Continuing with Gaza, I’d invite the readers to read two posts by Dapo Akande and Marko Milanovic on the issue on EJIL Talk. Both the authors discuss the crisis from a strictly legal point of view explaining as to why it is an internationally wrongful act on the part of Israel and its claim of self- defense being unsustainable.
Both the authors identify and analyse the issue of proportionality in this context and attempt tp define the nature of the conflict in Gaza. Dapo writes;
So, to start from the beginning, the first question is what sort of armed conflict is going on in Gaza. Prior to the Israeli withdrawal from Gaza this was clearly an international armed conflict. The Israeli Supreme Court in the Targetted Killings case accepted that fighting in occupied territories between the occupying and resistance forces is part of an international armed conflict. Has the position changed since Israel withdrew from Gaza? This requires one to answer the question whether there is still an occupation in Gaza. If Israel is still the occupying power then the conflict is still international law. Comments are welcome on whether, as a legal matter, the occupation is still continuing.
On the issue of proportionality, Marko Milanovic writes,
“But for the life of me, I just can’t see a jus ad bellum issue in regard of Israel’s actions in Gaza. This is simply not self-defense within the meaning of Article 51 of the UN Charter, as that concept of self-defense is an exception to the general prohibition on the use of force, that operates between states only and exclusively and is enshrined in Article 2(4) of the Charter. That prohibition was not triggered by Israel’s action, as Gaza is not a state, nor a part of any state, but is a part of the sui generis mandate territory of Palestine. In other words, no state claims sovereignty or title over Gaza, and the sovereignty of no state was infringed by Israel’s use of force. Article 2(4) does not apply, and consequently Article 51 and the self-defense notion of proportionality do not apply either, unless one is willing to argue that Palestine (Gaza included) already is a state in international law – a position that is in my view untenable.”
Readers may read the full article in the links provided above.
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3 Comments
There is a valid question in this case about whether the war was necessary in the first place (here is an article in The Economist that discusses whether the requirements for launching war were met). But if you are talking about the actual conduct of war, the trouble with this charge of recklessness (notwithstanding the images) is that the counterarguments have a considerable degree of validity. Israel argues that Hamas uses civilians as shields which is why the civilian death toll is high. Is that so? It is impossible to support or refute given that Gaza is densely populated and Hamas uses standard insurgency methods.
Secondly, before debating the question of proportionality, the trouble is in defining what constitutes military advantage. It seems that all the military goals can only be defined in terms of the consequences they are intended to achieve over a prolonged period long after the initial period of active combat is over. If the test of proportionality is based on the purpose of these attacks, it is on stronger ground but if it is to be judged by the actual consequences, it is more debatable.
Firstly, the trained manpower of a terrorist organization is usually large compared to the size of their organizational structure. So leaders at every level are easily and quickly replaced in the event of their death. So what is the military objective of killing these individuals? Presumably the hope that it will lead to loss of morale throughout the organization, the replacements will carry less influence over the foot soldiers/donors and the organization will fracture with splinter groups carrying a diminished ability to attack. Will any of this actually happen? Nobody knows.
Likewise, with arms smuggling. These arms smuggling tunnels if destroyed, being anything but sophisticated, are easily rebuilt as well. So if the objective is to follow up their destruction with a monitoring effort to prevent them from being rebuilt, one does not know how feasible it is though the death of civilians in the process might be more acceptable than if the objective is simply achieving a temporary respite till they are rebuilt.
The only destruction that carries a sustained impact is that of governmental infrastructure which is expensive and not quickly reconstructed. But what is the objective that its destruction is expected to advance? The emergence of anarchy? The opportunity to replace the current crop of officials with a new bunch whose ideological motivations will presumably be different and enable them to stop these rocket attacks? If it is the latter, how does Israel expect to achieve it? That is not so clear.
In each of these cases, how many collateral civilian deaths would be considered acceptable for every assassination of a single Hamas operative or the destruction of a cache of arms or the blowing up of a government building? 1? 10? 50? 100? In a densely populated region, one cannot expect to achieve any of this without some degree of civilian damage. These are unfortunately the very sort of questions that any government confronting a terrorist menace will have to deal with (including India if it ever plans to use military force).
My idea is that aiding an enemy combatant would give you combatant status in International law.
A lot of the criticism comes not from the attack itself, but the recklessness with which it is being carried out.
Interesting posts. It is claimed by some commentators that a significant part of the civilian deaths is the result of bombing houses and other buildings ostensibly used by civilians but where arms are also stored by Hamas gunmen. If this is indeed true – and I do not know if that is the case – would those civilians who agree to store these weapons be treated as civilians or combatants under the relevant law?