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Gaza Conflict, Response, Proportionality and Limitations

The vivid images currently emerging from the fighting in the Gaza Strip clearly drives home the need for the belligerent parties and the international community to find a peaceful solution and secure a halt to the hostilities. However, the fighting and Valentina’s post below raise questions as to what international law has to say about the issue. Unfortunately, it appears that the current situation all too well serves to highlight the inherent limitations and vagueness of international law.

It is evident that the recent attack launched by the Israeli Defense Forces (IDF) fulfils the requirements of an armed response in self-defence as provided for under international law. In the six months leading up to the current attacks, more than 200 rockets were fired from inside Gaza toward Israeli cities. Thus, Israel has the right to defend itself from these attacks under international law exemplified in Article 51 of the UN Charter. The right to self-defence is, however, curtailed by the requirements of the response being necessary and proportional (see for instance ICJ case Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion para 41 and ICJ case Nicaragua v. United States para 176). The issue of necessity refers to the need for a defensive purpose to be present in the armed response. In other words, the use of armed force in self-defence must be aimed at hindering the “attacker” from continuing his aggression, thus distinguishing armed responses in self-defence from acts of reprisals. This condition may in some instance prove problematic in cases of armed responses to acts of terrorism (see for instance, Mary Ellen O’Connell’s Power and Purpose of International Law, OUP 2008, pp. 187-189).

The second limitation on armed responses under self-defence, that of proportionality, is arguably the most contentious one. Most of the ongoing debates on the legality of Israel’s military response centres on the question of whether the response is proportionate (see for instance Professor Dershowitz in Wall Street Journal, Professor Bernstein over on the Volokh Conspiracy and Dr Gold of the Jerusalem Center for Public Affairs). As some of these authors point out, the issue of proportionality does not require that the responding state (in this case Israel) responds with a reciprocal attack, which calibrates the initial attack triggering the response. Thus, the fact that the Israeli response is taken with more sophisticated arms and leads to higher numbers of casualties than the Hamas rockets is in itself not enough to render it disproportionate. Had this been the case, it would lead to the absurd outcome that simply because Hamas’ rockets are often of limited effect in terms of direct casualties (notwithstanding the severe terror they cause), Israel would be limited to only taking minor steps in the attempt to stop the rockets. Proportionality does not require that the armed response targets or kills the exact same number of belligerents.

Similarly, it is often asserted that the fact that Israeli attacks lead to civilian casualties renders them disproportionate. Although civilian casualties are horrifying, the legality of such assertions is doubtful. As noted by the Office of the Prosecutor of the ICC in relation to the situation in Iraq:

“Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv).”

In other words, an armed response is disproportionate if the attacker (or here responder) intentionally targets civilians or where the armed attack entails excessive civilian damage and losses compared to the military benefit.

Thus, it becomes relevant whether the belligerents actively seek to limit the number of civilian casualties. While it is prudent to exercise caution when relying on information emerging from an armed conflict, it would appear evident that the deliberate targeting by Hamas of civilians in Israel  clearly violates the proportionality requirements. At the same time, rumours are circling that Hamas are using civilians as bomb shields (which in itself constitutes a war crime) in the knowledge that the IDF is hesitant to knowingly target civilians. Also, while Gaza is one of the most densely populated areas in the region, it appears that the IDF, in some instances, operates with a system of “forewarning” before striking a building. Although this practice is far from perfect, it indicates a difference in approach to the intentional targeting of civilians between the belligerent parties.

To sum up, unfortunate as civilian casualties are, the armed response by Israel in self-defence as a reaction to the rockets launched by Hamas is not necessarily against international law. However, it can be argued that the military aims achieved by Israel are not in balance with the casualties witnessed as well as it can be debated what constitutes military targets (such as police officers or political leaders). However, as long as there is little evidence that the IDF intentionally target civilians, these remain difficult questions. This might be unsatisfactory to some but it underscores the inherent vagueness of international law.

At the same time, the current conflict underlines some of the limitations which the leading international organisations in particular and international law in general suffer from. Entrenched inter-state fractions and lack of international consensus lead to the UN effectively being helpless as long as the Security Council cannot reach an agreement. A recent resolution, instigated by Libya, failed as the US and the UK could not support it since it failed to call on Hamas to stop the bombing of Israeli cities. Interestingly, this has lead to renewed calls for an entire new international organisation, which would address some of the current shortcomings of the UN system. In this light, the criticism of the EU appears simplistic and overly optimistic. It is unclear what interests the EU would have in ceasing relations with Israel; the EU lists Hamas as a terrorist organisation and has obvious strategic interests in securing amicable relations with the regions only democracy. Moreover, the calls for an Israeli War Crimes Tribunal appear utopian. Francis Boyle argues that it should be set up under the UN Charter’s Article 22 providing for the creation of subsidiary bodies under the General Assembly. This is despite both the ICTY and the ICTR being established by the Security Council, which arguably remains the competent body to set up such bodies rather than the General Assembly.

11 Comments

  1. Valentina Azarov Valentina Azarov 3 January 2009

    Thank you Ole for following up my post with some interesting complimentary information. I would like to add the following short note to crystallise and develop some of the points you have put forward.
    International law is indeed vague, at some points more than others, but its interpretation should always comply with the overarching objectives of the international legal order, i.e. ensuring of international peace and security. International humanitarian law, and particularly jus in bello (the rules of going to war as distinguished from the reason for going to war, jus ad bellum), was consistently interpreted and applied by its founders and most acclaimed scholars and experts (viz. Pictet, Kolshoven, Sassoli, Hanckaerts, Clapham, Dosweld-Beck, etc.) to protect the civilians population at virtually all costs. The principle of proportionality and that of the obligation to distinguish between combatants and civilians in attacks is fundamental to the existence of IHL.
    A classic application of IHL proves that Israeli air strikes do not only violate the principle of distinction enshrined in articles 57 and 58 of Additional Protocol I to the Geneva Conventions (AP I), but concurrently the principle of proportionality found in article 51 of AP I. The basic rule that the parties are allowed to direct their attacks only towards military objectives as such is found in article 48 of AP I. More specifically, article 51(1) expressly prohibits indiscriminate attacks and classifies the latter as those that are carried out in densely populated areas without all the possible precautions having been used.
    Pictet’s official commentary on this provision (also available online: http://www.icrc.org/ihl.nsf/1a13044f3bbb5b8ec12563fb0066f226/5e5142b6ba102b45c12563cd00434741!OpenDocument) describes the principle of proportionality as one of the most important articles in the Protocol. Notably, the principle of proportionality demands that “the attack must be directed against a military objective with means which are not disproportionate in relation to the objective… moreover, ‘ even after those conditions are fulfilled, the incidental civilian losses [p.626] and damages must not be excessive. Of course, the disproportion between losses and damages caused and the military advantages anticipated raises a delicate problem; in some situations there will be no room for doubt, while in other situations there may be reason for hesitation. In such situations the interests of the civilian population should prevail.”
    Instead of taking Iraq 2003 as an example, the particular IHL rules are based rather on the effects of the NATO bombardment campaign against Yugoslavia. Prof. Sassoli who co-authored and edited, inter alia, the monumental collections of rules and materials on IHL, titled “How does law defend in war?”, published by the ICRC, cites the cases of the bombardment of the railway bridge and the TV tower in Belgrade by the NATO as a landmark precedent for substantiating the spirit and intent of the principle of proportionality and distinction.
    For a more detailed discussion by Sassoli, who bases his assertions on the doctrinal interpretations of IHL, see also this paper: http://www.ihlresearch.org/ihl/pdfs/Session1.pdf.
    This said, one should recall that the aggravating circumstances at hand are derived from the fact that Israel remains the belligerent occupant of the Gaza Strip, which it has held under varying levels of control since 1967, none of which (this including the disengagement plan in 2005) have not terminated the occupation as far as per the applicable legal norms (viz. article 42 of the Hague Regulations and article 6 of the Fourth Geneva Convention). This also means that the appropriate resources and possibilities were never available to allow for distancing the civilian population from the military bases. Therefore, despite the use of human shields, the obligations for distinction and proportionality are not conditional and are not negated by such circumstances when the law is meant to be interpreted in favorum to the civilian population.
    The International Review of the Red Cross issue on methods of warfare makes available three other academic works on the principle of proportionality (available free of charge: http://www.icrc.org/web/eng/siteeng0.nsf/html/review-864-p779). Namely, Cannizzarro work on the interlinks between jus in bello and jus ad bellum in Lebanon 2006; Queguiner’s descriptive analysis of the precautions required of all belligerents; and Geiss’ interesting piece on the inequality of arms, negative reciprocity and violations of IHL.
    —–
    Seeing that most international journals are unable to enter the Strip to obtain proper coverage, An additional source of information can be found here (http://gazaeng.blogspot.com/) where a group of NGO endeavour to report from their fieldworker on the ground in the Gaza Strip providing updates about the impact on civilians during the fighting in Gaza and Southern Israel.
    I will take this opportunity to also direct those looking for further coverages and op-eds to Mark Steel’s captivating recent piece in The Independent, available here: http://www.independent.co.uk/opinion/commentators/mark-steel/mark-steel-so-what-have-the-palestinians-got-to-complain-about-1218135.html?startindex=30#aa

  2. Aeyal Gross Aeyal Gross 5 January 2009

    Thanks for the debate. I second Valentina’s concern that we should not abstract from the context of occupation. I think there is something problematic in Israel saying it acts to defend its sovergenity while it continue to dispossess the Palestinians in the West Bank and Gaza. THere is a complex question of how we take this into effect. Also, I suggest you read this short report from HRW:
    http://www.hrw.org/middle-eastn-africa/israel-and-occupied-territories
    Ultimatley, in thinking of IHL, we should consider whether we want a IHL that become apologia for kiliing of children and civilians? Because I fear the use by Israel and some of it defenders takes IHL to that direction. This is possible because of the structure of IHL itself but also because of this total abstraction from context.

  3. Jürg Gassmann Jürg Gassmann 6 January 2009

    I am surprised that the fact of Israel being the Occupying Power in Gaza is mentioned as aside – this is a very crucial fact, and makes nonsense of any comparisons with Lebanon or the invocation of Art. 51. As Israel is still the Occupying Power, its responsibilities regarding peace, order and application of force are governed by Geneva IV and Hague Regulations IV.
    Back in 2005, when Israel unilaterally demilitarised Gaza, it deliberately failed to address the question of how it might continue to fulfil its GC IV obligations, intending to deny them altogether. But that does not relieve Israel of those obligations, nor does it give Israel carte blanche now.

  4. Jeremiah Jeremiah 19 January 2009

    The argument that Israel is an “occupying power” in relation to this conflict is dubious at best. While Gaza might have the label “occupied territory,” they clearly dictate their own political leadership and act as sovereign nation. What do you mean by “dispossessing” the Palestinians? The terminology being thrown around on this board seems about as vague as international law.

  5. smoky smoky 30 August 2010

    I m realy sad to see this information about gaza………….. I just requested to isaraeel “plz stop this horrible and silent war……..

  6. hello hello 30 August 2010

    we are with u gaza

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