International law and proportionality

This is an article I wrote in January 2009. It was addressed to a legal expert in e-mail correspondence. I should add that I wrote this in haste, and do not consider it authoritative. I should also add that the legal expert was not entirely convinced by the argument set out below.

Self Defense and Proportionality: The Law

The doctrine on proportionality originated with the 1907 Hague Conventions, which govern the laws of war, and was later codified in Article 49 of the International Law Commission's 1980 Draft Articles on State Responsibility. The doctrine is also referred to indirectly in the 1977 Additional Protocols of the Geneva Conventions. Regardless of whether states are party to the treaties above, the principle is part of customary international law. According to the doctrine, a state is legally allowed to unilaterally defend itself and right a wrong provided the response is proportional to the injury suffered. The response must also be immediate and necessary, refrain from targeting civilians, and require only enough force to reinstate the status quo ante.

I believe that on a plain-language reading of the doctrine, there is a strong case to be made for the fact that Israel exceeded its limits, but I accept that proportionality is a weak tool in international law. It has not been sharpened and so remains unable to fully control the use of Article 51 of the UN Charter, the right to self defence.

But there is a necessary preliminary question which is too seldom being asked: Is Israel acting in self-defense, within the limits of Article 51?

Self Defense and Proportionality: The Facts

The claims for the amount of Hamas rocket fire into Israel from September 2005 (when Israel removed its settlements from Gaza) until Nov 2008 (before the present operation) range from 6500 to 8000. These killed 15 Israelis and certainly traumatised and disrupted life in certain towns in the south of Israel.

However the claim that Israel has waited patiently during that period and is now finally responding is a false one.

I will say more below about Israel's continued rule over Gaza after the September 2005 withdrawal of is military and civilians presence, but for now the following will suffice: Hamas won the Palestinian parliamentary elections held on January 25, 2006, which were declared free and fair by observors, and recognised as such by US President Bush. Thereafter, the US and EU withdrew aid to the Palestinian government. Israel reacted to the elections by capturing and imprisoning a large number of the Ministers appointed to the new Palestinian government, headed by Hamas. At the same time Israel suspended transfers of VAT to the Palestinian government, tax Israel continued to collect in the Gaza Strip. The suspension of funds lead to near disentegration of the public service and precipitated the present level of 80% unemployment. A siege was also imposed cutting off basic supplies such as power and fuel. Then Israel bombed Gaza's only power station on 28 June 2006. Further, in January 2007, a high-level US team headed by Secretary of State Condoleeza Rice met with Hamas' rival Fatah and agreed to arm a force under Fatah security chief Mahmood Dahlan to wrest control of Gaza back from Hamas; despite the fact that Hamas had won the elections by the US's own admission. The arming of Dahlan by the US, and how this led to the deadly civil war between Hamas and Fatah in Gaza (which finished with Hamas even more firmly in control) was exposed in a brilliant piece of investigate journalism in the Vanity Fair, available here.

When the attempt to violently dislodge Hamas failed the siege on Gaza was increased.

A critical thing which is also often forgotten is that during the period that Hamas fired its 8,000 rockets into Israel, taking 15 lives, Israel killed 1,257 people in Gaza in multiple military operations. The statistics are from the UN Office for the Coordination of Humanitarian Affairs and are available here. (To be clear, those 1257 people were killed between September 2005 and October 2008, before the present operation.) Of those, approximately a quarter were minors.

These deaths occured in multiple Israeli Defence Force raids into Gaza in the period from September 2005 (Israeli "disengagement") until late 2008. One year ago, the IDF launched Operation "Hot Winter," the aim of which was to stop the firing of rockets into Israel. The final death toll: over 100 Hamas militants and 50 civilians. That campaign was preceded by Operation "Summer Rain," (2007) also intended to stop the rocket fire by Hamas. This time 374 Palestinians (270 armed), 3 Israeli soldiers and 2 Israeli civilians died. Before that the IDF launched Operation "Days of Repentance"(2006), following the death of two Israeli children in Sderot by a Qasam rocket. In this operation over 100 Palestinians were killed, around two thirds of them civilians, and 3 Israeli soldiers. (I mention also that these campaigns were preceded by Operation "Rainbow" and Operation "King's Court," both in 2004 - before the unilateral Israeli disengagement from Gaza and well before Hamas took control of Gaza in 2006.)
It is therefore questionable, even before going to the question of proportionality, whether Israel in fact meets the test of acting in self-defense. If it does meet that initial test, the above chronology strengthens the case that it fails to meet the test of proportionality.

International Humanitarian Law: The Facts and the Law together

Israel has responsibilities other than proportionality. Given that it is still, in many ways, an occupying power, the Fourth Geneva Convention remains applicable to its conduct in Gaza. Here are some examples of how and why it is still an occupying power:

The extensive control retained by Israel made it impossible for democratic government to emerge. Importantly, post-disengagement, Israel has retained control of the strip's airspace, territorial waters, and offshore maritime access, as well as its side of the Gaza-Israel border. In addition, Israel approves all immigration to and emigration from Gaza via Israel, as well as entry by foreigners via Israel, movement to and from the West Bank (also via neighboring countries), the population registry, family unification, imports and exports via Israel, and collection and reimbursement of value-added tax. This continued control has allowed Israeli to control the inflow and outflow of Gaza's essential resources, including food, water treatment supplies and medical equipment. Residents of the Gaza Strip rely solely on Israel for fuel, gas, and electricity. Most serious international lawyers have said that Israel retains its obligations, under the Fourth Geneva Convention, as an occupying power, to protect the life of the civilian population who are "protected persons" under the Convention. Israel disputes this.

(It need not be said, of course, that the settlements removed in 2005, housing 8000 settlers and covering 20% of Gaza, were illegal in the first place, and therefore Israel was obliged to remove them; it was not being charitable.)

Under the Fourth Geneva Convention, Israel has the following -- among many other -- relevant obligations:

Protect Civilians and Prohibition against extra-judicial executions:
Article 3(1): Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
...
(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Article 16: The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect. As far as military considerations allow, each Party to the conflict shall facilitate the steps taken to search for the killed and wounded...

Protect the Wounded and Sick:
Article 3(2): The wounded and sick shall be collected and cared for.
Article 17: The Parties to the conflict shall endeavour to conclude local agreements for the removal from besieged or encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage of ministers of all religions, medical personnel and medical equipment on their way to such areas.
Article 18: Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack, but shall at all times be respected and protected by the Parties to the conflict.

Prohibition against Collective Punishment:
Article 33: No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.

Dealing with enemies inside occupied territory:
Article 5: Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State...
In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

Addendum: The shooting of white phosphorous into Gaza City
I received this last night from a friend in Israel. He is one of the most trustworthy people I know. He runs an organisation called Breaking the Silence, which records testimonies of Israeli soldiers and thereby documents problematic conduct by soldiers. This is a testimony they recorded this weekend. This is the verbatim testimony:

"Drafted into the Israeli military in 2000, I served in the artillery corps as a gunner in artillery crew M109. The bombs we used, which are also being used today in Gaza, have a 50 meter kill radius. Anybody caught within 200 meters is likely to be wounded. Because these bombs are imprecise, military regulations prohibit firing them to within a 350 meter radius of fellow soldiers in an open area (or within 250 meters if they are in armored vehicles). To fire these shells into a heavily populated like Gaza City carries a known risk of injuring and killing civilians within this range.

The soldiers in Gaza have fired white phosphorus shells, which were in the arsenal when I served in the army as well. These shells contain 116 small canisters of phosphorus. To maximize their effect, the shells explode some tens of meters before they hit the ground, raining down 116 burning wafers over an area up to 250 meters. In our training, they told us that these shells were illegal by international law and that because they were illegal, they were not labeled as white phosphorus but as "exploding smoke" shells."

Conclusion
It appears to me that Israel is in breach of the UN Charter and the doctrine of proportionality. But there can be no doubt that it has violated international humanitarian law, particularly the prohibition against collective punishment as evidence in the siege and shelling of civilian areas.

It is also my view that Hamas' firing of rockets at Israeli town is also a violation of international law. Some might argue that this is done in self-defense, but if that were the case Hamas would confine itself to military targets. These rockets indiscrimately target civilians and are therefore a war crime.

Lastly I want to add that 9 extremely reputable Israeli organisations have now called for an investigation into war crimes. You can read their statement issued on Jan 14 by clicking here. They state that "military forces are making wanton use of lethal force which has to date caused the deaths of hundreds of uninvolved civilians". They state further: "This kind of fighting constitutes a blatant violation of the laws of warfare and raises the suspicion, which we ask be investigated, of the commission of war crimes."