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Legal Commentary

: Balkinization

Is the Gaza War Legal?

By Jack M. Balkin

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In the past two days the Washington Post and New York Times have run several dispiriting articles about Israel's war against Hamas. In an interview published in yesterday's Post, Israeli Foreign Minister Tzipi Livni came close to admitting what many observers surmised: that the aim of the war is not the limited one of stopping Hamas rocket attacks on southern Israel, but the maximalist one of destroying Hamas. It's hard to read the tea leaves: Livni stated the war aim more modestly ("We are fighting in order to weaken them and to affect their ability to target Israel in the future"). But later in the interview, Livni said that as long as Hamas survives, they win. If Hamas's survival means victory, it seems to follow that Israel's war aim can be nothing other than Hamas's destruction. And--given the level of support Hamas enjoys in Gaza, and its penetration in Gazan society--that implies a war of terrible scope.

Israel, Livni added, "is not going to show restraint anymore." Today's Times quotes an elite military commander who said, "We are very violent. We do not balk at any means to protect the lives of our soldiers." An Israeli counterterrorism expert confirmed that "the mind-set from top to bottom is fight and fight cruel...." In practice, according to Israeli officers, this means returning any hostile fire with heavy firepower. If the enemy is firing from the midst of civilians, the result of heavy firepower will be heavy civilian casualties.

A third article, in today's Post, reports not only that Israeli Jews are solidly behind the war (not too surprising), but that Israeli media have chosen to present a largely one-sided picture of the war's progress, downplaying or ignoring stories about Palestinian civilian deaths and misery and focusing intensively on every Hamas rocket, no matter how ineffectual. The Post quotes the foreign editor and anchor of the country's largest private broadcasting station, who says that the choice to present biased news is completely driven by public opinion, which would be furious at objective reporting. The chief executive of Israel's other main station admitted that "We don't pretend to show the whole picture, as though we were covering a war in Tanzania. It's our war." The publisher of the large daily newspaper Ma'ariv published an apology for running a column the previous day that criticized the military. The war offers a moment of unity among Israel's political leadership: launched by the governing Kadima Party--whose candidate for prime minister is Livni--and planned and executed by Ehud Barak, the Labor Party candidate. The third candidate, Likud's Benjamin Netanyahu, is more hard line than either of the other two.

Is the war legal? There are two aspects to this question, following the traditional distinction between the justice of fighting a war in the first place (jus ad bellum, JAB for short) and the justice of the way the war is fought (jus in bello, JIB for short).

JAB. Classical just war theorists, beginning with St. Augustine and St. Thomas Aquinas, developed elaborate criteria of just war: it must have a just cause, it must be the last resort, it must be launched by legitimate authority, it must be launched with rightful intention (meaning that the just cause can't be merely a pretext), it must have a reasonable chance of success, and the war aim must be proportional to the expected devastation of the war. On these criteria, the Gaza campaign is a mixed bag. Stopping rocket attacks on Israeli towns is a just cause, and Israel's government is a legitimate authority. I think the war passes the "last resort" test, because it seems clear that Israel has no non-military way of stopping the rocket attacks.

The other criteria are far more problematic. If stopping the rocket attacks is only a pretext for destroying Hamas, it flunks the rightful intention test. Viewed from afar, the prospect of success in the stated aim looks small: I have yet to hear anyone who realistically thinks that the campaign will stop the rocket attacks, and if Livni is right that all Hamas needs to do to win is survive, the war is a failure. But I freely admit that I don't know and am not competent to judge the prospects of Israeli success.

As for proportionality under JAB, it seems clearer that the war fails the test. News reports state that so far about 800 Palestinians have been killed, at least half of them civilians, and the devastation in Gaza is incredible. Thirteen Israelis, including three civilians, have been killed. Hamas's rocket attacks over the years since it took control of Gaza have been numerous, but the overall casualties and damage have been nowhere near the damage to civilians and property in Gaza since December 27. In this post on TNR, Michael Walzer makes the important point that proportionality judgments are forward-looking: it's not only a question of how many lives have been lost in the past, but how many might be lost in the future, if Hamas acquires more sophisticated weapons. That may be true, but it isn't a good enough response without specifying how far in the future we're talking about. It can't be "Some day--we can't say when--Hamas might get really accurate weapons and kill hundreds or thousands of Israelis; therefore, no matter how many Palestinians we kill now, we haven't violated proportionality." Walzer's argument would be right only if Israel can demonstrate a real likelihood of a far greater threat in the near future than anything we have seen in the past.

I mention the classical JAB criteria not because they're the law, but only because they provide a structured way to think about the morality of war. Under these criteria, it's an unjust war, because it satisfies only three or four of the six JAB conditions. This is a test in which the only passing score is a perfect score.

But these criteria have little or nothing to do with the current international law of JAB, and under current international law there is little doubt that Israel's attack is legal. (The question of JIB legality is different, and I'll come to it in a moment). Under Article 51 of the U.N. Charter, every state has an inherent right of self-defense, and it cannot be second-guessed by anyone else. Period. Interpreting Article 51 in its 1996 Nuclear Weapons Advisory Opinion, the International Court of Justice did not even admit that the law forbids states from launching a large-scale nuclear attack. (One dissenter, Judge Shahabudden, was incredulous that the law might permit "a course of conduct which could result in the extinction of civilization, and indeed in the dissolution of all forms of life on the planet, both flora and fauna." He pointed out that "if mankind in the broad is annihilated, States disappear and, with them, the basis on which rights and obligations exist in the international community." But his view was in the minority.) Given the rocket attacks on Israel, it had an Article 51 right to use military force. Although some scholars disagree, on its face Article 51 contains no requirement of JAB proportionality. Likewise, it contains no requirement of rightful intention, nor of reasonable chance of success, nor of last resort. The only classical JAB criteria that survive in U.N.-era law are rightful authority and just cause--and self-defense is a just cause. That's why I think there is no question that Israel's war is legal in the JAB sense.

JIB. But matters are different under JIB. JIB contains two crucial principles: the Principle of Discrimination, which holds that you can never intentionally target civilians (violence must discriminate between military and civilian targets), and the Principle of Proportionality, which holds that unintended civilian damage must be proportional to the military value of the objective. Both of these are embodied in treaty law, most notably the 1977 First Additional Protocol to the Geneva Conventions--AP I, for short--in Article 51. Unlike the four 1949 Geneva Conventions, AP I doesn't have unanimous support among the countries of the world. It has 168 parties, where the 1949 GCs have 194. And neither Israel nor the United States has ratified AP I. But both Israel and the U.S. accept its Article 51 JIB rules as binding customary international law--their objections are to other clauses of AP I.

Defenders of Israel's Gaza campaign argue that Hamas routinely, and as a matter of policy, targets civilians--even if it is pretty ineffectual. And Israel does not: Israel phones civilian residents of targeted buildings to tell them to leave; and, in a tactic called "a knock on the roof," its forces respond to Palestinians who crowd onto rooftops as human shields by firing a non-exploding rocket onto an empty corner of the roof to warn them away. A few days ago, Charles Krauthammer wrote that the scrupulousness of Israel's tactics "possesses a moral clarity not only rare but excruciating." (Excruciating?)

But wait a minute. Who exactly are the military targets, and who the civilians? The very first day of the Israeli campaign, the air force bombed a police academy at a mid-day graduation ceremony, killing dozens. What makes policemen a legitimate target? Here, I want to focus not just on the law of war, but on Israel's own interpretation of it, in the Israeli Supreme Court's 2006 decision on targeted killings (Public Committee Against Torture v. Israeli Gov't). The Israeli Supreme Court approved some targeted killings, but outlawed others, on precisely the ground that civilians can't be targeted unless they participate in hostilities. Specifically, the Court focused on Article 51(3) of AP I: "Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities."

As a preliminary matter, the Court held that even though Israel isn't a party to AP I, it accepts Article 51--the JIB rules--as binding law. As a second preliminary, the Court found that Israel's armed conflict with Palestinian militants is an international armed conflict that AP I applies to. Then it turned to the main question: when do civilians lose their protection? The Court answered the question by interpreting Article 51(3) a phrase at a time.

It first asks when a civilian participates in hostilities, and answers: "when using weapons in an armed conflict, while gathering intelligence, or while preparing himself for hostilities."

Plainly, the Hamas policement were not using weapons or gathering intelligence. They were getting their diplomas. Were they preparing for hostilities? Not unless they were preparing to launch rockets at Israel--and there is no reason to think they were. For better or for worse, like it or not, Hamas is administering Gaza, and the police are the police. Matters would be different if Israel can show that Hamas police are really militants who fire off rockets at Israel--but as far as I can determine, Israel hasn't suggested that they are. These policemen were civilians who under Israeli law of war were not taking part in hostilities.

And what about "taking a direct part" in hostilities? Here's what the Court says:

the following cases should also be included in the definition of taking a "direct part" in hostilities: a person who collects intelligence on the army...; a person who transports unlawful combatants to or from the place where the hostilities are taking place; a person who operates weapons which unlawful combatants use, or supervises their operation, or provides service to them, be the distance from the battlefield as it may. All those persons are performing the functions of combatants....However, a person who sells food or medicine to an unlawful combatant is not taking a direct part, rather an indirect part in the hostilities. The same is the case regarding a person who aids the unlawful combatants by general strategic analysis, and grants them logistical general support, including monetary aid....

Here, once again, it seems pretty clear that Gazan policemen, even if they are enthusiastic Hamas members who completely back the militants, fall on the "indirect" support side of the line, not the "direct" side. And that makes them--under Israeli law--protected civilians who cannot be targeted.

And what about "for such time"? Again, here's what the Court says:

On the one hand, a civilian taking a direct part in hostilities one single time, or sporadically, who later detaches himself from that activity, is a civilian who, starting from the time he detached himself from that activity, is entitled to protection from attack. He is not to be attacked for the hostilities he committed in the past. On the other hand a civilian who has joined a terrorist organization which has become his "home," and in the framework of his role in that organization he commits a chain of hostilities, with short periods of rest between them, loses his immunity from attack.... Indeed, regarding such a civilian, the rest between hostilities is nothing other than preparation for the next hostility.

The Court goes on to say that there are gray areas in between--but so far as I can tell, the policemen are not in the gray area. Even if they have launched rockets against Israel at some point in their lives, they are protected civilians unless launching rockets or helping those who do is pretty much their "day job."

And the Court adds, "if the harm is not only to a civilian directly participating in hostilities, rather also to innocent civilians nearby, the harm to the civilians is collateral damage. That damage must withstand the proportionality test." Has Israel been passing this test? Ha'aretz columnist Gideon Levy thinks Israelis haven't even been asking the question:

They liquidated Nizar Ghayan? Nobody counts the 20 women and children who lost their lives in the same attack. There was a massacre of dozens of officers during their graduation ceremony from the police academy? Acceptable. Five little sisters? Allowed. Palestinians are dying in hospitals that lack medical equipment? Peanuts. Whatever happened to the not-so-good old days of Salah Shahadeh? When we liquidated him in July 2002, we also killed 15 women and children. At least back then, moral qualms were raised for a moment.

I can't answer the question of proportionality. The fact is, nobody has ever proposed an operational test of how you weigh a military objective against "collateral damage"--our antiseptic euphemism for dead and maimed civilians who were at the wrong place at the wrong time. Recently, I asked a thoughtful U.S. Army major--a Ranger who had commanded combat troops in Iraq--what the operational test was. After a moment of thought, he replied that it lies mainly in the choice of weapons. If a sniper shot at his troops from the roof of an apartment building full of people, he explained, you don't use high-caliber ammunition that will take the building apart. But today's Times story suggests that that is exactly what Israeli troops are doing when they "go in 'heavy'." And--more to the point of Levy's questions--there simply is no formula, even a vague one, that could answer the question of proportionality in numerical terms.

So what about the Ghayan killing that Levy mentions? Ghayan was a senior Hamas leader, and seems like a lawful target under AP I. But the dead included his wives, several children, and whoever else was around at the time. Is that level of death proportionate to the value of the military objective, as AP I requires? How on earth do you tell?

But let's be clear about this: proportionality only comes in when the targets are legitimate. Proportionality under JIB concerns civilian deaths when attacking a legitimate military target. If Israel is targeting all the institutions of Hamas's civil government of Gaza, including all those who work in those targets, it seems to be going after civilians--to repeat again, not only according to international law that Israel rejects, but also according to the law of war as Israel's own Supreme Court understands it. If that's right, the attacks are illegal even without reaching the question of proportionality.

Full post as published by Balkinization on January 11, 2009 (boomark / email).