Above The Law? Israel and The International Criminal Court

ABOVE THE LAW?
ISRAEL AND THE INTERNATIONAL

CRIMINAL COURT

SARAH DEROUICHE

"

ABOVE THE LAW?
ISRAEL AND THE INTERNATIONAL
CRIMINAL COURT

A dissertation submitted by Miss Sarah Derouiche to the School of Law of the
Manchester Metropolitan University in partial fulfilment of the regulations for the
LLB Degree
16 April 2012
School of Law
Manchester Metropolitan University

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Abbrev|at|ons

HWR Human Rights Watch
ICAHD Israeli Committee Against House Demolitions
ICC International Criminal Court
ICTR

The International Criminal Tribunal for the prosecution of Persons
Responsible for Genocide and other Serious Violations of International
Humanitarian Law Committed in the Territory of Rwanda and Rwandan
Citizens Responsible for Genocide and Other Serious violations
Committed in the Territory of Neighbouring States

ICTY The International Tribunal for the Prosecution of Persons Responsible for
Serious Violations of International Law committed in the Territory of the
Former Yugoslavia
IDF Israel Defence Force
ILC International Law Commission
NATO North Atlantic Treaty Organisation
UNPROFOR

The United Nations Protection Force
&

Abstract

2002 saw the implementation of the International Criminal Court, a body designed to
prosecute the gravest crimes against humanity. This paper raises the question of the
effectiveness of the Court when dealing with non-Signatories, namely the state of Israel. It
will start with a history of the Court and then move to document crimes that have remained
unprosecuted. Finally it analyses the implications of the Rome Statutes jurisdiction and how
these affect the implementation of universal justice.

'
Introduct|on

The Rome Statue of 1998 gave birth to the International Criminal Court (ICC), the aim of
which is to punish the perpetrators of selected international crimes regardless of their
geographical location and has been used to prosecute breaches of international law
committed in several conflicts, mainly on the African continent.
1
However, when faced with
one of the largest persistent offenders in the history of international law, the state of Israel,
2

the ICC fails to fulfil its aims of universal justice. Undoubtedly, the failure to indict a
widely recognised international crimes suspect
3
represents a failure in the mechanisms that
comprise the ICC and its ability to execute its aims. This essay will analyse the institution
of the ICC and will rigorously evaluate the sincerity of its actions.
This analysis will start with an outline of the history and aims of the ICC, starting with the
Post-War Nuremberg trials to the ad-hoc tribunals of the 1990s, in order to frame the
context of the work of the ICC. This will be followed by an overview of the functioning of
the ICC. It will then discuss Israels exceptionalism and detail why the Israeli situation is
being used to criticise the ICC. There will also be a detailed examination of the international
law breached by Israel since the implementation of the Rome Statute. Of these violations of
international law special attention will be given to the case of Operation Cast Lead (2008-
2009), a 22-day military operation by the Israeli Defence Force (IDF) that was
recommended by a UN fact-finding mission to be referred to the ICC.
4
Having established
Israels apparent immunity to prosecution by the ICC, this analysis shall detail and critically
analyse the jurisdictional issues, especially regarding non-signatories and the
complementarity principle, and analyse how this affects the aims of the ICC.

1
Situations and Cases (The International Criminal Court) <http://www.icc-
cpi.int/Menus/ICC/Situations+and+Cases/> accessed 3 February 2012.
2
To date Israel has been the target in excess of 120 United Nations resolutions passed by the Human Rights
Council concerning Israel. Israel at the United Nations (Permanent Mission of Israel to the United Nations)
<http://www.israel-un.org/israel-and-the-un/israel-at-the-un> accessed 3 January 2012. Furthermore, it is in
violation of the advisory opinion of the International Court of Justice of 2004 with regards to the West Bank
separation wall. BBC News, UN rules against Israeli barrier (BBC News, 9 July 2004)
<http://news.bbc.co.uk/1/hi/world/middle_east/3879057.stm> accessed 9 April 2012.
3
Ibid.
4
UN Human Rights Council, Report of the United Nations Fact-Finding Mission on the Gaza Conflict, 25
September 2009, A/HRC/12/48, 545 available at:
<http://www.unhcr.org/refworld/docid/4ac1dd252.html> accessed 12 January 2012. Hereinafter the Goldstone
Report.
(

n|story of Internat|ona| rosecut|on

Any person who commits an act which constitutes a crime under international law is
responsible therefor and liable to punishment.
- First Nuremburg Principle

1.1 Introduction

The end of the Second World War saw the indictment of Nazi military commanders for war
crimes by the victorious Allied Powers. The Nuremburg Military Tribunals, in 1945, saw
the first indictment of leaders of a major state by the international community for
conspiracy to commit crimes against humanity and for the crime of aggression.
5
The
Nuremburg Tribunals have been widely acknowledged as the predecessors of the
International Criminal Court. The International Law Commission of the United Nations
General Assembly codified the guidelines of what constituted a war crime into what became
known as the Nuremberg Principles.

The first principle was that any person who commits an act that amounts to a crime under
international law is accountable and therefore liable to punishment.
6
This principle
encapsulates the spirit of international law. The Nuremberg Principles also negate the
superior orders defence, meaning that following orders was not a valid legal excuse for
the actions of an individual.
7
It also divided the crimes that could be punished by the
tribunals into three categories; crimes against peace (wars of aggression), war crimes and
crimes against humanity (genocide)
8
and under Article 6 gave the Tribunal jurisdiction over

5
R Overy, The Nuremburg trials: international law in the making in P Sands (ed) From Nuremberg to The
Hague (CUP 2003) 14.
6
Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of
the Tribunal (hereinafter Nuremberg Principle) I.
7
Nuremberg Principle IV.
8
Nuremberg Principle VI.
)
individuals. Furthermore, it defined complicity as a crime under international law
9
and
enshrined the rights to a fair trial.
10

The formula of the Nuremberg Military Tribunals was similar to that of the trials that
shortly followed at the International Military Tribunal for the Far East, also known as the
Tokyo Tribunal. This Tribunal was set up in 1946 to try Japanese officers and officials
accused of crimes arising from the Second World War and Japanese imperialist aggression.
It also prosecuted crimes against peace, war crimes and crimes against humanity.
11
The
Post-War tribunals received criticism for representing victors justice, because the
triumphant Allies were not prosecuted by the tribunal for their war crimes, an example of
which was the firebombing of Dresden.
12

In 1948, during the few years between the Second World War and the solidification of the
Cold War, the United Nations General Assembly approved the Convention on the
Prevention and Punishment of the Crime of Genocide which demands that the crime of
genocide be prosecuted by such international penal tribunals as may have jurisdiction
13

and called upon the International Law Commission (ILC) to study the desirability and
possibility of establishing an international judicial organ for the trials of persons charged
with genocide.
14
This resulted in the ILC drafting a potential edict in the early 1950s.
However the diplomatic situation during the Cold War, namely a lack of co-operation
between countries,
15
stifled efforts to create a court. The General Assembly essentially gave
up the attempt awaiting concurrence on a standardised legal definition for the crime of
aggression and an internationally accepted Code of Crimes
16
.

9
Nuremberg Principle VII.
10
Nuremberg Principle V.
11
Charter of the International Military Tribunal for the Far East Article V.
12
AC Grayling, Bombing Civilians is not only immoral, its ineffective, (The Guardian, 27 March 2006)
<http://www.guardian.co.uk/commentisfree/2006/mar/27/comment.secondworldwar>
accessed 3 February 2012.
13
Convention on the Prevention and Punishment of the Crime of Genocide Article VI.
14
History of the ICC (Coalition for the International Criminal Court)
<http://www.iccnow.org/?mod=icchistory> accessed 5 April 2012.
15
R Overy, The Nuremburg trials: international law in the making in P Sands (ed) From Nuremberg to The
Hague (CUP 2003) 26.
16
History of the Establishment of the International Criminal Court (MEHR Iran)
<http://mehr.org/History.htm> accessed 4 April 2012.
*+
June 1989 saw the ILC resurrecting its attempts to draft a statute for the creation of an
international criminal court when motivated by the then Prime Minister of Trinidad and
Tobago, ANR Robinson, whose proposal for the creation of a permanent international court
focused on combating the illegal drug trade. Whilst this statute was in the process of being
drafted by the ILC, the widespread breaches of international law during the conflict in
Bosnia-Herzegovina and Croatia as well as ethnic violence in Rwanda in the early 1990s
compelled the UN Security Council to create two ad hoc tribunals for the purpose of
holding the individuals responsible for the brutalities to account, with Chapter VII of the
UN Charter
17
being used to legislate.

1.2 The International Criminal Tribunal For Yugoslavia

The International Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Law committed in the Territory of the former Yugoslavia
(ICTY) was set up in 1993 as a result of the atrocities committed during the wars in the
break-up of the former Yugoslavia. It was established through Security Council Resolutions
808
18
and 827
19
with the key aim of prosecuting the perpetrators responsible for the grave
breaches of the Geneva Conventions of 1949. These were namely war crimes, genocide,
crimes against humanity and aiding and abetting the preparation and the execution of the
above crimes.
20

Since the establishment of the Tribunal more than a hundred and sixty persons have been
charged. The ICTY indicted a host of government and military figures including heads of
state, generals, politicians and police chiefs from different sides of the conflict such as
Serbian deputy president Nikola !ainovi",
21
Bosniak army commander Rasim Deli"
22
and

17
Charter of the United Nations [1945] UN Doc. 1 UNTS XVI.
18
UN Security Council Resolution 808 [1993] UN Doc. S/RES/808.
19
20
The Updated Statute of the International Criminal Tribunal for the former Yugoslavia
<http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf>.
21
ICTY, Case Information Sheet Kosovo (IT-05-87) Saincovic et al (ICTY)
<http://www.icty.org/x/cases/milutinovic/cis/en/cis_sainovic_al_en.pdf > accessed 9 April 2012.
22
ICTY, Case Information Sheet (IT-04-83) Rasim Delic (ICTY)
<http://www.icty.org/x/cases/delic/cis/en/cis_delic_en.pdf> accessed 9 April 2012.
**
Kosovo Liberation Army member Fatmir Limaj.
23
To date over sixty individuals have been
convicted and currently more than forty are in different stages of being tried before the
Tribunal. As well as successfully prosecuting many of the individuals involved, the ICTY
has contributed significantly in the establishment of the historical facts of the conflicts. The
solidification of those facts ensures the combating of denial and revisionism in the future.
24

In addition, the tribunal has made considerable contributions to the development of
international criminal law. It extended the laws and customs of war to internal armed
conflicts
25
and was the first tribunal to indict a serving or former head of state.
26
It specified
the elements of the crime of genocide
27
and determined that enslavement and rape
constituted crimes against humanity
28
. Lastly it ensured the application and consolidation of
the Nuremberg principles in relation to command responsibility, individual criminal
responsibility and the rejection of obedience to superior orders as a defence to international
crimes.
29

Although the ICTY has been, in many respects, a positive endeavour it has also faced some
significant criticism concerning its high costs and lengthy trials. For example, to date the
cost of the court has reached approximately $1.8 billion,
30
and therefore the model would be
unsustainable if it were to be turned into a permanent court. The expense of the Tribunal has
also been exaggerated by what has been seen as excessive bureaucracy, resulting in a
lengthy process to reach a verdict. One must also examine the political bias that may be
operating in the Tribunal, as it is interesting to note that out of the fifteen states which voted
for the establishment of the Tribunal,
31
four (US, UK, France and Spain) are members of

23
ICTY, Case Information Sheet (IT-03-66) Limaj et al. (ICTY)
<http://www.icty.org/x/cases/limaj/cis/en/cis_limaj_al_en.pdf> accessed 9 April 2012.
24
For example, it has been proven beyond reasonable doubt that the mass murder at Srebrenica was genocide.
ICTY, About the ICTY (ICTY) <http://www.icty.org/sections/AbouttheICTY> accessed 9 April 2012.
25
Prosecutor v Tadic [2004] ICTY IT-94-1-A.
26
Slobodan Milosovic was indicted for crimes against humanity and violations of the laws or customs of war
in respect of the Kosovo conflict while President of Serbia (24 May 1999); see ICTY IT-99-37. He died in
March 2006, however, before a verdict was reached. Another former president, Radovan Karadic of Republica
Sprska is currently on trial at the tribunal; his trial is expected to end in 2014. See ICTY Completion Strategy
Report 18 May 2011 available
<http://www.icty.org/x/file/About/Reports%20and%20Publications/CompletionStrategy/completion_strategy_
18may2011_en.pdf>.
27
Prosectutor v Rdislav Krstic [2004] ICTY IT-98-33-T.
28
Prosecutor v Dragoljub Kunavac, Radomir Kovac and Zoran Vukovic [2001] ICTY IT-96-23.
29
The Updated Statute of the International Criminal Tribunal for the former Yugoslavia Article 7.
30
ICTY, The Cost of Justice (ICTY) <http://www.icty.org/sid/325> accessed 4 April 2012.
31
UN, UN Security Council Members (UN) <http://www.un.org/sc/list_eng5.asp> accessed 4 April 2012.
*"
NATO, who intervened in the conflict on the side of the Bosnians, and in addition, two
countries, Morocco and Pakistan, are Muslim, and therefore openly sympathetic to the
plight of Bosniak Muslims. Also the demographics of those indicted by the courts would
suggest an anti-Serb bias with 46 Serbs having been indicted compared to nine Croats, and
three Muslims.
32
The Security Council itself became a party to the conflict, authorising
sanctions and the use of military force through the creation of The United Nations
Protection Force (UNPROFOR). It could be suggested that, similar to the Nuremburg
Trials, that it was simply the victors trying the defeated party. However the counter
argument to this is that on the basis of human rights violations taking place, one would
expect those violations that caused intervention to be examined. Furthermore, Russia, a
country with close ties to Serbia, voted for the creation of the tribunal,
33
so one can assume
that the accusations of bias are unfounded.

1.3 The International Criminal Tribunal for Rwanda

The ICTY was soon followed by The International Criminal Tribunal for the Prosecution of
Persons Responsible for Genocide and other Serious Violations of International
Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens
Responsible for Genocide and Other Serious Violations Committed in the Territory of
Neighbouring States Between 1 January 1994 and 31 December 1994 (ICTR). This
Tribunal was set up as a result of the genocide of more than 800,000 people from the Tutsi
ethnic group as well as sympathetic Hutus. Similar to the ICTY, the ICTR was established
by the United Nations Security Council pursuant to Chapter VII of the UN Charter.
34
It was
established under Security Council Resolution 955
35
on the 8
th
of November 1994. The
tribunal had jurisdiction to prosecute those individuals responsible for genocide, crimes
against humanity, and violations of Article 3 Common to the Geneva Conventions and of
Additional Protocol II. It also had jurisdiction over crimes committed by non-Rwandan
citizens in Rwanda.

32
About the ICTY (ICTY) <http://www.icty.org/action/timeline/254> accessed 4 April 2012.
33
C Black, International Criminal Tribunal for Former Yugoslavia'.
< http://www.northstarcompass.org/nsc0008/Yugoslavia.htm> accessed 4 April 2012.
34
Charter of the United Nations [1945] UN Doc. 1 UNTS XVI.
35
*#

Due to the chaotic nature of the conflict and the violence being committed by militias and
gangs rather than the military, as was the case in the Former Yugoslavia, the tribunal has
become overwhelmed by such a high number of cases that it cannot realistically process
them all. One estimate is that it would take over a century to clear all the pending cases.
36

This is due to logistical and language barriers. The logistical problems mentioned include
the location of the court in Tanzania, meaning detachment from the Rwandan community.
Furthermore, the Rwandan government is somewhat hostile to the Tribunal.
37
Like the
ICTY the Rwanda tribunal has a very high cost, with more than $1.4 Billion being spent on
its proceedings,
38
therefore any permanent tribunal would have to have different
mechanisms to ensure sustainable running costs.

1.4 The International Criminal Court

As the examination of the ICTY and the ICTR has shown, due to their high cost, drawn-out
processes and the logistical nightmare that would occur if an individual tribunal were to be
established each time international law was breached, there was a pressing need for the
creation of a permanent court to prosecute such heinous crimes. The benefits of this would
of course be eliminating the lengthy establishment process, but also a permanent institution
would be able to tackle smaller incidents that would not garner the resources or political
clout to establish another ad hoc tribunal.
39
Thus, the UN took measures to establish what is
today known as the International Criminal Court. The ICC was established in July 2002 as a
result of the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an
International Criminal Court (Rome Conference), which was held in Rome, Italy, from the
15
th
to the 17
th
of June 1998 with 160 countries participating to finalise and adopt a

36
M Wesberg, Rwandas Use of Transnational Justice After Genocide 59 KLR 332.
37
CM Peter, The International Criminal Tribunal for Rwanda: bringing the killers to book (ICRC, 31
December 1997) <http://www.icrc.org/eng/resources/documents/misc/57jnz8.htm> accessed 5 April 2012.
38
X Rauscher, The Economist on International Justice and Where It Stands (The International Jurist, 27
November 2012).
<http://www.theinternationaljurist.org/2010/11/27/the-economist-on-international-justice-and-where-it-
stands/> accessed 2 April 2012.
39
MK Marler, The International Criminal Court: Assessing the Jurisdictional Loopholes in the Rome
Statute, [1999] 49(3) DLJ 829.
*$
convention on the establishment of an international criminal court.
40
The final result of the
conference was a vote in which one hundred and twenty states voted in favour of adopting
the Rome Statute of the ICC, seven nations (including the United States, Israel, China, Iraq
and Qatar) voting against the treaty and the remaining twenty-one states abstaining. The
Rome Statute finally became binding on the 11
th
of April 2002 when it reached the 60
th

ratification necessary to trigger its entry into force.
41
Soon after, on the 1
st
of July 2002, the
treaty legally entered into force and not being a retroactive statue, the ICC can only
prosecute crimes committed after that date.
42

Article 5 of the Rome Statute lists the crimes under the jurisdiction of the ICC as genocide,
crimes against humanity, war crimes, and the crime of aggression, each of which are further
defined in detail in the subsequent articles
43
. As previously mentioned the treaty only
applies to crimes committed after it entered into force on the 1
st
of July 2002. Furthermore,
the ICC is unable to prosecute the crime of aggression until 2017.
44
Articles 12 and 13 of
the Rome Statute define the Preconditions to the exercise of jurisdiction. Individuals liable
to be tried by the Court are all of those who are citizens of state that have accepted the
Rome statue.
45
The Statute also has two mechanisms in place to ensure the prosecution of
individuals who are not citizens of states party to the Statue. Firstly, the Court has
jurisdiction over a citizen of a state that is not party to the Statute if said individual commits
a crime in a country that is a Rome member.
46
The ICC also has a referral system in which
the UN Security Council can refer cases occurring in countries outside the jurisdiction of
the ICC to the Court. An example of this is the conflict in the Darfur region of the Sudan.
While discussing the jurisdiction of the ICC it is important to highlight that it is based on
territorial and personal jurisdiction and not universal jurisdiction. Israel, which is the focus

40
Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an
International Criminal Court [1998] U.N. Doc. A/CONF.183/10.
41
Chronology of the International Criminal Court, (International Criminal Court)
<http://www.icc-cpi.int/Menus/ICC/About+the+Court/ICC+at+a+glance/Chronology+of+the+ICC.htm>
accessed 10 March 2012.
42
Rome Statute of the International Criminal Court UN Doc. A/CONF.183/9
(hereinafter Rome Statute), Art. 11
43
Rome Statute, Art. 5.
44
Rome Statute - Resolution RC/Res.6 available <http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-
Res.6-ENG.pdf> accessed 9 April 2012.
45
Rome Statute, Art. 12 (2b).
46
Rome Statute, Art. 12 (2a) The State on the territory of which the conduct in question occurred.
*%
of this work, is not a party to the Rome Statute having un-signed the statute in 2002.
47

Therefore trying Israelis for suspected crimes under the Rome Statute becomes difficult,
which makes the Israeli situation the perfect test for the effectiveness of the ICC in
achieving its aims.

Another important principle in the functioning of the ICC is that of complementarity. This
has several implications. Firstly, the Court has no power to retry persons who have
previously been brought before a domestic court unless the domestic trial is proven to be
inconsistent with an intent to bring the person concerned to justice.
48
This limits the power
of the ICC to working in co-operation with states and in practise means that the
effectiveness of the ICC rests with the willingness of the states that are party to the Rome
Statute for it to succeed. This contrasts with the primacy of the ad hoc tribunals.
49
This
renders the ICC the last resort when seeking justice for crimes, because if the suspect has
already been tried, there can be no retrial, regardless of outcome, unless the first trial was
proven to be a sham. This principle will be discussed in greater detail in the fourth chapter.

1.5 Conclusion

From examining the history of international justice in the post-WWII era, it is clear that the
ICC was created out of a necessity to prosecute the gravest breaches of international law.
The previous policy of creating case-specific tribunals was unsustainable and costly, as
highlighted by the ICTY and the ICTR, and therefore a court with permanence was created
by means of the Rome Statute. The ICC was created with the aim and goal of prosecuting
grave breaches of international law. Having established the aims of the ICC in this chapter,
the following chapters will put forward the evidence for the prosecution of the state of Israel
and then evaluate whether the ICC is able to fulfil the goal it was created for - universal
justice with regards to crimes of the gravest nature.

47
AMICC, Declarations and Ratifications (AMICC, 2012) <http://www.amicc.org/icc_ratifications.html#*>
accessed 5 April 2012.
48
Rome Statue, Art. 20.
49
Y Simbeye, Immunity and International Criminal Law, (Ashgate, 2004) 5.
*&

Israe|| Lxcept|ona||sm

Mindful that during this century millions of children, women and men have been victims of
unimaginable atrocities that deeply shock the conscience of humanity
Rome Statute, Preamble

2.1 Introduction

Having explored the history and context of the International Criminal Court, it is fair to
judge its aims from the preamble of the Rome Statue, which states that the ICC shall have
the power to exercise its jurisdiction over persons for the most serious crimes of
international concern.
50
This chapter will examine the breaches of international law
committed by Israel before and since 2002, in relation to crimes under the temporal and
material jurisdiction (ratione materiae) of the ICC and create a case for Israeli officials to
be brought before the ICC. Once this has been done, the paper will then examine the
reasons for the failure to prosecute Israeli perpetrators, while evaluating the effectiveness of
the institution that is the ICC.
It is necessary at the onset to explain the reasons why Israel has been chosen for this
evaluation of the ICC. Clearly Israel is not alone in its breaches of international law, with
countries such as Syria, Saudi Arabia, the United States of America and the United
Kingdom also being found wanting in this respect.
51
However, as discussed in the
introduction, Israel is one of the most serious violators of international law.
52
Therefore,
Israel is a perfect candidate for investigation even though it is not a party to the Rome
Statue. Using the provisions in the ICC Statute for non-signatories laid out in the previous
chapter, the case for recommendation to the ICC shall be laid out in the current and

50
Rome Statute, Preamble.
51
'Learn About Human Rights', (Amnesty International) <http://www.amnesty.org/en/human-rights> accessed
3 March 2012.
52
Supra n.2.
*'
subsequent chapters. This chapter shall deal with an overview of Israeli violations of
international law, while the following chapter shall deal with Operation Cast Lead, which
received a specific recommendation for referral to the ICC.
53

2.2 Pre-Rome Statute Violations of International Law

Since Israeli membership to the United Nations in 1949,
54
there has been a constant stream
of resolutions coming from both the General Assembly and the Security Council
renouncing Israeli actions in the West Bank, Gaza Strip and conflicts in Lebanon. Many of
these resolutions will be detailed in this chapter. Whilst the General Assembly resolutions
are non-binding and the Security Council resolutions are binding, meaning that they require
compliance, this is a secondary issue. The use of UN resolutions in this chapter is to
highlight a general, international consensus on Israeli breaches of international law.
However, as the Rome Statute can only persecute crimes committed after the 1
st
of July
2002, only on-going violations shall be listed. In other words, what follows are the crimes
that fall under the jurisdiction of the ICC, which were committed before the treaty entered
into force and which have continued until the time of writing.
2.2(|) Ierusa|em
During the Six Day War of 1967, Israel occupied East Jerusalem,
55
and began to change the
legal status of East Jerusalem from an occupied territory to that of part of the State of Israel.
This it has done by annexing the area, building settlements and trying to change the ethnic
demographic.
56
These actions were condemned by UN Security Council Resolution 252
(1968)
57
and have been reaffirmed in numerous resolutions since, including Security
Council Resolution 471 (1980),
58
which state that Israeli actions in East Jerusalem are in
clear violation of the Fourth Geneva Convention. This occupation and building of
settlements continue to this day and amount to war crimes under the jurisdiction of the

53
Goldstone Report 545.
54
Official Records of the Third Session of the General Assembly, Part II [1949] UN Doc. A/PV.207.
55
CD Smith, Palestine and the Arab-Israeli Conflict (6
th
edn, Bedford/St. Martins 2007) 289.
56
H Kamoonpuri, Israel trying to change demographic reality in occupied East Jerusalem (Oman Daily
Observer, 10 April 2012) <http://main.omanobserver.om/node/90308 > accessed 10 April 2012.
57
58
*(
Rome Statue in Article 5c
59
, as defined in Article 8(2b, viii); The transfer, directly or
indirectly, by the Occupying Power of parts of its own civilian population into the territory
it occupies, or the deportation or transfer of all or parts of the population of the occupied
territory within or outside this territory
60
.

2.2(||) Go|an ne|ghts
A second continuing occupation from the 1967 war is that of the annexed Syrian Golan
Heights.
61
This annexation, which has been defined as illegal by Security Council resolution
242
62
is still on going. According to the Israeli Foreign Minister Avigdor Lieberman, Israel
has no intention to leave the area, declaring We must make Syria recognise that just as it
relinquished its dream of a greater Syria that controls Lebanon ... it will have to relinquish
its ultimate demand regarding the Golan Heights.
63
Such statements in the face of the
United Nations condemnation of the occupation further shows Israeli flagrant disregard for
International Law.

2.2(|||) Sett|ements
The final issue to be covered of on-going pre-Rome violations is that of the West Bank
settlements. Like the occupation of East Jerusalem and the Golan Heights the occupation
and settlement of the West Bank has been in progress since the Six Day War of 1967,
64

however Israel has made no attempt as of yet to annex the territory. Declared illegal
repeatedly by the UN, including Security Council resolution 446 (1979)
65
and continuing to
this day,
66
the West Bank Settlements are another incidence of a war crime under Article 5c

59
60
61
Supra n.55, 289.
62
63
Al Jazeera, Israel's Lieberman cautions Syria (Al Jazeera, 4 February 2010)
<http://www.aljazeera.com/news/middleeast/2010/02/201024174859584145.html> accessed 6 April 2012.
64
BBC News, Israel and the Palestinians: Key Maps (BBC News)
<http://news.bbc.co.uk/1/shared/spl/hi/middle_east/03/v3_israel_palestinians/maps/html/settlements_checkpoi
nts.stm> accessed 5 April 2012.
65
66
Associated Press, Palestinians appeal to UN Security Council over Israeli settlements (Haaretz, 10 April
2012) <http://www.haaretz.com/news/diplomacy-defense/palestinians-appeal-to-un-security-council-over-
israeli-settlements-1.423502> accessed 11 April 2012.
*)
of the ICC, as defined previously, being the same category of crime as committed in East
Jerusalem as illegal settlement and population transfer.

2.3 Post Rome Statute Violations of International Law

Other than the on-going breaches of international law stated above, Israel has also
committed a host of crimes under the jurisdiction of the ICC since the Rome Statute entered
into force on the 1
st
of July 2002. This is not intended to be an exhaustive list of all
violations committed by Israel. Security Council resolutions condemning the crimes post-
2002 are harder to find by account of the Negroponte doctrine,
67
by which the US declared
its intention to veto any resolution against Israel without explicit condemnation of
Palestinian terrorism. Therefore a lot of evidence for these crimes is cited from several
internationally recognised human-rights organisations such as Amnesty International and
Human Rights Watch.

2.3(|) 1he Second Int|fada
When the Rome Statute came into effect in 2002, Israel was engaged in the suppression of a
Palestinian uprising known as the Second Intifada. This uprising was caused by the then
Israeli Foreign Minister Ariel Sharron entering the Temple Mount area that is seen as sacred
to Muslims.
68
The Intifada saw a spike in Palestinian suicide bombings and Israeli
offensives against Palestinian towns and villages.
69

One famous incident was the battle of Jenin in which Israeli and Palestinian forces clashed
in the refugee camp of Jenin in the West Bank. Amnesty International claims that the Israeli

67
The Negroponte Doctrine concerning UN Security Council Resolutions.
on the Middle East (United States Mission to the United Nations, 6 October 2003) [archived].
<http://web.archive.org/web/20031224063630/http://www.un.int/usa/03jdn-me1006.htm> accessed 3 April
2012.
68
Supra n.55, 512.
69
Ibid. 515.
"+
Defence Force (IDF) used Palestinian civilians as human shields and also documents reports
of torture and abuse.
70
Both are counted as war crimes under the Rome Statute.
71

Another category incidents involve house demolitions. Israel has long operated a policy of
house demolitions in the Occupied Territories. The issue is so prevalent that there exists a
specific organisation dedicated to the monitoring and recording of incidents of house
demolitions. The Israeli Committee Against Home Demolitions (ICAHD) created in 1997,
estimates that, as of 2010, Israel has demolished in excess of 24,000 Palestinian homes
72

since 1967. Since the implementation of the Rome Statute, roughly 10,000 Palestinian
homes have been demolished.
73
Also, Amnesty International has released a report
74
in
which it states that Israel is in clear violation of the Geneva Convention on several counts.
75

This falls under the jurisdiction of the ICC as extensive destruction and appropriation of
property, not justified by military necessity and carried out unlawfully and wantonly.
76

2.3(||) 1he Cr|me of Aparthe|d
Article 7(j) of the Rome Statute places the crime of apartheid
77
under the jurisdiction of
the ICC as a crime against humanity. The accusation that Israel is committing the crime of
apartheid has come from many respected individuals, including South African anti-
Apartheid campaigner Bishop Desmond Tutu who referred to the situation in Israel saying
I've been very deeply distressed in my visit to the Holy Land; it reminded me so much of
what happened to us black people in South Africa. I have seen the humiliation of the
Palestinians at checkpoints and roadblocks, suffering like us when young white police

70
Amnesty International, Shielded from Scrutiny: IDF Violations in Jenin and Nablus (November 2002)
[Amnesty International Index No. MDE 15/143/2002].
71
Rome Statute, Art. 8.
72
ICAHD, House Demolition Statistics (Israeli Committee Against Home Demolitions, 28 July 2010)
<http://www.icahd.org/?page_id=5508> accessed April 3 2012.
73
Ibid.
74
Amnesty International, Israel and the Occupied Territories: Under the rubble: House demolition and
destruction of land and property (2004) [Amnesty International Index No. MDE15/033/2004].
75
Ibid 50-61.
76
Rome Statute, Art. 8 (2a iv).
77
"The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1,
committed in the context of an institutionalized regime of systematic oppression and domination by one racial
group over any other racial group or groups and committed with the intention of maintaining that regime
Rome Statute, Art. 7(2h).
"*
officers prevented us from moving about.
78
The Israeli system of checkpoints and
roadblocks is well documented
79
and involve the random stopping of Palestinians on roads
within the Occupied West Bank. Furthermore, Israeli human rights organisation BTselem
reports the prohibition of Palestinians using certain roads and the creation of separate roads
for the Arab population.
80
The United Nation Humanitarian Monitor itself has noted that
Israeli checkpoints in the West Bank are evolving into a more permanent system of control
that is steadily reducing the space available for Palestinian growth and movement for the
benefit of the increasing Israeli settler population.
81
This is further reinforced by
MachsomWatch, an Israeli organisation specialising in the monitoring of checkpoints, who
state the Israeli government is purposely persecuting the Palestinian population by
applying a policy of bureaucratic torment.
82
With the opinions expressed by Bishop
Desmond Tutu, the evidence of both Israeli human rights organisations, and the UN itself it
is fair to suggest that the accusation is worthy of further investigation by the ICC.
The Israeli policy of segregation is perhaps encapsulated by what is known as the West
Bank wall. The barrier - already built, under construction, or in planning - runs to a total of
810 km kilometres and as of 2010, 520 km of the planned 810 km, or 64%, of the wall has
been completed.
83
The barrier comprises of trenches, barbed wire fencing, and at some
places such as Bethlehem and Jerusalem will involve an eight metre high concrete wall. The
International Court of Justice has condemned the wall as a grave breach of the Geneva
Convention.
84
However construction of the wall still continues.

78
D Tutu, Apartheid in the Holy Land (The Guardian, 29 April 2002)
<http://www.guardian.co.uk/world/2002/apr/29/comment> accessed 2 April 2012.
79
Checkpoints, Physical Obstructions, and Forbidden Roads (BTselem, 1 January 2011)
<http://www.btselem.org/freedom_of_movement/checkpoints_and_forbidden_roads> accessed 10 April 2012.
80
Alternative Roads for Palestinians (BTselem, 1 January 2011)
<http://www.btselem.org/freedom_of_movement/alternative_roads_for_palestinians> accessed 9 April 2012.
81
The Humanitarian Monitor, February Overview (OCHAOPT, February 2009)
<http://www.ochaopt.org/documents/ocha_opt_humanitarian_monitor_2009_02_01_english.pdf>
82
T Goldenburg, Systematic Abuse by Administrative Means: A Matter of Policy? (Machsom Watch)
<http://archive.machsomwatch.org/docs/civilAdministration.asp?link=summaries&lang=eng>
83
The Wall (Stop the Wall ) <http://www.stopthewall.org/the-wall> accessed 9 April 2012.
84
Legal Consequence of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
ICJ Reports 2004, 136.
""
2.3(|||) 1he 2006 War |n Lebanon
In 2006 Israel became involved in a conflict in southern Lebanon after Lebanese militants
from Hezbollah attacked and kidnapped a group of Israeli soldiers. The consequent conflict
saw Israel adopt a policy of wanton and disproportionate airstrikes; including one particular
incident involving an attack targeted again the Lebanese village of Qana that resulted in the
deaths of 28 people, 16 of whom were children.
85
The attack received almost unanimous
international condemnation and was met with a recommendation from then UN Secretary
General Kofi Annan to undergo investigation. Article 8(2b, i) of the Rome Statute declares
Intentionally directing attacks against the civilian population as such or against individual
civilians not taking direct part in hostilities as a war crime.
86
Human Rights Watch
commented that, the Israeli military seems to consider anyone left in the area a combatant
who is fair game for attack
87
and that such an indiscriminate policy is contrary to
international law. This comment shows that the Qana airstrike was not an isolated incident
during the conflict; but that occurrence alone warrants further investigation by the ICC.

2.3(|v) 1he Gaza 8|ockade
In 2007, following the election of Hamas in the Gaza Strip, Israel adopted a policy of
blockading the region and controlling all imports and exports into the area which, at the
time of writing, contains approximately 1.7 million people.
88
The blockade involves total
Israel control of all food, medicines and other items entering the Gaza Strip. An Israeli
minister has jokingly referred to the blockade as putting the Palestinians on a diet
89
and
has been referred to by Israeli human rights group Gisha as illegal because it punishes
civilians in the Gaza Strip for acts they did not commit and for political circumstances
beyond their control.
90
The blockade has received widespread international condemnation,

85
Israel/Lebanon: Qana Death Toll at 28 (Human Rights Watch, 2 August 2006)
<http://www.hrw.org/en/news/2006/08/01/israellebanon-qana-death-toll-28> accessed 6 April 2012.
86
Rome Statute, Art. 8 (2b i).
87
Israel/Lebanon: Israel Responsible for Qana Attack (Human Rights Watch, 30 July 2006)
<http://www.hrw.org/en/news/2006/07/29/israellebanon-israel-responsible-qana-attack>
88
CIA Factbook, Middle East: Gaza Strip (CIA Factbook, 26 March 2012)
<https://www.cia.gov/library/publications/the-world-factbook/geos/gz.html> accessed 6 April 2012.
89
C Uruqhart, Gaza on brink of implosion as aid cut-off starts to bite (The Guardian, 16 April 2006)
<http://www.guardian.co.uk/world/2006/apr/16/israel> accessed 6 April 2012.
90
Gaza Closure Defined: Collective Punishment (Gisha, December 2008)
<http://www.gisha.org/UserFiles/File/publications/GazaClosureDefinedEng.pdf> accessed 6 April 2006.
"#
including a recommendation from Richard Goldstone that the situation be referred to the
ICC.
91

2.3(v) Cperat|on Cast Lead (2008-2009)
On the 27
th
of December 2008 the IDF launched 22-day long Operation Cast Lead against
the Gaza Strip. The attack left 1,417 Palestinians dead and over 5,000 wounded. The
accusations against Israel for this particular event are so numerous (with over 360
individual cases being filed against it) as to warrant a chapter of its own,
92
and as such will
be detailed in full in the next chapter.

2.3(v|) I|ot|||a ka|d (2010)
The final charge that is to be brought against the state of Israel involves an incident on the
31
st
of May 2010 when IDF commandos intercepted a convoy of six boats attempting to
bring aid supplies to the Gaza Strip. Aboard one boat, the Mavi Marmara, the IDF
commandos shot dead at close range nine Turkish citizens while the boat was still in
international waters.
93
This has been seen as a breach of the Geneva Convention and can be
categorised as wilful killing, which is punishable under Article 8(2, i) of the Rome Statute.

2.4 Conclusion

One must bear in mind that the objective of this chapter was to put forward the evidence for
bringing Israeli officials to trial at the ICC, and not to pass a judgement. This paper is not
intended as a courtroom to establish the guilt or innocence of any party, but merely to
document the accusations levelled against the state of Israel that require further
investigation by the ICC. As such the arguments put forward to defend the actions of the
state of Israel are not documented. The in depth analysis and debate as to whether Israeli

91
Goldstone Report, 545.
92
JTA News, Palestinian teen accuses Israel in The Hague (JTA News, 1 September 2009)
<http://www.jta.org/news/article/2009/09/01/1007573/palestinian-girl-accuses-israel-in-the-hague>
93
R Booth, Gaza flotilla activists were shot in head at close range (The Guardian, 4 June 2004)
<http://www.guardian.co.uk/world/2010/jun/04/gaza-flotilla-activists-autopsy-results> accessed 6 April 2012.
"$
officials should be punished is the function of the ICC. What has been successfully
demonstrated are the allegations levelled against Israel namely: the occupation of East
Jerusalem and the Golan Heights, the building of the West Bank settlements, house
demolitions, accusations of apartheid, war crimes committed during military attacks on the
civilian populations of south Lebanon, the Gaza Strip and the West Bank, the collective
punishment of civilians via the Gaza blockade and the murder of nine Turkish citizens in
international waters.
As stated in the preceding chapter a state can be referred to the ICC by the UN Security
Council for investigation. While Israel may be innocent of these crimes and may have acted
reasonably during its military operations, such a list of accusations of crimes falling under
the jurisdiction of the ICC leads the commentator to delve into the reasons that these crimes
have not been thoroughly examined, as is the remit of the ICC.

"%

Cperat|on Cast Lead

The Mission makes the following recommendations related to:
(a) Accountability for serious violations of international humanitarian law
- Goldstone Report
3.1 Introduction

This chapter will focus on Operation Cast Lead and examine whether it fulfils the necessary
conditions of ratione materiae under the Rome Statute. Cast Lead was a three-week Israeli
Defence Force (IDF) operation
94
that took place in the Gaza Strip. During that period the
IDF carried out over 2,630 air strikes,
95
as well as ground assaults. These attacks resulted in
the death of between 1,166 and 1,417 Palestinians and the wounding of more than 5000
others, a third of them children.
96
Hamas and its associates, on their own part, bombarded
Israeli territory with 617 rockets and 178 mortar shells
97
, causing 9 Israeli deaths.
98
The
conflict was followed by numerous allegations of violations of the laws of armed conflict
on the part of both Israel and Hamas.
99

3.2 The UN Fact Finding Mission

Following the Gaza conflict, the Human Rights Council established the United Nations Fact
Finding Mission on the Gaza Conflict with the mandate:

94
beginning on 27 December 2008.
95
D Macintyre and K Sengupta, Civilian casualties: Human rights groups accuse Israelis of war crimes (The
Independent on Sunday, 15 January 2009) <http://www.independent.co.uk/news/world/middle-east/ civilian-
casualties-human-rights-groups-accuse-israelis-of-war-crimes-1366727.html> accessed 7 April 2012.
96
Briefing to the UN Security Council based on data from Palestinian Ministry of Health, by Under-Secretary-
General Holmes, UN Doc. S/PV.6077.
97
Israel Ministry of Foreign Affairs, The operation in Gaza Factual and Legal Aspects, July 2009, available
online at http://mfa.gov.il/MFA/Terrorism+Obstacle+to+Peace.
98
Y Ronen, ICC Jurisdiction over Acts Committed in the Gaza Strip [2010] JICJ.
99
Goldstone Report.
"&
To investigate all violations of international human rights law and international
humanitarian law that might have been committed at any time in the context of the
military operations that were conducted in Gaza during the period from 27
December 2008 and 18 January 2009, whether before, during or after.

The findings of this investigation are known as the Goldstone Report, named after the
chairman of the mission. Some of the alleged Israeli war crimes include the use of white
phosphorus in populated areas, attacks on civilians waving white flags, targeting of civilians
and unlawful destruction of civilian property.
100

The different crimes under the jurisdiction of the ICC that were allegedly committed during
the 22 day conflict are highlighted below:

3.2(|) Attacks on C|v|||ans
The Goldstone Report,
101
Amnesty International
102
and Human Rights Watch have
documented any instances of intentional attacks on civilians during Operation Cast Lead.
103

These attacks, which were carried out with high-precision weapons, air-delivered bombs,
missiles and tank shells, resulted in the death of 918 civilians.
104
There were other instances
where women and children were shot at short range when posing no threat to the lives of the
Israeli soldiers.
105
An example of one of the documented attacks against civilians is the
Zeitoun incident. On the 5
th
of January 2009 100 members of the extended Al-Samouni
family had taken shelter in their home in the Zeitoun neighbourhood of Gaza; the house was

100
HRW, Israel/Gaza: Implement Goldstone Recommendations on Gaza (Human Rights Watch, 16
September 2009) <http://www.hrw.org/news/2009/09/16/israelgaza-implement-goldstone-recommendations-
gaza> accessed 8 April 2012.
101
102
Amnesty International, Operation Cast Lead: 22 Days of Death and Destruction (2009) Amnesty
International Index No. MDE 15/015/2009.
103
F Abrahams, White Flag Deaths: Killings of Palestinian Civilians During Operation Cast Lead (Human
Rights Watch (Organization) 2009).
104
Targeted Civilians (Palestine Centre for Human Rights (Organisation) 2009) 10
available <http://www.pchrgaza.org/files/Reports/English/pdf_spec/gaza%20war%20report.pdf> accessed 3
March 2012.
105
Supra n.102.
"'
hit with rockets, which brought the building crashing down on the family inside. Up to 30
members of the family were killed.
106

This intentional attack on civilians violates Article 8(2b, i) of the Rome Statute, which
declares that Intentionally directing attacks against the civilian population as such or
against individual civilians not taking direct part in hostilities amounts to a war crime
under the jurisdiction of the Court.

3.2(||) Destruct|on of roperty
As well as attacks on civilians, there were also numerous instances of deliberate attacks on
civilian objects. These have been noted in the Goldstone Report,
107
and by the Human
Rights Watch
108
and Amnesty International.
109
An initial survey conducted by the UN
Development Programme (UNDP) estimated that more than 14,000 homes, 68 government
buildings and 31 non-governmental organization offices were either totally or partially
damaged during the conflict.
110

Examples of such attacks in the Goldstone Report include attacks on the Palestinian
Legislative Council building and the main prison in Gaza.
111
In addition, the Human Rights
Watch documents cases in which Israeli forces extensively destroyed civilian property,
including factories, homes and farms in areas under their control, without any lawful
military purpose.
112
These intentional direct attacks against civilian objects constitute a war

106
T Butcher, Gaza: Palestinian family mourns 48 dead (The Telegraph, 19 June 2009)
<http://www.telegraph.co.uk/news/worldnews/middleeast/palestinianauthority/4290553/Gaza-Palestinian-
family-mourns-48-dead.html> accessed 10 April 2012.
107
108
I Lost Everything': Israel's Unlawful Destruction of Property in the Gaza Conflict (Human Rights Watch
(Organization) 2009).
109
Supra n.102, 65.
110
Field Update on Gaza from the Humanitarian Coordinator (OCHA, 5 February 2009)
<http://unispal.un.org/unispal.nsf/85255db800470aa485255d8b004e349a/50a7789ce959e0c285257554006d3e
56?OpenDocument> accessed 9 April 2012.
111
112
Supra n.108.
"(
crime under Article 8 (2b, ii) of the Rome Statute, and is therefore under the jurisdiction of
the Court.

3.2(|||) Attack of UN 8u||d|ngs
A number of attacks on UN facilities have been cited in the Goldstone Report
113
and has
been corroborated by Amnesty International
114
and Human Rights Watch.
115
One example,
which has been cited by all three, is that of the firing of white phosphorus shells over the
UNRWA (The United Nations Relief and Works Agency) compound in Gaza City on the
15
th
of January 2009. This attack resulted in fires that destroyed large quantities of
humanitarian aid and medicine and the injuring of a UN worker and two civilians who had
taken refuge in the compound.
116

Article 8(2b, iii) of the Rome Statute declares that it is a war crime to intentionally direct:
Attacks against personnel, installations, material, units or vehicles involved in a
humanitarian assistance or peacekeeping mission in accordance with the Charter of
the United Nations, as long as they are entitled to the protection given to civilians or
civilian objects under the international law of armed conflict.

Therefore, the intentional attacks upon the UNRWA by Israeli forces would amount to a
war crime under the above Article and is therefore under the jurisdiction of the ICC.

3.2(|v) Aer|a| Assau|t
Most of the IDF attacks were launched from helicopters, F-16 aircrafts or drones that were
armed with high-precision missiles. These aerial attacks targeted and destroyed civilian

113
114
Supra n.102, 31.
115
World Report: Israel / Occupied Palestinian Territories (Human Rights Watch, 2010)
<http://www.hrw.org/world-report-2010/israel-occupied-palestinian-territories-opt>
116
Supra n.102, 31 and Goldstone Report, 533.
")
homes without warning, killing and injuring many of their inhabitants.
117
One case cited in
Amnesty Internationals report is that of a missile strike on 4 January 2009. This missile hit
the roof of a civilian home in the al-Tuffah neighbourhood of Gaza City killing Isra Qusay
al-Habbash, 13, and her cousin Shadha Abed al-Habbash, 10. Shadhas 14-year-old sister
Jamila lost both her legs and her 16-year-old cousin Muhammad lost one leg.
118

Article 8(2b, v) declares that attacking or bombarding, by whatever means, towns, villages,
dwellings or buildings which are undefended and which are not military objectives is a war
crime. The fact the bombings were carried out by sophisticated jet fighters equipped with
high-precision bombs, with pinpoint accuracy,
119
leads to the conclusion that civilians were
targeted. Accordingly, such aerial attacks would amount as war crime under the jurisdiction
of the ICC.

3.2(v) 1he Use of Wh|te hosphorus and I|echettes
Israels use of weapons such as white phosphorus
120
and flechette
121
shells during the
military operations has been evidenced by the Goldstone Report,
122
and corroborated by
Amnesty International
123
and Human Rights Watch.
124
The IDF initially denied using white
phosphorus munitions but acknowledged its use after the conflict.
125

117
Supra n.102, 15
118
Ibid 16.
119
Ibid 75.
120
White Phosphorus is used for signalling, screening, and incendiary purposes. White Phosphorus Fact
Sheet (Federation of American Scientists)
<http://www.fas.org/programs/bio/factsheets/whitephosphorusfactsheet.html> accessed 7 April 2012.
121
A flechette is a common military missile which is shaped generally similar to a dart or arrow. Single as
well as multiple flechettes can be deployed at a time. Flechettes (Globalsecurity.org)
http://www.globalsecurity.org/military/systems/munitions/bullets2-flechettes.htm> accessed 7 April 2012.
122
123
"Israel/Occupied Palestinian Territories: The conflict in Gaza: A briefing on applicable law, investigations
and accountability". Amnesty International. (see more Israel used white phosphorus in Gaza civilian areas
Amnesty International).
124
Israel: Stop Unlawful Use of White Phosphorus in Gaza (Human Rights Watch, 10 January 2009)
<http://www.hrw.org/en/news/2009/01/10/israel-stop-unlawful-use-white-phosphorus-gaza>
125
Israel backs down over white phosphorus, (The Times)
<http://www.timesonline.co.uk/tol/news/world/middle_east/article6150448.ece> accessed 7 April 2012.
#+
The white phosphorus and flechette shells were used in densely populated Gaza
126
and thus
inevitably resulted in the deaths of civilians. For example, on 5 January 2009, Israeli forces
fired several flechette shells into the main road near the Abd al-Dayem family home in
Izbet Beit Hanoun, The incident resulted in the deaths of six civilians: two children, a
woman and three men and the injuring of several others.
127
Not long after, on the 17
th
of
January 2009, a white phosphorus artillery shell exploded in an UNRWA primary school in
Beit Lahia killing two children, Muhammad al-Ashqar and his brother Bilal, aged five and
seven respectively, and injuring several others.
128

With regards to white phosphorus, its use against civilians or in civilian areas is defined as
illegal under Article 1 of Protocol III of the Convention on Certain Conventional
Weapons.
129
Therefore, this use of white phosphorus violates Article 8 (2b xx) of the Rome
Statute which forbids the use of weapons, projectiles and material and methods of warfare
which are of a nature to cause superfluous injury or unnecessary suffering or which are
inherently indiscriminate in violation of the international law of armed conflict.

Concerning flechette shells, their use is not expressly forbidden under international
humanitarian law. However, their use in densely populated civilian areas in Gaza, as
evidenced previously, is what contributed to unlawful killings of, and injuries to,
civilians.
130
Thus, the use of flechettes in this circumstance is illegal and amounts to a war
crime under Article 8(2b, iv) of the Rome Statute which prohibits:

126
Population density in Gaza is some 4,200 people per square kilometre. The refugee camps have one of the
highest population densities in the world. For example, over 82,000 refugees live in al-Shati (Beach) camp,
which is less than one square kilometre in size. Supra n.102.
126
Ibid 39.
127
Amnesty International, Operation Cast Lead: 22 Days of Death and Destruction (2009) [Amnesty
International Index No. MDE 15/015/2009] 39.
128
Ibid 30.
129
Article 1 of Protocol III of the Convention on Certain Conventional Weapons defines an incendiary
weapon as a weapon or munition which is primarily designed to set fire to objects or to cause burn injury to
persons through the action of flame, heat, or combination thereof, produced by a chemical reaction of a
substance delivered on the target'. White Phosphorus fits under this definition.
130
Supra n.102, 40.
#*
Intentionally launching an attack in the knowledge that such attack will cause
incidental loss of life or injury to civilians or damage to civilian objects or
widespread, long-term and severe damage to the natural environment which would
be clearly excessive in relation to the concrete and direct overall military advantage
anticipated.

3.2(v|) 8omb|ng of Dense|y opu|ated Areas
It could be argued that any aerial attack on the Gaza strip is in essence a war crime due to
the densely populated nature of Gaza. As it stands, the population density in Gaza is some
4,200 people per square kilometre, and thus one of the most crowded stretches of land in the
world.
131
The vast number of people residing within the Gaza Strip makes it inevitable that
any attacks on this area would kill or at the very least injure civilians. Examples of this
would include every previous point made within this chapter, such as the use of F-16
aircrafts and drones that were armed with high-precision missiles, flechettes and white
phosphorus which resulted in the deaths of civilians as well as the destruction of civilian
and UNRWA property. Israel claims that the IDF attempted to reduce collateral damage by
giving civilians a four hour notice to leave targeted areas, by dropping over 900,000
leaflets, and by making over 30,000 phone calls to Palestinian households in Gaza.
132

However, these warnings were inadequate as the blockade imposed by Israel did not permit
the free movement of persons, and therefore the entire population of 1.5 million people
were trapped in Gaza and unable to flee from Israeli attacks.
133

Consequently, the nature of these attacks in Gaza would amount to a war crime under
Article 8 (2b, iv), which provides that:
Intentionally launching an attack in the knowledge that such attack will cause
incidental loss of life or injury to civilians or damage to civilian objects or

131
Statement by Prof. Richard Falk, United Nations Special Rapporteur from Human Rights in the Occupied
Territories (United Nations, 27 December 2009).
<http://www.unhchr.ch/huricane/huricane.nsf/view01/F1EC67EF7A498A30C125752D005D17F7?opendocu
ment> accessed 9 April 2012.
132
R Kemp, Hamas, The Gaza War And Accountability Under International Law (Jerusalem Centre for
Public Affairs, 18 June 2009).
<http://www.jcpa.org/JCPA/Templates/ShowPage.asp?DBID=1&LNGID=1&TMID=111&FID=378&PID=0
&IID=3026> accessed 9 April 2012.
133
Supra n.102, 51.
#"
widespread, long-term and severe damage to the natural environment which would
be clearly excessive in relation to the concrete and direct overall military advantage
anticipated.
Therefore, the attacks carried out on the densely populated Gaza Strip would amount to a
war crime under the above Article and is therefore under the jurisdiction of the ICC.

3.3 Conclusions of the Goldstone Report

The Goldstone report concluded that both Israeli forces and Palestinian armed groups
committed grave violations of international law, including war crimes and possibly crimes
against humanity.
134
It recommended, with reference to the declaration under article 12(3)
received by the Office of the Prosecutor of the ICC from the Government of Palestine, that
the Prosecutor should make the legal determination as expeditiously as possible.
135

Furthermore, it also recommended that the Human Rights Council formally submit this
report to the Prosecutor of the ICC.
136

The findings of the report are consistent with those of the Amnesty International field
investigation into the 22-day conflict. In their report they called on the Israeli authorities to
ratify the Rome Statute of the ICC, without making a declaration under Article 124
which would exclude for seven years the jurisdiction of the Court over war crimes and
make a declaration pursuant to Article 12(3) that its jurisdiction encompasses the Operation
Cast Lead.
137

Human Rights Watch also supported the call of fact-finding mission for the Security
Council to refer the Gaza conflict to the ICC should investigations by Israel and Hamas
authorities remain inadequate.
138
They had been supportive of the fact-finding mission since

134
Goldstone Report, 533-543 (see more: http://www.amnesty.org/en/news-and-updates/news/israel-gaza-
implementation-un-fact-finding-mission-recommendations-crucial-justi).
135
Ibid 548.
136
Ibid 545 (see more: http://news.bbc.co.uk/1/hi/world/middle_east/8257301.stm).
137
Supra n.102, 96.
138
Supra n.100.
##
the very beginning, commending the selection of Goldstone to head the mission, saying that
Justice Goldstone's reputation for fairness and integrity is unmatched, and his investigation
provides the best opportunity to address alleged violations by both Hamas and Israel.
139
At
the time Goldstone had just resigned as a board member of the Human Rights Watch and
therefore the report was criticised as it was claimed that his impartiality was compromised
due to his previous links to Human Rights Watch. Israeli academic Gerald Steinberg, from
Bar Ilan University, is the author of an 80-page study
140
that questions the objectivity,
integrity, and professionalism of the investigations carried out by Human Rights Watch. In
a statement about the study he said that Although Goldstone resigned, his statements have
strongly echoed and defended Human Rights Watch's bias, particularly over Gaza.
141

The Israeli government itself released a response criticising the report as biased and
disputing its findings. It laid out retorts to the accusations set out in the Goldstone report
claiming that the attacks, which resulted in the death of civilians and the destruction of their
property, was accidental.
142
It also maintained that the Jewish State had a right to defend
itself.
143
However, even if the Israeli claims of accidental attacks were in fact true,
intentions hardly change the base outcome. M.J. Rosenberg, former policy director at the
Israel Policy Forum, put it well recently:

Even if it could be proven that the United Nations school was destroyed by accident,
what difference would it make? It was destroyed. Would Israel exonerate Hamas if
it, by accident, hit an Israeli hospital when its target was a nearby army base?
144

A couple of years following the report, Richard Goldstone published an op-ed in the
Washington Post, entitled Reconsidering the Goldstone Report on Israel and war crimes
145

139
K Roth, US: Ask Israel to Cooperate with Goldstone Inquiry (Human Rights Watch, May 17 2009)
<http://www.hrw.org/en/news/2009/05/17/us-ask-israel-cooperate-goldstone-inquiry>
accessed March 12 2012
140
G Steinberg & S Mandel, Experts or Ideologues (2009) NGO Watch (Organistation).
141
http://www.haaretz.com/news/ngo-monitor-gaza-war-probe-tainted-by-anti-israel-ideology-1.8242
142
Haaretz Service Israel official reply on Goldstone Gaza Report (Haaretz.com, 23

January 2010)
<http://www.haaretz.com/news/israel-official-reply-on-goldstone-gaza-report-probe-biased-flawed-1.265760>
143
Gaza Operation Investigation: An Update (2010) The State of Israel.
144
M J Rosenberg, Goldstones Edit Changes Nothing (Political Correction, 4 April 2011)
<http://politicalcorrection.org/fpmatters/201104040010> accessed 2 April 2012.
#$
in which he wrote that had he known what he knew now the report would have been a
different document. However, he offered no new evidence as to how he had arrived at this
conclusion. Moreover, the fact that Goldstone chose the agency of a newspaper rather than
the UN to recant his views gives it little credence.

Yet, Israeli politicians
146
and the US senate instantly reacted to the op-ed by inferring that it
delegitimised the Goldstone report - a report written and investigated by four distinguished
experts.
147
In response, the other 3 experts who wrote the report issued a statement making
it clear that, since September 2009, the Goldstone report became an official UN
document.
148
In addition, they insisted that, nothing of substance has appeared that would
in any way change the context, findings or conclusions of that report. Furthermore, it must
also be stated that, in comparison to the original report, the op-ed is of no legal
consequence. Accordingly, although there have been criticisms of the report it still stands
strong as an official UN document which has international credibility.

3.4 Conclusion

This chapter has demonstrated that the actus reus
149
of war crimes under Article 8(2) of the
Rome Statute have been established, and that the crimes committed by the IDF, which are
laid out within this chapter, fall within the jurisdiction of the Court. Furthermore, it is

145
R Goldstone, Reconsidering the Goldstone Report on Israel and war crimes (Washington Post, 1 April
2011) < http://www.washingtonpost.com/opinions/reconsidering-the-goldstone-report-on-israel-and-war-
crimes/2011/04/01/AFg111JC_story.html> accessed 9 April 2012.
146
Haaretz Service, 'Lieberman lauds new Goldstone conclusions about Gaza war', (Haaretz, 2nd April 2011)
<http://www.haaretz.com/news/diplomacy-defense/lieberman-lauds-new-goldstone-conclusions-about-gaza-
war-1.353677> accessed 4 March 2012. B Ravid 'Netanyahu to UN: Retract Gaza war report in wake of
Goldstone's comments' (Haaretz, 2 April 2011) <http://www.haaretz.com/news/diplomacy-defense/netanyahu-
to-un-retract-gaza-war-report-in-wake-of-goldstone-s-comments-1.353696> accessed 4 March 2012.
147
Richard Goldstone, Hina Jilani, Christine Chinkin and Desmond Travers.
148
H Jilani, C Chinkin & D Travers, Goldstone report: Statement issued by members of UN mission on Gaza
war (The Guardian, Thursday 14 April 2011)
<http://www.guardian.co.uk/commentisfree/2011/apr/14/goldstone-report-statement-un-gaza>
149
Action or conduct which is a constituent element of a crime. Actus Reus (Oxford Dictionaries Pro, 2012)
<http://english.oxforddictionaries.com/definition/actus+reus;jsessionid=44146F44DD3959C05150A2E72D76
0C> 30 accessed 18 March 2012.
#%
believed that the condition of mens rea
150
is also satisfied under Article 8(1) of the Rome
Statute. This Article states that The Court shall have jurisdiction in respect of war crimes in
particular when committed as part of a plan or policy or as part of a large-scale commission
of such crimes. Due to the fact that the bombing campaign by the IDF on the densely
populated civilian area of Gaza was an operation that was pre-planned it is beyond doubt
that the actions of the IDF satisfy the mens rea. In conclusion, it has been established that
both the actus rea and the mens rea for war crimes existed on the part of Israel. This has
consequently established the ratione materiae, bringing the Israelis responsible for
Operation Cast Lead, within the jurisdiction of the ICC.

150
The intention or knowledge of wrongdoing that constitutes part of a crime. Mens Rea (Oxford
Dictionaries Pro, 2012) < http://english.oxforddictionaries.com/definition/mens+rea> accessed 18 March
2012.
#&

now Israe| Shows the Ia||ures of the ICC

Determined to put an end to impunity for the perpetrators of these crimes and thus
contribute to the prevention of such crimes.
- Preamble, the Rome Statute

4.1 Introduction

Having clearly shown over the two previous chapters that Israel fulfils the criteria of ratione
materiae, it is now appropriate to examine how Israel has responded to these allegations and
to explore the legal loopholes that Israel exploits to avoid legal accountability. One could
hypothesise that for the ICC to hold any credibility as an upholder of universal law, it would
have to effectively close such legislative exits. Furthermore, if such technicalities have been
successfully exposed by Israel, the question arises whether the same defence could be
employed by other states seeking immunity, thereby undermining the integrity of the ICC.

4.2 Israels Excuses

One of Israels repeatedly given excuses for its conduct is that article 49 of the Geneva
Convention does not apply to the Palestinian situation as the West Bank as disputed rather
than occupied. It puts forward the legal argument that during the 1967 war the only
internationally recognised borders were those of Israel and Jordan. As a result of that, the
West Bank was not a sovereign political entity whose territory could be occupied.
151
Thus
with regards to the building of the settlements in East Jerusalem and the West Bank, Israel

151
Y Shifftan, The Jewish Right to Live in Western Palestine: The Irrelevancy Of 'Belligerent Occupation'
and the 4th Geneva Convention (Think Israel) <http://www.think-
israel.org/shifftan.belligerentoccupation.html> accessed 10 April 2012.
See also E Hertz, Misuse of 4th Geneva Convention (Israel National News, 4 February 2010)
<http://www.israelnationalnews.com/Articles/Article.aspx/9290#.T3XgdOzhc3I> accessed 10 April 2012.
#'
considers its actions legal. However, as mentioned earlier in Chapter 2, settlement building
in the West Bank has been declared illegal by the UN in resolutions that specifically call for
Israel to abide by the Geneva Convention
152
. Taking these resolutions into account it is clear
that the Israeli position cannot withstand judicial analysis.

Another excuse used by Israel is that IDF soldiers are defending Israeli citizens from
terrorist attacks and that this constitutes a viable defence under Article 31(1c). There is
currently no definition of a terrorist organisation that has gained international consensus,
meaning that any group can be labelled as terrorist. In the Israeli/Palestinian context, this
problem manifests itself in the treatment of the current government of the Gaza Strip,
Hamas. Israel, the United States and the European Union have all declared Hamas as a
terrorist organisation
153
, however there is no consensus on this issue. Australia has
criminalised only the military wing of Hamas
154
, while Russia and Norway have no terrorist
designation of any organ of Hamas.

Israel claims that the blockade of the Gaza Strip is to prevent weapons entering the region.
If one accepts this reasoning the question is raised as to way items such as spaghetti are
prohibited from entering the area. Suffocating the Hamas government, and punishing
Palestinian political choice in the Gaza Strip is the real rationale for the blockade of the
region, a tactic that has been met with severe distain at the United Nations.
155

152
153
Hamas Officially Included on Blacklist of Terrorist Organisations (Euronews, 16 September 2003)
<http://www.europolitics.info/eu-middle-east-hamas-officially-included-on-blacklist-of-terrorist-
organisations-artr184675-44.html> 16 April 2012.
154
Hamass Izz al-Din al-Qassam Brigades (Australian Government, 30 January 2012)
<http://www.nationalsecurity.gov.au/agd/WWW/nationalsecurity.nsf/Page/What_Governments_are_doing_Li
sting_of_Terrorism_Organisations_Hamas&apos> 10 April 2012.
155
Israel must end Gaza blockade, evictions, alleged abuse of young Palestinians Ban (UN News Centre,
16 November 2009) < http://www.un.org/apps/news/story.asp?NewsID=32967&Cr=palestin&Cr1> accessed
11 April 2012.
#(
Another justification for Operation Cast Lead was in order to prevent rocket attacks on
Israeli towns like Sderot.
156
Since 2001 Hamas and other Palestinian group have launched
indiscriminate rocket and mortar attacks against Israeli towns close to the Gaza border.
Israeli purported the view that Cast Lead sought to remove the threat by destroying rocket
factories and weapons caches. This excuses, however, does not appear tenable. Prior to the
attack Israel and Hamas had maintained a six-month ceasefire, brokered through Egypt.
When the ceasefire agreement came for renewal, it was Israel who refused to maintain and
resumed hostilities with Hamas by killing several people on the 5
th
of November 2008
157

These actions would suggest an ulterior motive, as one would suggest that considering the
diplomatic method for reducing rocket fire was effective, an attack on the Gaza Strip would
be superfluous to requirement.

4.3 The Legal Loopholes

To this point this paper has clearly shown that Israel fulfils the ratione materiae criteria for
ICC jurisdiction. To the lay person, when an organisation with a mission statement
declaring that serious crimes of concern to the international community as a whole must
not go unpunished
158
is met with such a catalogue of crimes, it would seem self-evident
that the Court would take action. However, to date no action has been taken. It is therefore
necessary to explore the reasons why the ICC has not taken action concerning crimes
committed by Israeli citizens.

4.3(|) 1err|tor|a| Iur|sd|ct|on
The first major impediment to prosecuting Israeli officials under the Rome Statute is the
fact that the conditions for ICC jurisdiction are not only ratione materiae but also ratione
loci. In other words, the courts jurisdiction is territorial. As Israel is not a signatory to the

156
Timeline and Causes of Operation Cast Lead in Gaza (CAMERA, 6
th
January 2009) <
http://www.camera.org/index.asp?x_context=7&x_issue=20&x_article=1581> accessed 12 April 2012.
157
Rockets Fired After Gaza Clashes (BBC News, 5 November 2008) <
http://news.bbc.co.uk/1/hi/world/middle_east/7709603.stm> accessed 12 April 2012.
158
Rome Statute, Preamble.
#)
Rome Statute, having un-signed in 2002
159
, with regards to acts committed on Israeli soil
the Court has no territorial jurisdiction. If one were to prosecute Israeli citizens under the
Rome Statute on a territorial basis one would have to look at acts committed on the
occupied Palestinian territories.

If the Palestinian National Authority (PNA), the internationally recognised representative of
the Palestinian people, succeeds in receiving full statehood from the United Nations for
Palestine then the ratione loci condition of ICC jurisdiction would be fulfilled, allowing the
Court to proceed and open the case. However, the attainment of such statehood is unlikely
considering that the United States has declared its intention to veto any move allowing the
Palestinians full statehood at the UN
160
. At the time of writing Palestine has the status of
non-state entity at the UN, which places it in a jurisdictional limbo. On the 21
nd
of January
2009 the Palestinian National Authority posted a declaration that they have accepted the
Rome Statute
161
in accordance with Article 12(3).
162
This left the ICC to determine whether
the Palestinian declaration fulfilled the conditions for the Courts jurisdiction.

Article 12 (3) of the Rome Statute refers to a state accepting the Courts jurisdiction,
leading to a debate over the interpretation of the Statute. It is important to note that the
assumption of jurisdiction by the ICC over Palestine is not equal to declaring Palestinian
statehood; the Court would simply be deciding if the conditions for its involvement have
been met.
163
Commentators, such as Yael Ronen of Shaarei Mishpat College, Israel, make
mention of the possibility of the Prosecutor declaring Palestine a state for the purposes of

159
Supra n.47.
160
A Spillius, Barack Obama tells Mahmoud Abbas US will veto Palestinian statehood bid (The Telegraph,
22 September 2011) <http://www.telegraph.co.uk/news/worldnews/barackobama/8780859/Barack-Obama-
tells-Mahmoud-Abbas-US-will-veto-Palestinian-statehood-bid.html> accessed 10 April 2012.
161
Declaration recognizing the Jurisdiction of the International Criminal Court (ICC, 21 January 2009)
<http://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-
C8071087102C/279777/20090122PalestinianDeclaration2.pdf> accessed 10 April 2012.
162
If the acceptance of a State which is not a Party to this Statute is required under Paragraph 2, that State
may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to
the crime in question. The accepting State shall cooperate with the Court without any delay or exception in
accordance with Part 9. Rome Statute, Art. 12 (3).
163
A Pellet, The Palestinian declaration and the jurisdiction of the International Criminal Court
[2010] (4)8 JICJ 981.
$+
the ICC, comparing the situation to the decision of the International Monetary Fund (IMF)
to accept Kosovo as a state for the purposes of admission, regardless of official UN
status.
164
While a technical possibility, such rulings are, however, outside of the suspected
norms of international law.

Another issue in regarding the Palestinian declaration is highlighted succinctly by Yuval
Shany of the Hebrew University of Jerusalem.
165
He brings attention to the fact that the
Court has jurisdiction due to the delegation of power by the state that is requesting
jurisdiction. Within the Palestinian context, there is a political and geographical spilt. The
PNA, who made the declaration, govern parts of the West Bank as allocated by the Oslo
Accords with Israel. However, with regards to the Gaza Strip, power lies with the Hamas
government, who are opposed to the PNA. In effect, with crimes committed during
Operation Cast Lead, the PNA are asking the ICC to assume jurisdiction over an area that is
out of their control. If Hamas were to accept ICC jurisdiction over the Gaza Strip it would
open the organisation to investigation over suspect war crimes committed by its forces
during the campaign, so one may foresee difficulty with attaining the permission of Hamas
for the Court to proceed. With regards to the West Bank, the PNA, in accordance with the
Oslo Accords, has no jurisdiction over Israelis, meaning that the Court could not receive the
required legal powers to prosecute Israelis, rendering the Court useless.

Regardless of the theoretical legal debate one must be pragmatic and accept that on the 3
rd

of April 2012, the Office of the Chief Prosecutor for the Court released a statement with
regards to the Palestinian declaration.
166
The Prosecutor confirmed the convention of using
UN recognition as the standard of statehood. As such Palestine did not meet the
interpretation of a state under the Rome Statute, and as a result the Court declared it holds
no jurisdiction over it.

164
Y Ronen, ICC Jurisdiction Over Acts Committed in the Gaza Strip: Art. 12(3) of the ICC Statute and Non-
State Entities [2010] 8(1) JICJ 3.
165
Y Shany,In defence of functional interpretation of Article 12(3) of the Rome Statute: A Response to Yael
Ronen [2010] 8(2) JICJ 329.
166
The Office of the Prosecutor, Situation in Palestine (International Criminal Court, 3 April 2012)
<http://www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-
836106D2694A/284387/SituationinPalestine030412ENG.pdf> accessed 10 April 2012.
$*

Therefore the only territory in which the ICC could exercise its jurisdiction would be over
crimes committed outside of Israel or the Palestinian Territories. Chapter 2 of this paper
documents Israeli actions under ratione materiae during the 2006 war in Lebanon. However
Lebanon is also a non-signatory to the Rome Statute
167
and therefore the ratione loci
condition for the Courts jurisdiction is not fulfilled.

This exposes a possible shortcoming in the jurisdictional format of the ICC. When dealing
with non-signatories and non-state entities the situation becomes very difficult. The process
of un-signing the Statute, as Israel and the United States have done renders that particular
territory outside the reach of the ICC. In effect, the government of a state has unlimited
freedom to act within its borders if it is not party to, or has unsigned, the Rome Statute. This
could easily be exploited by states that have either internal conflicts or are occupying
powers. An example of the former would be Turkey. Turkey is engaged in a long-standing
battle against Kurdish secessionist rebels
168
and is also a non-signatory of the Rome Statute.
Turkey has explicitly confirmed that its reason for not signing the treaty is that the treaty
would hamper its efforts against the Kurdistan Workers Party (PKK).
169
Loopholes in the
territorial jurisdiction could also be used by other states, for example, Morocco with regards
to the Western Sahara conflict. In all situations it falls to the discretion of the Prosecutor to
decide whether the conditions for jurisdiction are met.

4.3(||) keferra| and Deferra|
The creators of the Rome Statute have attempted to avoid the limitations of territorial
jurisdiction with the inclusion of Article 13(b), which allows for the UN Security Council to
refer a situation to the Court by Security Council resolution, pursuant to Article VII of the

167
Target Country: Lebanon (Coalition for the International Criminal Court)
<http://www.iccnow.org/?mod=urc0206> accessed 12 April 2012.
168
S Songum, History of PKK in Turkey (Hurriyet Daily News, 14 September 2009) <
http://www.hurriyetdailynews.com/default.aspx?pageid=438&n=history-for-the-pkk-in-turkey-2009-09-14>
169
E Yavuz, Turkey Shelves Accession to World Criminal Court (Todays Zaman, 5 January 2008)
<http://www.todayszaman.com/newsDetail_getNewsById.action?load=detay&link=130916>
$"
United Nations Charter.
170
If the Security Council refers a case to the ICC, the Court has
jurisdiction regardless of whether the parties involved are signatories to the Rome
Statute.
171
This is the measure that gives the Court the potential to exercise universal
jurisdiction. The Security Council referring a situation to a court has its parallels with the ad
hoc tribunals, both of which were the result of Security Council resolutions.
172
The Security
Council has five permanent members - the UK, the USA, France, Russia and China - all
possessing the power of veto.

The role of the Security Council is amplified by Article 16 of the Rome Statute, which
allows the Security Council, via a resolution, to prevent the opening of ICC proceedings
over any matter for a period of 12 months with the possibility of renewals.
173
An example of
this power is the June 2002 use of the power by the United States, who declared its
intention to veto any attempt to prosecute UN peacekeeping missions,
174
resulting in UN-
related forces having immunity to prosecution.

These two powers render the International Criminal Court completely at the whims of the
Security Council. This state of affairs is a cause for serious concern as states with poor
human rights records such as China are the intended clientele, as it were, of the Court. The
United States has declared what is known as the Negroponte Doctrine: an explicit statement
of its intent to block any resolution against Israel that does not explicitly condemn
Palestinian Terrorism.
175
This blocking of resolutions has stagnated the peace process by
removing the impetus for making compromises on issues such as settlements. With regards
to the ICC, any attempt to pass a resolution referring the Palestinian situation would also
automatically be blocked. This gives Israeli citizens effective immunity from the Court.

170
Charter of the United Nations, Chapter VII.
171
L Condorelli & S Villalpando, Referral and Deferral by the Security Council, in A Cassese, P Gaeta & J
Jones (eds), The Rome Statute of the International Criminal Court: A Commentary - Volume 1
(OUP, 2002) 634.
172
See Chapter 1.
173
No investigation or prosecution may be commenced or proceeded with under this Statute for a period of
12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United
Nations, has requested the Court to that effect; that request may be renewed by the Council under the same
conditions. Rome Statute, Art. 16.
174
W Schabas, An Introduction to the International Criminal Court, (2
nd
edn, 2004) 83.
175
Supra n.67.
$#

By extension of the principle of veto, not just Israel, but also any of the five permanent
members of the Security Council, or their allies, is able to dictate the functioning of the
ICC. It seems ludicrous that international criminal justice rests in the hands of five states,
but that is the reality of the situation.

4.3(|||) Comp|ementar|ty and o||t|ca| W|||
As mentioned earlier, the ICC operates a policy of complementarity, as was made clear in
the preamble of the Rome Statute. In other words, the ICC works in conjunction with the
state parties to the Rome Statute unlike the ICTY and ICTF.
176
(Explain further) This is
manifested in the principle of admissibility meaning that if a state is already prosecuting an
individual accused of crimes under the remit of the ICC then that states court proceedings
hold primacy under Article 17. The ICC cannot take over proceedings of a case that is
already in process. Furthermore Article 20 creates a ne bis in idem clause meaning that
double jeopardy for crimes other than genocide is not allowed. The condition placed on this
is that the first trial was not for the purpose of preventing or invalidating ICC proceedings.

The Israel situation highlights perfectly the failures of such clauses. After Operation Cast
Lead there have been internal investigations by the Israeli Defence Force into certain crimes
following allegations by the Israeli human rights organisation, BTselem.
177
Of the 20
complaints the organisation registered, eleven cases were opened with none of the
prosecutions resulting in a conviction or punishment.
178
This lead Human Rights Watch to
conclude that there was No accountability for the militarys actions during Operation Cast
Lead
179
.

176
Supra n.49, 15.
177
18 January '12: Operation Cast Lead, three years on: Abject failure of the military's internal investigation
mechanism (BTselem, 18 January 2012)
<http://www.btselem.org/20120119_operation_cast_lead_3_years_on> accessed 10 April 2012.
178
Ibid.
179
Ibid.
$$
Upon the examination of the principle of self-investigation, one finds an inherent bias. It
seems nonsensical that a state would single out and prosecute its military officials for
committing war crimes; yet this is what the Rome Statute suggests. It again falls to the
Prosecutor of the Court to investigate and decide whether the domestic trial was conducted
with integrity.

It is also important to state that in many states, such as the United Kingdom and the United
States, international law is only applied if it is not in conflict with an existing Act of
Parliament or a Federal law. This brings in the question of political will. If a state wishes, it
could pass a law that would override the Rome Statute. The Court has no enforcement
powers; instead it relies on state parties to capture suspects and pass them over to the Court.
Presuming all the conditions for an ICC trial are met, the suspect still has to be brought
before the Court for trial and for punishment if convicted. What then happens if a Rome
Statute member state refuses to arrest a suspect?

In the case of Israel, it is interesting to note the case of Tzipi Livni, the former Israeli
foreign minister. She was indicted on a war crimes charge relating to the instigation of
Operation Cast Lead and a warrant for her arrest was issued a UK court (the warrant was
issued under British universal jurisdiction laws and not the Rome Statute). However the
warrant was subsequently withdrawn and the Parliament changed the laws to prevent her
arrest on subsequent visits.

This shows a conflict in political will between the British courts and the British
government. Although this incident does not relate directly to the Rome Statute and the
ICC, it does show that the British government will alter laws for political means. It is
similar to the ICC having to accede to the demands of the Security Council -- a judicial
organ submitting to a political one. This, in essence, is the dilemma of political will.

$%
It is representatives of governments that enter into international treaties, such as the Rome
Statute. Furthermore the treaties are written with input from those governments. Therefore it
is the interests of the governments that are primarily represented in such treaties, and not the
will of the general population. It is also state entities, such as militaries, that are often the
focus of international criminal law. It therefore follows that governments will attempt to
manipulate international law to suit their interests. As a consequence an organisation such
as the ICC will always be subject to the whims of its member states, especially those on the
UN Security Council.

4.4 Conclusion

Examining how Israel avoids prosecution has highlighted how the International Criminal
Court has no authority other than that which it is granted by the co-operation of its member
states. The decision to prosecute comes down to whether or not it is in the interests of those
nations with a controlling position within the Security Council. A country in a conflict with
a permanent member of the Security Council, for example Georgia who had a war in 2008
against Russia, or Iraq whose war with the US saw allegations of torture by American
forces in Abu Ghraib prison, cannot have its case reviewed by the Court, mirroring the
inherent one-sidedness of the Nuremburg Trials.

$&

CCNCLUSICN

The need for an international judicial organ was borne out of the horrors of the Second
World War and a sincere desire to prevent a repeat of such horrors and the crimes attendant
thereto. The human capacity for cruelty was not satiated as seen in the conflict in the
Former Yugoslavia and the genocide in Rwanda, and the logistical and other difficulties of
creating a new tribunal for each new horror led to the creation of the ICC.

However, the examination of the International Criminal Court using Israel as a reference
point has exposed a plethora of failings. The territorial jurisdiction on which the courts
authority is partly based can be avoided simply by un-signing the Statute. The
complementarity principle under which the courts authority is subservient to national
judicial primacy has only led to more loopholes for those nations seeking to protect
wanted suspects. The only available resort in these circumstances is an attempt to secure a
Security Resolution and referral of relevant situations to the court. , Unfortunately, this
procedure is tantamount to subjugation of universal justice to the politic-orientated whims
of the permanent members of the council.

It is clear that the search for international justice continues to revolve around victors justice
that is reminiscent of the Nuremburg and Tokyo Tribunals. Any sincere intention to remove
immunity from criminal prosecution in the international arena would have to begin by the
removal of the immunity of the permanent members of the Security Council, and the de-
monopolising the power of the council itself. Unfortunately, the United Nations is at present
the only international forum available for the administration of international justice, and as
such, and end to impunity is, for all effective means, impossible.
$'

8|b||ography

6.1 Statutes

Charter of the International Military Tribunal for the Far East

Charter of the United Nations

Convention on the Prevention and Punishment of the Crime of Genocide

Principles of International Law Recognized in the Charter of the Nuremberg
Tribunal and in the Judgment of the Tribunal

Rome Statute of the International Criminal Court

The Updated Statute of the International Criminal Tribunal for the former
Yugoslavia

6.2 UN Documents

Briefing to the UN Security Council based on data from Palestinian Ministry of
Health, by Under-Secretary-General Holmes, UN Doc. S/PV.6077.

Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court [1998] U.N. Doc.
A/CONF.183/10.

Official Records of the Third Session of the General Assembly, Part II [1949] UN
Doc. A/PV.207.

Report of the United Nations Fact-Finding Mission on the Gaza, UN Doc.
A/HRC/12/48, 545.

6.3 UN Resolutions

$(







6.4 Cases

Prosecutor v Tadic [2004] ICTY IT-94-1-A.

Prosectutor v Rdislav Krstic [2004] ICTY IT-98-33-T.

Prosecutor v Dragoljub Kunavac, Radomir Kovac and Zoran Vukovic [2001] ICTY
IT-96-23.

6.5 Publications

Amnesty International, Israel and the Occupied Territories: Under the rubble:
House demolition and destruction of land and property (2004) [Amnesty
International Index No. MDE15/033/2004].

Amnesty International, Operation Cast Lead: 22 Days of Death and Destruction
(2009) Amnesty International Index No. MDE 15/015/2009.

Amnesty International, Shielded from Scrutiny: IDF Violations in Jenin and Nablus
(November 2002) [Amnesty International Index No. MDE 15/143/2002].

F Abrahams, White Flag Deaths: Killings of Palestinian Civilians During Operation
Cast Lead (Human Rights Watch (Organization) 2009).

$)
G Steinberg & S Mandel, Experts or Ideologues (2009) NGO Watch
(Organistation)

I Lost Everything': Israel's Unlawful Destruction of Property in the Gaza Conflict
(Human Rights Watch (Organization) 2009).

Legal Consequence of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, ICJ Reports 2004, 136.

6.6 Books

Overy R, The Nuremburg trials: international law in the making in P Sands (ed)
From Nuremberg to The Hague (CUP 2003) 26.

Schabas W, An Introduction to the International Criminal Court, (2
nd
edn, 2004) 83.
Simbeye Y, Immunity and International Criminal Law, (Ashgate, 2004)

Smith CD, Palestine and the Arab-Israeli Conflict (6
th
edn, Bedford/St. Martins
2007)

6.7 Journal Articles

Marler MK, The International Criminal Court: Assessing the Jurisdictional
Loopholes in the Rome Statute, [1999] 49(3) DLJ 829.

Pellet A, The Palestinian declaration and the jurisdiction of the International
Criminal Court [2010] (4)8 JICJ 981.

Ronen Y, ICC Jurisdiction Over Acts Committed in the Gaza Strip: Art. 12(3) of
the ICC Statute and Non-State Entities [2010] 8(1) JICJ 3.

Shany Y, In defence of functional interpretation of Article 12(3) of the Rome
Statute: A Response to Yael Ronen [2010] 8(2) JICJ 329.

M Wesberg, Rwandas Use of Transnational Justice After Genocide 59 KLR 332.

%+

6.8 Online Resources

18 January '12: Operation Cast Lead, three years on: Abject failure of the military's
internal investigation mechanism (BTselem, 18 January 2012)
<http://www.btselem.org/20120119_operation_cast_lead_3_years_on> accessed 10
April 2012.

Actus Reus (Oxford Dictionaries Pro, 2012)
<http://english.oxforddictionaries.com/definition/actus+reus;jsessionid=44146F44D
D3959C05150A2E72D760C> 30 accessed 18 March 2012.

Al Jazeera, Israel's Lieberman cautions Syria (Al Jazeera, 4 February 2010)
<http://www.aljazeera.com/news/middleeast/2010/02/201024174859584145.html>

Alternative Roads for Palestinians (BTselem, 1 January 2011)
<http://www.btselem.org/freedom_of_movement/alternative_roads_for_palestinians
> accessed 9 April 2012.

AMICC, Declarations and Ratifications (AMICC, 2012)
<http://www.amicc.org/icc_ratifications.html#*> accessed 5 April 2012.

Associated Press, Palestinians appeal to UN Security Council over Israeli
settlements (Haaretz, 10 April 2012) <http://www.haaretz.com/news/diplomacy-
defense/palestinians-appeal-to-un-security-council-over-israeli-settlements-
1.423502> accessed 11 April 2012.

BBC News, Israel and the Palestinians: Key Maps (BBC News)
<http://news.bbc.co.uk/1/shared/spl/hi/middle_east/03/v3_israel_palestinians/maps/
html/settlements_checkpoints.stm> accessed 5 April 2012

BBC News, UN rules against Israeli barrier (BBC News, 9 July 2004)
<http://news.bbc.co.uk/1/hi/world/middle_east/3879057.stm> accessed 9 April
2012.

Black C, International Criminal Tribunal for Former Yugoslavia'.
< http://www.northstarcompass.org/nsc0008/Yugoslavia.htm> accessed 4 April
2012.

Booth R, Gaza flotilla activists were shot in head at close range (The Guardian, 4
June 2004) <http://www.guardian.co.uk/world/2010/jun/04/gaza-flotilla-activists-
autopsy-results> accessed 6 April 2012.

%*
Butcher T, Gaza: Palestinian family mourns 48 dead (The Telegraph, 19 June
2009)
<http://www.telegraph.co.uk/news/worldnews/middleeast/palestinianauthority/4290
553/Gaza-Palestinian-family-mourns-48-dead.html> accessed 10 April 2012.

Checkpoints, Physical Obstructions, and Forbidden Roads (BTselem, 1 January
2011)
<http://www.btselem.org/freedom_of_movement/checkpoints_and_forbidden_roads
> accessed 10 April 2012.

Chronology of the International Criminal Court, (International Criminal Court)
<http://www.icc-
cpi.int/Menus/ICC/About+the+Court/ICC+at+a+glance/Chronology+of+the+ICC.ht
m> accessed 10 March 2012.

CIA Factbook, Middle East: Gaza Strip (CIA Factbook, 26 March 2012)
<https://www.cia.gov/library/publications/the-world-factbook/geos/gz.html>

Condorelli L & Villalpando S, Referral and Deferral by the Security Council, in A
Cassese, P Gaeta & J Jones (eds), The Rome Statute of the International Criminal
Court: A Commentary - Volume 1 (OUP, 2002) 634.

Declaration recognizing the Jurisdiction of the International Criminal Court (ICC,
21 January 2009) <http://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-
95D4-C8071087102C/279777/20090122PalestinianDeclaration2.pdf> accessed 10
April 2012.

Field Update on Gaza from the Humanitarian Coordinator (OCHA, 5 February
2009)
<http://unispal.un.org/unispal.nsf/85255db800470aa485255d8b004e349a/50a7789ce
959e0c285257554006d3e56?OpenDocument> accessed 9 April 2012.

Flechettes (Globalsecurity.org)
http://www.globalsecurity.org/military/systems/munitions/bullets2-flechettes.htm>

Gaza Closure Defined: Collective Punishment (Gisha, December 2008)
<http://www.gisha.org/UserFiles/File/publications/GazaClosureDefinedEng.pdf>

Grayling AC, Bombing Civilians is not only immoral, its ineffective, (The
Guardian, 27 March 2006) <http://
www.guardian.co.uk/commentisfree/2006/mar/27/comment.secondworldwar>
accessed 3 February 2012.
%"

Goldenburg T, Systematic Abuse by Administrative Means: A Matter of Policy?
(Machsom Watch)
<http://archive.machsomwatch.org/docs/civilAdministration.asp?link=summaries&l
ang=eng>

Goldstone R, Reconsidering the Goldstone Report on Israel and war crimes
(Washington Post, 1 April 2011) <
http://www.washingtonpost.com/opinions/reconsidering-the-goldstone-report-on-
israel-and-war-crimes/2011/04/01/AFg111JC_story.html> accessed 9 April 2012.

Haaretz Service Israel official reply on Goldstone Gaza Report (Haaretz.com, 23

January 2010) <http://www.haaretz.com/news/israel-official-reply-on-goldstone-
gaza-report-probe-biased-flawed-1.265760> accessed 3 April 2012.

Haaretz Service, 'Lieberman lauds new Goldstone conclusions about Gaza war',
(Haaretz, 2nd April 2011) <http://www.haaretz.com/news/diplomacy-
defense/lieberman-lauds-new-goldstone-conclusions-about-gaza-war-1.353677>
accessed 4 March 2012.

Hamass Izz al-Din al-Qassam Brigades (Australian Government, 30 January
2012)
<http://www.nationalsecurity.gov.au/agd/WWW/nationalsecurity.nsf/Page/What_G
overnments_are_doing_Listing_of_Terrorism_Organisations_Hamas&apos> 10
April 2012.

Hamas Officially Included on Blacklist of Terrorist Organisations (Euronews, 16
September 2003) <http://www.europolitics.info/eu-middle-east-hamas-officially-
included-on-blacklist-of-terrorist-organisations-artr184675-44.html> 16 April 2012.

Hertz E, Misuse of 4th Geneva Convention (Israel National News, 4 February
2010)
<http://www.israelnationalnews.com/Articles/Article.aspx/9290#.T3XgdOzhc3I>

History of the Establishment of the International Criminal Court (MEHR Iran)
<http://mehr.org/History.htm> accessed 4 April 2012.

History of the ICC (Coalition for the International Criminal Court)
<http://www.iccnow.org/?mod=icchistory> accessed 5 April 2012.

HRW, Israel/Gaza: Implement Goldstone Recommendations on Gaza (Human
Rights Watch, 16 September 2009)
%#
<http://www.hrw.org/news/2009/09/16/israelgaza-implement-goldstone-
recommendations-gaza> accessed 8 April 2012.

ICAHD, House Demolition Statistics (Israeli Committee Against Home
Demolitions, 28 July 2010) <http://www.icahd.org/?page_id=5508> accessed April
3 2012.

ICTY, About the ICTY (ICTY) <http://www.icty.org/sections/AbouttheICTY>
accessed 9 April

ICTY, Case Information Sheet (IT-03-66) Limaj et al. (ICTY)
<http://www.icty.org/x/cases/limaj/cis/en/cis_limaj_al_en.pdf> accessed 9 April
2012.

ICTY, Case Information Sheet (IT-04-83) Rasim Delic (ICTY)
<http://www.icty.org/x/cases/delic/cis/en/cis_delic_en.pdf> accessed 9 April 2012.

ICTY, Case Information Sheet Kosovo (IT-05-87) Saincovic et al (ICTY)
<http://www.icty.org/x/cases/milutinovic/cis/en/cis_sainovic_al_en.pdf > accessed 9
April 2012.

ICTY Completion Strategy Report 18 May 2011 available
<http://www.icty.org/x/file/About/Reports%20and%20Publications/CompletionStrat
egy/completion_strategy_18may2011_en.pdf>.

ICTY, The Cost of Justice (ICTY) <http://www.icty.org/sid/325> accessed 4 April
2012.

Israel at the United Nations (Permanent Mission of Israel to the United Nations)
<http://www.israel-un.org/israel-and-the-un/israel-at-the-un> accessed 3 January
2012.

Israel backs down over white phosphorus, (The Times)
<http://www.timesonline.co.uk/tol/news/world/middle_east/article6150448.ece>

Israel/Gaza: Implement Goldstone Recommendations on Gaza (Human Rights
Watch, 16 September 2009) <http://www.hrw.org/news/2009/09/16/israelgaza-
implement-goldstone-recommendations-gaza> accessed 9 April 2012.

Israel/Lebanon: Israel Responsible for Qana Attack (Human Rights Watch, 30 July
2006) <http://www.hrw.org/en/news/2006/07/29/israellebanon-israel-responsible-
qana-attack> accessed 6 April 2012.
%$

Israel/Lebanon: Qana Death Toll at 28 (Human Rights Watch, 2 August 2006)
<http://www.hrw.org/en/news/2006/08/01/israellebanon-qana-death-toll-28>

Israel Ministry of Foreign Affairs, The operation in Gaza Factual and Legal
Aspects, July 2009, <http://mfa.gov.il/MFA/Terrorism+Obstacle+to+Peace.>

Israel must end Gaza blockade, evictions, alleged abuse of young Palestinians
Ban (UN News Centre, 16 November 2009)
<http://www.un.org/apps/news/story.asp?NewsID=32967&Cr=palestin&Cr1>

Israel: Stop Unlawful Use of White Phosphorus in Gaza (Human Rights Watch, 10
January 2009) <http://www.hrw.org/en/news/2009/01/10/israel-stop-unlawful-use-
white-phosphorus-gaza>

Jilani H, Chinkin C & Travers D, Goldstone report: Statement issued by members
of UN mission on Gaza war (The Guardian, Thursday 14 April 2011)
<http://www.guardian.co.uk/commentisfree/2011/apr/14/goldstone-report-
statement-un-gaza> accessed 9 April 2012.

JTA News, Palestinian teen accuses Israel in The Hague (JTA News, 1 September
2009) <http://www.jta.org/news/article/2009/09/01/1007573/palestinian-girl-
accuses-israel-in-the-hague>

Kamoonpuri H, Israel trying to change demographic reality in occupied East
Jerusalem (Oman Daily Observer, 10 April 2012)
<http://main.omanobserver.om/node/90308 > accessed 10 April 2012.

Kemp R, Hamas, The Gaza War And Accountability Under International Law
(Jerusalem Centre for Public Affairs, 18 June 2009).
<http://www.jcpa.org/JCPA/Templates/ShowPage.asp?DBID=1&LNGID=1&TMI
D=111&FID=378&PID=0&IID=3026> accessed 9 April 2012.

'Learn About Human Rights', (Amnesty International)
<http://www.amnesty.org/en/human-rights> accessed 3 March 2012.

Macintyre D and Sengupta K, Civilian casualties: Human rights groups accuse
Israelis of war crimes (The Independent on Sunday, 15 January 2009)
%%
<http://www.independent.co.uk/news/world/middle-east/ civilian-casualties-human-
rights-groups-accuse-israelis-of-war-crimes-1366727.html> accessed 7 April 2012.

Mens Rea (Oxford Dictionaries Pro, 2012) <
http://english.oxforddictionaries.com/definition/mens+rea> accessed 18 March
2012.

Peter CM, The International Criminal Tribunal for Rwanda: bringing the killers to
book (ICRC, 31 December 1997)
<http://www.icrc.org/eng/resources/documents/misc/57jnz8.htm> accessed 5 April
2012.

Rauscher X, The Economist on International Justice and Where It Stands (The
International Jurist, 27 November 2012).
<http://www.theinternationaljurist.org/2010/11/27/the-economist-on-international-
justice-and-where-it-stands/> accessed 2 April 2012.

Rockets Fired After Gaza Clashes (BBC News, 5 November 2008)
<http://news.bbc.co.uk/1/hi/world/middle_east/7709603.stm> accessed 12 April
2012.

Rosenberg MJ, Goldstones Edit Changes Nothing (Political Correction, 4 April
2011) <http://politicalcorrection.org/fpmatters/201104040010> accessed 2 April
2012.

Roth, K US: Ask Israel to Cooperate with Goldstone Inquiry (Human Rights
Watch, May 17 2009) <http://www.hrw.org/en/news/2009/05/17/us-ask-israel-
cooperate-goldstone-inquiry> accessed March 12 2012

Shifftan Y, The Jewish Right to Live in Western Palestine: The Irrelevancy Of
'Belligerent Occupation' and the 4th Geneva Convention (Think Israel)
<http://www.think-israel.org/shifftan.belligerentoccupation.html> accessed 10 April
2012.

Situations and Cases (The International Criminal Court) <http://www.icc-
cpi.int/Menus/ICC/Situations+and+Cases/> accessed 3 February 2012.

Songum S, History of PKK in Turkey (Hurriyet Daily News, 14 September 2009)
< http://www.hurriyetdailynews.com/default aspx?pageid=438&n=history-for-the-
pkk-in-turkey-2009-09-14> accessed 12 April 2012

Spillius A, Barack Obama tells Mahmoud Abbas US will veto Palestinian statehood
bid (The Telegraph, 22 September 2011)
<http://www.telegraph.co.uk/news/worldnews/barackobama/8780859/Barack-
Obama-tells-Mahmoud-Abbas-US-will-veto-Palestinian-statehood-bid.html>

%&
Statement by Prof. Richard Falk, United Nations Special Rapporteur from Human
Rights in the Occupied Territories (United Nations, 27 December 2009).
<http://www.unhchr.ch/huricane/huricane.nsf/view01/F1EC67EF7A498A30C12575
2D005D17F7?opendocument> accessed 9 April 2012.

Targeted Civilians (Palestine Centre for Human Rights (Organisation) 2009) 10
available
<http://www.pchrgaza.org/files/Reports/English/pdf_spec/gaza%20war%20report.p
df> accessed 3 March 2012.

Target Country: Lebanon (Coalition for the International Criminal Court)
<http://www.iccnow.org/?mod=urc0206> accessed 12 April 2012.

The Humanitarian Monitor, February Overview (OCHAOPT, February 2009)
<http://www.ochaopt.org/documents/ocha_opt_humanitarian_monitor_2009_02_01
_english.pdf>

The Negroponte Doctrine concerning UN Security Council Resolutions.
on the Middle East (United States Mission to the United Nations, 6 October 2003)
[archived].
<http://web.archive.org/web/20031224063630/http://www.un.int/usa/03jdn-
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Tutu D, Apartheid in the Holy Land (The Guardian, 29 April 2002)
<http://www.guardian.co.uk/world/2002/apr/29/comment> accessed 2 April 2012.

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%'
Uruqhart C, Gaza on brink of implosion as aid cut-off starts to bite (The Guardian,
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White Phosphorus is used for signalling, screening, and incendiary purposes. White
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<http://www.fas.org/programs/bio/factsheets/whitephosphorusfactsheet.html>

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