Guiora on the Legal Implications of Gaza

by Chris Borgen

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.

http://opiniojuris.org/2009/01/12/guiora-on-the-legal-implications-of-gaza/

4 Responses

  1. “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” and “terrorist infrastructure.”

    So we might begin to appreciate, I hope, how the “legal and strategic issues” are not easily disentangled from the social and political ones.

    “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.”

    But according to Norman Finklestein on Democracy Now!,

    Well, the record is fairly clear. You can find it on the Israeli website, the Ministry of Foreign Affairs website. Mr. Indyk is correct that Hamas had adhered to the ceasefire from June 17th until November 4th. On November 4th, here Mr. Indyk, I think, goes awry. The record is clear: Israel broke the ceasefire by going into the Gaza and killing six or seven Palestinian militants. At that point—and now I’m quoting the official Israeli website—Hamas retaliated or, in retaliation for the Israeli attack, then launched the missiles.

    Now, as to the reason why, the record is fairly clear as well. According to Ha’aretz, Defense Minister Barak began plans for this invasion before the ceasefire even began. In fact, according to yesterday’s Ha’aretz, the plans for the invasion began in March. And the main reasons for the invasion, I think, are twofold. Number one, as Mr. Indyk I think correctly points out, to enhance what Israel calls its deterrence capacity, which in layman’s language basically means Israel’s capacity to terrorize the region into submission. After their defeat in July 2006 in Lebanon, they felt it important to transmit the message that Israel is still a fighting force, still capable of terrorizing those who dare defy its word.

    And the second main reason for the attack is because Hamas was signaling that it wanted a diplomatic settlement of the conflict along the June 1967 border. That is to say, Hamas was signaling they had joined the international consensus, they had joined most of the international community, overwhelmingly the international community, in seeking a diplomatic settlement. And at that point, Israel was faced with what Israelis call a Palestinian peace offensive. And in order to defeat the peace offensive, they sought to dismantle Hamas. [....]

    [Finally], the record shows that Hamas wanted to continue the ceasefire, but only on condition that Israel eases the blockade. As your viewers surely know, long before Hamas began the retaliatory rocket attacks on Israel, Palestinians were facing a humanitarian crisis in Gaza because of the blockade. The former High Commissioner for Human Rights, Mary Robinson, described what was going on in Gaza as a destruction of a civilization. This was during the ceasefire period. This suggests the reasons given by Guiora for the IDF’s launching of Cast Lead amount to an ex post facto rationalization rather than ex ante justification, and, further, that the characterization of this military operation as simply ”classic self-defense” rings rather hollow.

     

  2. 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 are being repeated ad nauseam: the Hamas terrorists use the inhabitants of Gaza as “hostages” and exploit the women and children as “human shields”, they leave us no alternative but to carry out massive bombardments, in which, to our deep sorrow, thousands of women, children and unarmed men are killed and injured.

    In this war, as in any modern war, propaganda plays a major role. The disparity between the forces, between the Israeli army – with its airplanes, gunships, drones, warships, artillery and tanks – and the few thousand lightly armed Hamas fighters, is one to a thousand, perhaps one to a million. In the political arena the gap between them is even wider. But in the propaganda war, the gap is almost infinite.

    Almost all the Western media initially repeated the official Israeli propaganda line. They almost entirely ignored the Palestinian side of the story, not to mention the daily demonstrations of the Israeli peace camp. The rationale of the Israeli government (“The state must defend its citizens against the Qassam rockets”) has been accepted as the whole truth. The view from the other side, that the Qassams are a retaliation for the siege that starves the one and a half million inhabitants of the Gaza Strip, was not mentioned at all.

    Only when the horrible scenes from Gaza started to appear on Western TV screens, did world public opinion gradually begin to change.

    True, Western and Israeli TV channels showed only a tiny fraction of the dreadful events that appear 24 hours every day on Aljazeera’s Arabic channel, but one picture of a dead baby in the arms of its terrified father is more powerful than a thousand elegantly constructed sentences from the Israeli army spokesman. And that is what is decisive, in the end.

    War – every war – is the realm of lies. Whether called propaganda or psychological warfare, everybody accepts that it is right to lie for one’s country. Anyone who speaks the truth runs the risk of being branded a traitor.

    The trouble is that propaganda is most convincing for the propagandist himself. And after you convince yourself that a lie is the truth and falsification reality, you can no longer make rational decisions.

    An example of this process surrounds the most shocking atrocity of this war so far: the shelling of the UN Fakhura school in Jabaliya refugee camp.

    Immediately after the incident became known throughout the world, the army “revealed” that Hamas fighters had been firing mortars from near the school entrance. As proof they released an aerial photo which indeed showed the school and the mortar. But within a short time the official army liar had to admit that the photo was more than a year old. In brief: a falsification.

    Later the official liar claimed that “our soldiers were shot at from inside the school”. Barely a day passed before the army had to admit to UN personnel that that was a lie, too. Nobody had shot from inside the school, no Hamas fighters were inside the school, which was full of terrified refugees.

    But the admission made hardly any difference anymore. By that time, the Israeli public was completely convinced that “they shot from inside the school”, and TV announcers stated this as a simple fact.

    So it went with the other atrocities. Every baby metamorphosed, in the act of dying, into a Hamas terrorist. Every bombed mosque instantly became a Hamas base, every apartment building an arms cache, every school a terror command post, every civilian government building a “symbol of Hamas rule”. Thus the Israeli army retained its purity as the “most moral army in the world”.

    The truth is that the atrocities are a direct result of the war plan. This reflects the personality of Ehud Barak – a man whose way of thinking and actions are clear evidence of what is called “moral insanity”, a sociopathic disorder.

    The real aim (apart from gaining seats in the coming elections) is to terminate the rule of Hamas in the Gaza Strip. In the imagination of the planners, Hamas is an invader which has gained control of a foreign country. The reality is, of course, entirely different.

    The Hamas movement won the majority of the votes in the eminently democratic elections that took place in the West Bank, East Jerusalem and the Gaza Strip. It won because the Palestinians had come to the conclusion that Fatah’s peaceful approach had gained precisely nothing from Israel – neither a freeze of the settlements, nor release of the prisoners, nor any significant steps toward ending the occupation and creating the Palestinian state. Hamas is deeply rooted in the population – not only as a resistance movement fighting the foreign occupier, like the Irgun and the Stern Group in the past – but also as a political and religious body that provides social, educational and medical services.

    From the point of view of the population, the Hamas fighters are not a foreign body, but the sons of every family in the Strip and the other Palestinian regions. They do not “hide behind the population”, the population views them as their only defenders.

    Therefore, the whole operation is based on erroneous assumptions. Turning life into living hell does not cause the population to rise up against Hamas, but on the contrary, it unites behind Hamas and reinforces its determination not to surrender. The population of Leningrad did not rise up against Stalin, any more than the Londoners rose up against Churchill.

    He who gives the order for such a war with such methods in a densely populated area knows that it will cause dreadful slaughter of civilians. Apparently that did not touch him. Or he believed that “they will change their ways” and “it will sear their consciousness”, so that in future they will not dare to resist Israel. [....]

    A person without imagination, like Barak (his election slogan: “Not a Nice Guy, but a Leader”) cannot imagine how decent people around the world react to actions like the killing of whole extended families, the destruction of houses over the heads of their inhabitants, the rows of boys and girls in white shrouds ready for burial, the reports about people bleeding to death over days because ambulances are not allowed to reach them, the killing of doctors and medics on their way to save lives, the killing of UN drivers bringing in food. The pictures of the hospitals, with the dead, the dying and the injured lying together on the floor for lack of space, have shocked the world. No argument has any force next to an image of a wounded little girl lying on the floor, twisting with pain and crying out: “Mama! Mama!”

    The planners thought that they could stop the world from seeing these images by forcibly preventing press coverage. The Israeli journalists, to their shame, agreed to be satisfied with the reports and photos provided by the Army Spokesman, as if they were authentic news, while they themselves remained miles away from the events. Foreign journalists were not allowed in either, until they protested and were taken for quick tours in selected and supervised groups. But in a modern war, such a sterile manufactured view cannot completely exclude all others – the cameras are inside the strip, in the middle of the hell, and cannot be controlled. Aljazeera broadcasts the pictures around the clock and reaches every home. [....]

    The failure to grasp the nature of Hamas has caused a failure to grasp the predictable results. Not only is Israel unable to win the war, Hamas cannot lose it.

    Even if the Israeli army were to succeed in killing every Hamas fighter to the last man, even then Hamas would win. The Hamas fighters would be seen as the paragons of the Arab nation, the heroes of the Palestinian people, models for emulation by every youngster in the Arab world. The West Bank would fall into the hands of Hamas like a ripe fruit, Fatah would drown in a sea of contempt, the Arab regimes would be threatened with collapse.

    If the war ends with Hamas still standing, bloodied but unvanquished, in face of the mighty Israeli military machine, it will look like a fantastic victory, a victory of mind over matter.

    What will be seared into the consciousness of the world will be the image of Israel as a blood-stained monster, ready at any moment to commit war crimes and not prepared to abide by any moral restraints. This will have severe consequences for our long-term future, our standing in the world, our chance of achieving peace and quiet.
    In the end, this war is a crime against ourselves too, a crime against the State of Israel.

    The legal challenges and implications will soon be (if they’re not already) dwarfed by the political challenges and implications of the War in Gaza.

  3. 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

  4. 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.

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