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The discussion around the Israel-Gaza conflict often turns on issues of international law. Was Israel's invasion legal? Is it fulfilling its legal obligations to avoid killing Palestinian civilians? What do Hamas's actions mean for Israel's basic responsibilities? These are often discussed as moral abstractions, but there is actual international law that speaks to these issues, even if it does not always provide crystal clear answers. The law of war is not merely a fresh pretense for finger-pointing, it is often the last line of defense for vulnerable civilians during times of conflict. This is a basic guide to those laws, what they tell us, and what they don't.
As is so often the case with Israel-Palestine, the answers, to the extent that there are answers, are probably not going to fully satisfy either side. Israel does have a defensible case that its Gaza invasion was legal, for example. But some of Israel's actions during the war appear to fall short of its legal obligations toward Palestinian civilians — to such an extent that a number of international observers, including even United Nations Secretary General Ban Ki-moon, have accused it of violating international law.
This piece focuses primarily on Israel, not because Hamas's obligations are less important, but because Hamas makes little pretense of complying with international law, which it has violated repeatedly and egregiously during the conflict. Israel itself emphasizes international law in a way that Hamas does not. And to be clear, that allegiance to legal principles is a good thing, even though it leaves Israel's conduct open to greater scrutiny.
1. Does Israel have a legal right to defend itself?
RAFAH, GAZA - AUGUST 4: Palestinians collect their belongings under the wreckage of the buildings after Israeli shelling to Rafah in Gaza on August 4, 2014 (Ali Hasan/Anadolu Agency/Getty Images)
Yes. Israel has the right to defend itself and its citizens — but there's some debate over the source of that right.
Article 51 of the United Nations Charter says that all states have an "inherent right" to individual and collective self-defense against armed attack. That seems like it should apply here: Israel is definitely a state, and Hamas's missiles are definitely "armed attack."
However, that reasoning was called into doubt in 2004, when the International Court of Justice held in an advisory opinion that Israel couldn't rely on Article 51 to justify the use of force in Gaza, because attacks from Gaza were not emanating from, or attributable to, a foreign state.
However, even if Article 51 does not apply, Israel still has a right to defend itself under international law. As the same International Court of Justice opinion noted, "Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population. It has the right, and indeed the duty, to respond in order to protect the life of its citizens. The measures taken are bound nonetheless to remain in conformity with applicable international law."
Israel launched Operation Protective Edge after a barrage of more than 40 rockets were fired from Gaza, (as part of a by-then-weeks-long crisis), and Hamas claimed credit for the attack. Although Israel's Iron Dome missile defense system offers its citizens substantial protection, that is still the kind of armed attack that states have a right to respond to.
It's worth noting, though, that there's some debate about whether or not the rules for occupied territories should apply to Israel's operations in Gaza. If so, that would put additional restrictions and responsibilities on the occupying power — Israel. Israel claims that it has not occupied Gaza since its unilateral withdrawal in 2005, and so those rules don't apply, but Israel's position is widely disputed, in part because of Israel's blockade on most of Gaza's borders. This article looks just at Israel's responsibilities as a state, and not as an occupying power. That's not to endorse the Israeli argument that it has no such responsibilities toward Gaza, it's just because there is still plenty to examine with regard to its other responsibilities.
2. So does that mean that Israel's military operations in Gaza during Operation Protective Edge are legal?
KHAN YUNIS, GAZA - AUGUST 3: Palestinians inspect destroyed buildings and collect usable stuff following an Israeli air assault staged within the scope of 'Operation Protective Edge' in Huzaa district of Khan Yunis, Gaza on August 3, 2014. (Yasser Qudih/Anadolu Agency/Getty Images)
Not necessarily. Remember that line from the ICJ opinion a second ago, about the need for Israel to conform to "applicable international law" when acting in self-defense? Legally, the question of when it's okay to go to war is a separate question from what's allowed to happen during the war. (If you want to get fancy, the Latin terms are "jus ad bellum" for the first category, and "jus in bello" for the second.)
As noted above, the jus ad bellum here is self-defense: Israel launched Protective Edge after a rocket attack by Hamas. But for Israel's operations to be legal, they also need to satisfy jus in bello requirements. Think of it this way: even if self-defense is the "why" of war, the "who, what, when, where, and how" still matter under the law. A lot. So to figure out if Israel's actions in Gaza are legal, we need to look at whether the conduct of its operations follows the laws of armed conflict.
3. Okay, so what does this jus in bello stuff require of Israel during wartime, then?
RAFAH, GAZA - AUGUST 5: Palestinians collect their remains from the rubble of their destroyed houses during the 72-hour humanitarian ceasefire in Rafah, Gaza. (Ali Hassan/Anadolu Agency/Getty Images)
The starting point is that parties to a conflict must always distinguish between civilians and combatants, and between "civilian objects" (such as homes, schools, and hospitals), and military targets. Civilians and civilian objects can never be the intended target of an attack, while military objectives are acceptable targets, but may be subject to additional limitations if the attack is going to affect civilians.
The idea that you have to treat civilians and military objective differently is known as the "principle of distinction," and it's a foundational rule of international humanitarian law. It's set forth in detail in Articles 48-54 of the First Protocol Additional to the Geneva Conventions (usually called "Protocol I").
4. Hey, I just checked, and Israel isn't a signatory to Protocol I! Are you trying to trick me?
It's true that Israel isn't a signatory to Protocol I, but that doesn't mean Protocol I's rules don't apply here.
Many of Protocol I's provisions are binding on Israel anyway, because they are part of customary international law. Customary international law is a set of rules that are basically common law for countries — they are binding on all states, even those that haven't specifically signed on to a treaty that contains them. There's no need to take my word for it, just ask Israel's Supreme Court, which held in 2005 that "of course, the customary provisions of The First Protocol are part of Israeli law."
While there is some debate about whether the entire Protocol has the status of customary law, the sections at issue here are widely considered to be part of international custom. So they do apply to Israel.
5. Israel always warns civilians to clear the area before they attack, right? Does that make their attacks legal?
GAZA CITY, GAZA - AUGUST 5: Palestinians inspect the rubble of their destroyed houses during the 72-hour humanitarian ceasefire in Gaza City's Shujaya neighborhood. (Naaman Omar/Anadolu Agency/Getty Images)
It's true that Israel's policy is to issue warnings before any attacks that are likely to affect civilians, if possible. International law does require them to issue those warnings, so it's good that they're doing it, but that's not enough, in and of itself, to make an attack legal.
The Geneva Conventions, in Article 57(2)(c) of Protocol 1, require "effective advance warning" of "all attacks which may affect the civilian population, unless circumstances do not permit." Operation Protective Edge indisputably affects the civilian population — UN statistics suggest about two thirds of people killed have been Palestinian civilians — so that rule is relevant here.
There is no one-size-fits-all rule about what it means for a warning to be "effective," but at a minimum, civilians need to actually receive and understand it. They also need time to act on the information, so there needs to be a gap between the warning and the attack. Israel uses several methods to warn civilians. Most of them, such as dropping leaflets, making robo-calls, and sending text messages, are pretty clearly capable of getting their message across. With those methods, the main question is whether civilians have time to act on the warnings.
Israel also uses "roof knocks" to notify civilians of impending attacks: non-lethal bombs that explode loudly above buildings, as a warning that more lethal explosives are soon to follow. That method raises more questions, both because it conveys less information (a civilian could conclude that a roof knock means "an attack is happening right now," rather than "you have time to flee before the attack begins"), and because it's more frightening than other methods, and so may cause further distress to the civilian population while failing to fully convey the warning message. Human rights groups, including Amnesty International, have condemned the use of "roof knocks" as a warning method.
6. Is it okay for Israel to bomb any target, as long as it warns the civilians there first?
GAZA CITY, GAZA - AUGUST 5: Palestinian kids inspect their remains from the rubble of destroyed houses during the 72-hour humanitarian ceasefire in Shujaya neighborhood, Gaza on August 05, 2014. (Naaman Omar/Anadolu Agency/Getty Images)
No. The warning doesn't mean that civilians aren't entitled to legal protection if they stay put, and the warning doesn't impose any legal obligation on them to leave. (Even if, practically speaking, that would be a good idea.)
If you think about it, that makes sense. If the rule were that one side's warnings created an affirmative obligation for civilians from the other side to flee their homes, then that rule could be exploited awfully easily to cause forced displacement or even ethnic cleansing — which would be a pretty perverse result of a law designed to protect civilians.
However, that doesn't mean that all targets that contain civilians are by definition off-limits to attack. Rather, once the civilians have been warned, Israel still has an obligation to make sure that any harm to civilians is proportional to the military objective it's trying to achieve. That's the second big principle to know about: proportionality.
7. What is 'proportionality'?
GAZA CITY, GAZA - AUGUST 5: Palestinians inspect the rubble of their destroyed houses during the 72-hour humanitarian ceasefire in Shujaya neighborhood, Gaza on August 05, 2014. (Naaman Omar/Anadolu Agency/Getty Images)
For an attack to be proportional, and thus legal under international law, the legitimate military objective that it achieves needs to outweigh the harm it causes to civilians. This is a balancing test, which means that there is no one-size-fits-all rule about what satisfies the proportionality test.
In some cases, the balancing test provides an easy answer: this report to an international court gives two examples: bombing a refugee camp because its residents were knitting socks for soldiers (obviously not acceptable), and an air strike on a munitions cache that happens to be in an area where a single farmer is plowing a field (acceptable). Usually, of course, the question is trickier.
Violation of the proportionality principle is probably what has led the US and others to criticize Israel so harshly for bombing a UN-run school in Rafah, Gaza. The school was serving as a shelter for thousands of civilians who had taken refuge there after being displaced by the conflict; ten civilians inside it were reportedly killed in the attack. The Israeli military said that it had intended to target three members of the Islamic Jihad militant group who were were passing by the school on a motorbike at the time.
In a proportionality analysis, three guys passing by on a motorbike is just not very much to weigh against the huge danger of bombing a target so close to a shelter full of civilians, so it's not surprising that that attack has been roundly criticized. The State Department called the strike "disgraceful," and noted that "the coordinates of the school, like all UN facilities in Gaza, have been repeatedly communicated to the Israeli Defense Forces." UN Ambassador Samantha Power called the attack "horrifying" and called on all parties to "respect humanitarian law." UN Secretary General Ban-Ki Moon went even further, calling the attack (which also killed a UN staff member) a "gross violation of international humanitarian law."
8. But if Hamas is deliberately operating out of civilian areas, isn't it their fault when civilians get hurt, not Israel's?
GAZA CITY, GAZA - 2014/06/25: Children carry a Hamas flag during a march in Gaza. (Ibrahim Khader/Pacific Press/LightRocket via Getty Images)
No, that's not how the law works. All parties to a conflict have an obligation to protect civilians and abide by international law, even if the other parties fail to do so.
It is true that Hamas and other-Gaza based militants aren't complying with international law themselves. They target Israeli civilians in rocket attacks, commingle military sites and operations with civilian institutions, and, according to some reports, force people to remain in buildings after warnings from the Israeli military in order to serve as human shields. All of those are clear violations of the Geneva Conventions and customary international law.
However, there is no legal principle that states that two wrongs make a right. Israel and Hamas both have obligations to civilians, and those obligations persist, even if the other side violates them. So Israel still has to avoid causing disproportionate harm to Gazans, even if Hamas is knowingly putting them in danger. Likewise, even if Israel's operations during Operation Protective Edge violate international law, it's still illegal for Hamas to attack Israeli civilians.
Civilian protection is a basic right — not something that has to be earned through combatants' good behavior.
9. Are Gazans still entitled to full civilian protections even if they actively support Hamas?
Palestinian supporters of the Islamist movement Hamas wave their flag and a pre-Baath Syrian flag (C) during a demonstration in the West Bank city of Hebron on November 21, 2012. (Hazem Bader/AFP/Getty Images)
Yes. It's true that a number of Gazan civilians support Hamas, including its attacks on Israeli civilians. But that doesn't make them legitimate military targets. A civilian can't be turned into a combatant simply on the basis of his political or ideological beliefs.
International law also forbids reprisals against civilians and "civilian objects," such as schools, hospitals, and private homes. That means that it is not legal for Israel to attack Gazans in order to punish them for their support of Hamas. Article 51(6) of Protocol 1 states that "attacks against the civilian population or civilians by way of reprisals are prohibited," and Article 52(1) states that "civilian objects shall not be the object of attack or of reprisals."
However, if an individual shifts from mere political support to active participation in hostilities, then he becomes a combatant, and thus loses civilian protections.
