Problem I: Placing Limits on the Conduct of War: Preventing the Use of Nuclear Weapons

A. The Problem

3. The Nuclear Non-Proliferation Treaty

     In October 2006, North Korea announced it had completed a successful underground nuclear test. North Korea agreed to disable its main nuclear reactor in February 2007 in exchange for food, fuel, and other assistance from the United States, China, South Korea and Russia. In 2008, in exchange for North Korea’s agreement to allow IAEA inspectors to return, the United States removed North Korea from its list of state sponsors of terrorism.

     In April 2009, however, North Korea once again expelled IAEA inspectors from the country. The following month, North Korea conducted another underground nuclear test. The United Nations responded with a unanimous resolution condemning the test, directing North Korea to discontinue its nuclear program, tightening sanctions on North Korea, and calling on all states to inspect North Korean ships and cargo going to or from their territory (or, with consent of the flag state, on the high seas) “if the State concerned has information that provides reasonable grounds to believe the cargo [or vessel] contains items the supply, sale, transfer, or export of which is prohibited” under UN sanctions. North Korea responded by testing a series of cruise and ballistic missiles.

     Iran has also continued its nuclear activities. On December 23, 2006, the United Nations Security Council in Resolution 1737 directed Iran to suspend certain “proliferation sensitive nuclear activities,” including “all enrichment-related and reprocessing activities.” The Resolution further “ decides that all States shall take the necessary measures to prevent the supply, sale or transfer directly or indirectly from their territories, or by their nationals” to Iran of goods that might be used for nuclear enrichment or reprocessing or for the development of nuclear weapons. When Iran refused to halt its enrichment activities, the Security Council tightened sanctions. In 2008, President Bush denied a secret Israeli request for special bunker-busting bombs that could be used to attack Iranian nuclear facilities. In September 2009, President Obama, joined by President Sarkozy of France and Prime Minister Brown of the United Kingdom, announced that Iran had built a secret underground plant to manufacture nuclear fuel. On October 1, however, in talks with the permanent members of the Security Council and Germany, Iran agreed to open its newly acknowledged plant to international inspectors and to send most of its declared enriched uranium abroad for processing.

Problem II: Protecting Non-Combatants: the Qana Incident

E. The Implications of Qana

Notes and Questions

4. On December 14, 2006 , the District Court granted Ya’alon’s motion to dismiss. The Court held that Ya’alon, as an Israeli military official, was an “agency or instrumentality” of Israel within the meaning of the Foreign Sovereign Immunities Act (FSIA), and was therefore entitled to claim sovereign immunity for acts within his official capacity. The Court concluded that Ya’alon was acting to further the interests of Israel at the time and so acting in an official capacity, and that none of the FSIA’s exceptions to immunity applied.

5. The events at Qana stemmed from Israel’s struggle to secure its northern border. Israel has also long been engaged in a similar struggle with Palestinian forces operating from the Gaza Strip, a 139 square mile territory bounded on the north and east by Israel, on the south by Egypt, and on the west by the Mediterranean Sea. Israel occupied Gaza in a 1967 war with Egypt, but unilaterally disengaged from direct administrative control of the territory in 2005. Israel retains sufficient control over the territory, actual and potential, that most states continue to regard Israel as an occupying power, even though responsibility for the day to day administration of the territory rests with the Palestinian Authority.

     In December 2008 and January 2009, Israel conducted large-scale military operations in Gaza, code-named “Operation Cast Lead,” in response to continuing rocket attacks on Israeli territory. In April 2009, the UN Human Rights Council established a Fact Finding Mission on the Gaza Conflict, headed by Justice Richard Goldstone, a former judge on the South African Constitutional Court and a former Prosecutor of the International Criminal Tribunals for Former Yugoslavia and Rwanda. The Mission’s mandate was to investigate possible violations of international humanitarian law and human rights law. (Goldstone agreed to chair the Mission only after its mandate, originally aimed principally at Israel, was restated in a more neutral fashion.) Israel refused to cooperate with the Mission and denied it access to the West Bank, but the Commission did visit Gaza. The Commission released its report in September 2009.

     Although critical of both sides, the Report focuses principally on Israel. The Report contends that Israel’s military operations, viewed in the context of Israel’s overall policies regarding the occupied territories, were aimed at “the people of Gaza as a whole,” and “were in furtherance of an overall policy aimed at punishing the Gaza population for its resilience and for its apparent support for Hamas, and possibly with the intent of forcing a change in such support.” The Report reviews multiple instances of what it considers indiscriminate attacks, deliberate attacks on civilian objectives such as hospitals, prisons, and police stations, intentional attacks against civilians, use of Palestinians as human shields in house-clearing operations, and attacks on “the foundations of civilian life in Gaza” amounting to unlawful and wanton destruction not justified by military necessity, The report doubts the “willingness of Israel to carry out genuine investigations” of violations, and urges a number of unusual (and controversial) accountability measures, including monitoring of Israeli legal proceedings by a committee of experts to be established by the UN Security Council; Security Council referral of the situation to the International Criminal Court should monitoring indicate the need; and investigations of grave breaches by individual states relying on universal jurisdiction.

     The Report also criticizes Hamas and other armed groups operating in Gaza, and notes its investigation was hampered by a “certain reluctance” of people in Gaza to discuss the activities of such groups. In particular, the report notes that “Palestinian armed groups have launched about 8000 rockets and mortars into southern Israel since 2001.” The report states that because the rockets cannot be targeted with any accuracy against military objectives, their use constitutes indiscriminate attacks and deliberate attacks against a civilian population, and that their purpose is to “spread terror amongst the Israeli civilian population.” The report adds that the “relatively few casualties sustained by civilians inside Israel is due in large part to” Israeli security precautions.

     Israel has responded to the Mission’s report by describing the Mission itself as “part of a political campaign” against Israel, which “ignores the threats to Israeli civilians” as well as Israel’s right to self-defense. Israel argues that the Mission’s mandate was one-sided and its members biased. Israel also argues that “the Report engages in creative editing, misrepresentations of facts and law, and repeatedly adopts evidentiary double standards, attributing credibility to every anti-Israel allegation, and invariably dismissing evidence that indicates any wrongdoing by Hamas.” Israel’s response concludes by stating that a “Report of this nature broadcasts a troubling – and legally unfounded - message to States everywhere confronting terrorist threats that international law has no effective response to offer them . . . .”

     What options are lawfully open to Israel to combat rocket attacks emanating from Gaza? Israel’s report notes the “complexity of the military challenges in urban warfare.” In asymmetric conflicts between the armed forces of a state and sub-state armed groups, does international law favor the latter?

     In discussion of the Mission’s report at the Human Rights Council, only the United States sided with Israel. The U.S. representative declared that the United States “disagreed sharply with many of the report's assessments and its recommendations and believed it to be deeply flawed.” He also noted “that the United States continued to take issue with the grossly disproportionate attention the Council paid to Israel.”

     On October 16, 2009, the UN Human Rights Council adopted a resolution endorsing the Goldstone report and called for further action by the Security Council and General Assembly. Twenty-five states voted in favor; the United States and five others voted against.

     Does Israel receive disproportionate scrutiny relative to other states that conduct warfare against irregular forces (e.g., Russia in Chechnya or the United States in Iraq and Afghanistan)?

     The Council’s report may be found here. Israel’s response may be found here. Issues of accountability for violations of human dignity are discussed in chapter 9.

Problem III: Protecting Non-Combatants in Internal Conflicts: the Tadic Case

C. Applying International Humanitarian Law in the Tadic Case

      In August 2008, a short, sharp armed conflict broke out between Georgia, on one side, and the Russian Federation, South Ossetia, and Abkhazia, on the other. Since earlier hostilities in 1991-92, South Ossetia and Abkhazia, secessionist entities within Georgia, have administered their own territories within Georgia, with political and military support from Russia. The conflict in August 2008 raised many of the same kinds of issues considered in the text in connection with the break-up of the former Yugoslavia.

     In December 2008, the Council of the European Union formed an Independent International Fact-Finding Mission on the Conflict in Georgia (IIFFMCG). In determining the applicable law, the Mission noted that the conflict between Russia and Georgia was an international armed conflict as defined by common Article 2 of the Geneva Conventions. However, the Mission found it difficult to determine whether the conflict overall should be deemed international. While hostilities between South Ossetia and Abkhazia, on one hand, and Georgia, on the other, would ordinarily be governed by the law applicable to non-international armed conflict, the entire conflict could be considered international “if one considers that Russia exercises sufficient control over the Abkhaz/South Ossetian forces . . . .” The Mission reviewed briefly the legal analysis set out in the Nicaragua and ICTY decisions discussed in the text, and adopted “overall control” as the relevant test. However, the Mission largely avoids specific determinations on this issue given the “difficulty of reaching a definite factual conclusion.” Overall, the Mission suggests that “although the classification of an armed conflict as international or non-international is important in terms of the responsibilities of the parties involved, when it comes to the effective protection by IHL of the persons and objects affected by the conflict it does not make much difference. Indeed, it is generally recognized that the same IHL customary law rules generally apply to all types of armed conflicts.” The Mission went on to find Russia, Georgia, and South Ossetia all responsible for numerous violations of humanitarian law, ranging from ethnic cleansing to indiscriminate attacks.

Problem IV: Occupying Foreign Territory: Israel’s Wall in the West Bank

B. Background on the Law of Occupation

     The Independent International Fact-Finding Mission on the Conflict in Georgia, described in the Update to problem III, recently considered whether Russia was an occupying power in all or parts of South Ossetia and Abkhazia in connection with the armed conflict with Georgia in August 2008. Georgia, in filings before the International Court of Justice and the European Court of Human Rights, has claimed that both South Ossetia and Abkhazia are occupied territories. Russia argues that its forces “never replaced the lawful governments of Georgia or South Ossetia,” that it adopted “no regulatory acts mandatory for the local populations,” and that it had too few troops stationed in South Ossetia and Abkhazia to establish effective control in either.