Is Israel or Hamas Breaking International Law?

Eric Posner weighs in.
Nov. 27 2012 10:37 AM

Is Israel or Hamas Breaking International Law in Gaza?

There’s no clear answer and it doesn’t much matter for the underlying conflict.

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Destroyed buildings in Beit Lahia, in the northern Gaza Strip, on Monday

Photo by MAHMUD HAMS/AFP/Getty Images.

The latest conflict in Gaza has raised numerous questions about international law. Did Israel violate it? Did Hamas? Does it matter? There are standard ways to approach these questions. At the same time, parsing the relevant law will not give you much understanding of the conflict, or what is at stake. The underlying moral and policy considerations outstrip international law, which is a clumsy tool even in the best of times.

Israel says that it attacked Gaza in self-defense. Hamas had fired numerous missiles onto Israeli territory, and, although by the end of the conflict only four civilians had died, Israel possesses the right to defend its people under international law. Hamas’ response, or at least the response of its defenders, is, as best I can tell, that Israel’s occupation of Gaza is illegal—especially its blockade. Defenders of Hamas say that Palestinians in Gaza have the right to throw off the yoke of oppression, with violence if necessary. Moreover, even if Israel may attack in self-defense, its attack, which has resulted in the deaths of more than a hundred civilians, has been disproportionate to the provocation.

Israel replies that it does not formally occupy Gaza under international law because Gaza does not belong to another country, and is not itself a state that can be occupied. The blockade and other security measures are justified by the continuing threat posed by Hamas—the blockade prevents Gaza from obtaining additional rockets and other means for waging war. Israel also argues that it has not targeted civilians, and that civilian casualties have not been excessive in light of Hamas’ original rocket launches.

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Who is right? International law does not consist of moral precepts that you or I might like. It consists of rules that states have agreed to, typically for self-interested reasons. A major theme of international law is that states have rights and privileges, while non-state entities like Gaza or Hamas do not. So while Israel can cite a right to self-defense, Hamas cannot. Many states (probably most) regard Hamas’ missile attacks as terrorism, and terrorism as an international crime. But a large group of states—mainly Islamic and Arab—deny that the use of violence by populations that seek liberation from a foreign oppressor violates international law. Remember that many countries owe their independence to anti-colonial insurgencies that used violence against civilians. Various attempts to conclude treaties criminalizing international terrorism have foundered over this dispute about the rights of “national liberation movements.”

As for the claim that Israel has gone too far in its efforts to defend itself, Israel’s critics cite the definition of self-defense used in a diplomatic dispute between the United Kingdom and the United States in 1842. British forces chased Canadian rebels onto U.S. territory, seized an American vessel called the Caroline, which the rebels had used to get supplies, and ran it over Niagara Falls. The United States eventually accepted a British apology, and the two sides agreed that a state may enter foreign territory to counter an imminent threat, but the response must not be excessive or disproportionate to warding off that threat. That’s fine, but it doesn’t tell give us any idea of the outer limits of disproportionality. For example, did the massive U.S. attack on Afghanistan in response to 9/11 go too far? The proportionality standard from the Caroline incident has lasted so long precisely because it doesn’t mean anything.

A second unresolved issue for the Gaza conflict concerns the conduct of war. A set of rules called international humanitarian law, or “jus in bello,” governs how states may use military force. The rules can be found in the Geneva Conventions and other treaties; they also are thought to exist as customary norms that are widely shared. This is an important point because Gaza is not a party to the Geneva Conventions, and so while Israel can argue that the Geneva Conventions do not apply to its own conduct, Hamas can argue that customary law binds Israel.

The two major customary norms in question prohibit states from targeting civilians and killing a disproportionate number of civilians as an unintended consequence of targeting legitimate military targets. (This “disproportionality” rule is different from the Caroline rule, which refers to how much force a state may use in self-defense against legitimate targets, not how much protection must be given to civilians.) Some people have claimed that Israel broke these rules because civilians died. But Israel did not target civilians, and the point at which collateral civilian deaths become disproportionate in relation to the value of a military target is hotly contested. It’s clear that Israel could not target a hospital or school (unless enemy combatants take refuge in them). Nor could it blow up a whole city block in order to kill, say, one or two combatants who are holed up in an apartment. But no one says that Israel has done these things. Does international human rights law prohibit Israel more broadly from dropping bombs on people? Perhaps not: A common view (held by the United States, among others) is that during wartime, the law of armed conflict supersedes the law of human rights.

As you can see, there are plenty of uncertainties and technicalities for all sides to mine. But these legal considerations are mostly beside the point. The real question is whether people living in Gaza are entitled to sovereignty and independence, under current conditions. Israel believes that its security justifies limits on Palestinian autonomy. It does not trust Hamas to stop using violence against Israelis. Hamas, in turn, does not trust Israel, and will not forswear violence until Israel makes concessions to it, and perhaps not even if it does. The normal sources of international law—treaties and custom—do not resolve the underlying dispute.

If one peers through the fog of talk and looks at how states act, one can discern the bottom-line legal positions that count. Few states are willing to sanction or penalize Israel for its treatment of Gaza. That’s because supporting Hamas could translate into legal precedents that do not serve states’ interests. If you think of the Palestinians in Gaza as members of Israel’s population, then support for Hamas means support for the principle that internal populations may rise up, demand independence, and use violent means if their demands are rejected. Does China want Tibetans to cite such a precedent? Do the Turks want that for the Kurds? No, they do not. States have accepted few restrictions in theory, and virtually none in practice, on their ability to deal with insurgencies and related threats by unhappy populations under their control. So whatever moral claims the Palestinians in Gaza might advance, and however much sympathy they gain in other countries, they will not find a real ally in international law.

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.

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