
Geneva
Conventions
of
12
August
1949,
and
Relating
to
the}

Protection of Victims of International Armed Conflicts (Protocol I), Article 57(2)

14 _{Henckaerts,
Jean-‐Marie
&
Doswald-‐Beck,
Louise,
ICRC
Customary
International}

Humanitarian Law, Volume I: rules (2005), Cambridge University Press, p. 54

15_{Protocol
II
to
the
Convention
on
Certain
Conventional
Weapons,
Article
3(4)
(cited
in
ICRC}

Customary international law Vol. II, Ch. 28, para. 4); Protocol III to the Convention on Certain Conventional Weapons, Article 1(5) (cited in ICRC Customary international law Vol. II, Ch. 30, para. 109); Amended Protocol II to the Convention on Certain Conventional Weapons, Article 3(10) (cited in ICRC Customary international law Vol. II, Ch. 28, para. 4).

16_{Protocol
Additional
to
the
Geneva
Conventions
of
12
August
1949,
and
Relating
to
the}

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In the most recent Gaza conflict, the IDF warned civilians through broadcast methods, by dropping leaflets, sending text messages and making telephone calls.17_{Furthermore,
the
IDF
introduced
a
new,
highly
controversial,
warning} method known as the “knock on the roof” method.18_{The
method
consists
of} warning shots from light weapons that hit the roofs of the designated targets before proceeding with the actual strike. According to the IDF, the method is used in order to avoid civilian casualties and to minimize collateral damage.19

Concerns have been heard on the legality of the conduct of roof knocking. Several human rights groups state that the method cannot be considered a warning. “It is the targeting of civilians with a weapon, regardless of how small, and it is a violation of the Geneva Conventions”.20_{According
to
some} criticisms, the conduct of roof knocking is an act of force; it therefore constitutes an attack and can never be considered to be a warning under International law. Others do not refer to roof knocking as inherently illegal but state that the method constitutes an ineffective warning. These different points of view will be further elaborated on in chapter 6.

In this thesis the conduct of roof knocking will be analysed in order to answer the question of whether roof knocking could constitute a legal and effective warning under International Law. To do so, the principles of distinction, the principle of proportionality and precautionary measures will have to be fully analysed.

17_{Pnina
Sharvit
Baruch
&
Noam
Neumann,
“warning
civilians
prior
to
attack
under}

international law: Theory and practice”, International Law studies Series, US naval war college, vol 87, p. 369

18_{Israel,
Ministry
of
Foreign
affairs,
the
Operation
in
Gaza
27
December
2008-‐18
January}

2009: Factual and Legal aspects, 29 July 2009, para. 264

In practice this method was rarely used prior to the Gaza operation of December 2008. The method has been criticized in the Goldstone Report of the UN fact-‐finding mission, in Reports of Human Rights Watch and Amnesty International.

19_{IDF
Report:
‘Investigation
of
exceptional
incidents’
at
Incidents
Concerning
Cases
Closed}

by the MAG Following a Fact-‐Finding Assessment after point 3. Available at:

http://mfa.gov.il/MFA/ForeignPolicy/IsraelGaza2014/Pages/Operation-‐Protective-‐Edge-‐ Investigation-‐of-‐exceptional-‐incidents-‐7-‐Dec-‐2014.aspx

20_{Mahmoud
Abu
Rahma,
Director
of
International
Relations
of
the
Al
Mezan
Center
for}

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The conflict in the Gaza strip forms the main case study, because the practice was introduces here. The applicable legal frameworks shall be analysed and the conduct of roof knocking will then be analysed in the light of the applicable rules.

The first assessment in this thesis should be to determine whether ‘roof knocking’ is inherently illegal. If this is the case, no further analysis is required. If, however, the conduct of roof knocking is not illegal per se, a case-‐ by-‐case assessment is called for, since it depends on the specific circumstances of each case whether the warning is effective. The objective of this thesis is to provide guidance in determining if and when the conduct of roof knocking can constitute a legal and effective warning.

The main research question is as follows:

“Does ‘roof knocking’ as a warning method constitute a lawful and effective warning under International Law?”

In order to answer this question, the following issues are to be addressed.

w What is the applicable legal framework?

w Which rules can be deduced from the applicable framework with regard to

the current situation?

w What do the applicable rules require?

w What is the current practice of roof knocking? w Is the conduct of roof knocking inherently illegal?

w Can the conduct of roof knocking be categorized as a warning?

In order to place the specific legal positions into context, this thesis will begin in chapter 1, with a brief overview on the historical context of the conflict and the current situation in the Gaza strip. Chapter 2 is designed as an introduction to the specific applicable framework and the decisive criteria for

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the framework to be applied. IHL is the set of rules that applies in case of an armed conflict. The author will determine whether the requirements of ‘armed conflict’ are met in the current situation. Furthermore, the applicability of IHRL will be taken into consideration and the question whether IHL will prevail over IHRL.

Chapter 3 will elaborate on the distinction of IAC and NIAC during IHL. The author will use case law as an indicative source for the situation in Gaza and the necessity of categorizing the current conflict for the sake of answering the research question.

A major part of IHL is contained in the four Geneva Conventions of 1949.21 Since the principle of distinction, the principle of proportionality and precautionary measures are specifically codified in AP I, it is important to have a full understanding of the provisions codified in this protocol. Israel however, is not a party to AP I. In order to establish the scope of application of the principles that the Protocol enshrines in a given situation, it is important to give an answer to the question; if, and to what extent, these provisions might work as international customary law. Chapter 4 will therefore explain how customary international law is determined. The ICRC’s study on the rules of customary international law will be used as guidance thereto.

Having established the focus on customary IHL, chapter 5 will consider the specific principles, which are necessary to take into consideration for the purpose of answering the main research question. The principle of distinction, the principle of proportionality and precautionary measures are codified in AP I and function as an indicative source for customary IHL.

In order to examine the conduct of roof knocking in light of the previously mentioned principles, one should have knowledge of the actual practice of roof knocking in the Gaza strip. Chapter 6 will elaborate on the practice and

21_{ICRC
Advisory
service
on
International
Humanitarian
Law,
“What
is
IHL”,
July
2004,}

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will demonstrate the controversies of the practice by addressing some critics from human rights organizations.

Chapter 7 will answer the question whether the practice could possibly meet the requirements of customary IHL. Roof knocking, by its nature, constitutes an act of violence and should be addressed as an attack under IHL. Therefore, in order for the practice to not be inherently illegal, it must satisfy the principle of distinction and proportionality.

Finally, in chapter 8 the conduct of roof knocking will be assessed in the light of warning method. At first sight, it seems odd to conduct an attack with the purpose of warning civilians. It could however constitute a warning, if it meets the requirements of an effective advance warning, as envisaged in article 57(2)(c) API. Chapter 8 will examine whether the content and method of roof knocking is clear and sufficient enough to meet those requirements.

After the examination of roof knocking as a warning method, the main research question has been answered. However, it might be interesting to see whether the practice could meet another provision of precaution in attack. Therefore, chapter 8 will analyze whether the practice could in any case, being a part of the attack, constitute a feasible precaution as codified in article 57(2)(a)(ii) AP I.

1. The conflict in Gaza

IDF has used the conduct of ‘roof knocking’ as a warning method in Operation

Cast Lead in 2008-‐2009 as well as Operation Pillar of Defense in 2012.22_Since it is important to understand which parties are involved in the conflict in order to apply the correct legal framework and in order to get a better understanding on the specific law-‐claims, this chapter will give a brief overview of the important historical events that have occurred on the Gaza strip relating to these operations.

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1.1 Disengagement plan and the status of the territory

Gaza has a long history, but for the purposes of this thesis we focus on 2005 when Israel elected to supplement a unilateral disengagement plan from the Israeli occupied territory. The primary implication of the disengagement plan was set out in principle 6 of section 1 (political and security implications):

“The completion of the plan will serve to dispel the claims regarding Israel's responsibility for the Palestinians in the Gaza Strip.”23

This statement remains ambiguous: it refers to the termination of Israel’s responsibility for the population of Gaza, but says nothing about the status of the territory itself. However, article 3(i)(1) of the plan shows the intention to maintain effective control over the Gaza strip, which indicates that the Gaza remains an occupied territory by Israel.24

“Israel will guard and monitor the external land perimeter of the Gaza Strip,

will continue to maintain exclusive authority in Gaza air space, and will

continue to exercise security activity in the sea off the coast of the Gaza Strip,”25

1.2 Elections 2007

In 2007, Hamas, the Palestinian-‐Islamic movement, which aspires to end the Israeli occupation of Palestine, emerged as a political party. Israel and the international community have boycotted Hamas as a terrorist group.26 Following the elections, the United States, Russia, the UN and the EU, also known as the Middle East Quartet, issued a statement that Hamas would have to meet the following three conditions: 1) renouncing terrorism, 2) accepting

23_{Israeli
Disengagement
plan,
Section
1,
Principle
6,}_{Available
at:}

www.mfa.gov.il/MFA/Peace+Process/Reference+Documents/Revised+Disengagement+Plan +6-‐June-‐2004.htm

24_{Article
42
of
the
Hague
Regulations
of
1907
“The
test
of
occupation
is
the
‘Effective
control’}

test, which exists if the military forces of the adversary could, at any time they desired, assume physical control of any part of the country” (Hostages case, UN War crimes Commission, Law reports of Trials of War Criminals, Volume VIII, 1949, p. 56)

25_{Disengagement
plan.
See
footnote
23,
Art.
3(i)(1)}

26_{Office
of
the
Coordinator
of
Counterterrorism,
Country
Reports
on
Terrorism
2011,}

chapter 6. Foreign Terrorist Organizations. July 2012.

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previous Israeli-‐Palestinian agreements, and 3) recognizing Israel’s right to exist.27_{If
Hamas
refused
to
observe
these
conditions,
the
Middle
East
Quartet}

would suspend financial aid to the Palestinian Authority.28_{Since
Hamas} continued to fire rockets into Israel, the Quartet followed through with its warning and imposed an economic embargo. Israel also conducted military campaigns in its attempts to deter Hamas from further use of violence.29

Six months after its election, Hamas militants launched a raid into Israel from the Gaza strip, killing two soldiers and capturing an Israeli reservist, Corporal Gilad Shalit. In response, Israel launched Operation Summer Rains three days later.30

In June 2007 Israel and Egypt closed their borders with Gaza. As a result of the closure, traffic of goods, fuel and energy supplies into and out of the Gaza strip, were halted. The blockade was justified by Israel through arguing that ‘‘all needs which go beyond humanitarian needs will not be supplied by Israel to the Gaza Strip.’’ This was reasoned and justified by the fact that Hamas was a “hostile entity”.31

1.3 Operation Cast Lead, December 2008

Hamas’ resistance to the occupation of Palestine by Israel, and its claim that Israel should cease the blockade of the Gaza strip on one hand, and Israel’s claim that Hamas should recognize Israel’s existence on the other, led to a period of counter reactions, including the firing of rockets into Israeli territory. In December 2008 Israel launched operation Cast Lead against

27_{Helfont,
T.
Egypt’s
wall
with
Gaza
&
the
emergence
of
a
new
middle
east
alignment,
p.
427,}

Summer 2010

28_{‘Press
Statement:
Quartet
Statement
on
the
Situation
in
the
Middle
East,’
The
U.S.}

Department of State, Washington D.C., January 30, 2006, available at <http://2001-‐ 2009.state.gov>

29_{Helfont,
T.
Egypt’s
wall
with
Gaza
&
the
emergence
of
a
new
middle
east
alignment,
p.
427,}

Summer 2010,

30_{Helfont,
T.
Egypt’s
wall
with
Gaza&the
emergence
of
a
new
middle
east
alignment,
p.
427,}

Summer 2010

31_{‘‘Joint
Press
Conference
with
Foreign
Minister
Livni
and
US
Secretary
of
State
Rice,’’
The}

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Hamas in Gaza. The Gaza war led to a high amount of casualties on the

Palestinian side due to Israel’s superior military capability and Hamas’ use of the civilian population as “shields”. The situation in Gaza under Hamas had further retrogressed.32

1.4 Operation Pillar of Defense, November 2012 & Operation Protective

Edge, July 2014

There have been multiple efforts to get both sides to agree to ceasefire, but truces were always short-‐lived. In November 2012 Israel killed Ahmed Jabari, chief of Hamas’ military wing in Gaza during a targeted airstrike on his car. Hamas responded by firing rockets on Israeli towns. Israel embarked in the second military operation called, operation Pillar of Defense. The most recent operation, operation Protective Edge in 2014, began in order to stop Hamas’ rocket fire that targeted Israeli civilians and the discovery by Israel’s security forces of Hamas’ underground tunnel network leading out of Gaza.33

The conduct of roof knocking was introduced in operation Cast Lead, but has been used in the other operations as well in order to warn the Palestinian civilians prior the attack. Before the conduct of roof knocking is further analysed, the next chapter turns to a legal assessment of the applicable legal framework.

2. The applicable legal framework

In order to give an answer to the question whether the conduct of roof knocking may constitute a legal and effective warning under international law, it is important to address the correct legal frameworks and to analyse to what extent they apply with regard to the issue at hand.

32_{Helfont,
T.
Egypt’s
wall
with
Gaza&the
emergence
of
a
new
middle
east
alignment,
p.
429,}

Summer 2010

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2.1 The applicability of IHL

For determining whether rules of jus in bello apply, it must be established that an armed conflict exists.34_{After
concluding
that
such
a
conflict
exists,
it
is} important to analyse the status of the conflict at hand in order to assess the specific applicable rules to the situation.

According to common article 2 of the 1949 Geneva Conventions, IHL regulates ‘armed conflict’:

“..The Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance..”35

In determining the existence of an armed conflict, one might face some challenges: when and where is the conflict taking place, who is taking part in it and are there types of armed conflicts that fall outside IHL’s scope?

The definition of armed conflict has no widely accepted definition in any treaty. In the sources of international law, however, significant evidence shows that the international community embraces a common understanding of armed conflict.36_{The
Use
of
Force
Committee
of
the
International
Law} Association37_{confirmed
that
all
armed
conflict
is
defined
by
certain} characteristics that distinguish it from situations of non-‐armed conflict or peace. The two characteristics that apply to all armed conflict are:

1.) The existence of organized armed groups

34_{ICRC’s
practical
guide,
Arms
transfer
decisions;
applying
international
humanitarian}

criteria, p.6 Under paragraph 3.2.

35_{Geneva
Conventions
of
12
August
1949,
Article
2}

36_{International
law
associations,
the
Hague
conference
(2010),
“USE
OF
FORCE
final
report}

on the meaning of armed conflict in international law”, p.2

37_{Mandated
by
the
Executive
Committee
of
the
International
Law
Association
to
produce
a}

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2.) Engaged in fighting of some intensity38

Even though the ICTY primarily rules over the NIAC in Prosecutor v. Tadić39_{,
it}

dismissed the general argument that an armed conflict only existed in those parts of a State where actual fighting is taking place at any given time. The Appeals Chamber held that there is nothing in the Geneva Conventions or other rules of humanitarian law to justify such an assumption:40

“An armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached.”41

With regard to the question of whether IHL is applicable to the situation in Gaza, it is of importance to establish whether the situation entails an armed conflict by definition.

First, both parties to the conflict, Israel as well as Hamas, make use of

organized armed groups. Second, considering the specific facts that have been introduced in chapter 1, both parties have engaged in fighting of great

intensity. Since the characteristics that refer to an armed conflict are clearly evident in the current situation, we may conclude that IHL is applicable in the situation of Gaza.

2.2 The applicability of IHRL

Human rights are inherent entitlements that belong to every person as a consequence of being human being.42_{They
apply
in
all
circumstances,
even}

38_{International
law
associations,
the
Hague
conference
(2010),
“USE
OF
FORCE
final
report}

on the meaning of armed conflict in international law”, p.2

39_{ICTY,
The
Prosecutor
v.
Dusko
Tadi}_ć_{,
Decision
on
the
Defence
Motion
for
Interlocutory}

Appeal on Jurisdiction, IT-‐94-‐1-‐A, 2 October 1995

40_{Greenwood,
C.,
“International
humanitarian
law
and
the
Tadic
Case”,

European
Journal
of}

International Law, 273, vol 7, 1996

41_{ICTY,
The
Prosecutor
v.
Dusko
Tadi}_ć_{,
Decision
on
the
Defence
Motion
for
Interlocutory}

Appeal on Jurisdiction, IT-‐94-‐1-‐A, 2 October 1995, para. 70.

42_{ICRC
Advisory
service
on
International
Humanitarian
Law,
“international
humanitarian}

law and human rights law (similarities and differences)”, january 2003 Available at https://www.icrc.org/eng/assets/files/other/ihl_and_ihrl.pdf

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though it is true that certain treaty instruments, once ratified, authorise the parties to suspend the application of a part of their obligations in a situation of exceptional emergency.43_{Even
though
IHRL
remains
applicable
during} times of armed conflict, IHL and IHRL cannot simultaneously govern one and the same legal fact or act.44_{This
raises
the
legitimate
question
of
the
relations} between the two regimes. During the 27th_{round
table
‘on
current
problems
of}

international humanitarian law’45_{the
participants
agreed
that
the
existence
of} an armed conflict could permit the suspension of the application of derogable human rights, but only to the extent necessary. The non-‐derogable rules continue to apply and complement IHL.

The great majority of the participants during the round table recalled that IHL represented a special law in as much as it has been specifically framed to apply in a period of armed conflict.46_{Once
the
transition
to
an
armed
conflict} is complete, IHL proves to be the body of law most appropriate. In many cases, IHL specifies the precise content of non-‐derogable provisions of human rights.47_{With
regards
to
the
interplay
between
the
bodies
of
law
in
the}

43_{The
international
Institute
of
Humanitarian
Law
in
cooperation
with
the
International}

Committee of the Red Cross, XXVIth round table on Current Problems of International Humanitarian Law: “international Humanitarian Law and Other Legal Regimes: Interplay in situations of Violence”, summary p. 8 Available at:

https://www.icrc.org/eng/assets/files/other/interplay_other_regimes_nov_2003.pdf

44_{The
international
Institute
of
Humanitarian
Law
in
cooperation
with
the
International}

Committee of the Red Cross, XXVIth round table on Current Problems of International Humanitarian Law: “international Humanitarian Law and Other Legal Regimes: Interplay in situations of Violence”, summary p. 8 Available at:

45_{The
international
Institute
of
Humanitarian
Law
in
cooperation
with
The
International}

Committee of the Red Cross, XXVIIth Round Table on Current Problems of International Humanitarian Law, San Remo(Italy)Geneva (Switzerland) November 2003

46_{The
international
Institute
of
Humanitarian
Law
in
cooperation
with
the
International}

Committee of the Red Cross, XXVIth round table on Current Problems of International Humanitarian Law: “international Humanitarian Law and Other Legal Regimes: Interplay in situations of Violence”, summary p. 9 Available at:

47_{ICJ
in
its
Advisory
Opinion,
8
july
1996,
legality
on
the
threat
or
use
of
nuclear
weapons,}

para. 25: “In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be

determined by the applicable lex specialis, namely the law applicable in armed conflict, which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflicts and not deduced from the terms of the Covenant itself."

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situation of Gaza, IHL is the body of law that contains detailed provisions relating to precautions in an attack.48_{As
such,
IHL
is
the
primary
-‐
or
even
the} exclusive -‐ legal regime in relation to how attacks must be conducted. The rules of IHL may prevail by virtue of the principle of lex specialis.

Furthermore, the provisions of IHRL do not set a basis for answering our research question, which focuses on the legality of roof knocking in the light of feasible precautions, specifically in the light of the obligation to warn. Since IHRL does not contain any provision with regard to the requirements of precautions, an analysis of this body of law would not give a satisfying solution with regard to the current research question.

2.4 Conclusion

Following this chapter we may conclude that it is, for the purposes of this thesis, not necessary to analyze the full framework of IHRL in depth. Two reasons justify this:

First, once IHL applies it would prevail over IHRL as a matter of lex specialis. Second, the provisions of IHRL do not set a basis for precautions in attack.

IHL only applies when an armed conflict occurs. In order for an armed conflict to occur, two characteristics must be met: 1) the existence of an armed

organization, and 2) the parties engagement in fighting of some intensity. Since both characteristics are met in the current situation, IHL is applicable and needs to be further analyzed in order to answer the research question.

3. International humanitarian law

In the previous chapter we concluded that IHL applies in the current situation. In order to get a clear understanding of the framework we are analyzing, it is important to understand how the rules of IHL apply to armed

48_{Protocol
Additional
to
the
Geneva
Conventions
of
12
August
1949,
and
Relating
to
the}

Protection of Victims of International Armed Conflicts (Protocol I), Article 57; Protocol II to the Convention on Certain Conventional Weapons, Article 3(4); Protocol III to the Convention on Certain Conventional Weapons, Article 1(5); Amended Protocol II to the Convention on Certain Conventional Weapons, Article 3(10).

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conflict. This chapter will briefly discuss the sources of IHL and will then turn to the types of armed conflict that should, in principle, be distinguished. Furthermore, this chapter will answer the question whether such a distinction is important with regard to the Gaza-‐conflict.

3.1 Sources of International humanitarian law

The sources of IHL can be diverse, ranging from treaty instruments to customary law to general principles. A list of legal sources for IHL would be: -‐ The four Geneva Conventions, which have come to be internationally binding for all states.49

-‐ The Three protocols additional to the Geneva Conventions. Additional Protocol I’s provisions are largely declaratory of customary international law or reflect general principles of law and are thus applicable in all international armed conflicts.50

-‐ Other Agreements, which refer to specific issues of warfare and the prohibition or restriction of certain weapons.51

-‐ Principles of customary international law and general principles of law.

3.2 Types of armed conflict

In the context of applying IHL, it might be important to distinguish two types of conflict since they are principally governed by a different set of rules. Which set of rules of IHL applies depends, traditionally, first and foremost on who the parties to the conflict are.52_{Which
set
of
rules
apply,
thus
depends
on} the type of armed conflict. IHL distinguishes IAC with belligerent occupation

49_{O’Connel,
Mary
Ellen,
‘Historical
development
and
legal
basis’
in:
Fleck,
D.
(ed),
the}

handbook of international humanitarian law, Third edition, Oxford University Press, p.26

50_{C.
Greenwood,
‘customary
law
status
of
the
1977
Geneva
Protocols’
in:
A.J.M.
Delissen
and}

G.J. Tanja (eds), Humanitarian law of Armed Conflict – Challenges Ahead: Essays in Honour of Frits Kalshoven (Nijhoff, 1991), p. 93; D. Fleck, ‘The protocols Additional to the Geneva Conventions and Customary International Law’ (1990)

51_{See
for
the
most
important
documents:
O’Connel,
Mary
Ellen,
‘Historical
development
and}

legal basis’ in: Fleck, D (ed.), the handbook of international humanitarian law’, Third edition, Oxford University Press, p.30

52_{International
law
associations,
the
Hague
conference
(2010),
‘USE
OF
FORCE
final
report
on}

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as a sub-‐category, from NIAC.53

In the following paragraphs the IAC and NIAC will be analyzed in depth.

3.2.1 International armed conflict

The definition of an IAC is the most clear. It is understood to include any armed conflict between two states.54_{The
‘High
Contracting
Parties’
referred} to by common article 2 of the four Geneva Conventions are traditionally understood to be States.55_{The
existence
of
an
IAC
is
a
matter
of
fact
and
is} not dependent upon the subjective views of the parties to the armed conflict, whether or not they agree with the existence of the armed conflict. The only condition to an IAC is that one or more States have taken recourse to armed force against another State, regardless of the reason or intensity of the confrontation.

3.2.2 Non-‐international armed conflict

Alongside interstate conflicts, there are also internal conflicts. That is why it is of great importance that the law of armed conflict also covers the NIAC.

The classification for NIAC is primarily reserved for reasonably intensive internal violence between States and organized armed groups.56

Despite the fact that NIAC has no exact definition in treaty law, it has now been recognized that an armed conflict of a non-‐international character exists, when there is protracted armed violence within the territory of a State between governmental authorities and organized armed groups or between

53_{ICRC,
‘How
is
the
term
‘Armed
conflict’
defined
in
International
Humanitarian
Law?’

Opinion}

paper, March 2008, p.1, Available at: https://www.icrc.org/eng/assets/files/other/opinion-‐ paper-‐armed-‐conflict.pdf

54_{Proceeding
of
the
13th
Bruges
Colloquium,
scope
of
application
of
International}

Humanitarian Law, in: Collegium (academic journal of the College of Europe) October 2012,

https://www.coleurope.eu/sites/default/files/uploads/page/collegium_43_webversie.pdf

p.20

55_{ICRC,
‘How
is
the
term
‘Armed
conflict’
defined
in
International
Humanitarian
Law?’
Opinion}

paper, March 2008, Available at: https://www.icrc.org/eng/assets/files/other/opinion-‐ paper-‐armed-‐conflict.pdf

56_{Proceeding
of
the
13th
Bruges
Colloquium,
scope
of
application
of
International}

Humanitarian Law, in: Collegium (academic journal of the College of Europe) October 2012, p. 20,https://www.coleurope.eu/sites/default/files/uploads/page/collegium_43_webversie.pd f p.20