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.