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Gaza Conflict, Response, Proportionality and Limitations

Submitted by on 02/01/2009 – 1:24 pm8 Comments

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.

Last 5 posts by Ole W. Pedersen