A/HRC/10/20
page 10
17. There are several relevant conclusions that demonstrate this link between relying on
non-violent options and the requirements of international humanitarian law:
(a) The temporary ceasefire was impressively successful in shutting down cross-border
violence and casualties on both sides;
(b) The Palestinian side adhered to the ceasefire, with relatively few exceptions, and
relied on violence almost exclusively in reactive modes, while Israel failed to implement its
undertaking to lift the blockade and seems mainly responsible for breaking lulls in the violence
by engaging in targeted assassinations and other violent and unlawful provocations, most
significantly by its air strike of 4 November 2008;
(c) The Hamas leadership appears ready at present to restore the ceasefire provided that
the blockade is unconditionally lifted, which should in any event happen owing to its unlawful
character, and should also be accompanied by guarantees against weapons smuggling on the
Palestinian side, and a commitment to desist from targeted assassinations on the Israeli side;
(d) If substantiated by further investigation, the overall pattern prevailing at the time the
attacks were launched would undermine the claim by Israel that its recourse to force was
necessary and defensive, both features of which must be present to support a valid claim under
international law of self-defence;
(e) On the above basis, the contention that the use of force by Israel was
“disproportionate” should not divert our attention from the prior question of the unlawfulness of
recourse to force. If for the sake of argument, however, the claim of self-defence and defensive
force is accepted, it would appear that the air, ground and sea attacks by Israel were grossly and
intentionally disproportionate when measured against either the threat posed or harm done, as
well as with respect to the disconnect between the high level of violence relied upon and the
specific security goals being pursued.6 Israel did little to disguise its policy of disproportionate
use of force, thereby acknowledging a refusal to comply with this fundamental requirement of
international customary law. The Prime Minister of Israel was quoted by the press agency
Reuters after the ceasefire as saying: “The Government’s position was from the outset that if
there is shooting at the residents of the south, there will be a harsh Israeli response that will be
disproportionate.”7 To the extent that the Prime Minister’s comment reflects Israeli policy, it was
a novel and blatant repudiation of one of the most fundamental aspects of international law
governing the use of force.
6
This legal sentiment is authoritatively expressed in article 51, subparagraph 5b, of Protocol I to
the Geneva Conventions, in which disproportionate attacks are defined as “an attack which may
be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects,
or a combination thereof, which would be excessive in relation to the concrete and direct military
advantage anticipated”.
7
See www.reuters.com/article/worldNews/idUSTE5100OY20090201.
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