Jul 25 2014

Both Israel and Hamas have a Responsibility to Protect Civilians

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by Simon Adams

This is our sixth and final post in our symposium on Israel, Palestine and the Responsibility to Protect. Simon Adams is the Executive Director of the Global Centre for the Responsibility to Protect.


(Photo: Amir Farshad Ebrahimi / Creative Commons)

(Photo: Amir Farshad Ebrahimi / Creative Commons)


There is arguably no conflict in the world as politically polarising as the one between Israel and Palestine. While the conflict has been on the agenda of the United Nations since at least 1947, it wasn’t until 2005, at the UN World Summit – the largest assembly of heads of state and government ever convened – that the “Responsibility to Protect” (R2P) was unanimously adopted as a means of protecting people from four mass atrocity crimes – genocide, crimes against humanity, war crimes and ethnic cleansing. The current crisis in Gaza has posed difficult and proximate questions for some of R2P’s advocates, raising awkward issues regarding selectivity, sovereignty and responsibility in Israel and the Palestinian Territories.

At the heart of R2P is a global commitment to protect people, regardless of ethnicity, religion or statehood (or lack thereof), from crimes that offend and diminish us all as human beings. This means, as UN Secretary-General Ban Ki-Moon insists, that the Responsibility to Protect applies everywhere and at all times. That includes Israel and Gaza.

But there is also a requirement for political and legal precision. As the Gaza crisis escalated in mid-July, the Global Centre for the Responsibility to Protect began closely monitoring the situation and assessing whether the human rights abuses being perpetrated had elevated to the level of mass atrocity crimes. When we released a public statement on Thursday 17 July, right as the temporary five-hour “humanitarian ceasefire” ended in Gaza and armed hostilities between Israel and Hamas resumed, we argued that attacks on civilians and civilian property in Gaza and Israel violate international humanitarian law and may constitute war crimes.

The distinction between military and civilian targets is central to international humanitarian law and must be adhered to regardless of where a conflict is occurring, or whom it is occurring between. With ongoing rocket attacks on Israel and unrelenting retaliatory airstrikes in densely populated parts of Gaza, both Hamas and the Israeli government appeared to be potentially violating the fundamental laws of war.

At the time of our statement, Palestinian armed groups operating in Gaza had launched more than a thousand rockets into Israel, with most aimed towards residential areas. These rocket attacks were indiscriminate and fired with the deliberate intention of killing or wounding civilians and destroying civilian infrastructure. As such they were war crimes, despite the fact that the inaccuracy of the rockets and the effectiveness of the Israeli “Iron Dome” defence system had kept Israeli civilian fatalities to a minimum. Responsibility for the rockets lay with Hamas, which is clearly the controlling authority in Gaza and is culpable for the attacks.

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Jul 25 2014

R2P Isn’t a Useful Framework for Gaza – or Anything

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by David Rieff

This is the fifth part in our symposium on Israel, Palestine and the Responsibility to Protect. The other four contributions can be found herehere, here, and hereDavid Rieff is a writer and journalist. He has authored dozens of articles and is the author of many books, including A Bed for the Night: Humanitarianism in Crisis (2003), Against Remembrance (2011) and The Reproach of Hunger (Forthcoming 2015).


n Israeli soldier and a reporter take cover from rocket fire in Sderot in 2008 (Photo: Amir Farshad Ebrahimi / Creative Commons)

An Israeli soldier and a reporter take cover from rocket fire in Sderot in 2008 (Photo: Amir Farshad Ebrahimi / Creative Commons)


It is important distinguish between two questions posed in this online symposium, the first being whether R2P is applicable to the war now going on in Gaza and the second being whether looking at the conflict through the lens of R2P is helpful or counter-productive?

There is simply no absolutely clear-cut answer to the ‘applicability’ question. R2P only applies to intra-state wars. However, as Gaza is part of the internationally-recognized State of Palestine, the conflict between Israel and Hamas is formally an inter-state conflict. On the other hand, since apart from the commerce that takes place through the smugglers’ tunnels under the Rafah border crossing with Egypt, Gaza is wholly cut off from the outside world as demanded by Israel. The Israeli government controls movement in and out by land, sea, and air, making the citizens of Gaza wholly dependent either on Israel directly or on essential goods and services trans-shipped through the Jewish State. A strong case can thus be made that Israel remains the de facto occupying power, even if it has no longer been the de jure one since it closed its military bases, dismantled its settlements, and ceased its participation in the joint Israeli-Palestinian Erez Industrial Zone in September, 2005.

Assuming R2P does apply, or at least could be applied without traducing the spirit of the 2005 World Summit Outcome Document, is that the same thing as saying that R2P is a helpful way not just of framing the conflict but of trying to think through at least how to halt the atrocities and war crimes now being committed against civilians, mainly by Israel but by Hamas as well, or at least lessen their toll as the fighting continues? It is worth remembering that R2P was explicitly referred to in 2011 in United Nations Security Council Resolution 1970, which, along with a successor resolution (UNSC 1973) set the stage for the UN-authorized NATO intervention in Libya. While it may have begun as an ‘R2P compliant’ effort to protect civilians, NATO’s intervention in Libya soon became an exercise in regime change. All roads to hell are indeed paved with good intentions, but the particular road named R2P has already proven to be especially and opulently well paved with them!

Whatever the intentions, though, even assuming that R2P applies to the latest round of fighting in Gaza, the disadvantages of viewing events in Gaza through its prism should be obvious. It should be clear from the Israeli government’s dismissive responses to criticisms of the way it has conducted its assault in Gaza from the UN and from relief, development, and human rights NGOs, that the various non-military international responses and sanctions available under R2P would have no effect, even assuming the major EU governments would be prepared to join in them – which they most decidedly are not. As for the military response permitted under R2P, it could not fulfill the so-called reasonable prospect of success criterion that is one of the six threshold questions that all must be answered in the affirmative in order to justify a coercive intervention. Israel, lest it be forgotten, is a nuclear power. In any case, the question is purely academic since an armed intervention under R2P requires a UN Security Council resolution, which, in the infinitesimal chance that such a resolution were ever allowed to be put on the table would, without the slightest question or doubt, be vetoed by the United States.

To be sure, an advocate of invoking R2P with regard to what is now taking place in Gaza might argue that if its practical utility is nil, using it as a moral and legal frame for the conflict has a certain rhetorical value. But this seems quite far-fetched to me. Given the profusion of available images of what is going on in Gaza, many of which continue to appear on social media in real time, those who believe that Israel is committing mass atrocity crimes in Gaza have no need whatsoever of R2P to buttress their case. And it is hardly as if the relevant UN specialized agencies, most importantly UNRWA and the Office of the High Commissioner for Human Rights, but a number of others as well, or mainstream relief, development, and human rights NGOs need R2P in order to find the courage to denounce what is taking place. To the contrary, if there was a correlation between denunciation of war crimes and their cessation, the war would have been over days – or perhaps even years – ago.

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Jul 24 2014

Gaza and Israel – A Case for International Humanitarian Law, Not R2P

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by James P. Rudolph

This is the fourth post in our symposium on Palestine, Israel and the Responsibility to Protect. James P. Rudolph is an attorney in Washington, D.C. and California where his work focuses on international law. He is a regular contributor to JiC.


(Photo: IDF / Creative Commons 2.0)

(Photo: IDF / Creative Commons 2.0)


The Responsibility to Protect (R2P) initially appeared in the Report of the International Commission on Intervention and State Sovereignty. The goal was, and remains, the reconciliation of the traditional concept of sovereignty, which involves exclusive control and supremacy over a defined territory, and the more modern notion that the sovereignty of a state includes the primary responsibility to protect its own people.

This notion of sovereignty has, by and large, been adopted by the international community, and is now enshrined in the so-called “three pillars” of R2P. First, the State carries the primary responsibility for protecting populations from genocide, war crimes, crimes against humanity and ethnic cleansing; second, the international community has a responsibility to encourage and assist States in fulfilling this responsibility; and finally, the international community has a responsibility to use appropriate diplomatic, humanitarian and other means to protect populations from these crimes. If a State is manifestly failing to protect its populations, the international community must be prepared to take collective action in accordance with the Charter of the United Nations.

With respect to the ongoing conflict in Israel and Gaza and applying the first pillar, the issue is whether any of this is dispositive. Are we, in other words, witnessing genocide, war crimes, crimes against humanity or ethnic cleansing? If we are not, R2P does not apply. Notwithstanding comments from Turkish Prime Minister Recep Erdogan that Israel is “committing genocide”, most people would likely conclude that Israel is not engaged in any kind of genocidal behavior. In the same vein, it appears doubtful that anybody would seriously claim that ethnic cleansing is occurring. Thus, the question is whether Israel is (or has) engaged in war crimes or crimes against humanity, the two remaining crimes recognised under the R2P rubric.

A crime against humanity requires that certain acts — murder, enslavement, deportation, imprisonment, torture, rape — must be directed against a civilian population, and that they be part of a widespread or systematic attack. Widespread means massive, large-scale action, whereas systematic means part of a preconceived policy. Israel’s response to the rockets from Gaza certainly has had consequences for Palestinian civilians, many of whom have been children. But none of these acts are occurring in Israel itself (if, indeed, they are occurring at all). R2P means that Israel has a responsibility to protect its own population from crimes against humanity. We are thus left with war crimes.

There may be a convincing argument that Israel’s self-defense has become excessive, and this would have ramifications under the laws of war (Geneva Conventions and customary international law). But, if anything, this is being directed at Hamas and Gaza. Stated differently, neither Israel nor Gaza is engaging in excessive force against its own population, so R2P, while an attractive prism through which to view the conflict, seems not to apply.

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Jul 24 2014

In Palestine, R2P isn’t Dead. It Could Never Have Existed.

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By Michael Kearney

This is the third post in our symposium on Palestine, Israel and the Responsibility to Protect. Dr Michael Kearney is a Lecturer in Law at the University of Sussex and has written extensively on Palestine and the International Criminal Court.


(Photo: The Funambulist / Creative Commons)

(Photo: The Funambulist / Creative Commons)


My response to students’ queries on the matter of Responsibility to Protect (R2P) has generally been that the whole narrative is a bit of a distraction: R2P merely repackages a principle that already existed, namely that states have a moral – and kind of legal – obligation to act in the face of genocide and widespread human rights abuses. The ultimate sanction against a state engaged in such abuses, the use of armed force in order to protect civilians at risk, is on the R2P table, but remains subject to Security Council approval. So, R2P gives us a significant statement of intent and principle on behalf of the international community, but means very little in practice and cannot be considered as having changed international law.

As a student when R2P became a hot topic, around 2003/4, most activists were focused on Palestine and Iraq, which we saw as major human rights issues. R2P, though clearly important, was generally perceived by us as a diversion from the immediate concerns. A non-confrontational, inherently establishment and liberal- friendly north American, ‘lets make the world nice’, kind of movement, not unlike the weird ‘Stop Kony’ fad of several years later. Rather than try and fight abuses by holding power to account, R2P proponents developed a safe ‘protest’ type discourse-conversation with neo-liberal governments, essentially limited to asking them to sort out the bad guys.

We are now asking why R2P isn’t being applied to Palestine today. In reality, it never was –not at its inception and not since. The second (al Aqsa) Palestinian intifada against Israeli occupation began in September 2000, while the original International Commission on Intervention and State Sovereignty (ICISS) report on R2P was published in December of that year. Throughout the second intifada, the invasion of Afghanistan and the invasion of Iraq, R2P supporters had nothing of consequence to say about any of this. Their enthusiasm and focus was squarely on Darfur, sometimes stretching to Burma and Zimbabwe. Those were, in keeping with the R2P paradigm, the classic bad guys. Those places were seen to have no veneer or hint of liberal democracy, unlike, for example, ‘very democratic Israel’.

I have done a search for ‘Palestine’ through the journal Global Responsibility to Protect. Only having access to issues from 2012, but Vols 1-3, 2009-11, I found a total of four mentions of ‘Palestine’ in ‘the premier journal for the study and practice of the responsibility to protect (R2P)’.

Forgive the speculative generalisation, but this capacity to not see certain massacres, while thinking that R2P could halt others, might be traced to a particular north American style liberalism, not entirely feasible in the culture on this side of the Atlantic. Such an approach can be seen in this statement made by Michael Ignatieff, academic and former leader of the Liberal Party in Canada, in which he frames the possibility and imagination of activism as so: ‘The best human rights activists can ever hope for is to keep democratic regimes honest and to shame undemocratic ones into being less brutal’.

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Jul 23 2014

The Israeli-Gaza Crisis and the Responsibility to Protect: Does the norm apply?

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By Megan Schmidt

This is the second post in our symposium on Palestine, Israel and the Responsibility to Protect. Megan Schmidt is a Senior Program Officer at the International Coalition for the Responsibility to Protect.


(Photo: Al Jazeera English / Creative Commons)

(Photo: Al Jazeera English / Creative Commons)


The present conflict in Gaza between Israel and Hamas has revived the complex debate on the applicability of the Responsibility to Protect (R2P) to this crisis. The central questions that make the norm’s relevance murky are: What is the status of Gaza? What entities have governing authority over and responsibility for the people of Gaza? And what does said governing mean in practice?

Such questions are important because R2P is first and foremost a political commitment and obligation of states to protect their own populations. The issue of governing authority over Gaza is one of great complexity with arguments to support views on all sides, showing the many grey areas that exist. This article in no way attempts to make a clear determination on the status of the territory or who holds governing authority, but rather seeks to present if and how R2P could or could not apply to the present crisis based on the stance one takes over Gaza’s status. Still, R2P’s applicability in this crisis, or any situation for that matter, does not trump the legal obligations parties already have, including those under international humanitarian law (IHL) and customary international law. Rather, R2P’s application could provide an additional framework for understanding the crisis, as well as an additional tool for advocacy by actors seeking to prioritise civilian protection.

What does the Responsibility to Protect entail and who has this obligation?

In the 2005 UN World Summit Outcome Document, heads of state and governments made a historic commitment to protect their populations from genocide, war crimes, crimes against humanity, and ethnic cleansing. In addition to the primary responsibility of the state to prevent these crimes, including their incitement, R2P places an obligation on the international community to assist states in building their capacity for prevention. Should a state be unable or unwilling to protect their populations, or is in fact perpetrating the crimes itself, the international community has a responsibility to take timely and decisive action using a range of non-coercive and coercive measures, including force (as a last resort and only when authorised by the United Nations Security Council).

As the UN Secretary-General has stated, the emerging norm is narrow but deep – narrow in its limited scope to the four crimes and violations, but deep in the tools available for prevention and response. While not legally binding itself, R2P is grounded in existing legal doctrine and normative frameworks, with its added value resting in the re-framing of state sovereignty as not solely entailing the rights of the state but also its obligations to protect its people.

A last point critical in setting the stage for the discussion on Gaza and R2P is the norm’s relationship with international humanitarian law (IHL) – or the law of war. Rooted in international treaties and conventions, IHL sets out the legal obligations to parties in an armed conflict regardless of if that conflict is between states or happening internally, with violations of IHL amounting to war crimes. Such obligations are to protect civilians, as well as prisoners of war, the wounded or sick, and medical and religious personnel, among others. In addition to the protection of civilians, IHL sets out legal obligations to protect objects and infrastructure, including hospitals, cultural property, and ambulances. It also articulates the illegality of targeting infrastructure for the survival of the civilian population, such as water supplies. While mass atrocity crimes frequently occur during conflict, there are distinct differences with regards to scope and applicability of IHL and R2P. As stated earlier, the norm’s focus is restricted solely to the four crimes and violations and such atrocities can be committed in and outside of conflict, with IHL not applying to the latter. Additionally, while R2P includes war crimes as one of the four crimes and violations from which states are obligated to protect their populations, such crimes within the norm’s scope are limited to those directed against civilian populations and committed in a widespread and systematic manner. As such, crises will arise where IHL and R2P will both be applicable, but there will also be those in which R2P will not be relevant due to the nature of the conflict. This brings us to the question of the present crisis in Gaza.

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