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[COMAS, Rishon LeZion] Orna Ben-Naftali and [TAU] Aeyal Gross: "The Second Intifada and After" in the book "Crimes of War Project"

  Crimes of War Project - the book
The Second Intifada and After
by Orna Ben-Naftali and Aeyal Gross
The Second Intifada, also known as the al-Aqsa Intifada, broke out in September 2000 following a visit by Israel’s then-opposition leader Ariel Sharon to Jerusalem’s Temple Mount (or Haram al-Sharif). Since the site is sacred in both the Islamic and Jewish religions, and the question of sovereignty over it has been one of the thorniest issues in negotiations between Israel and the Palestinians, it is not surprising that Sharon’s visit was considered a deliberate provocation.

The following day, Palestinian demonstrators gathered around the al-Aqsa mosque threw stones at Jewish worshippers at the Western Wall below, and Israeli security services responded by firing rubber-coated metal bullets and live ammunition at the crowd. Five Palestinians were killed.
Palestinian demonstrations throughout the territories and within Israel followed, and the vicious cycle of violence known as “the Second Intifada” began. By February 2005, when Palestinian leader Mahmoud Abbas agreed to a mutual truce with Prime Minister Sharon and persuaded the main Palestinian armed groups to declare a cease-fire, 3,307 Palestinians, including 654 children, and 972 Israelis, including 117 children, had been killed.

Sharon’s visit was only the spark that set off the uprising, not its root cause. After seven years of the Oslo peace process, both Israelis and Palestinians had lost faith in its underlying premise that small steps on both sides could build trust between the two parties. Many Israelis felt that their withdrawal from Palestinian territory had not brought them greater security, while Palestinians saw an expansion of settlements and no genuine Israeli interest in creating a viable Palestinian state. The failure of the Camp David Summit in July 2000 entrenched these views. From an Israeli perspective, the Palestinian refusal to accept what Israelis regarded as the most generous land offer they had ever made showed that the Palestinians were not negotiating in good faith and had never accepted Israel’s right to exist securely. Many Israelis came to believe that the subsequent uprising was orchestrated by Palestinian leader Yasser Arafat to pressure Israel into concessions he could not achieve through negotiation.

Many Palestinians, for their part, felt that the Israeli proposals at Camp David ignored the basic requirement of justice that the State of Palestine should control all the land the Palestinians had occupied before 1967 and were designed to prevent the emergence of a truly viable Palestinian state. Palestinians complained that Israel’s negotiating strategy aimed not at a fair settlement but at making the Palestinians appear responsible for the breakdown of talks. From their perspective, the Second Intifada was a spontaneous response to a series of setbacks and provocations.

Israel’s heavy use of force against civilian demonstrators in the early days of the uprising set the pattern for what was to follow. This period also gave the Intifada its emblematic images and hastened a mutual process of dehumanizing the enemy. At the end of September, a Palestinian man named Jamal al-Dura and his 12 year old son Mohammed were caught up in an armed clash between Israeli and Palestinian forces in Gaza; the son was killed and the father wounded by Israeli fire. The entire sequence of events was filmed by French television, and the pictures became for Palestinians a symbol of Israeli lack of concern for Palestinian lives. A couple of weeks later, two Israeli reserve soldiers lost their way and mistakenly ended up in Ramallah. A Palestinian mob gathered outside the police station where the soldiers had been taken, and were given access to them. The images of the body of one of the soldiers being thrown from the window of the police station with a Palestinian policeman waving bloody hands at the crowd became a symbol of Palestinian barbarism imprinted on the Israeli consciousness.

It was clear from the start that this Intifada, as distinct from the first one, was going to be fought with weapons not stones. The Israeli army’s heavy-handed tactics—including the use of tanks, helicopters and live ammunition against demonstrators—blurred any distinction between combat and civilian zones. Unable to confront the Israeli military directly, Palestinian fighters increasingly struck back with attacks on civilian targets. Suicide bombing in public places in Israel was unleashed in the summer of 2001 and became the main expression and tactic of the Intifada, generating a deep sense of insecurity and anger among Israelis that translated into political support for ever tougher responses. Israel argued that the Palestinian security forces were involved in terrorist attacks, a charge that led to a further escalation of hostility and distrust.

A 2002 report by Human Rights Watch determined that the leaders of Hamas and Islamic Jihad openly espoused suicide bombing attacks against Israeli civilians, and appeared to be able to turn the bombings on and off at will. While the report did not find evidence that Arafat and the
Palestinian Authority planned or ordered suicide bombings or other attacks on Israeli civilians, it said there were important steps that Arafat and the PA could and should have taken to prevent or deter such attacks. After 2001 Palestinians also fired Qassam missiles at targets within Israel, mostly from the Gaza Strip. Qassam attacks became more significant after 2003, causing a number of deaths and injuries as well as damage to property.

Israel’s measures taken to repress the Intifada included the destruction of Palestinian security facilities; an increasing use of targeted killing of suspected perpetrators of violence, including political leaders; the administrative detention of thousands of Palestinians, including minors, often for more than a year on the basis of secret evidence; and aerial bombardments. Following “Terrible March” of 2002, when 133 Israelis were killed in suicide bombings, including 30 guests at the Park Hotel in the resort town of Netanyah during Passover dinner, Israel broadened its operations to include ground invasions of refugee camps and the military re-occupation of some territories from which it had previously withdrawn. The fiercest fighting to place in the Jenin refugee camp, where 52 Palestinians were killed, according to the local hospital. The Israel Defense Forces (IDF) designated some areas of military action as “closed military zones”, barring access to the outside world and denying access to NGOs and to a UN fact-finding mission. During the operations, the IDF used Palestinians as human shields, in clear violation of international humanitarian law. The fact that there was only one soldier convicted for this practice—and then sentenced only to 28 days imprisonment—attests to the impunity enjoyed by Israeli soldiers. The practice was later banned by the Israeli High Court of Justice.

Israeli military actions led to enormous hardship for Palestinian
civilians. Thousands of houses were razed, many more damaged and tens of thousands of fruit trees were uprooted; commercial and public facilities were destroyed. Palestinians were subjected to daily curfews and road closures, and movement between Palestinian towns and villages was further curtailed by an intricate system of checkpoints. These measures had a devastating effect on the Palestinian economy, bringing two thirds of the population below the poverty line. Far from complying with the rule that all feasible measures should be taken to minimize harm to civilians, Israel’s military policies suggested that the principle of distinction had been abandoned. Many Israeli actions appeared to violate the rule of proportionality and laws against wanton destruction and collective punishment.

The Palestinians sought to justify the Intifada as a legitimate struggle against an oppressive occupying power, based on their inherent right of self-determination. While the right of self-determination may involve a right of resistance to those who frustrate its realization, it does not follow that all means are thereby legitimate. The deliberate and widespread killing of civilians, either by suicide bombing or by the indiscriminate firing of Qassam rockets, was both a crime against humanity and a war crime. The use in hostilities of children under the age of 15, the use of ambulances to transfer weapons and combatants in violation of the prohibition on perfidy, and the defiling of the bodies of Israeli soldiers may all be considered crimes under the laws of war.

Some aspects of Israel’s response to the Second Intifada remain
particularly disputed, reflecting the unique complexity of the
Israeli-Palestinian situation. This consists of a long-term occupation; a Palestinian Authority which is certainly not a State but is also not a non-governmental entity; the existence of Palestinian police as well as paramilitary forces; and the related blurring of the lines between occupation and self-government in the occupied territories. The eruption of the Intifada under these conditions created a situation that did not fit neatly into the boxes of international law.

Israel’s policy of targeted killing of suspected militants has been the focus of enormous controversy. Israel defends targeted killings as a lawful use of force against enemy fighters during an armed conflict. But critics say that many targeted killings take place outside the context of hostilities, and therefore violate restrictions on the deliberate taking of life. Other critics say that even if an armed conflict is taking place, the victims of many Israeli strikes were not taking a direct part in hostilities, and therefore were not legitimate targets. The meaning that should be given to the concept of “taking a direct part in hostilities” in the circumstances of contemporary conflict is the subject of fierce disagreement.

The wall or separation barrier that Israel is constructing to prevent attacks against Israeli territory and settlements from Palestinian areas of the West Bank has provoked even greater argument. The barrier extends repeatedly into areas occupied by Israel in 1967, and in many places cuts Palestinians off from other Palestinians or from their own land. The Israeli High Court of Justice ruled that the route of the barrier in specific places violated the principle of proportionality because the severe injury caused to the Palestinians was excessive in relation to the purported security benefit. But the court rejected the argument that it was inherently unlawful for the barrier to extend beyond the Green Line marking Israel’s 1967 borders, and upheld other portions of the barrier as a proportionate response to the security threat Israel faced.

However the International Court of Justice, in an advisory opinion that Israel has said it will ignore, determined that the construction of the barrier in occupied territory was inherently illegal, as its route was designed to incorporate illegal settlements and effect the de facto annexation of the areas it enclosed. Notwithstanding Israel’s official response to the Advisory Opinion, its shadow effect is considered as having prompted the Israeli Supreme Court to look into the barrier issue more carefully than it had before.

Realizing that the massive use of force by Israel had not crushed
Palestinian resolve, and perhaps hoping ultimately to save what he could from the settlement enterprise in the West Bank, Israeli Prime Minister Sharon ordered an Israeli pullout from the Gaza Strip in the summer of 2005. Following Sharon’s stroke, his successor Ehud Olmert announced plans for a progressive disengagement from many parts of the West Bank—suggesting that the separation barrier might in time become an effective unilateral boundary. In the meantime, Israel’s continuing control over the Gaza Strip’s borders, coastline and airspace, as well as its economy and trade, telecommunications, population registry and infrastructure mean that the occupation —now forty years old—may not yet have truly ended.

In the summer of 2006, Hezbollah launched a surprise attack on an Israeli army post at the Israeli-Lebanese border, killing eight soldiers and seizing two others. At the same time, Hezbollah launched a volley of shells against Israel. In response, Israel attacked targets in Lebanon. The conflict escalated to what became known in Israel as the Second Lebanese War, and ended only following Security Council Resolution 1701 which established a strengthened UN force to patrol Southern Lebanon alongside the Lebanese army. While Israel had, under jus ad bellum, the right to respond to the armed attack by Hezbollah, the customary law of self-defense requires that any response be proportionate to the threat, and many people questioned whether Israel’s offensive met that requirement.

Regarding jus in bello, the conflict was characterized by the deaths of civilians on both sides of the border. Hezbollah’s attacks, which were not directed at military targets, clearly violated the rules of distinction. Israel was also accused of failing to observe the rules of distinction and proportionality. At the same time Israel conducted extensive military actions in Gaza, following the firing of Qassam missiles from Gaza and the seizure of an Israeli soldier by Hamas. Hundreds of Palestinians died, and by the humanitarian crisis in Gaza became worse then ever.

Following these developments, the Israeli government dismissed the idea of unilateral disengagement from the West Bank as “not on its agenda.” At the time of writing, no end to the occupation is in sight.


The Crimes of War Project is a collaboration of journalists, lawyers and scholars dedicated to raising public awareness of the laws of war and their application to situations of conflict. Our goal is to promote understanding of international humanitarian law among journalists, policymakers, and the general public, in the belief that a wider knowledge of the legal framework governing armed conflict will lead to greater pressure to prevent breaches of the law, and to punish those who commit them.

Since 1945, a far-reaching body of law – whose centerpiece is the Geneva Conventions of 1949 – has been laid down to regulate conflict between and within states. In recent years there have been significant developments in the legal mechanisms through which these laws can be enforced. At the same time, changes in international politics have provided, and will continue to provide, challenges to the existing system of international law, provoking debate about whether the law should evolve further to meet new threats to international order.

International humanitarian law often seems an arcane and specialized field of study; its significance and potential force as a tool for fighting human suffering are sometimes obscured. The aim of the Crimes of War Project is to clarify this body of law, and the developments and debates that surround it, for a wider, non-specialist audience. Through our book Crimes of War: What the Public Should Know, and through our website, educational programs and seminars, we hope to:

Raise the level of understanding about the law among those reporting on war and war crimes.

Provide information for journalists, scholars, and the policy community about critical issues in modern armed conflict.

Encourage wider appreciation of international law as a framework for understanding and responding to conflicts around the world.

Promote consultation among journalists, legal experts and humanitarian agencies about how to increase compliance with international humanitarian law.

Provide a forum for accessible debate about the current state of
international law, and its application to unfolding events.
The Crimes of War Project was established in 1999. We are a private, non-profit corporation, and our educational and awareness programs in international humanitarian law and the laws of war are funded through philanthropic organizations and individual gifts. The links on the right provide further information about the material available on this site, other CWP programs, and our supporters, directors and staff.




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