03 Jan Israel v. Hamas: Is International Law Useful?
I notice that none of us have posted on the Israeli military assault on Gaza. This is not surprising, there is very little useful to say about it, especially from a legal point of view. There is something depressingly predictable about the commentary arising out of Israel’s military incursion into Gaza. Critics of Israeli policy in general have denounced the incursion, alleging (of course) war crimes. Defenders of Israeli policy have supported the incursion foursquare, rejecting claims of disproportionate use of force. Frankly, even if Israel hit Palestinians with bb guns, I am fairly sure that their military would be accused of war crimes. And frankly, anything short of the use of nuclear force would probably receive staunch support from many pro-Israel commentators. Is there any way to assess the legality of Israel and Hamas’ actions in a way that would be persuasive to both sides?
I doubt it. Although both sides aggressively defend their actions under international law, the sad truth is that international law, e.g. the international law of armed conflict, has little independent force here. Can Hamas justify the rocket attacks into Israel under international law? I am not aware of whether Hamas has bothered to do this, but I suppose a theory of self-defense or at attempt to break the “blockade” would probably work. Can Israel justify a military response under international law? Sure.
I suppose international law, e.g. the law of armed conflict, is more likely to have an effect on Israel than Hamas because Israel is a fully-functioning state with a professional military that has incorporated the laws of war. Violations of the laws of war can and will be published in Israeli courts martial or courts. There is no evidence that Hamas has any interest in applying the laws of war to its military units.
So the relevant international laws here are either useless in that they have no meaningful effect on the behavior of either participant in the conflict…Or they are unfairly biased in constraining one side (Israel) while not having any serious effect on the other side (Hamas). Which is it? I vote for useless, but I am willing to hear arguments otherwise. And I’m sure I will.