Israeli raids in Gaza: Proportionality and the Status of Hamas Policemen

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The latest Israeli raids in Gaza are said to have killed over 300 people (injuring over 1000 others) with most of the dead being Haman policemen and security officials. Israel has launched the raids in response to the repeated rocket fire into Israel from Gaza. Given the very high Palestinian casualties resulting from Israel’s raids and (as far as I can tell) the very low numbers killed or injured in Israel as a result of rocket fire there will be a debate about whether Israel’s actions are proportionate [I have found it difficult to find precise numbers of Israelis killed or injured by the rockets prior to the Israeli air raids]. Indeed, the UN Secretary General has been quoted as condemning Israel’s “excessive use of force leading to the killing and injuring of civilians” (see here). No doubt, human rights groups and others will accuse Israel of acting disproprotionately under international humanitarian law (IHL). The relevant rule of IHL that will be invoked is the rule that forbids attacks which may be expected to cause incidental loss of civilian life or civilian damage which is excessive when compared with the concrete and direct military advantage to be gained (Art. 51, Additional Protocol I 1977 to the Geneva Conventions of 1949). It is well known that the proportionality calculation is one which is not easy to make in practice nor is it easy to explain in theory. Afterall, one is not comparing two things that are necessarily commensurate, unless one makes a straight forward comparison between life lost and life expected to be saved by the military operation. Using that crude comparision, some will suggest that the taking of over 300 lives in order to save just a handful would be disproportionate (if the operation could be expected to cause such loss of life). I do not intend to disagree with that analysis.

However, I suggest that in this case, starting from the proportionality analysis is to start in the wrong place. The recent Israeli raids raises other more basic legal issues under IHL. The answers to those issues might suggest that one never gets to making a proportionality calculation. The proportionality rule requires a comparision between civilian loss (or life or of property) and the military advantage to be gained. Since we are told that most of the deaths caused by those raids are to Hamas policemen or security officials one has to ask whether these are civilians. If they are not civilians, then they are combatants or fighters who may legitimately be targetted. Furthermore, if they are civilians one will still need to ask whether they are taking a “direct” or “active” part in hostilities so that they lose the immunity from targetting that IHL confers on civilians (Art. 51 (3), API and Art. 13(3), APII). Only if one concludes that they are civilians and that they are not taking a direct or active part in hostilities does one get to the proportionality analysis.

In determining whether Hamas policemen and security officials are civilians or not, one is forced to answer an even more basic question: what sort of conflict is the conflict between Israel and Hamas? Is it an international armed conflict or not? The reason for asking this question is that arguably there are different rules in international and non-international armed conflicts for determining who a civilian is. In an international armed conflict, anyone who is not a priviliged combatant (as defined by IHL) is a civilian. The Israel Supreme Court accepted this in the Targetted Killings case (para. 28). Privileged combatants are restricted to members of the armed forces of parties to the conflict who fulfil certain criteria.  There is no treaty definition of civilians in a non-international armed conflict. However, it has been suggested in the San Remo Manual of the Law on Non-International Armed Conflicts that (rule 1.1.2, see here) that fighters in non-international armed conflicts include all members of dissident forces or of organised armed groups.

Without engaging in extended analysis, policemen would, ordinarily be civilians in international armed conflict since they are not members of the armed forces of the State. However, policemen and internal security officials may be fighters in a non-international armed conflict where the police are engaged in the fight. Certainly, members of the “police” force of a dissident group who are used to fight the State authorities will be considered fighters. Alternatively, they will be civilians taking a direct part in hostilities. However, such a determination may require an analysis of the role of each individual policeman as opposed to making a general determination. Unless one takes the view (which some do) that membership in particular organizations is itself taking a direct part in hostilities.

So, to start from the beginning, the first question is what sort of armed conflict is going on in Gaza. Prior to the Israeli withdrawal from Gaza this was clearly an international armed conflict. The Israeli Supreme Court in the Targetted Killings case accepted that fighting in occupied territories between the occupying and resistance forces is part of an international armed conflict. Has the position changed since Israel withdrew from Gaza? This requires one to answer the question whether there is still an occupation in Gaza. If Israel is still the occupying power then the conflict is still international law. Comments are welcome on whether, as a legal matter, the occupation is still continuing.

If the occupation could be said to be at an end, is there any basis for saying that the conflict is now a non-international conflict? If one accepts the argument of the US government that it is in a transnational conflict with Al-Qaeda and that this is a non-international armed conflict then one could argue that Israel’s conflict with Hamas is also non-international . The US govt says that its position is supported by the US Supreme Court’s decision in Hamdan v Rumsfeld , where the Supreme Court applied Common Art. 3 of the Geneva Conventions. However, that is not the only interpretation of the Supreme Court’s decision. There is a good argument to be made that the Supreme Court was only applying Common Art. 3 as a minimum and was not intending to say that transnational conflicts with non-State groups are non-international. Indeed there is a strong argument that whenever a State uses force on the territory of another State – without the consent of the government of that State- even if it is to confront a non-state group, that brings into being an international armed conflict. But there is the rub. If one assumes that Gaza is not occupied territory, it is certainly not a State. So the position is not the same as when Israel used force against Hezbollah in Lebanon in the summer of 2006.

So, analysis of the proportionality of Israeli action will require making a determination of whether Hamas policemen and security officials are civilians or not. If the conflict is international then they would be civilians. But one could argue they are taking a direct part in hostilities based on their membership of the fighting wing of Hamas (if indeed the police forces in Gaza are part of that fighting wing). If the conflict is non-international then, they are more likely to be classified as fighters. Determining the nature of the conflict will require analysis of whether Gaza is still occupied territory.

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Patrick S. O'Donnell says

December 30, 2008

First, let me say that I'm glad to see this topic at least broached at an international law blog, as it seems other blogs have chosen for whatever reason(s) not to discuss this subject. And as I'm a layperson with regard to international law, I doubt I'll be able to answer your questions in a manner satisfactory to either your or your colleagues in the profession. But please allow me to make a few comments in any case.

I wonder if what we have here is the international legal equivalent to Nero playing his lyre while Rome burns (whether the tale is true or not we'll set aside). By this I simply mean if the requirements for a determination of proportionality are this difficult and, apparently, convoluted, perhaps we need to seriously entertain revising the elements for same in a way that is far closer to our ethical intuitions, at least those well captured in your statement that "No doubt, human rights groups and others will accuse Israel of acting disproprotionately under international humanitarian law (IHL)." This apparent need for revision is reinforced by the fact that, as you also state, that "It is well known that the proportionality calculation is one which is not easy to make in practice nor is it easy to explain in theory." Of course the history of this conflict assures us that the successive Israeli governments routinely evidence little or no concern for proportionality of any sort, legal or not. To conclude otherwise reveals an appalling ignornance of the history and politics of the region going back to the Zionist struggle for the establishment of the state of Israel. As to the bracketed remark: "I have found it difficult to find precise numbers of Israelis killed or injured by the rockets prior to the Israeli air raids," we might consider the following from Juan Cole at his absolutely essential blog, Informed Comment (ignoring if need be, his determination of the precise number of 'innocent' victims and his conclusion that this is a 'war crime'):

"Israel blames Hamas for primitive homemade rocket attacks on the nearby Israeli city of Sederot. In 2001-2008, these rockets killed about 15 Israelis and injured 433, and they have damaged property. In the same period, Gazan mortar attacks on Israel have killed 8 Israelis.

Since the Second Intifada broke out in 2000, Israelis have killed nearly 5000 Palestinians, nearly a thousand of them minors. Since fall of 2007, Israel has kept the 1.5 million Gazans under a blockade, interdicting food, fuel and medical supplies to one degree or another. Wreaking collective punishment on civilian populations such as hospital patients denied needed electricity is a crime of war.

The Israelis on Saturday killed 5% of all the Palestinians they have killed since the beginning of 2001! 230 people were slaughtered in a day, over 70 of them innocent civilians. In contrast, from the ceasefire Hamas announced in June, 2008 until Saturday, no Israelis had been killed by Hamas. The infliction of this sort of death toll is known in the law of war as a disproportionate response, and it is a war crime."

Prima facie evidence of "disproportionality?" I hope so, but if not, the international legal criteria are woefully inadequate, at the very least on ethical grounds. But, again, let's leave these questions for the moment and seek to answer what appears to be the fulcrum question at the end of the post, namely, the one that arises from the claim that "Determining the nature of the conflict will require analysis of whether Gaza is still occupied territory." The first thing to resist in answering this question is to think of an "occupation" in literal terms, i.e., (foreign) armed forces literally occupying the Palestinian territories, as this is not essential to making the case for legally ascertaining whether or not an "occupation" exists: Article 42 of the 1907 Hague Regulations (HR) states that a "territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised." The blockade imposed on Gaza, along with the control of borders exercised by the Israelis (or 'crossings' in and out of Gaza), among other reasons, clearly indicate that this Palestinian territory is "under the effective control of hostile foreign armed forces." Let's keep in mind here that, as Cole notes, "The Israelis have pledged to continue their siege of the civilians of Gaza, and have threatened to resume assassinating Hamas political leaders, along with the bombardment." The UN's top human rights official stated unequivocally that the blockade of Gaza has deprived Palestinians of "their most basic human rights."

It's getting a bit late here on the West coast of California so I need to wrap up now. I ask readers, especially my fellow citizens in the US, be it those in positions of political power or the rest of us who, by choice or circumstance, only vote for them, to take the time to read up on the history and politics of this conflict, as well as the history and politics of the Middle East in general. Most folks in the states, it seems clear to this reader, are abysmally if not woefully ignorant of this history and politics and the conventional mass media is notoriously irresponsible and inadequate when it comes to filling in the background knowledge and context that might go a little way in overcoming this ignorance. Therefore, and however presumptuous of me, I ask those with the least bit of concern about what is occurring today in the occupied Palestinian territories to please take the time to learn whatever you can to make better, more informed judgments and opinions about this conflict. Toward that end, I've assembled a list of resources at the Ratio Juris blog:

For the legal scholars "out there," it helps to keep in mind that, as this post reminds us, the legal questions are not answered in a vacuum, and require a facility with historical and political facts, however contested or indeterminate those facts may be. At the very least, we should make every effort to educate ourselves so as to do justice to our sincere and important endeavors to answer the urgent and essential legal questions of our time and place.

Patrick S. O'Donnell says

December 30, 2008

For a helpful discussion of "the occupation" question, please see this post by Valentina Azarov at the International Law Observer:

Aeyal Gross says

January 5, 2009

Thanks for the debate. I second Valentina's concern that we should not abstract from the context of occupation. I think there is something problematic in Israel saying it acts to defend its sovergenity while it continue to dispossess the Palestinians in the West Bank and Gaza. THere is a complex question of how we take this into effect. Also, I suggest you read this short report from HRW:
Ultimatley, in thinking of IHL, we should consider whether we want a IHL that become apologia for kiliing of children and civilians? Because I fear the use by Israel and some of it defenders takes IHL to that direction. This is possible because of the structure of IHL itself but also because of this total abstraction from context.

Materneau Chrispin says

January 9, 2009

As a contribution to the debate on proportionality of the israeli actions in Gaza, I am contributing this piece.

Self-defence, non State actors and the principle of proportionality

The use of force, either authorized by the UN Security Council under Chapter VII of the Charter or exercised in self-defence, is subject to the respect for International Humanitarian Law rules and principles. The principle of proportionality is among the most important ones along with the principle of distinction, which calls for the protection of civilian lives and properties. In the context of the latest strikes launched by Israel against Hamas in the Palestinian territories, Israel, having invoked self-defence as a legal ground justifying its actions, has been called upon to comply with the two above mentioned principles.

The Israeli actions are taking place in a particular context, in which the “armed attack” does not originate from a State proper, but rather from a political and military group (Hamas) fighting against occupation. In such a context, it is not futile to reflect again on the possible meaning the principle of proportionality might have as regards the specific conditions presented by this particular situation.

Compliance with the principle of proportionality in the context of use of force is mandated by various sources in international law. The most authoritative ones are the 1907 Hague Regulations annexed to the IV Hague Convention and the 1977 Additional Protocol I to the Geneva Conventions, albeit in an indirect way. This principle is widely held to be part of customary international law and thus binding on all States. What does the principle allow the party acting in self-defence to do? What are the considerations and criteria to be taken into account in determining the appropriate response or the appropriate level of response? These questions have received considerable attention from the doctrine and the case-law and seem to have received well established answers in international law. However, they remain recurrent whenever force has been resorted to in self-defence, even more so in the context of the Israeli-Palestinian conflict. This piece briefly reflects on the requirement of proportionality when force is used in self-defence against a non State actor.

It is safe to say that the position of the problem varies whether the armed attack that triggers self-defence come from a State or a non-State actor. In the case of a State, the level of force that may be used to respond to the attack ought to be determined in regard to the harm caused by the original attack. Several case-law pronouncements convey such an understanding (ICJ, Nicaragua case, 1986; Nuclear Weapons Opinion, 1996; Oil Platforms case, 2003, Armed Activities on the Territory of the Congo case, 2005 or the Ethiopia-Eritrea Claims Commission decision of 2005, etc.). This is necessarily the case as it would not be conceivable that the exercise of self-defence against another State could pursue such ends as the destruction or annihilation of the aggressor State or its complete disarticulation or its invasion and occupation. Such objectives would clearly not be in line with other important norms and principles of international law, such as respect for territorial sovereignty and integrity, the intangibility of States borders or self-determination.

In the case of an attack originating from a non State actor, such as Hamas, is the State that is attacked constrained by such considerations? In other words, cannot the attacked State legitimately set as the objective of its defensive actions to inflict damages to that group or organization aimed at destroying it or such as to render it incapable of conducting future operations against its territory? The latter question is important as it shifts the focus of the debate on the level of force permissible from the harm suffered by the attacked State to the objective that such responsive use of force is supposed to serve. In other words, proportionality would not be tested against the injury suffered by the attacked State, but rather measured against the legitimate end set for the exercise of self-defence.

If one accepts that proportionality primarily applies to the nature of the end(s) that the attacked State can set for its response and that such end(s) can lawfully be the dismantlement or the severe incapacitation of the non State actor that launched the attack, then it can be sustained that the means used are to be proportionate to that objective. This is not to mean that any military means could be used indiscriminately to achieve the proposed end, as other important IHL rules continue to apply and constrain the choice of possible courses of action. Indeed, such a view still has to integrate proportionality in terms of military strategy, tactics and means of warfare that can be resorted to.

However such an approach would afford the defending State broader margin of appreciation in shaping its military response to an armed attack, as it would not be compelled to evaluate the proportionality of its actions against the effective harm or casualties it suffered from the attack. This has considerable implications for issues related to the time-span of the response to the attack or its scale. Indeed, if seriously incapacitating the non-State actor that initially attacked is a legitimate and lawful objective for the purpose of self-defence, then the means used to effect such end would be deemed disproportionate only if they would exceed the level needed to achieve such objective. Moreover, force could be used in self-defence as long as it is reasonably necessary to reach the assigned goal.

Such an understanding of the concept of proportionality in the context of use of force in self-defence against an attack by a non-State actor gains in lawfulness and validity in the particular scenario where that non-State actor is not operating from the territory of a State fully recognized by the international community. Because such an exercise of self-defence would not be violating the sovereignty of a State.

As we started this piece with a focus on the Israeli-Palestinian conflict, we feel it necessary to underscore that the possible lawfulness of the objective of inflicting incapacitating damage to Hamas in exercise of self-defence does not, in any way, guarantee the feasibility or even the desirability of such objective as demonstrated by the failure of the Israeli military campaign in Lebanon in the Summer of 2006. In this ongoing conflict, the political route seems to be the only realistic and viable venue to reach a final and definitive settlement that can end the conflict and decrease tension in that region.

Materneau Chrispin

Amna Guellali says

January 13, 2009

I would like to comment on your statement that "The Israeli Supreme Court in the Targetted Killings case accepted that fighting in occupied territories between the occupying and resistance forces is part of an international armed conflict. Has the position changed since Israel withdrew from Gaza?". It seems to me that the Supreme Court in this case did not link the characterisation of the armed conflict as international only to the condition of occupation. It rather widened the definition of international armed conflicts to all those conflicts that cross the border of the state, so it read international in the sense of transnational and not of conflicts between States. This is its statement : "This law includes the laws of belligerent occupation. However, it is not restricted
only to them. This law applies in any case of an armed conflict of international character – in other words, one that crosses the borders of the state – whether or not the place in which the armed conflict occurs is subject to belligerent occupation." This means that even if Israeli ended the occupation of Gaza, the conflict, according to Israeli Supreme Court, would still be characterized as an international armed conflict.