The McGowan Davis/Schabas Inquiry: The UN Legal Pogrom

Israel and the Rules of International Humanitarian Law:
Military Necessity, Humanity, Distinction, Proportionality, and Precaution

Applicable Law

A. Treaty Law

The Hague Convention IV of 1907 and the Regulations Respecting the Laws and Customs of War on Land, preamble (Martens Clause):

"Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience."

Article 23, Geneva Convention IV:

"Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary."

Article 35 (2), Additional Protocol I of the Geneva Conventions:

"It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering."

Article 70, Additional Protocol I of the Geneva Conventions:

"The Parties to the conflict and each High Contracting Party shall allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel provided in accordance with this Section, even if such assistance is destined for the civilian population of the adverse Party."

Article 18 (2), Additional Protocol II of the Geneva Conventions:

"If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned."

B. Customary Law

ICRC Customary Rule 31:

"Humanitarian relief personnel must be respected and protected."

ICRC Customary Rule 32:

"Objects used for humanitarian relief operations must be respected and protected."

ICRC Customary Rule 55:

"The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control."

ICRC Customary Rule 56:

"The parties to the conflict must ensure the freedom of movement of authorized humanitarian relief personnel essential to the exercise of their functions. Only in case of imperative military necessity may their movements be temporarily restricted."

ICRC Customary Rule 70:

"The use of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering is prohibited."

C. Learned jurists and commentary

UK Ministry of Defence, The Manual of the Law of Armed Conflict (2004):

"Humanity forbids the infliction of suffering, injury, or destruction not actually necessary for the accomplishment of legitimate military purposes. The principle of humanity is based on the notion that once a military purpose has been achieved, the further infliction of suffering is unnecessary. Thus, if an enemy combatant has been put out of action by being wounded or captured, there is no military purpose to be achieved by continuing to attack him. For the same reason, the principle of humanity confirms the basic immunity of civilian populations and civilian objects from attack because civilians and civilian objects make no contribution to military action. . . . The principle of humanity can be found in the Martens Clause in the Preamble to Hague Convention IV 1907. It incorporates the earlier rules of chivalry that opposing combatants were entitled to respect and honour. From this flowed the duty to provide humane treatment to the wounded and those who had become prisoners of war."

International Committee of the Red Cross, "Practice Relating to Rule 55: Access for Humanitarian Relief to Civilians in Need":

"There is practice which recognizes that a civilian population in need is entitled to receive humanitarian relief essential to its survival, in accordance with international humanitarian law. The Fourth Geneva Convention recognizes the right of protected persons to make application to the protecting powers, the ICRC or a National Red Cross or Red Crescent Society, as well as to any organization that might assist them. The Additional Protocols implicitly recognize the entitlement of a civilian population in need to receive humanitarian relief as they require that relief actions 'shall be undertaken' whenever a population is in need.

Other State practice explicitly recognizes this right. Nicaragua's Military Manual, for example, states that 'the civilian population has the right to receive the relief they need.' This right is also recognized in practice pertaining to non-international armed conflicts.

The UN Security Council, UN General Assembly and UN Commission on Human Rights have on several occasions underlined the obligation to grant civilians access to relief supplies. In a report on emergency assistance to Sudan in 1996, the UN Secretary-General stated that:

'Any attempt to diminish the capacity of the international community to respond to conditions of suffering and hardship among the civilian population in the Sudan can only give rise to the most adamant expressions of concern as a violation of recognized humanitarian principles, most importantly, the right of civilian populations to receive humanitarian assistance in times of war.'

The 26th International Conference of the Red Cross and Red Crescent in 1995 reasserted 'the right of a civilian population in need to benefit from impartial humanitarian relief actions in accordance with international humanitarian law'. In a communication to the press in 1997 concerning the conflict in Zaire, the ICRC appealed to all concerned to 'respect the victims' right to assistance and protection'."

International Committee of the Red Cross, "Practice Relating to Rule 70: Weapons of a Nature to Cause Superfluous Injury or Unnecessary Suffering":

"The prohibition of means of warfare which are of a nature to cause superfluous injury or unnecessary suffering refers to the effect of a weapon on combatants. Although there is general agreement on the existence of the rule, views differ on how it can actually be determined that a weapon causes superfluous injury or unnecessary suffering. States generally agree that suffering that has no military purpose violates this rule. Many States point out that the rule requires that a balance be struck between military necessity, on the one hand, and the expected injury or suffering inflicted on a person, on the other hand, and that excessive injury or suffering, i.e., that which is out of proportion to the military advantage sought, therefore violates the rule.] Some States also refer to the availability of alternative means as an element that has to go into the assessment of whether a weapon causes unnecessary suffering or superfluous injury.

In its advisory opinion in the Nuclear Weapons case, the International Court of Justice defined unnecessary suffering as 'a harm greater than that unavoidable to achieve legitimate military objectives'."

Michael N. Schmitt, Charles H.B. Garraway, Yoram Dinstein, "The Manual on the Law of Non-International Armed Conflict with Commentary," International Institute of Humanitarian Law, 2006:

"'Using means or methods of combat that are of a nature to cause superfluous injury or unnecessary suffering to fighters is forbidden'.

1. 'Means or methods' is a term of art in the law of armed conflict. Means of combat are the instruments used in the course of hostilities, specifically weapons. By contrast, methods of combat are the techniques or tactics for conducting hostilities. It is possible to employ a legitimate means of warfare through an illegitimate method or vice versa (e.g., use of a small arm in such a way as to cause wounds leading to great suffering or a slow and lingering death).

2. The prohibition of means or methods of combat that cause 'unnecessary suffering to combatants' is one of the two cardinal principles of the law of armed conflict cited by the International Court of Justice in the Nuclear Weapons Advisory Opinion. Although of ancient lineage (consider the prohibition on the use of poison), this principle was initially codified in the Lieber Code. The 1868 St. Petersburg Declaration specifically addressed the use of weapons 'which uselessly aggravate the suffering of disabled men or make their death inevitable.' Article 23(e) of the 1899 Hague Regulations similarly prohibited the use of 'arms, projectiles, or materiel of a nature to cause superfluous injury.' The 1907 version of that article was translated from the authentic French text as 'calculated to cause unnecessary suffering.' This latter formulation seemed to imply a degree of intent on the part of those employing the weapons.

3. Article 35.2 of Additional Protocol I prohibits the employment of 'weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering' ...In Tadic, the ICTY's appellate chamber specifically dealt with the use of weapons in non-international armed conflicts, noting 'Elementary considerations of humanity and common sense make it preposterous that the use by States of weapons prohibited in armed conflict between themselves be allowed when States try to put down rebellion by their own nationals on their own territory. What is inhumane, and consequently proscribed in international wars, cannot but be inhumane and inadmissible in civil strife'...

'Humanitarian assistance should be allowed and facilitated by those engaged in military operations whenever essential needs in an emergency are not being met.'

1. This Rule and the accompanying commentary are based on Article 18.2 of Additional Protocol II, with the incorporation of the more specific guidance set forth in Additional Protocol I, Article 70.

2. Humanitarian assistance consists of any material or service essential to the health and safety of civilians and others who have ceased to take an active (direct) part in the hostilities. Examples include food, water, medical supplies, shelter, and clothing.

3. The need for humanitarian assistance may arise from the effects of hostilities, other violence, natural or man-made disasters, or any other cause.

4. Those in control of an area which humanitarian assistance operation transit or occur may set technical conditions for such operations. They are entitled to verify that the assistance effort conforms to the conditions and purpose of its delivery. Such steps should not unduly impede or delay the provision of humanitarian assistance.

5. Diverting humanitarian assistance to other purposes (particularly for political, military, or criminal reasons) is forbidden unless the diversion is urgently necessary in the interest of the persons who require it. Recipients may not be taking an active (direct part) in hostilities."

Nils Melzer, "Bolstering the Protection of Civilians in Armed Conflict," Realizing Utopia: The Future of International Law, Ed. Antonio Cassese, pg. 513, 2012:

"Humanity: in a very general sense, the principle of humanity pervades the entire normative framework of international law – including the preceding principles of necessity, proportionality, and precaution – in the form of elementary considerations aiming to preserve human life, dignity, and well-being. In international humanitarian law, the principle finds one of its more specific expressions in the unconditional duty of belligerents to ensure humane treatment to all persons finding themselves under their authority of control for reasons related to an armed conflict. While the principle of humanity is generally acknowledged as one of the seminal principles underlying all international humanitarian law, the International Court of Justice in the Corfu Channel case has even recognized that elementary considerations of humanity constituted a general principle of law, 'even more exacting in peace than in war.'"

The Jewish Institute for National Security Affairs, "2014 Gaza War Assessment: The New Face of Conflict" JINSA-commissioned Gaza Conflict Task Force," March 10, 2015:

"Humanity is most significant in relation to the protection of individuals who do not or no longer actively participate in hostilities, and is the legal foundation for unqualified rules of protection for prisoners of war, detainees, civilians taking no part in hostilities, and the wounded and sick. These protections may not be 'overridden' by assertions of military necessity. However, with regard to the protection of civilians, it is important to note that while the principle of humanity prohibits the deliberate infliction of suffering, it does not prohibit all suffering. In short, while the laws of armed conflict generally prohibit the infliction of unnecessary suffering in war, it also implicitly recognizes that both belligerents and civilians will suffer necessary consequences of war."

Israeli Actions

Israel's Ministry of Foreign Affairs, "Humanitarian Aid to Gaza Continues," August 27, 2014:

"Despite the constant fire into Israel, the Kerem Shalom crossing remained open during Operation Protective Edge and the flow of goods and fuel into the Gaza Strip continued. The Kerem Shalom crossing continues to operate with high security. The IDF acceded to the request of hundreds of Palestinians who hold foreign citizenship to leave the Gaza Strip. The Erez Crossing in northern Gaza also remains open to Palestinian pedestrians for humanitarian cases.

On August 4, Israel established a joint COGAT-International Organizations coordination center in order to streamline the process...

Kerem Shalom Crossing:

Since the beginning of Operation Protective Edge (8 July) 5,779 trucks entered Gaza Strip via the Kerem Shalom crossing, carrying food, medicines and medical equipment.

Since the beginning of the operation the following amounts were provided to the Palestinians via the Kerem Shalom crossing (data up to and including August 26):

• 4.58 million liters of diesel for the power station in Gaza Strip, 1.73 million liters for UNRWA
• 9.8 million liters of fuel
• 4.26 million liters of gasoline for transportation
• 4,843 tons of gas for domestic needs

Since the beginning of the operation, Israel carried out 86 infrastructural repairs: 55 electrical repairs; 18 water supply repairs; 6 sewage repairs; 7 communication repairs. Repairs have often been delayed due to security threats and safety concerns for the workers...

On August 25, 274 trucks were scheduled to cross into Gaza. However, due to the security situation and Hamas rockets, only 203 trucks arrived at Kerem Shalom. Among the trucks that entered were:

• 111 trucks carrying 2,190 tons of food
• 3 trucks carrying 8 tons of humanitarian supplies

On August 26, 217 trucks were scheduled to cross into Gaza. However, due to the security situation and Hamas rockets, only 75 trucks arrived at Kerem Shalom...

Erez Crossing:

Since the beginning of the operation, 4,243 Palestinians have entered Israel from Gaza and 3,044 crossed from Israel into Gaza. A total of 268 ambulance transfers were carried out through Erez since July 8. Since July 8, COGAT has coordinated an evacuation of dual nationals living in Gaza with the relevant embassies. A total of 360 dual citizens departed Gaza via Erez on August 7, bringing the total to 1,160.

On Wednesday, 13 August 2014, in full cooperation with the Foreign Ministry, the Coordinator of Government Activities in the Territories and the Turkish Red Crescent, MDA crews evacuated 18 wounded Palestinians (one in serious condition, four in moderate condition and 13 with light injuries) and 16 escorts from the Erez Crossing to Ben-Gurion International Airport where they boarded a Turkish plane that took them for treatment at a hospital in Ankara. On August 20, a second group of wounded Palestinians left Gaza through the Erez Crossing for transfer by air to Turkey.

On August 24, three Israeli-Arab taxi drivers waiting to pick up Gazan residents and bring them into Israel for medical treatment were wounded - two seriously - by mortar shells fired at the Erez Crossing as Palestinians from Gaza were entering Israel for medical care, forcing the closing of the Erez Crossing. Soldiers evacuated the wounded as mortars continued to fall on the crossing specifically designated for the passage of Palestinians in need of medical and humanitarian assistance...

Field hospital for wounded Palestinians from Gaza:

The IDF, in cooperation with the Red Crescent, has opened a field hospital at the Erez Crossing, on the Gaza border, to treat wounded Palestinians from the Gaza Strip. The field hospital contains an emergency room, lab, pharmacy, pediatric ward, ambulatory clinic, gynecology unit, family and internal medicine, and was equipped to treat dozens of patients. Since the field hospital opened on 20 July, doctors and staff have attended to 50 patients. Some have been treated and released, some treated and sent on for additional care at a hospital, and some sent immediately for hospital care. Unfortunately, Hamas directly and indirectly prevented patients from arriving for care at the field hospital.

On 28 July a young Palestinian child suffering from cancer was treated at the COGAT field hospital. The doctors sent him for further care in Israel."

The International Institute for Counter-Terrorism (ICT) Report "Operation 'Protective Edge': A Detailed Summary of Events," July 12, 2014:

"During the operation, the IDF also facilitated the provision of medical services through the Civil Liaison Administration, as well as the transfer of medical supplies in the Gaza Strip through the land crossings. In some cases, the IDF even permitted people with medical emergencies to enter Israel in order to receive care."

Hirsh Goodman and Dore Gold, "The Gaza War 2014: The War Israel Did Not Want and the Disaster It Averted," Jerusalem Center for Public Affairs, 2015:

"Civilian Affairs Officers:

During Operation Protective Edge, every IDF unit deployed in the Gaza Strip, from battalion level and up, had a specially trained Civilian Affairs Officer (CAO) whose role was to advise the unit commander on matters relating to the civilian population in the zone of operations. This included informing the commander of the proximity of sensitive sites, such as civilian shelters, UN facilities, hospitals, schools, mosques and the like, and regarding the whereabouts of civilians and their situation. CAOs are Arabic-speakers who are able to communicate with the local population in order to assess their needs, assist with evacuations, and coordinate the movement of emergency services and humanitarian relief efforts with IDF forces on the ground. It must be appreciated that coordination of emergency vehicle movements in a battle zone is a very complicated and delicate task. It is made all the more difficult due to the wholesale use by militants of ambulances for transporting fighters and weapons. Coordinator of Government Activities in the Territories (COGAT):

The State of Israel has a government agency exclusively dedicated to the welfare of the civilian population in the Gaza Strip. Staffed by military and civilian personnel, the Coordinator of Government Activities in the Territories (COGAT) in the Israel Defense Ministry was the official body responsible for civil affairs in the Gaza Strip before Israel's disengagement from the area in 2005. Due to its expertise and experience, the Israeli government decided that COGAT would continue to coordinate interaction with the Gaza Strip with respect to civil affairs despite Israel's no longer having a presence in the area. Most of the coordination effort is concentrated in COGAT's Coordination and Liaison Administration (CLA) located on the Israeli side of the Erez crossing point. During periods of relative calm as well as during hostilities, the CLA closely monitors the humanitarian situation in the Gaza Strip and the needs of the civilian population. The CLA also coordinates the civilian interface between Israel and the Gaza Strip, such as the movement of people and goods through the crossing points. Importantly, the CLA also works to facilitate the humanitarian activities of international aid organizations and NGOs in the Gaza Strip. This includes joint planning and preparations for emergencies during periods of calm. During Operation Protective Edge the CLA operated a situation room, manned by IDF personnel and representatives of international organizations such as the UN and the ICRC, for the monitoring and coordination of humanitarian activity in the Gaza Strip. The IDF, in conjunction with international organizations, has used a common language map of the Gaza Strip which enables coordination between them for humanitarian purposes.

Humanitarian Efforts:

Throughout Operation Protective Edge, Israel, through the IDF and COGAT, conducted an intensive and wide-ranging humanitarian campaign aimed at alleviating the suffering and hardship of civilians in the Gaza Strip. These efforts included:

Humanitarian Supplies:

A total of 5,779 trucks carrying humanitarian supplies entered the Gaza Strip from Israel through the Kerem Shalom crossing. These included 997 tons of medicines and medical supplies. The crossing was kept open and operated by Israeli personnel even though it was subjected to frequent shelling from inside Gaza and a terror tunnel that exploded nearby:

Electricity and Fuel Supply:

Israel continued to supply electricity and fuel to the Gaza Strip throughout the Operation. Providing power and fuel to an enemy during an armed conflict is normally considered unthinkable, especially since these are essential to the enemy's war effort.

Repairs to Infrastructure

86 repairs to infrastructure serving the Gaza Strip were carried out during the Operation: 55 repairs to the electricity infrastructure; 18 repairs to water infrastructure; six repairs to sewage systems; and seven repairs to communications infrastructure.

Medical Evacuations:

2,630 medical transfers were made by ambulances between Gaza and Israel through the Erez crossing. The Erez crossing also came under fire on numerous occasions, causing the death of an Israeli civilian as well as several other casualties.

Field Hospital:

A field hospital was set up by the IDF at the Erez crossing for the treatment of sick and wounded civilians from the Gaza Strip.

Humanitarian Ceasefires:

Israel agreed to and implemented a number of humanitarian ceasefires during Operation Protective Edge, all of which were violated by Hamas. The IDF also implemented several unilateral suspensions of operations for humanitarian purposes."