magnify

A Follow-Up on Israel and Gaza

Published on January 3, 2009        Author: 

I just wanted to add a few thoughts after Dapo’s excellent post on the Gaza conflict, of which there seems to be no end in sight.

First, a word of warning. As Dapo pointed out, talking about these matters without knowing all the facts is truly dangerous. Indeed, it only tends to expose the speaker’s political and ideological biases. Without knowing exactly how many of those killed in Gaza were actively participating in hostilities and/or were members of Hamas, it is far, far too early to speak of Israeli massacres or war crimes in Gaza. Take as an example the statement by Richard Falk, the recently appointed UN Special Rapporteur on human rights in the occupied territories, who condemned the Israeli air strikes as massive violations of international humanitarian law, war crimes and crimes against humanity on the very day that they began. How exactly does he know enough of the facts to actually be able to pass a reasoned judgment, when even today these facts are far from clear? Such statements only serve to reinforce the criticisms regarding Prof. Falk‘s bias against Israel that were made when he was appointed.

Far be it for me to minimize the humanitarian plight of the people of Gaza. But for a legal analysis of the issue to have any use at all, it must involve a measure of distance and objectivity.

In that regard the first legal issue I’d like to raise is that of proportionality, a word thrown around so much these days when talking about the Gaza conflict. It is truly astonishing to me how people who so casually label Israel’s action as disproportionate fail to distinguish between the various types of proportionality found in international law.

The first type of proportionality is the law on the use of force or jus ad bellum proportionality, as one of the conditions for the lawfulness of self-defense, together with the existence of an armed attack and the necessity to repel it. It is easy to instinctively qualify Israel’s action as an exercise of self-defense, lawful or unlawful — see, for example, this post by Ole Pedersen — which should then be assessed in the terms of the jus ad bellum.

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.

(By way of authority, let me cite the ICJ’s Wall advisory opinion, at the much criticized para. 139. The Court has received much flak over the years for what appears to be its off-hand approach to armed attacks by non-state actors, to which Article 51 in the Court’s view supposedly does not apply. But the better reading of this decision is the one I have given above — Israel could not justify its building of the wall in the occupied Palestinian territories by resorting to Article 51, because Article 2(4) did not apply in the first place. A converse situation would be Israel’s response against Hezbollah, which required it to invade Lebanon, thereby triggering Article 2(4)).

That brings me to the second, IHL or jus in bello concept of proportionality, as enshrined in Art. 51(5)(b) of AP I. This concept of proportionality differs from the jus ad bellum one precisely in that is unconcerned with the overall goals, legitimacy or legality of the use of force. It is irrelevant, from the standpoint of IHL, that on balance ten or a hundred Palestinians are killed for every Israeli killed. It is likewise irrelevant whether the use of force is likely to achive its stated objective of putting an end to the rocket attacks by Hamas. That is not part of the IHL equation, since the point of IHL is precisely for it to apply in all conflicts, just or unjust, legitimate or illegitimate, equally to all sides.

What IHL tries to weigh – with great difficulty in some cases – is whether the expected civilian casualties are excessive in relation to the concrete and direct military advantage anticipated. The military advantage is just that, a military one. Does the attack hurt Hamas or not, and how much – not whether hurting Hamas in the first place is a good idea. It likewise must be emphasized that IHL proportionality is assessed in relation to every given attack, not in relation to the overall picture of the conflict. Without having a good idea about the facts on the ground, just knowing that on the whole many more Palestinians are killed than Israelis cannot suffice for making a judgment on proportionality.

The third type of proportionality is one under human rights law. Was it, for example, really necessary to kill a certain person, if he could have been captured instead? This type of proportionality was relied on, for instance, by the Israeli Supreme Court in the Targeted Killings case, to limit the use of targeted killings to measures of last resort. But it is also questionable if, and to what extent, this principle applies to the Gaza conflict, both because of the question whether Israel actually exercises effective overall control over Gaza, thus incurring extraterritorial human rights obligations, and because of the application of IHL as lex specialis.

Finally, I’d just like to add a few words to Dapo’s analysis of the question of how we are to legally characterize the Gaza conflict in the sense of IHL. Unlike Dapo, I don’t think that the characterization of the conflict depends on whether Gaza is still considered to be occupied by Israel or not. It is one thing to say that an international armed conflict is necessary for a belligerent occupation to arise in the first place. It is quite another to say that any conflict in an occupied territory, no matter how distant in time from the setup of the occupation, should qualify as international. It is precisely because no sovereign continues to claim Gaza that I would say that the conflict is probably non-international (FYI, for my criticism of the Israli Supreme Court’s qualification of the conflict in the Targeted Killings case, see this article in the International Review of the Red Cross).

But, as Dapo pointed out, the qualification of the conflict is not that important for the IHL proportionality assessment. What is important are the facts, and it is the facts that we are most sorely lacking.

Print Friendly
 

27 Responses

  1. I suppose all of us should thank God (so to speak) that we are not Palestinians living in Gaza right now, as our individual and collective welfare and well-being, indeed our very lives, may depend on the ability of some in the international legal community to belatedly identify “the facts” to their satisfaction (Professor Falk identified some facts, but apparently his are not of sufficient legal worth). Of course if I’m an Israeli, I can be confident that my country’s ongoing and unremitting capacity and ability to establish the all-important “facts on the ground” in collaboration with the concrete support and blessings of the most powerful country on earth (and some in the international legal community), will assure me that legal niceties will not effectively interfere with either the peculiar balance of power in this particular and glaring example of asymmetrical political and legal conflict, or my comparative safety and security and exercise of political and legal rights. Obsession with the proper determination of “the facts” will inevitably arise when it comes to assessing the legality of the state of Israel’s exercise of military power and putative “self-defense,” but invariably, alas, the facts are far too pellucid or easily ascertained when it comes to the question of Palestinian self-determination and self-defense, the facts of Palestinian welfare, well-being, and basic human rights. This selective concern with THESE facts rather than THOSE facts, is all too revealing of our theories, values, commitments and so forth. THAT is at least one rather disturbing fact that should provoke us to re-examine our claim to the high ground of distance and objectivity. While we need to retain the distinction between facts and values, this discussion serves to remind us the facts and values are frequently entangled, sometimes to the detriment of both, and that objectivity belongs to the realm of values as much as it does to the realm of facts (we can have, in other words, ‘objectivity without [discrete, tangible, positivist] objects’). Objectivity, in other words, does not solely adhere to a painstaking description of or a pronounced concern with, the facts, as our claims to rationality, reasonability, warrant, justice, truth, and so on can be equally objective and reflective of critical “distance.” Avowed concern with “the facts” possesses no monopoly on “distance” and “objectivity” (which is not to be dismissive of these selfsame facts or the endeavor to be objective).

  2. 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.

    Do you believe the above to be true about the West Bank as well, or did Jordan’s annexation of the West Bank affect its legal status?

  3. Marko Milanovic Marko Milanovic

    Nepthuli,

    Yes, the same applies to the West Bank, as in fact implicitly confirmed by the ICJ’s Wall AO cited above. The West Bank is like Gaza a part of the unterminated mandate territory of Palestine, a self-determination unit. Because it is not state, Art 2(4) of the UN Charter does not prohibit the use of force by states against it – though many uses of force would run afoul of the principle of self-determination.

    Jordan’s annexation of the West Bank does not change this analysis, as even while Jordan occupied the West Bank its claim of title over the territory was only recognized by the UK, in part because states did not think the territory to be terra nullius, where sovereignty could be gained merely by original occupation. In any event, after its military defeat at the hands of Israel, Jordan has formally renounced all claims of sovereignty over Palestinian territories.

    On the current status of Palestine in international law, and particularly its status as a mandate territory, see James Crawford, The Creation of States in International Law, 2nd ed, OUP 2006, at 421 ff, esp. 434-435.

  4. Marko, Dapo, I thank you for your important contributions to this discuss. Both have been a true pleasure to engage with. I wanted to add just a curt note in order to compliment a few issues that you have brought up.

    Firstly, Dapo, I believe that suggesting that the qualification of the conflict is an eminent prerequisite to the question of proportionality is an interesting theoretical matter. On the face of it, I am even convinced that it may be arguable, and fitting cases may be brought forward for this purpose. Nevertheless, considering that the majority of the provisions in AP I are part of customary IHL (as Hanckaerts has noted and as transpires from the ICRC study on customary IHL) and the principle of proportionality is overarching, when it comes to civilian deaths, IHL has notoriously upheld an in favorum application and interpretation of provisions to ensure the utmost protection of the civilian population (see also my comments here: http://internationallawobserver.eu/2009/01/02/gaza-conflict-response-proportionality-and-limitations/#comments).

    Understandably, the proportionality question would be affected by the qualification of the conflict only to the extent that a non-international conflict would present a more amorphous landscape of fighters to be seen in the eyes of IHL as “combatants” per se. Apart from this statistical adjustment in numbers that can be envisaged, when each target is to be examined individually upon its particular circumstances, there indeed seems to be no substantive legal question that arises as far as the application of IHL rules is concerned.

    I have previously written on the judgment noting the interesting normative matters upon which it embarks (available here: http://www.alternativenews.org/news/english/israeli-high-court-of-justices-unlawful-combatants-judgment-allows—harmful-detention-legislation-through-the-back-door-20080707.html) and recalling one of the most interesting conclusions reached by the Court with regard to the character of the conflict with the Hamas group positioned in the Strip. Namely, as President of the Court Justice Beinisch relies heavily on Cassesse’s perspective, she upholds after confirming that the Strip is no longer occupied, that the conflict between the Hamas and Israel is international despite the classical view of international law being to the contrary.

    I happen to think that the fact that the Court arrived to this conclusion in the Targeted Killings judgment was very convenient for their decision, but the recent June 2008 judgment in the case challenging the constitutionality of the Unlawful Combatants Detention Laws was in some ways a confirmation of the Targeted Killings judgment and in others a very problematic assessment since the court notes very firmly on the basis of the Al-Bassiouni judgment (cited in the note in alternativenews.org supra) that the Strip is not occupied.

    I happen to agree with Marko that from a purely positivist point of view it is indeed too early to speak of a “massacre” as such, noting the mental elements that are required by its definition. Nevertheless, as preliminary fieldwork presently shows (see references on the discussion on the internationallawobserver.eu/) Israel repeatedly failed to observe basic jus in bello obligations in a number of incursions in the operation in the Gaza Strip. I therefore endorse your assessment pointing to the premature nature of some of the analysis surrounding the attacks, starting from the first day.

    Moreover, a factual circumstance which presents colossal weight as far as the appreciation of the ongoing exchanges go is the occupied status of the Strip. The Gaza Strip has remained occupied following the disengagement plan in 2005 and Israeli occupation forces have occupied control over the Strip’s passages (land, air and water) but also its administration systems, i.e. tax system and all the functions of the population registry in which the Israeli Supreme Court has persisted to cite the Oslo Accords which incidentally no longer apply to the Strip having been (a) violated through the intended unilateral amendment of the status of part of the OPT, and (ii) since the Israeli law implementing the disengagement plan cancels all the military legislation in the Strip, inc. that transposing the Accords into part of the military legislative system (which I would be glad to cite and translate for those interested).

    An influential factor in the present situation of the Gaza Strip from a legal perspective is the fact that the international law of occupation continues to apply in the territory and the armed conflict is taking place between an occupier and the occupied, and the siege under which the Gaza Strip has been place and which is maintained up to date by the Israeli occupation forces (the blockade of the water ways through the sea have recently changed from 5 to 20 nautical miles) arguably puts the Palestinian population of the Gaza Strip in a considerably different than that of the Iraqi or Yugoslavian people. It cannot be emphasized enough that the siege has driven the Strip into a near-irreversible humanitarian crisis. From a doctrinal perspective I wonder to what extent the normative framework would be adjusted by these concurrent legal relations and the background to these incidents from the execution of the disengagement plan up-to-date? I suggest that a strong argument for the criminalisation of the ongoing incursions exists even at this rather preliminary stage, as you have noted.

    As I write, the spokesperson for the IDF army has announced the commencement of the ground incursion into the Strip, making it a water, air and land operation. A spokesman for the Israeli foreign ministry said: “They [Israeli ground forces] will be completing the mission of the air force, going for Hamas headquarters and weapons caches and giving a blow to their capability to launch attacks into Israel.” (see Al-Jazeera report here: http://english.aljazeera.net/news/middleeast/2009/01/200913165056951537.html). The expansion of the operation to the ground level goes part and parcel with the recruitment of thousands of reservists.

    An additional attack on a mosque during a mundane prayer, killing 11 innocent civilians, and injuring 50 out of the 200 praying, took place today (http://english.aljazeera.net/news/middleeast/2009/01/200913163438386439.html). The assessment of the targeting of this mosque would require further probing as to whether its quarters were used to store any military supplies. Nevertheless, when paralleled with the foundations of the rules of IHL as derived from the NATO bombardment of Yugoslavia, the ICRC expressly notes that there was (under articles 57 and 58 of the Additional Protocol I to the Geneva Conventions) to take all necessary precautions to avoid civilian casualties, this inherently would have included the scheduling of the attack for a time that would not endanger civilians as it happened with the bridge in Yugoslavia and it happens again at this very moment in instances like the 200 people who were praying at the mosque.

    Most eminently, what is hoped at the moment is that international law succeeds to overcome even partially some of its limitations and either to act in order to mobilise a protectorate force or arrive at bringing the UNSC to undertake a different form of action under Chapter VII of the Charter. The role of influential regional actors, who furthermore have ties with Israel both politically and economically, like the EU’s and Council of Europe’s institutions is crucial to bring the Israeli government to reassess its tactics and oblige it to comply with its IHL obligations in doing everything required to protect the civilian population.

  5. Yes, the same applies to the West Bank, as in fact implicitly confirmed by the ICJ’s Wall AO cited above. The West Bank is like Gaza a part of the unterminated mandate territory of Palestine, a self-determination unit. Because it is not state, Art 2(4) of the UN Charter does not prohibit the use of force by states against it – though many uses of force would run afoul of the principle of self-determination.

    If the territories are currently mandatory in nature, do the original mandatory rules, especially Article 6, still apply? Would the 4th Geneva Convention apply since Israel would not be occupying the territory of a high contracting power?

  6. Marko Milanovic Marko Milanovic

    Nepthuli,

    The rules of the League mandate do not apply to the extent that they are rendered nonsensical by the unilateral abandonment of the mandate by the Mandatory power. The point of this discussion about the mandate is simply to say that the occupied Palestinian territories are not terra nullius, but have a distinct status in international law. As for the applicability of the Fourth Geneva Convention, I refer you to the ICJ’s discussion in the Wall advisory opinion, particularly paras. 90-101.

  7. The rules of the League mandate do not apply to the extent that they are rendered nonsensical by the unilateral abandonment of the mandate by the Mandatory power. The point of this discussion about the mandate is simply to say that the occupied Palestinian territories are not terra nullius, but have a distinct status in international law.

    It’s hard to argue in 2009 that the territories are a terra nullius, but I don’t see how that in any way implies that they have a distinct status in international law (if distinct means anything more than falling under the original mandatory rules).

    I especially don’t understand how the “unilateral abandonment of the mandate by the Mandatory power” renders the rules of the League Mandate “nonsensical.” Surely, under Article 80 of the UN Charter, the mandate survived and the Charter cannot be construed to “alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments.” Consequently, there is no legal instrument that I am aware of that negated the mandatory rules. Why would it matter if the British are no longer the mandatory power? What about the Mandate required that the British be the mandatory power?

    As for the applicability of the Fourth Geneva Convention, I refer you to the ICJ’s discussion in the Wall advisory opinion, particularly paras. 90-101.

    Do you find that reasoning compelling? Israel’s textual argument was not addressed, insofar as the Court immediately looked at the purpose of the clause rather than the “ordinary meaning” of the clause.

  8. Marko Milanovic Marko Milanovic

    As for the mandate rules, most, if not all of them were directed at the mandatory power. It is the mandatory power that runs the administration of Palestine, and in the absence of the mandatory the rules applied to it become pointless. By Palestine’s distinct status, I was only referring to the fact that it is neither a territory over which a sovereign has title, nor terra nullius.

    As for the applicability of GC IV, this is certainly an issue that can be argued both ways, and not one that I have personally examined in much detail. In any case even if GC IV itself did not apply, the customary law of occupation would, as it has been applied for years by Israeli courts. I do find the Court’s reasoning persuasive, for what it’s worth.

    In that regard, the VCLT does NOT require that the interpreter should first look at the ordinary meaning, and only if that is unclear to the object and purpose. All tools of interpretation, including object and purpose, that are mentioned in Art. 31 VCLT operate at the same level of analysis. It is the tools of interpretation referred to in Art. 32, such the travaux, which are subsidiary and can only be used if the meaning derived from the use of Art. 31 is unclear. Thus, I see nothing objectionable per se in the Court’s teleological approach.

  9. As for the mandate rules, most, if not all of them were directed at the mandatory power. It is the mandatory power that runs the administration of Palestine, and in the absence of the mandatory the rules applied to it become pointless. By Palestine’s distinct status, I was only referring to the fact that it is neither a territory over which a sovereign has title, nor terra nullius.

    Yes, but the mandate in question does not have to be England. With regard to the West Bank, there has always been a mandatory power since the creation of the Mandate (England -> Jordan -> Israel). Gaza, on the other hand, is currently operating under a sovereignty vacuum (unless Israel is still considered an occupying power and consequently a mandatory power). If the above is true, then the rules are still applicable in the WB and suspended in Gaza. It’s hard to understand why the lack of a mandatory power would render the rules inapplicable and even harder to understand why England must be the mandatory power for the rules to apply.

    I agree with you and coincidently with the ICJ that that the weight of evidence opposes Israel’s position on the Fourth Geneva Convention. Israel’s position regarding settlement construction and their alleged prohibition under Article 49(6) is far more plausible in my view.

  10. […] a line to draw readers attention to a post by Marko Milanovic here on various legal issues raised by the current conflict in Gaza. I copy […]

  11. Marko,
    I very much applaud your attempt to distinguish different aspects of proportionality, a clearly underresearched issue in contemporary international law. But I think you wrongly confine the principle of proportionality to the ihl version, which is extremely limited in scope, as you rightly point out. There also exists a general standard of proportionality, regardless of whether Article 51 or its underlying principle applies to the conflict in question or not. Indeed, proportionaliy is not contained in Article 51, but was added to the requirements of self-defense by way of a general principle of law, whether you base it on custom or on the general principles in Article 38 (1) c of ICJ Statute. The ICJ itself, in its Congo judgment, para. 147, has dealt with necessity and proportionality in a case in which it found Article 51 as inapplicable.
    Thus, Israel’s reaction to the Hamas threats must be proportionate, in general, to the threat. In addition, any particular military action must fulfil ther rather lose proportionality standard of ihl.
    Of course, one may argue that the jus in bello standard should also apply to the jus ad bellum question in order to protect the state acting in self-defense. But I do not see much of international judicial authority for this argument.
    Andreas Paulus, University of Goettingen

  12. Marko Milanovic Marko Milanovic

    Andreas,

    Thanks a lot for your comment, which is as always much appreciated. I must say, however, that I regrettably disagree with it entirely. This general principle of law type or proportionality to me seems rather nebulous, and I see no evidence of it in practice or in case law. The jus ad bellum type of proportionality is confined to self-defense, as a customary condition supplementary to the Charter, not as the concretization of some general principle.

    In Congo v. Uganda, para. 147, the Court stated the following:

    “For all these reasons, the Court finds that the legal and factual circumstances for the exercise of a right of self-defence by Uganda against the DRC were not present. Accordingly, the Court has no need to respond to the contentions of the Parties as to whether and under what conditions contemporary international law provides for a right of self-defence against large-scale attacks by irregular forces. Equally, since the preconditions for the exercise of self-defence do not exist in the circumstances of the present case, the Court has no need to enquire whether such an entitlement to self-defence was in fact exercised in circumstances of necessity and in a manner that was proportionate. The Court cannot fail to observe, however, that the taking of airports and towns many hundreds of kilometres from Uganda’s border would not seem proportionate to the series of transborder attacks it claimed had given rise to the right of self-defence, nor to be necessary to that end.”

    As I read this paragraph, the Court confines itself entirely to a discussion of the law of self-defense, and it makes absolutely no mention of some general principle of proportionality. Its argument goes like this
    (1) On the facts, this was not self-defense, therefore we don’t need to say anything about self-defense against armed attacks by non-state actors;
    (2) Likewise, because this was not self-defense, we see no need to say anything about necessity and proportionality.
    (3) However, if we really had to say something about necessity and proportionality, Uganda’s actions were hardly necessary and proportionate.

    In (3), the Court is still talking about self-defense. Indeed, it says explicitly that Uganda’s actions “would not seem proportionate to the series of transborder attacks it claimed had given rise to the right of self-defence, nor to be necessary to that end.” There is no general principle here, not that I can see.

    Thus, I still cannot see how we can impose jus ad bellum criteria on the use of force against a non-state actor unprotected by Art. 2(4) of the Charter. Perhaps an argument could be made that Gaza has some protection from the jus ad bellum, for example by saying that Israel itself claims that it is acting in self-defense. Then there’s of course always the right to self-determination. Nonetheless, the type of proportionality that you refer to, which looks at the totality of the conflict, still to me seems to be inapplicable to the present case.

  13. Marko,
    While I give you the point on Congo v Uganda, I could not disagree more on the rest. First, what is, in your opinion, the legal basis for the use of force by Israel against Gaza? Only if we know this, we may then discuss the legal régime. I see three main possibilities here:
    (1) Self defense
    The ICJ opinion on the Wall has been criticized for a lot of good reasons. We may conclude that it was wrong and self-defense against armed attacks from occupied territories applies, in particular when the control of the occupying power has waned. This argument can be extended by arguing that self-defense applies here not by virtue of Article 51 UNC, but as customary law or general principle of law. The logic is clear: no state can be asked not to react to military attacks and not to protect its citizens, regardless of the origins of that threat. The SC resolutions after Sept. 11 and Afghanistan come into mind. Anyway, proportionality applies.
    (2) Gaza as self-governing territory after the end of occupation
    But even if we assume the Wall opinion is correct, it may not apply to Gaza if the Israeli Supreme Court was right that occupation there has ended. In this case, self-defense against an armed attack from outside does not hinge on statehood. Proportionality applies. My personal opinion is that occupation does not end before a final settlement is reached. This gets us to option
    (3) Security as occupying power
    If it is not self-defense the Israeli attacks are some sort of exercise of its responsibility as occupying power to look for security. Does this lead to limited jus in bello proportionality only? Not so fast. You borrow proportionality here from the part of jus in bello that applies to the conduct of hostilities. That part of the law does not necessarily apply to occupations. In addition, proportionality applies as part of the applicable (wall opinion!) human rights standard.
    By way of conclusion, I find it highly unacceptable to argue that, absent self-defense in the most narrow reading available, we end up with the loosest possible proportionality standard. If anything, the continuing occupation and applicable human rights law leads to a higher rather than a lower standard than with regard to classical self-defense. Btw, I do not take a stand on whether or not one may regard the Israeli response, at least the air war part, as proportionate in light of being the only available defense against those indefensible Hamas rocket attacks.
    Best wishes, Andreas

  14. Marko Milanovic Marko Milanovic

    Andreas,

    What I would dispute is your premise. To get to Art. 51, you first have to go to Art. 2(4). So unless you can come up with an argument that 2(4) applies to the Israeli use of force in Gaza, I just don’t see how you can get to the self-defense issue. Again, the ICJ has rightly been criticized for its very summary analysis in para. 139 of the Wall case. But that criticism has mostly turned on the Court’s (apparent) disregard of the possibility of armed attacks being committed by non-state actors, not on the applicability of Art. 2(4) to the OPT.

    On the occupation point, this is as you know highly contested. I personally fail to see how a state could be said to be the belligerent occupier of a territory in which it (until the present operation) had no soldiers and exercised no governmental functions. I of course do acknowledge the economic stranglehold that Israel has on Gaza, and the horrible conseqences that it has wrought, but that does not equate to a belligerent occupation. In any case, the narrow IHL notion of proportionality applies in the context of occupations as well, to any use of force that involves civilians. I don’t see why it wouldn’t, as the barest of minimums. What is disputed is whether some broader notion of proportionality applies.

    As for the applicability of human rights law, as I’ve pointed out above, this is also a highly complex and ambiguous issue, both in relation to whether Israel has effective control over Gaza, and as to how IHL operates in relation to IHRL.

  15. Marko, with all due respect, but it is beyond me to find ANY legal authority for your argument that, ultimately, proportionality only applies when triggered by Article 2 § 4. This is pure Begriffsjurisprudenz, and I find zero legal authority for it.
    The Charter does not connect the two article in this fashion – article 51 speaks of the occurrence of an armed attack, not of article 2 § 4. The ILC articles on State responsibility list self-defense as excluding State responsbility, again without mentioning Article 2 § 4 as pre-requisite. And, of course, proportionality is not part of Article 51 itself, but the application of an independent principle.
    You do not answer my last point – why should Gaza be less protected than, say, Jordan or Germany, just because it is not a state? This goes to the heart of the purpose of the proportionality principle – to limit violations of rights and obligations to the point strictly necessary for reestablishing a legal situation. At the end, you dodge the hr point – it would otherwise be central to your argument. Your argument makes the use of force against non-state entities far too easy – and thus goes against the central point of the prohibition on the use of force that you wish to defend in the first place.

  16. Marko Milanovic Marko Milanovic

    Andreas, if it’s authority you need, I’d be happy to provide it – though I was of the impression that the nature of Art. 51 as an exception to the prohibition in Art. 2(4) was hardly controversial.

    Thus, take as an example the first paragraph of the ILC commentary to Art. 21 of the Articles on State Responsibility, which you yourself cite, and which states the following:

    “The existence of a general principle admitting self-defence as an exception to the prohibition against the use of force in international relations is undisputed. Article 51 of the Charter of the United Nations preserves a State?s ?inherent right? of self-defence in the face of an armed attack and forms part of the definition of the obligation to refrain from the threat or use of force laid down in Article 2, paragraph (4). Thus a State exercising its inherent right of self-defence as referred to in Article 51 of the Charter is not, even potentially, in breach of Article 2,paragraph (4). … Self-defence may justify non-performance of certain obligations other than that under Article 2, paragraph (4), of the Charter, provided that such non-performance is related to the breach of that provision.”

    The ILC is there invoking the ICJ’s Nuclear Weapons advisory opinion, at para. 38. See also Nicaragua case, para. 193; A. Cassese, International Law (2nd ed 2005), at 354 (stating that “Article 2.4 of the UN Charter (and the corresponding customary rule of international law) ban armed force in international relations… [A]n exception to this ban is the right of States to resort to individual or collective self-defence. This right is clearly laid down in Article 51 of the UN Charter and the corresponding customary rule of international law.”)

    See further Y. Dinstein, War, Aggression and Self-Defence, 2005, at 177 (stating that “Article 2(4) promulgates the general obligation to refrain from the use of inter-State force. Article 51 introduces and exception to this norm by allowing Member States to employ force in the event of an armed attack”). See also ibid., at 205, speaking of the theoretical possibility of an armed attack emanating from a territory outside the jurisdiction of any state, which has in my view materialized in Gaza.

    There is logically no way for self-defense to be in play without the prohibition on the use of force to be in play as well. That prohibition, on the other hand, is exclusively inter-state in nature (see the authorities cited above, the Friendly Relations Declaration etc). There is no prohibition on states to use force against non-state actors, if that use of force does not infringe on the sovereignty of any other state. Please do give me some authority to the contrary if you have it, Andreas, because frankly the burden of persuasion is now on you. That Gaza is less protected than Jordan or Germany by international law is the product of the fact that international law has historically been, and to a great extent still continues to be, a legal regime operating between sovereigns, and Gaza is not a sovereign.

    You also provide no authority for the proposition that proportionality is some sort of general principle, outside the context of self-defense. All ICJ cases on the matter refer to necessity and proportionality as customary conditions for the lawfulness of self-defense, nothing more and nothing less. (see e.g. Nicaragua, para. 194). They make no mention of proportionality as an independent principle.

    As for my dodging of the HR point, I do it only because it would take ten thousand words or so to give a reasoned position – this is my doctoral thesis after all! But, if you must have a nutshell, I find it dubious in the extreme that, even if say the ICCPR was applicable to Israel’s extraterritorial activities in Gaza, HR law imposes a requirement of proportionality over and above that found in IHL, for classical targeting purposes. Even if a HR proportionality argument could be made, it is far, far from evident and has no relevant precedent in case law up until now. The closest we come is the Targeted Killings case before the Israeli Supreme Court, were Court was very careful to limit its applicability of HR proportionality to instances where Israel’s control of the situation allowed the principle to be applied effectively.

    Finally, as for your policy argument – however much I find the use of force in Gaza regrettable, that does not make it unlawful. The use of force against non-state entities IS easy, because international law hardly has as its priority the protection of non-state entities.

  17. Marko, you are spanning the cart before the horse. Of course there is ample authority in the Charter and beyond that Article 51 provides for an exception to Article 2 § 4. But it does not follow that an armed attack can only consist in a violation of Article 2 § 4 – 9/11 should be enough of an example. Rather, the Charter speaks of an inherent right to self-defense – opening up a spectre for broadening the right to attacks from other sources.
    Ultimately, however, this is a digression from the real point: the principle of proportionality does not even emanate from Article 51, but was added to the requirements for lawful self-defense (and rightly so).
    Finally, on your last point: I have not maintained that Israel could not defend itself against the Hamas attacks, but only that the requirment of proportionality applies to such acts of defense – whether they fall under Article 51 or not. On Targeted Killings, if HR proportionality applies to instances of killings with rockets, it certainly applies to boots on the ground. Anyway, regarding individual acts of war, it is here were ihl comes in, of course, as lex specialis to hr law, if you like. I guess we need to leave with an agreement to disagree.

  18. Marko Milanovic Marko Milanovic

    Ah, but that’s just it, Andreas. The problem is not that the armed attack emanated from a non-state actor, Hamas. It is the RESPONSE by the attacked state which must trigger Art. 2(4). That is the difference between this case and 9/11. The response by the US, which invaded the of Afghanistan, engaged Art. 2(4), but Art. 51 provided a justification for what would have been a presumptive violation of the prohibition on the use of force. But here it is not just that the attack emanated from a non-state actor, but also that the response infringes upon the sovereignty of no other state. This is not Art. 51 self-defense any more than if the attack emanated within and the response was confined to Israel proper.

    As for proportionality, you again provide no authority for your position that it is a broad principle independent of self-defense.

    Be that as it may, it was as always a great pleasure to debate the law with you, even if we have to disagree.

  19. Marko,
    I wanted to end our discussion here, but I think we have to delve more deeply into the status of the Gaza territory to determine the applicable jus ad bellum. Inadvertently, you appear to create a sort of super-Guantanamo, by taking away all international legal protection from the Gaza territory. In this logic, you have even difficulty in finding ihl applicable, let alone hr or the prohibition on the use of force.
    As to jus ad bellum, the Gaza territory, in my view, is a renegade province of the self-determination unit and future state of Palestine (which is recognized by the UN as such). Thus, even if military action against such a territory may arguably not violate the prohibition on the use of force (which may be applicable to Gaza as stabilized de facto-régime on the basis of your theory that occupation has ended, or as violation of a cease-fire line), it interferes into the right to self-determination and violates the principle of non-intervention (see the FRD). Thus, without the attacks from Gaza, there would have been no right whatsoever of Israel to use force. Self-defense also provides justification to such violations, not only to violations of the prohibition on the use of force proper.
    On proportionality, this principle is applied in many areas of law, from the use of force to human rights to the law of the Sea. In addition, different from your view, Statespersons around the world apply it to the Gaza situation as well as a matter both of law and morality. I am thus happy to report that my view does not only comport to opinio juris, but also to State practice. The current brief period of ceasefire confirms that the parties start getting reasonable again.
    Thanks a lot for this important discussion. Let us hope that reason prevails and a lasting armistice will be agreed soon.
    With friendship, Andreas

  20. Carsten Hoppe

    Marko,

    It is with great interest that I have followed your comments regarding the operation of Articles 2 para. 4 and 51. As always, I admire your clarity of thought. However, I have the distinct feeling that your construction of Article 2 para. 4 misses the mark, in effect creating a dangerous legal vacuum, although the Charter’s broad drafting does offer little support for this interpretation.

    You asked above for authority to the effect that there is in international law a prohibition on states to use force against non-state actors outside their territory, even if that use of force does not infringe on the sovereignty of another state. I believe that Article 2 para. 4 itself may provide us with an answer.

    Your clear-cut rejection of such a prohibition seems rooted in your consideration that “no state claims sovereignty or title over Gaza, and the sovereignty of no state was infringed by Israel’s use of force.” Hence, you conclude that Article 2 para. 4 does not apply. This rigid interpretation of Article 2 para. 4 does not seem appropriate to me, not on the plain meaning of Article 2 para. 4 and certainly not in the context and with a view to the object and purpose of Article 2 para. 4 and the Charter.

    So let’s step back and take a look at the text. Article 2 para. 4 consists of two half-sentences, the first of which you emphasize, and the second of which I deem to be important to assess the validity of your reasoning. The full article reads as follows:

    “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

    It seems to me that you are simply dropping the second part under the table, when claiming that Article 2 para. 4 could not possibly apply to the Gaza situation. You may have very good reasons why you deem this part irrelevant, but unfortunately you fail to articulate them.

    However, the second part may be very important in the case at hand. Instead of sticking to the narrow language of “territorial integrity or political independence of any state” the article also prohibits the use of force “in any other manner inconsistent with the Purposes of the United Nations”. Whenever Article 2 para. 4 is echoed in the Declaration on Friendly Relations, the full provision is used.

    I would argue that the savings clause in the second part of Article 2 para. 4 was drafted to avoid a simple a contrario interpretation such as yours. In the case of Gaza, giving meaning to the second clause serves to avoid the legal vacuum with respect to the ius ad bellum into which Israel’s actions would fall according to your interpretation

    More specifically, the second clause of Article 2 para. 4 refers us to the purposes of the United Nations. Article 1 para. 1 provides that states are held

    “1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; …”

    In my view, given (as you also assume) that Gaza is not considered part of Israel, Israel is bound to refrain from use of force in Gaza that is inconsistent with the purposes of the United Nations. By taking unilateral measures of force, Israel presumptively violated Article 2 para. 4 read together with Article 1 para. 1 mandating specifically _collective_ measures against threats to the peace.

    Of course, Israel may claim self-defense as enshrined in Article 51, but, as you also agree, reliance on Article 51 will be tied to a proportionality analysis.

    While I strongly disagree with you on the law, I want to thank you for having kicked off this important discussion.

    P.S.: If your interpretation of Article 2 para. 4 were correct, namely that no situation not involving the threat or use of force against the territorial integrity or political independence of any state could trigger Article 2 para. 4, the second clause of the article would be completely devoid of effect. According to the maxim “ut res magis valeat quam pereat” an interpretation giving meaning to the clause is to be preferred.

  21. Marko and Andreas,

    I have followed your discussion with great interest – it is always enjoying to read the exchange of bright and sharp legal arguments – even on such a sad topic as the tragedy unfolding in Israel and Gaza.

    However, what strikes me is that so far no one of you has come up with the idea to utilize Article 2 (4) of the Charter fully. As we know, it says that all Members shall refrain from the use of force against States “…or in any other manner inconsistent with the Purposes of the United Nations.” If this is seen as an emphasis of the general prohibition and not as an exception, it points to other cases of the use of force that are prohibited beyond the use of force against States. So you do not necessarily need a State to trigger Article 2 (4), but rather force inconsistent with the purposes of the UN.

    Article 1 (2) of the Charter then ranks the self-determination of peoples among the purposes of the UN. Ergo, I think it is sound to argue that any established and recognised self-determination unit enjoys the protection of Article 2 (4). Palestine, of course, is recognised as such a self-determination unit (see Security Council Resolution 1850 (2008) as latest example) and should thus enjox the protection of Article 2 (4).

    However, as Andreas has correctly pointed out, Gaza is a renegade province of the sel-determination unit – and thus the situation seems to get a bit more complicated. However, I do not think that this alters the picture decisicely: A coup or other internal strife does not derive a State from the protection of Article 2 (4) – and neither should it derive a recognised self-determination unit from the same protection.

    Israel thus needs a justification for its actions – which may only be found in Article 51 (or in the customary law of self-defense). Consequently, Israel has to accept the limits of self-defense, i.e. the general margin of proportionality.

  22. Marko Milanovic Marko Milanovic

    Carsten and Joern,

    I certainly find the argument that both of you make to be persuasive. That a textual argument can be made, however, is not the end of the matter. The second clause of Art. 2(4) can have a different purpose, that of qualifying the “territorial integrity or political independence” part, not the “any state” part of the previous clause. In other words, an alternative reading is that it simply says that the use of force against states is prohibited even if it does not infringe on their territorial integrity or political independence, so long as it is inconsistent with the purposes of the UN.

    As far as I can recall the literature on the prohibition on the use of force enshrined in Article 2(4), I have never seen the suggestion that the prohibition extended to (some) non-state actors. It likewise seems pretty inconceivable to me that states sitting in San Francisco more than sixty years ago would have agreed to such a prohibition. In any case we would need to peruse the travaux etc. in order to reach a conclusion on your textual argument — something that I might do later when I go back to Cambridge and have a proper library at my disposal.

    At any rate, we agree completely on the policy. I, too, dislike the fact that Gaza’s non-state actor status might create a vacuum. But again, filling this vacuum with norms requires a showing that the law has overcome the inter-state paradigm, and has done so precisely in the field where states still matter the most, the use of force.

  23. Carsten Hoppe

    Marko,

    Again I beg to differ. No perusal of the travaux is in order here. As you so eloquently put it above, “[i]t is the tools of interpretation referred to in Art. 32, such the travaux, which are subsidiary and can only be used if the meaning derived from the use of Art. 31 is unclear”- so we don’t even get there.

    Let’s start with the English text of Article 2 para. 4:

    “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

    The meaning of the clauses is clear. We use basic rules of construction and arrive at two “commands”:

    1. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.
    2. All Members shall refrain in their international relations from the threat or use of force in any other manner inconsistent with the Purposes of the United Nations.

    That’s what the comma and the “or” stand for. We don’t put all words in the sentence in a blender, as it were, and get to rearrange them as we see fit.

    Moreover, the French text emphasizes this construction, employing three commas and negating the meaning you suggest completely by separating the use of force against a state from the other manners inconsistent with the Purposes of the United Nations (note the elegant “soit” … “soit”):

    “Les Membres de l’Organisation s’abstiennent, dans leurs relations internationales, de recourir à la menace ou à l’emploi de la force, soit contre l’intégrité territoriale ou l’indépendance politique de tout Etat, soit de toute autre manière incompatible avec les buts des Nations Unies.”

    I believe that pretty much closes the door on the alternative interpretation you suggested.

    However, for completeness sake, I considered the remaining languages:

    I am told that the Russian version can be equally separated into:

    1. Все Члены Организации Объединенных Наций воздерживаются в их международных отношениях от угрозы силой или ее применения как против территориальной неприкосновенности или политической независимости любого государства.
    2. Все Члены Организации Объединенных Наций воздерживаются в их международных отношениях от угрозы силой или ее применения [любым] образом, несовместимым с Целями Объединенных Наций.

    Similarly, I was assured that a translation of the Arabic text yields the same connection between the clauses. Here is the original:

    “يمتنع أعضاء الهيئة جميعاً في علاقاتهم الدولية عن التهديد باستعمال القوة أو استخدامها ضد سلامة الأراضي أو الاستقلال السياسي لأية دولة أو على أي وجه آخر لا يتفق ومقاصد “الأمم المتحدة”..”

    The Spanish text also follows the English:

    “Los Miembros de la Organización, en sus relaciones internacionales, se abstendrán de recurrir a la amenaza o al uso de la fuerza contra la integridad territorial o la independencia política de cualquier Estado, o en cualquier otra forma incompatible con los Propósitos de las Naciones Unidas.”

    When I read the Chinese version, it occurred to me that a literal translation could support your argument:

    “各会员国在其国际关系上不得使用威胁或武力,或以与联合国宗旨不符之任何其他方法,侵害任何会员国或国家之领土完整或政治独立。”

    For reasons rooted in Chinese grammar, the clause containing the reference to territory or political independence is put at the end, and a verb (”to violate”) is used, as otherwise the sentence would not make sense to a Chinese reader.

    In sum, the French version strongly confirms the clear interpretation in English, and the other languages, with the exception of the Chinese grammar quirk, display the same construction. Hence, I find no reason for consultation of subsidiary means of interpretation.

    I appreciate very much your statement above that we seem to be all in the same boat on policy. Yet, I also believe we have to take special care not to inadvertently deliver legal arguments to those who seek to put themselves outside the reach of the law.
    That said, I realize it’s always easier to respond to a thesis than to advance it, so thanks again for putting your thoughts to the test!

  24. Marko Milanovic Marko Milanovic

    Carsten,

    I concede defeat on your grammatical point (compliments btw on your apparently excellent Chinese, and on your superb new article in the EJIL, which I’ve just read yesterday). But you seem to forget how the sentence begins: “All Members shall refrain in their international relations from the threat or use of force…” Their international relations means just that, relations between nations, i.e. states. Cf. Common Articles 2 & 3 of the 1949 Geneva Conventions. There is no inkling in the Charter or in Art. 1 of the Kellogg-Briand pact, which introduced the prohibition on the use of force, that states thought that they were binding themselves vis-a-vis non-state actors. (And if you disagree on the meaning of the word ‘international’, we can go and see what the travaux say :)).

    So sorry, but you cannot dismiss the fundamental distinction that international law has always (well, since the XIX century at least) made between states and non-states so easily, with a purely linguistic argument. Nor does Art. 31 VCLT assign such absolutely priority to language (the word ‘international’ aside for a moment) – we must also look at the context, the object and purpose, and state practice in the application of the Charter.

    Again, for what it’s worth, your interpretation of Art. 2(4) may well be correct, but I at least will not be persuaded by your interpretation of the language alone.

  25. Materneau Chrispin

    Dear Marko Milanovic and Carsten Hoppe,

    I found your exchange on the meaning of Art. 2(4) of UN Charter highly interesting. But, it seems to me that the interpretation of this provision cannot and should not be confined to the textual level. I humbly submit that the ultimate purpose of the prohibition of the use of force is to maintain international peace and security as much it is possible. That is why the exceptions (self-defence and authorization of UN Security Council) to this prohibition are strictly limited. The meaning of the phrase “in their international relations” is not to be found in any textual analysis of the terms used, but rather in a teleological approach. This prohibition thus applies to any use of force by a given State:
    a) Outside its territory (to me the precise and ultimate meaning of “international relations”)
    b) that breachs or threatens to breach international peace and security.
    Whenever these 2 conditions are met, the nature or status of the other party against which force is used is not relevant for the purpose of application of the prohibition contained in Art. 2(4) of the UN Charter. A use of force that meet these thresholds can be lawful under the Charter only if based on one of the two exceptions.

  26. Stefan

    The BBC claims on its website that “[white] Phosphorus shells may be used to make smoke in battlefields. Their use where civilians may be harmed is prohibited.” Is this correct?

  27. […] es que sus Fuerzas de Defensa utilizan criterios de diferenciación entre combatiente y civil y de proporcionalidad demasiado amplios o ambiguos. Estar bajo la supervisión de la Corte Penal Internacional podría […]