12 Jan Guiora on the Legal Implications of Gaza
Amos Guiora has an essay up on Jurist concerning the Israeli military operations in Gaza. He writes:
The IDF launched Cast Lead after two significant developments: Hamas had fired 6,000 missiles from the Gaza Strip into southern Israel during the past three years after Israel had unilaterally disengaged from the Gaza Strip and Hamas had unilaterally violated an Egyptian negotiated cease-fire.
This is classic self-defense; to that extent, Operation Cast Lead is not different.
From a legal perspective, however, there are three critical differences between Cast Lead and previous IDF operations, each of which may pose significant challenges to existing interpretations of international law:
– declaring war against a non-state actor;
– re-articulating proportionality; and
– redefining what is a legitimate target in the context of collateral damage.
He argues that the legal challenges posed by the Israeli military operations in Gaza are best illustrated in how proportionality and collateral damage are discussed. He later writes:
By expanding the definition of “legitimate target,” the IDF has narrowed the definition of “collateral damage.”
This new paradigm presents enormous risk, for it invariably leads to the photographs that have caused Israel significant damage in the court of international opinion. The visual images from Gaza during the last two weeks are far more powerful than any spokesman’s words.
However, Israel declared war on an organization, and by extension on all those involved in that organization — active and passive alike. That is precisely how Operation Cast Lead is different from all previous Israeli operations…
[Military necessity] does not — and must not — mean that all Gazans are legitimate targets. Israel’s Defense Minister declared war on Hamas, not on Gaza. The IDF must minimize collateral damage; to do otherwise is a violation of international law.
Further, Israel must not ignore its international humanitarian law obligations. To do otherwise is a violation of international law.
I’m not sure whether, in light of the Israeli attacks in Lebanon from a year and half ago, the Gaza operations are “different from all previous Israeli operations,” but that’s not his main point. As usual, Guiora gives a good sense of the various legal and strategic issues that come into play. His essay is a valuable contribution, not only in regards to Gaza, but more broadly regarding the issue of the evolution of armed conflict, which is increasingly against non-state actors in urban environments, and whether international law will or should change to adjust to these new strategic realities. (Paging Philip Bobbitt.) Check it out.
“Israel declared war on an organization, and by extension on all those involved in that organization — active and passive alike.” That would make Operation Cast Lead just like the Israeli attacks on Hezbollah in Lebanon from a year and a half ago. What’s troubling in this case is the fact that not only was Hamas the duly (i.e., freely and fairly) elected leaders of the government, it is a social movement and organization that has an impressive record of providing basic social welfare services for Palestinians as well as running a network of educational institutions, from schools to libraries to adult education centers, as well as youth and sports clubs. It is deeply involved in the provision of medical services including the running of hospitals. These activities involve the members of Hamas so deeply in Palestinian society in such a manner as to make it well-nigh impossible to draw discrete lines of any sort between Hamas and the population. No doubt this is one reason, consciously, deliberately or not, that the IDF “declared war on an organization.” One can appreciate, I suspect, what this means therefore when the IDF states it’s going to strike back agains the Hamas “terror machine”… Read more »
One of the points I tried to make above has been better explained Uri Avnery (Israeli writer and peace activist who founded Gush Shalom movement) in a recent piece found at Middle East Online and published by Gush Shalom: Nearly seventy years ago, in the course of World War II, a heinous crime was committed in the city of Leningrad. For more than a thousand days, a gang of extremists called “the Red Army” held the millions of the town’s inhabitants hostage and provoked retaliation from the German Wehrmacht from inside the population centers. The Germans had no alternative but to bomb and shell the population and to impose a total blockade, which caused the death of hundreds of thousands. Some time before that, a similar crime was committed in England. The Churchill gang hid among the population of London, misusing the millions of citizens as a human shield. The Germans were compelled to send their Luftwaffe and reluctantly reduce the city to ruins. They called it the Blitz. This is the description that would now appear in the history books – if the Germans had won the war. Absurd? No more than the daily descriptions in our media, which… Read more »
Thanks for posting this refreshing post. Patrick. Israel had already lost the war because it has no soul and they will never get rid of the Palestinian people for they are not immigrants or aliens to the land the live on. They belong there, it is theirs.
Ali
The BBC reports that 750,000 people in Gaza are dependant on UN aid at this point. And, I recently read that about 400 of the 909 recorded deaths were civilians. The human side of this conflict cannot be ignored.
Its tough and unfair, but I don’t think its too early to predict that Hamas actually strengthens because of this particular conflict. Israel has shot itself in the foot once again.