AIDP Blog

On December 27, 2008 Israel launched Operation Cast Lead to stop Hamas rocket attacks in southern Israel. Israel claimed that their actions were lawful under Article 51 of the UN Charter which allows states the “inherent right of individual or collective self-defense if an armed attack occurs….” The question is whether Israel has a legitimate claim of self-defense.

The international community has been split in its interpretation of Article 51 with regards to non-state actors. While Hamas governs Gaza, it no longer is the government of Palestine. Furthermore, Palestine is not recognized as a State by the majority of the international community. Therefore, Hamas should be regarded as a non-state actor. The text of Article 51 does not specify that the armed attack must come from another State. In Caroline, a case that involved non-state actors, U.S. Secretary of State Daniel Webster reaffirmed the right to self-defense. Furthermore, Israel could argue that General Resolution 1368, which was passed the day after the September 11th attacks, recognizes its right to self-defense in accordance with the U.N. Charter. S.C. Res. 1368, U.N. Doc. S/RES/1368 (Sept. 12, 2001).

However, it can be argued that in general the international community does not allow the doctrine of self-defense in response to attacks by non-state actors. In an Advisory Opinion regarding the Israel security barrier, the ICJ stated that the right to self-defense is only available for armed attacks by one State against another State. The Court concluded that since Palestinian attacks in Israel were not done by a State actor, Israel could not justify its construction of the security barrier on the basis of self-defense. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 194. It can also be argued that Res. 1368 was narrow in its scope and does not expressly state that the United States had a right to attack Al Queda or the Taliban. Furthermore, the Security Council passed Resolution 1860, which condemned Operation Cast Lead and called for a ceasefire. United Nations Security Council Resolution 1860. S/RES/1860 (January 8, 2009). Therefore both under Article 51 and Article 25, Israel has a duty to “accept and carry out the decisions of the Security Council.” Thus it is unlikely that Israel’s claim to self-defense will be seen as lawful by the international community.

I am intrigued by the comment that “[w]hat needs to be asked as a matter of international law is whether the available, disproportionate weapons are used proportionally” between Israel and Hamas. As Professor Guiora points out, ‘Operation Cast Lead’ is the IDF’s response to Hamas’ continued rocket attacks on Israel based on “the inherent right” of self-defense. See Article 51 of U.N. Charter. Although he also demonstrates that the term ‘war’ is unclear in this instance, the goal remains the same for Israel: not only to stop the rocket attacks from Gaza, but ultimately to eliminate the threat by Hamas to Israel’s safety and security.
To reach this goal, Israel should worry less about proportionality and use both its superior weapons and superior intelligence to the limitations of international law in order to neutralize Hamas’ threat with minimal casualties to Israel as well as the Gaza Strip. Proportionality evokes a sense of military ‘fairness’ when two groups are at ‘war.’ Since the IDF already has “planes, helicopters, tanks, artillery and patrol boats,” and a well-trained conscripted army, the military advantage clearly belongs to Israel. Israel can still be ‘fair’ against the Hamas militia while using its weapons disproportionately to its advantage, but must also engage other methods to deter collateral damage. One of these methods would be for Israel to rely more on its superior intelligence-gathering ability in an effort to target the resistance fighters more so than has been done up to this point.
Israel has three adept branches of intelligence to enhance its military operations in the Gaza Strip. First, “Shin Bet” is Israel’s counter-intelligence and internal security agency. See http://www.globalsecurity.org/intell/world/israel/shin_bet.htm. Second, “Aman” functions as the IDF’s military intelligence that focuses on both external and internal agent operations. See http://www.globalsecurity.org/intell/world/israel/aman.htm. Finally, the “Mossad” has been appointed to “collect information, analyze intelligence, and perform special covert operations beyond its borders.” See http://www.mossad.gov.il/Eng/AboutUs.aspx. How does Israel engage these agencies to help target the resistance fighters of the Hamas militia? The short answer is money. Israel could expand its intelligence (namely human intelligence, communications technology, reports from embassies, and the open press) by investing money and still maintain its superior military. See Joshua Goldstein, International Relations, 265 (4th ed., Longman 2001). The ideal outcome of increased intelligence coupled with a disproportionate use of weapons would be less collateral damage while not antagonizing the international community.
I definitely agree with Professor Guiora that Israel must minimize collateral damage and respect its international humanitarian law obligations. As he stated, Israel is not at ‘war’ with the Gaza Strip, but rather with the Hamas militia. Numbers released by the Palestinian Health Ministry declared 1,193 Palestinian casualties (including 410 women and 108 children) during ‘Operation Cast Lead,’ while Israel only suffered 13 casualties that were mostly soldiers. See http://news.bbc.co.uk/2/hi/uk_news/7834863.stm. As Professor Guiora notes, Israel has expanded the definition of “legitimate target,” which has, as a result, limited the definition of “collateral damage.” However Israel defines “legitimate target,” it likely includes those Hamas fighters responsible for the organization of the militia as well as those actually targeting rocket attacks on Israel and most likely does not include the three daughters of an Israeli-trained Gaza doctor. See http://news.bbc.co.uk/2/hi/middle_east/7871122.stm. Increased intelligence and the continued use of disproportionate weaponry by Israel creates the ability to focus more precisely on these “legitimate targets” and could lead to a lesser threat by the Hamas militia as well as fewer civilian casualties.

As you mentioned, Israel’s desire to protect its population has forced the Israeli Defense Fund (IDF) to attack Hamas’ rocket manufacturing infrastructure, which in turn threatens the concepts of proportionality and collateral damage. Unfortunately, I believe there is little the international community can do as a unified whole to condemn actions like Operation Cast Lead. Two realities illuminate why Israeli action remains indifferent toward the principles of proportionality and collateral damage when defending itself. First, Israel’s strong alliance with the United States prevents the UN Security Council from condemning actions taken by Israel, and second, their refusal to participate in important international institutions and treaties shields them from important forms of international legal action.

Because it is unlikely that Israel would agree to a hearing before the International Court of Justice (ICJ), any action taken by members of the UN to reprimand Israel for a disproportionate response must be brought before the Security Council. Due to an enduring relationship between Israel and the United States, any issue before the Security Council involving Israel will be vetoed. Since 1982, the U.S. has used its veto power 32 times to block resolutions critical of Israel. See Mearshheimer and Walt The Israel Lobby. After Operation Cast Lead, Human Rights Watch called upon the Security Council to create a UN commission aimed at investigating potential violations Israel and Hamas committed during the war. See http://www.hrw.org/en/news/2009/01/16/israel-stop-shelling-crowded-gaza-city. While this would be useful for addressing concern over the proportionality of Israel’s response, as well as the resulting collateral damage, there is almost no chance the United States would refrain from utilizing its veto power.

Another roadblock preventing the examination of Israeli action in the international system is the basic problem of lack of Israeli involvement in international institutions and treaties. Though there are many worth examining, for practical purposes I will only discuss Israel’s rejection of the Protocol Additional to the Geneva Convention. To restrict state actions that result in high levels of collateral damage, Part IV, Article 50, clause 3 of The Protocol Additional to the Geneva Convention states, “the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population if its civilian character” and as a result, cannot be attacked. Because Israel is not a party to the Protocol Additional to the Geneva Convention it cannot be held to these standards. The bombing of a UN School and the UN compound (see, NYTimes, “Israel Shells U.N. Site in Gaza, Drawing Fresh Condemnation”) would likely be viewed as a potential breach of Part IV, Article 50 but because Israel has not consented to the measures established in The Protocol, their actions are not governed by those standards.

Some experts assert that “[r]egardless of whether states are party to the [Additional Protocol to the Geneva Convention]… the principle [of proportionality] is part of what is known as customary international law” and is binding upon all states. http://www.cfr.org/publication/1111/israel_and_the_doctrine_of_proportionality.html#8. While proportionality may be binding in theory, there does not seem to be any international enforcement mechanism that can effectively reign in Israeli action. If proportionality were enforced, Israel would have been reprimanded (beyond non-binding resolutions) for actions taken against Iraq (bombing Osirak in 1981) and their invasion of Lebanon in 2006 (after two soldiers were taken hostage by Hezbollah). Israeli refusal to participate in important international institutions and treaties, as well as their alliance with a veto-carrying member of the Security Council limits the international community’s means of dissuading the IFD from conducting disproportionate responses. While the doctrine of proportionality may influence Israel’s actions to a degree, it does not seem to be a primary concern in their military planning. Not until the international community has a means of enforcing the doctrine of proportionality against Israel will we see a marked change in their activities.

Prior to his involvement in the famed Caroline case of 1847, US Secretary of State Daniel Webster wrote that an act, “justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.” Today, the pervasive threat of international terrorism requires a broader definition of “necessity.” In his essay, Amos Guiora states that of the many legal questions surrounding Israeli’s “Operation Cast Lead” one of the most central is whether, “the available, disproportionate weapons are used proportionately.” This analysis is particularly important as the global community struggles to address the legal difficulties associated with combating transnational terrorism.

In the case of “Operation Cast Lead” the first question is whether or not Israel’s actions can be justified on the basis of self-defense. A recent ICJ Advisory Opinion interpreting Article 51 of the U.N. Charter suggests that the justification of self-defense is not available in response to armed attacks by non-state actors. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion), 2004 I.C.J. 136, 194. If this interpretation of Article 51 gains support the international community may have to reevaluate the doctrine of self-defense. However, this opinion garnered considerable criticism within the court itself and does not yet have wide acceptance.

Assuming that Israel’s actions can be justified on the basis of self-defense the more pressing question becomes measuring the proportionate response. As Guiora suggests declaring war on a non-state actor poses new challenges to the notion of proportionality as articulated by Webster in 1847. What then is the proper measure of proportionality? Guiora states that, “proportionality must be viewed from two perspectives: the threat posed and how is that threat posed.” The Rome Statute of the International Criminal Court contemplates a broader analysis where “clearly excessive” injury to civilians or damage to civilian objects in relation to the direct military advantage anticipated is classified as a “war crime.” Rome Statute of the International Criminal Court art. 8(2)(b)(iv). July 17, 1998. 37 ILM 1002.

Under either test the challenge is finding equilibrium. Terrorism cannot be combated using traditional military tactics. Nor can it be defeated without the legitimacy of international cooperation and legality. U.N. Security Council Resolution 1860 stopped short of condemning Israel’s campaign as illegal however it called for, “an immediate, durable and fully respected ceasefire, leading to the full withdrawal of Israeli forces from Gaza.” S.C. Res. 1860, ¶ 1, U.N. Doc. S/RES/1860 (January 8, 2009). With negotiations between Israel and Hamas ongoing, it remains to be seen on which side of the scale this incident will fall – legal countermeasure to terrorist acts or unlawful and disproportionate use of force.

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In his recent Jurist op-ed, “Legal Aspects of ‘Operation Cast Lead’ in Gaza”, Amos Guiora argues that “[w]hile self-defense (in the classic model) is the legal basis for Cast Lead, the IDF’s re-articulation of proportionality and collateral damage is a new development in international law.” I conclude quite the opposite – that the Israeli Defense Force’s (IDF’s) targeted killings during Operation Cast Lead were in clear opposition to “international law.” The targeted killing of individual Hamas leaders failed both jus ad bellum and jus in bellum requirements for self-defense. Notwithstanding the United States’ attempted targeted killings in Libya, Iraq, Yemen, and Pakistan and notwithstanding the predictable failure of the U.N. Security Council to denounce those acts, the IDF’s actions are not justified under international humanitarian law.

There is no consensus regarding what acts of self-defense are allowed under U.N. Charter Article 51 and the Geneva Conventions. There is also no agreement about when and how Article 51 should be applied to actions against state-less actors such as al-Qaida or against a quasi-State’s elected government such as Hamas. However, recent analyses of targeted killings acknowledge that both jus ad bellum and jus in bellum requirements must be satisfied. [See Amos Guiora, Targeted Killing as Active Self-Defense, 36 CWRJIL 319 (2004); Brenda L. Godfrey, Authorization To Kill Terrorist Leaders And Those Who Harbor Them, 4 SANDILJ 491 (2003); Saad Gul, Burning the Barn to Roast the Pig? Proportionality Concerns in the War on Terror and the Damadola Incident, 14 WMTJILDR 49 (2006); and Jonathan Ulrich, The Gloves Were Never On: Defining the President’s Authority to Order Targeted Killing in the War Against Terrorism, 45 VAJIL 1029, (2005).] Jus ad bellum governs when a state may resort to force and jus in bellum governs the means with which that force is applied. Israel may argue it meets jus ad bellum requirements based on the 6000 rockets fired from Gaza into Israel during the past three years. Regardless of whether that prima facie argument would withstand close scrutiny, it is my conclusion that the IDF’s targeted killings of Hamas leaders failed to satisfy jus in bellum criteria. As such, the targeted killings were violations of international humanitarian law.

Jus in bellum requirements include “military necessity” and “proportionality” in a State’s response to an attack or threat of attack. [See 14 WMTJILDR 49 at 55] Articles 50 – 55 of the 1977 Additional Protocol of the Geneva Conventions require “discrimination” as well. [See Basic Rules of International Humanitarian Law in Armed Conflicts, International Committee of the Red Cross (ICRC), available at http://www.icrc.org/web/eng/siteeng0.nsf/html/ 668BF8?OpenDocument (Dec. 31, 1988)(last visited Feb. 4, 2009).] The ICRC summarizes “[p]arties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.” The IDF’s targeted killings in Gaza failed to satisfy any of these jus in bellum criteria: necessity, proportionality, or discrimination.

At first glance, the military necessity of targeting Hamas leaders who had ordered rocket attacks might seem unarguable, but targeted killings have been used by the IDF for over six years. In 2002, Nicholas Kendell justified targeted killings in Gaza “on the grounds … they are a means to prevent … future terrorist attacks that will kill Israeli civilians.” [See J. Nicholas Kendall, Israeli Counter-Terrorism: “Targeted Killings” Under International Law”, 80 N. C. L. Rev. 1069,1078 (2002).] Israel has now been employing targeted killings for over six years, and during the last three of those years there have been over 6000 rockets launched from Gaza at Israel. Even if targeted killings could have been considered a “military necessity” six years ago in the hope that they would incapacitate or deter suicide bombings and rocket attacks, 6000 rockets over the past three years are proof of their futility. If a defensive action is impotent in preventing an evil, then the elimination of that evil cannot logically necessitate the action. Hence, the IDF’s targeted killings cannot be considered a military necessity.

Evaluating the proportionality of a response to an attack or threat of attack has no universal methodology. Some analyses compare the weaponry of an attack to that of the self-defensive measure. Other analyses compare the loss of life feared or suffered with the loss of life anticipated by the self-defense measure. [For a new and creative approach, see Saad Gull’s adaptation of the HAND formula B < PL, assigning to B not only the obvious civilian death toll but also the boost in terrorist recruitment. 14 WMTJILDR 49 at 65-68.]

The IDF’s targeted-killing response to Hamas attacks is disproportionate both as to weaponry and as to loss of life. Hamas leaders authorized attacks with Kassam missiles which have an 11 pound warhead, a five-mile range, and notorious inaccuracy. In response, the IDF employed planes, attack helicopters, bombs, tanks, and artillery. Thus, from the standpoint of weaponry, the IDF’s response was grossly disproportionate to the Hamas attacks it purported to deter.

A loss of life analysis is more difficult, but still conclusive. Data is not presently available which distinguishes the deaths due to targeted killings from the deaths due to other IDF tactics. However, whether a loss of life analysis includes the entire death toll of Operation Cast Lead or only that of the targeted killings, a glaring disproportionality is evident. Hamas rockets over a three year period killed 13 Israelis. In comparison, the IDF over a three week period, killed over 1300 Palestinians including over 250 children and at least 400 other civilians. By any possible standard, this was a terribly disproportionate result.

Absent good data for targeted killings, a single example is sufficient to illustrate how targeted killings were also a disproportionate action. On January 1, 2009, Hamas leader Nizar Rayan along with eleven family members and neighbors were killed when a one-ton IDF bomb completely destroyed the 4-story apartment in which his family was living. [See Ibrahim Barzak and Amy Teibel, AP News Service. Available at http://www.guardian.co.uk/worldlatest/ story/0,,-8178435,00.html.] To what should these eleven innocent lives be compared? If the killing of this one Hamas leader could deter multiple Israeli civilian deaths, a proportionality argument might be made. However, the IDF reportedly killed hundreds of bystanders in their targeted attacks on Hamas leaders while the rocket attacks ordered by those leaders killed only 13 Israelis in three years. Therefore, whether Operation Cast Lead is considered as a whole or only with regard to targeted killings, it involved a grossly disproportionate application of power and loss of innocent life.

The third jus in bellum principle, discrimination, demands that parties to a conflict direct their operations against only combatants and military objectives and that they do so in such a way that collateral damage is minimized. [See 45 VAJIL 1029, supra, at 1053.] In particular, Article 50 of the 1st 1977 Additional Protocol of the Geneva Conventions asserts, “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” The killing of Nizar Rayan is illustrative of the IDF’s total abrogation of any such responsibility to discriminate.

Mr. Guiora suggests that the presence of an extensive Hamas infrastructure throughout Gaza expanded the definition of a legitimate target and subsequently narrowed the definition of “collateral damage.” In the context of targeted killings, this would mean that the IDF was free to drop bombs on Hamas officials regardless of the probability of civilian deaths. Such an idea abandons the distinction between combatants and non-combatants. It is the antithesis of discrimination and a clear violation of Article 50 which prohibits “indiscriminate attacks [which] are of a nature to strike military objectives and civilians … without distinction.” When targeted killings were undertaken in the manner of the killing of Nizar Rayan, the IDF knowingly took the lives of innocent civilians and violated the principle of discrimination.

The targeted killing strategy of the IDF thus violated all elements of jus in bellum: necessity, proportionality, and discrimination. In so doing, it stood in stark opposition to international humanitarian law. Sadly, I agree with Mr. Guiora that this disregard of international law appears to be Israel’s new paradigm. We can only hope that the precedent of targeted killing begun by the U.S. and now expanded by Israel does not gain by its own audacious inertia an odor of acceptability. “To execute the innocent, to visit death on civilians, even to torture the guilty, would haunt those who serve in our name. For that reason alone, a war against terror must be discriminate, proportional and restrained.” [See Michael Ignatieff in The Guardian Monday October 1, 2001, http://www.guardian.co.uk/Archive/Article/0,4273,4267406,00.html ]

The ambiguous declaration of Israeli Defense Minister Ehud Barak of “war on Hamas” does not require altering the definitions of legitimate targets and collateral damage. These hostilities can be characterized as an international armed conflict (similar to the ICTY’s Tadic decision) and thus subject to the customary international law reflected in the Geneva Conventions and Protocols. [Prosecutor v. Tadic, Case No. IT-94-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶70 (Oct. 2, 1995).] These standards include, of course, the principle of proportionality, long recognized as customary in international law (specifically, Articles 35 and 51 of Protocol I to the Geneva Conventions).
It is precisely the proportionality of Israel’s response that has been questioned by the world community. Reportedly 1,300 deaths resulted from the airstrikes (700 civilian), 5,000 wounded, and tens of thousands left homeless. The UN estimates the cost of reconstruction of Gaza’s infrastructure at $2 billion with $330 million needed in emergency food and medical aid. [“Israel withdraws its troops from Gaza,” Times Online, http://www.timesonline.co.uk/tol/news/world/middle_east/article5558389.ece
According to the Rome Statute of the ICC (Article 8(2)(b)(iv), based on Article 51(5)(b) of Protocol I to the Geneva Conventions), however, it is the intentional or expected casualties that determine the illegality of a use of force. In other words, the factors that determine proportionality are “the reasonable perceptions and intentions of decision-makers at the time they resorted to a use of force, including any exceptional circumstances.” [David Kaye, Adjudicating Self-Defense: Discretion, Perception, and the Resort to Force in International Law, 44 Colum. J. Transnatl. L. 134, at 181 (2005).] Whether the expected casualties of Cast Lead were reasonable with respect to its military objectives is a factual determination, best made by an impartial adjudicative body.
Whether states can take self-defense measures against attacks by non-state actors is also an ambiguous issue. The text of Article 51 of the UN Charter does not seem to forbid such action; the Caroline incident, involving the US, Canada, and Great Britain, also recognized self-defense rights in relation to the activities of non-state actors. The ICJ Palestinian Wall case, however, indicates that states are not at liberty to take action against non-state actors; that decision, however, was roundly condemned by three ICJ judges. [Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ 136, at cv194] In the DRC v. Uganda case, the ICJ found that the activities of the ADF, an irregular military force, were not attributable to the DRC and therefore “the legal and factual circumstances for the exercise of a right of self-defence by Uganda against the DRC were not present.” The court refrained, however, from considering the circumstances under which international law provides for self-defense rights in the face of “large-scale attacks by irregular forces.” [Armed Activities on the Territory of the Congo (DRC v. Uganda) 45 ILM 271, ¶¶146-7 (2006).]
This case law does not provide much guidance in the current Israel-Gaza conflict. The rocket bombings in southern Israel are clearly attributable to Hamas. Though condemned by several states as a terrorist organization (Australia, notably, condemns only the militia wing of the organization) Hamas is still currently displaying characteristics of a state actor. Hamas is the current governing body in Gaza and is negotiating ceasefires and peace accords on behalf of the territory (“Who are Hamas?” BBC America, http://news.bbc.co.uk/2/hi/middle_east/1654510.stm ; “Israel and Hamas on verge of ceasefire,” Telegraph, http://www.telegraph.co.uk/news/4559604/Israel-and-Hamas-on-verge-of-ceasefire.html). As Hamas has a defined territory, population, government, and is engaging in foreign relations (ALI Restatement (Third) on US Foreign Relations, §201), perhaps its characterization as a non-state actor is not completely accurate.
Israel has not, as Mr. Guiora asserts, “declared war on an organization”; it has instead engaged in specific military goals in response to a threat to its territory and people. The accomplishment of these goals requires adherence to the international laws of war. Reading the Israeli airstrikes as a reinterpretation of the principle of proportionality is a dangerous precedent; the attacks should be held to the current standards of international law, which may in fact exonerate Israel.

Professor Guiora has correctly identified Israel’s three major challenges in acting within the confines of international law to defend itself from international law violators such as Hamas and Hezbollah. Current international norms regarding declarations of war against non-state actors, proportionality, and the definitions of legitimate versus civilian targets all potentially infringe upon Israel’s inherent right to self defense under Article 51 of the U.N. Charter, when it is attacked by entities like Hamas.

While Hamas is technically a “non-state actor,” it exhibits characteristics of a state actor. Hamas is not only a fighting force, it is a political party that controls the Palestinian Parliament and has effective military and political control over the entire Gaza Strip. If a Palestinian state existed in the Gaza Strip—and the eventual creation of one is a stated goal of the current Israeli government—then Hamas’s rocket attacks on Southern Israel would be attributed as state actions. Under Article 4 of the International Law Commission’s Draft Articles on the Responsibility of States for Intentionally Wrongful Acts, Hamas would be considered a state organ, because it exercises legislative and executive power in Gaza. Furthermore, since Israeli civilians struck by Hamas rockets are no less dead than if they were struck by rockets from a state actor, Israel should have—as part of its inherent right to self defense—the right to legally declare war on Hamas the same as if Hamas were a recognized state.

Regarding proportionality and the distinction between “legitimate targets” and “collateral damage,” Prof. Guiora is correct to warn Israel against declaring all Gazans “legitimate targets.” However, he makes no mention of Hamas’s policy of firing its Qassam rockets from civilian areas and the other methods by which Hamas and its Jihadist brethren deliberately blur the lines between civilians and combatants. Professor Louis Rene Beres argues that Hamas’s tactic of using civilians as human shields constitutes the international crime of “perfidy,” which is recognized as a “grave breach” under Article 147 of the Geneva Convention. (See Prof. Beres’s article at http://www.freeman.org/m_online/sep03/beres1.htm.) By launching rocket attacks from behind civilian human shields, Hamas subjects Israel to a cavalcade of international criticism any time it attempts to defend its population from this illegal aggression. During Operation Cast Lead (and during previous similar operations), the Israel Defense Forces (I.D.F.) routinely dropped leaflets and sent out a variety of electronic communications in efforts to warn Palestinian civilians of impending attacks on Hamas targets. Despite these efforts to minimize civilian casualties, however, some inevitably occur. When they do, a myriad of international actors, media outlets, and academics accuse Israel of committing war crimes, and/or of using disproportionate force.

The use of human shields and the outcry over civilian casualties that invariably follows is a public relations strategy that Hamas, Hezbollah, and other Jihadist entities have manipulated to perfection. In effect, the current definition of “civilian”—a definition that dates to the era when armies wore brightly colored uniforms and marched in lines to drum beats—provides Hamas and their ilk an incentive to continue committing war crimes, both by deliberately targeting Israeli civilians and by using Palestinians as human shields. In a July 2006 op-ed in the Los Angeles Times, Alan Dershowitz argues that the current black-and-white dichotomy of “civilians” and “combatants” needs to be redefined instead as a “continuum of civilianality.” See http://articles.latimes.com/2006/jul/22/opinion/oe-dershowitz22. Dershowitz’s continuum provides a framework for distinguishing true civilians from human shields and willing combat accessories, a new framework that is badly needed to reflect the realities of 21st century warfare.

At first glance Israel’s self defense justification seems legitimate, but it may be problematic. The U.N. Charter allows for the use of force in self defense if a Member of the U.N. (Israel is a member) was the victim of an armed attack. See U.N. Charter art. 51, para. 1. But this analysis becomes complicated because Hamas is a non-state actor. The text in article 51 is not explicitly limited to attacks launched by member states. Accordingly, in 2001 the Security Council issued resolutions recognizing the United States’ inherent right of self defense after the September 11 terrorist attacks. However, in a 2004 Advisory Opinion, the International Court of Justice interpreted article 51 to exclude armed attacks by non-state actors. See Carter, Trimble & Weiner, International Law 992 (5th ed. 2007). This view was strongly criticized by other judges, and it remains to be seen if it will become widely accepted. Id. The ICJ and other international actors need to resolve this confusion because states are not left with many options if it is deemed illegal to defend themselves against non-state actors.
Israel has occupied the Gaza Strip for almost 40 years, but in 2005 Israel withdrew its troops and evacuated its settlements. However, Israel still exercises control over most of Gaza’s land borders, territorial waters and airspace. Israel considers its occupation over, but the international community disagrees because of the continued control over Gaza. See BBC News, Gaza Crisis: Key Maps and Timeline (2009), http://news.bbc.co.uk/2/hi/middle_east/5122404.stm. Since Gaza is still considered occupied, the 1907 Hague Regulations and the Fourth Geneva Convention (GCIV) apply. Generally, these provisions establish the occupying power’s responsibility to ensure that the humanitarian needs of the occupied territory are met. More specifically, Israel appears to have violated article 53 of the GCIV, which provides, “any destruction by the occupying power of real or personal property…is prohibited…except where such destruction is rendered absolutely necessary by military operations.” Obviously, Israel is trying to expand what is necessary under this definition. However, it is unlikely that the international community will allow this expansion, as allowing this shift opens the door to more and more “legal” civilian casualties. See BBC News, Gaza Conflict: Who is a Civilian? (2009), http://news.bbc.co.uk/2/hi/middle_east/7811386.stm.
Even if these laws governing occupation are not applicable, Israel must adhere to customary international humanitarian law protecting civilians during conflict. Protocol I to the 1977 Geneva Convention provides the basic principles of distinction and proportionality. Israel has not ratified this agreement, but it has still secured broad acceptance (over 160 parties). Some experts suggest Protocol I simply codified customary international law. The International Committee for the Red Cross (ICRC) conducted a detailed study and determined that the principles of distinction and proportionality are accepted principles of customary international law. See Carter, Trimble & Weiner, International Law 1086 (5th ed. 2007). The principle of distinction provides, “the parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.” The principle of proportionality prohibits damage to civilians or civilian objects, which would be excessive in relation to the concrete, and direct military advantage anticipated. Id. Without expanding these definitions beyond their clear meaning, it seems Israel has violated both principles. There is no doubt Israel is in a difficult situation as Hamas does not follow international law and basically uses its civilians as shields. But this type of warfare does not give Israel an excuse for killing an excessive number of civilians. Allowing Israel to expand these definitions would set a dangerous precedent. These terrorist tactics will be used in the future, and we cannot allow excessive civilian casualties simply because the style of war has changed. The purpose of international humanitarian law is to protect civilians during conflict and these new Israeli definitions would defeat that purpose.

All too often the greater global community quickly condemns Israel as using disproportionate force when she defends herself and her citizens from stateless terrorist organizations who indiscriminately attack Israeli citizens through rockets fired at a distance or other terroristic activities. However, when viewing Israel’s response to these action from an international law perspective, one does not find any violations. There is no legal requirement for a nation to limit its self-defensive response to mimic that of the aggressor. Should Israel be required, or even tolerated, to fashion Qassam rockets and indiscriminate lob them into Gaza, or detonate explosives into crowded supermarkets and pizzerias.
In international law, a proportionate use of force cannot be in relation to any specific prior injury – it has to be in relation to the overall legitimate objective of ending the aggression. Rosalyn Higgins, President of the ICC, available at http://www.mfa.gov.il/MFA/Government/Law/Legal+Issues+and+Rulings/Responding%20to%20Hamas%20attacks%20from%20Gaza%20-%20Issues%20of%20Proportionality%20-%20March%202008. Therefore, disproportionate force is only achieved when the amount of force used in response to an aggressor if the goal is to achieve something other than end of the current armed attack, and arguable future attacks from that aggressor. Direct targeting of civilians for no clear objective most likely would be a disproportionate response. However, no war is replete of “collateral damage.” When there are civilian casualties, a complete assessment of all circumstances must be undertaken to determine whether a response is disproportionate. In the recent Gaza conflict, some factors to consider are the Israelis military plan including its execution (leaflets warning about impending attacks, precise attacks, and other measures to minimize collateral damage) as well as Hamas’s continued attacks (rockets fired from civilian centers and other instances of endangering the civilian population).
Throughout the conflict, there were varying reports on the number of civilian casualties. Any “collateral damage” is an unfortunate consequence, whether that number be large or small. Especially in a situation such as the Gaza conflict where you have crowded urban warfare with threats intermingled within the civilian population, civilian casualties are unavoidable. However, again, it is not the actual weapons used, or the number deaths that make a response disproportionate, but rather the objective of the response. Israel had no clear intention to target any number of civilians; it was not part of its objective. Can the same be said for Hamas?
A big issue is the media, though the disproportionality in presenting the conflict to the general global public is a topic for another article. Whatever the news present is, it was meant for mass consumption by a generally uninformed public. They only see and hear about the weapons and tactics used, and the total number of deaths on each side. However, those that are informed and knowledgeable of international law realize that numbers matter much less that the objectives over the use of force. While this might be a sad reality to some, it can be perfectly legal to attack a highly concentrated civilian target if it also is a strategic military target within the purpose of the response (Hiroshima and Nagasaki attack with the objective of ending the war). In Gaza, Israel targeted Hamas control centers, rocket launch sites, and tunnels used for smuggling weapons. Throughout the conflict Israel was careful to target and strike these important strategic areas while at the same time consciously avoided unnecessary attacks on targets that would not further their objectives, or even provided little relative value with the resulting damage. In fact, international humanitarian law and the ICC “permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur.” The attack becomes a war crime when it is directed against civilians (Hamas’s objectives) or when “the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage. Luis Moreno-Ocampo, the Chief Prosecutor of the International Criminal Court, available at http://www.icc-cpi.int/library/organs/otp/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf.
Though the discussion about proportionality will most likely continue for many years to come when objectively disproportionate forces tangle, it is important to not listen to the main stream critics, but to look toward international law and other guidelines followed by the global community.