Guiora on the Legal Implications of Gaza
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.