Jake Lynch

Was Israel’s attack on Gaza illegal under international law? The question was raised, to a position of prominence unusual in the reporting of conflict, in many media which covered the events in the first two months of this year.

Complaints came from both humanitarian organizations and highly-placed UN officials, and governments called explicitly for the establishment of some form of tribunal in which the allegations could be tested. These centred on two principles enshrined in the 1977 additional protocol to the Geneva Conventions on the laws of war: discrimination and proportionality.

Chapter 1 of Section 1 adds Article 48 to the Conventions, laying down what it says is a “basic rule”:

“In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives”.

This does not oblige parties to conflict to avoid civilian casualties at all costs. Article 57 specifies that any incidental loss of life should not be “excessive in relation to the concrete and direct military advantage anticipated”. It was the sheer disparity in casualty figures that invoked this notion in connection with Gaza: ten years of sporadic, indiscriminate rocket fire aimed at Israeli towns such as Sderot had killed about a dozen people, whereas a few days of all-out military assault by Israel caused well over a thousand deaths.

Israeli spokesmen told interviewers that 500 of these were “militants”, a claim resting on the dubious classification of armed police officers, working for a government run by Hamas, as being in the same category as fighters in the organisation’s armed wing. Such distinctions are, surely, intended to be maintained by the provisions of Article 50 of the Conventions: “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character”.

These factors form a continuing thread in the reporting by the New York Times, for instance. Its coverage in the first two months of 2009 was extensive. In the 58 editions of January and February, it published 58 stories in which both the words, ‘Israel’ and ‘Gaza’ appear at least once each – an average of one per day. In these, the word, ‘disproportionate’ crops up just four times, and ‘indiscriminate’ twice, both the latter referring to Hamas rockets. However, the phrase, ‘international law’ occurs 13 times in ten of the articles, and ‘war crime(s)’ 19 times, in 12 articles.

Given that the articles caught in the sample include a smattering from the business pages (concerned with the impact on the price of oil), the domestic section (as then-President Elect Obama attempted to damp down calls for him to respond to the crisis) and even the book reviews, the incidence of these analytical factors in stories explicitly presented as being about the conflict would be higher still. It means that readers who followed the story day by day were highly likely to see it framed in terms of international law.

This is unusual, for the New York Times. It’s supposed to be a newspaper of record, so Howard Friel and Richard Falk call their book, criticising aspects of its coverage, The Record of the Paper. They survey 70 editorials about the Bush Administration’s plans for the invasion of Iraq, finding that none of them so much as mentions international law or the UN Charter. They lament its “persistent refusal to consider international law arguments opposing recourse to and the conduct of war by American political leaders, and by this refusal allowing the citizenry to overlook this essential dimension of controversial foreign-policy decisions”.

Over at the Guardian, in London, similar trends, in coverage of the assault on Gaza, can be discerned. Counting original articles for the Guardian Unlimited website, as well as those which actually appeared in the paper day by day, the volume of coverage is similar to that in the New York Times, with a higher number of articles, of slightly lesser average length. Here, the word, ‘disproportionate’ gets eight mentions, ‘indiscriminate’ two, ‘international law’ 12 and ‘war crime(s) 13. So much for the US and UK – what about the rest of the world? Preliminary findings, from studies of coverage in South Africa’s Mail and Guardian, and the Jakarta Post, in Indonesia, presage similar results.

Aggressive war?

One key aspect of international law that is less in evidence is the concept of aggressive warmaking, in contravention of Article 51 of the UN Charter. Article 51 states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security”.

Victor Kattan, of the Centre for International Studies and Diplomacy, School of Oriental and African Studies, University of London takes up the story, in Human Rights Tribune:

“According to a fact sheet produced by the Israeli consulate in New York City, after the ceasefire began in June 2008, the rate of rocket and mortar fire from Gaza dropped to almost zero, and stayed there for four straight months. As Nancy Kanwisher, Johannes Haushofer and Anat Biletzki point out in the Huffington Post, the ceasefire ended on 4 November 2008 ‘when Israel first killed Palestinians, and Palestinians then fired rockets into Israel.” For the purposes of the law of self-defence, however, it is not always a question of who attacks first – although Article 2 of the UN General Assembly’s 1974 Definition of Aggression stipulates that: ‘The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression’.

As Professor Yoram Dinstein of Tel Aviv University argues in his book War, Aggression and Self-Defence (Cambridge University Press 2005) p. 191, ‘it is not who fired the first shot but who embarked upon an apparently irreversible course of action, thereby crossing the legal Rubicon. The casting of the die, rather than the actual opening of fire, is what starts the armed attack’. But without doubt, it was Israel’s 27 December attack on Gaza, the biggest air assault on the Strip since 1967, that, to use Dinstein’s phrase, constituted the crossing of the ‘legal Rubicon’”.

What happens next? Given that world publics have been sensitised, by media reporting, to at least some international law aspects of the attack, is there any prospect that this will be followed by actual legal action against its perpetrators? A standard answer (and one I have heard so often) is that there is no realistic prospect, of seeing the likes of Israeli Prime Minister Ehud Olmert hauled before a court of law to answer such charges – so, forget about it.

However, Phil Shiner, of the UK-based group, Public Interest Lawyers, draws attention to the actions governments could have taken in response to an occasion when Israel was brought to book, by the International Court of Justice, in 2004, which issued an advisory opinion on Israel’s so-called ‘security fence’ – known to everyone else as ‘the wall’ – which grabbed, divided and reticulated Palestinian territory in the occupied West Bank. He continues:

“If the UK and other EU states in particular, had complied with their international obligations, as clearly set out in the advisory opinion of the international court of justice in July 2004, this crisis could have been nipped in the bud at the outset (as could Israel’s bombardment of Lebanon and Gaza in August 2006).

The ICJ’s opinion on the wall could not be clearer. It identifies 11 international obligations breached by Israel by the construction of the wall and the maintenance of the system flowing from it of gates, permits, and illegal settlements on Palestinian land. These included non-derogable rules on the Palestinian right to self-determination and the prohibition on the acquisition of land by force. The ICJ then identify seven separate obligations for other states – in the context of these non-derogable rules – that include two negative obligations that states must not: one, render aid or assistance in maintaining the situation; and, two, recognise the illegal situation. Negative obligations have a lower threshold than positive ones and the burden on the UK and other EU states to meet these negative international obligations from July 2004 has been a high one”.

“It is noteworthy”, Shiner continues, in a Guardian opinion piece, “that the UK, as one such state, has done nothing effective to meet these obligations, and has, in fact, increased its aid and assistance in Israel since the ICJ’s opinion”.

He goes on to list some examples of Britain’s “positive encouragement” of Israel’s actions in the occupied Palestinian territories since July 2004:

·    A massive increase in the value of arms-related products licensed to Israel in recent times (a doubling from 2004 to 2005 and a huge increase again in the first quarter of 2008);

·    It has resisted all attempts by campaigners that it should apply effective pressure within the EU that the EU-Israel association agreement, which is of great importance to Israel’s trading figures, should be suspended as the human rights obligations underpinning it have been breached;

·    It has continued to invite Israel’s arms companies to exhibit at the biennial London Docklands arms fair;

·    It has continued to propagate the myth that the Quartet’s Road Map process is the answer to the humanitarian crisis in the occupied Palestinian territories, which has allowed it to resist any positive action.

The Road Map and the Quartet

The last point here, the inefficacy of the Road Map, is connected to both its form and its content. The problem with the latter is the order of the steps it prescribes. Phase one includes an “end to Palestinian violence”; only then will phase two commence, the centrepiece of which is supposed to be an “International Conference to support Palestinian economic recovery and launch a process, leading to establishment of an independent Palestinian state with provisional borders”.

Two problems, then – first, it makes the prospects of peace a hostage to violence, and second, it reverses the order of conflict dynamics, observed in so many situations over so many years, and captured in Johan Galtung’s comments on the conflict in the Philippines: “issues of equity and autonomy must be solved to bring about equitable and sustainable peace. The road to DDR (disarmament-demobilization-reintegration), conciliation and development passes through solution, not vice versa. Putting the cart before the horse is pacification, not peace-building, and will fool nobody”.

Secondly, in form, the Quartet itself is an unwieldy beast, a pantomime horse of international relations comprising the UN, US, EU and Russia, in which the head and the hindquarters have different priorities and wish to go in different directions. The UN is the sole competent authority to hold the ring in the dispute between Israel and the Palestinians, as Chapter VI of its Charter suggests. The opening article of that chapter, number 33, states: “The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice”. And Article 37 says: “Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council”.

I’ve just finished reading Innocent Abroad, a tendentious and self-serving insider’s account of US diplomacy in the Middle East, by Martin Indyk, an Australian who stepped straight from his role as a pro-Israeli lobbyist in Washington to serve two spells, under President Clinton, as America’s ambassador in Tel Aviv.

His career-spanning commitment to the region was inspired, he relates, by BBC radio broadcasts about Henry Kissinger’s attempts to negotiate a ceasefire in the Yom Kippur, or October war of 1973. “I came to understand the pivotal role of the United States as the one party that, through its diplomacy, could help to resolve the Arab-Israeli conflict”. And, of course, this is the problem. For the US to interpose itself as the mediator of choice has constantly sidelined the proper forum to decide such matters, namely the United Nations.

The UN dilutes and weakens its authority, indeed, by entering into such arrangements. It’s a continuation of the logic which saw UN reach a formal understanding with the North Atlantic Treaty Organisation, of which, Hans von Sponeck, the UN’s former humanitarian coordinator in Iraq, commented: “Any evaluation of the UN/NATO pact must take into account that NATO is a relic of the Cold War; that NATO, as a Western alliance, is regarded with considerable mistrust by the other 166 United Nations member states; that a primary NATO aim is to assert, by military means, its energy and power interests in opposition to other United Nations member states and that the United States, a founding member of the  NATO community, in the most unscrupulous ways, has  disparaged the United Nations and broken international law”.

Two familiar obstacles, then, stand between the now widespread appreciation of a prima facie case that Israel broke international law in its assault on Gaza, and any real prospect of holding it to account: namely, the unresponsiveness of institutional frameworks, in particular the reluctance of governments to take their obligations seriously; and the (not unconnected) hegemony, at least in political and diplomatic terms, of the United States, which sees Israel as a key military ally in the region, and continues to supply it with the latest military technology. As so often, it is left to civil society – us, in other words – to raise the political cost of a recourse to violence, by addressing the court of public opinion.


This article originally appeared on Transcend Media Service (TMS) on 14 Mar 2009.

Anticopyright: Editorials and articles originated on TMS may be freely reprinted, disseminated, translated and used as background material, provided an acknowledgement and link to the source, TMS: INTERNATIONAL LAW IN THE NEWS, is included. Thank you.

If you enjoyed this article, please donate to TMS to join the growing list of TMS Supporters.

Share this article:

Creative Commons License
This work is licensed under a CC BY-NC 4.0 License.

Comments are closed.