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The Possibility of the ICJ and the ICC Taking Action in the Wake of Israel’s Operation «Cast Lead» in the Gaza Strip

A Jurisdiction and Admissibility Analysis

Series:

Oded Friedmann

Israel’s Operation «Cast Lead» in Gaza differed from prior armed confrontations between Israel and Hamas both in terms of its death toll and destruction. Following the Operation, numerous members of the international community and non-governmental organizations severely criticized the conduct of both sides during the conflict, calling upon the International Court of Justice (ICJ) and, mainly, the International Criminal Court (ICC) to investigate international law violations alleged against Hamas and, to a greater extent, Israel. This book provides an in-depth analysis of whether Israel or Israelis could face a legal reckoning before the ICJ and ICC, based on the serious allegations made against the conduct of the Israeli Defense Forces during the Gaza armed conflict. The analysis focuses solely on jurisdiction and admissibility issues, and does not weigh in on the veracity or legal accuracy of the allegations.

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INTRODUCTION

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1. The Gaza armed conflict of 2008/2009 The Gaza armed conflict between the State of Israel and Hamas, began on 27 December 2008 at 11:30 AM with the launch of a military offensive by the Isra- el Defense Forces (“IDF”) against Hamas targets within the Gaza Strip. The of- fensive – known as Operation “Cast Lead” – consisted, at first, of aerial, naval and ground artillery fire (from outside Gaza) and was expanded to include a ground offensive on 3 January 2009. Israel, which consistently maintained that the offensive was action taken in self-defense1, set three objectives for its operation in Gaza: (i) Stopping the in- cessant rocket attacks aimed at Israeli civilians from Gaza, (ii) dealing Hamas a forceful blow, and (iii) fundamentally changing the situation in Gaza2. During and following Operation “Cast Lead”, Israel was severely criticized by many in the international community for the force used by the IDF – espe- cially in light of the fact that the conflict took place in the heart of one of the most densely populated areas in the world3 – and the devastating results of the conflict. Such criticism eventually became very serious accusations of interna- tional law violations, which shall be discussed in further detail below. On 18 January 2009 at 2:00 AM, the Israeli offensive ceased, with the last IDF soldiers leaving Gaza on 21 January 2009. 1.1. The situation in the region prior to the Israeli offensive Israel has been engaged in an ongoing armed conflict with Hamas (and...

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