The agony of Gaza – What price is the right of self-defence?

by Kennedy Graham

As I write, the conflict in Gaza has seen yet another ceasefire deal squandered, with more death and destruction. Israel has repeatedly claimed its right to self-defence as justification for ‘Operation Protective Edge’. That claim is supported by leading Western powers, including the US, EU and UK.

In my speech on the Gaza motion in Parliament last week, I said, among other things, that the right of self-defence surely cannot be a justification for the scale of civilian damage currently being inflicted there by the Israeli Defence Force. This requires some exploration. What is the moral-legal mix behind that argument – for or against?

The UN Charter accords member states the right of individual or collective self-defence against aggression by another state. Israel is a UN member state (1949); Palestine is an observer state (2013). Because self-defence is an ‘inherent’ right under customary international law, Palestine possesses it despite being a non-member state.

Separate from the Charter, the Geneva Conventions (1949) and their two additional protocols (1977) impose obligations on states parties in the use of force in armed conflict, both internal and international. The 4th Geneva Convention applies to the protection of civilians in time of war. Both Israel (1951) and Palestine (2014) are parties.

Protocol 1 applies to international conflict while Protocol II applies to internal conflict. Palestine is a party to Protocol I (2014); Israel is party to neither, but it remains subject to customary international law from which most of their provisions are drawn.

So, how does this play in Gaza? There are two lines of legal argument on the use of force in the Israel-Palestine relationship.
- The first rests on the status of occupation and internal governance obligations of an occupied territory;
- The second rests on the status of international armed conflict and the right of self-defence.

Occupation

This argument contends that, because Israel is an occupying power, the right of self-defence does not arise. Israel has effective control over Palestine, having annexed East Jerusalem and remaining present in the territories. Both the International Court of Justice (Advisory Opinion of 2004) and the United Nations (Security Council resolution 478 of 1980) regard Israel as the ‘occupying power’. The High Court of Israel itself has ruled that Israel holds the West Bank under ‘belligerent occupation’. Although it militarily withdrew from Gaza in ’07 and permits partial Palestinian control in West Bank, it hermetically seals off both areas from the outside world. Does Israel have to ‘govern’ Palestine to be an occupying power? It would seem not.

Certain legal obligations arise under the 4th Geneva Convention for an occupying power (as with the US in Iraq under the Coalition Provisional Authority from ‘03 to ’04). One is to maintain the status quo until the signing of a peace treaty, the resolution of certain specific conditions, or the formation of a new civilian government.

If Israel is an occupying power, then any armed action by Palestinians against Israelis becomes a matter of internal criminal law, not international armed conflict. There is no right of self-defence. Individual Palestinians suspected of firing rockets must be subject to arrest and prosecution. Any bombardment of Israel by Palestinian militants is seen as an insurrection to be quelled, but only through domestic police operation. Any bombardment of Palestine by Israel is seen as illegal. Police conduct would be a separate issue, governed ultimately by international humanitarian law.

Self-defence

The second argument is that, despite Israel’s domination and oppression of Palestine, the latter remains a separate state, so the conflict is an international one and the right of self-defence arises, on the part of each side.

The UN framework for peace in the Middle East (Oslo Accords, 1993 / 95) is based on a two-state solution. As noted, Palestine is an observer state at the UN.

Additional Protocol I makes it clear that armed conflict against colonial domination and foreign occupation qualifies as an international conflict. The contention therefore is that the Israel-Palestine relationship is an international one, and to the extent there is armed conflict, it is an international conflict, and the 4th Geneva Convention and Additional Protocol I apply.

One of the main difficulties is determining what specific action is responsible for a particular round of lethal force. Some cite the killing of the Israeli teenagers on 12 June as the incitement to the current violence. Others claim provocative Israeli actions preceding that. The underlying reality is a series of incidents tracing back to the original ‘modern’ version of the conflict, in 1948, with the combined Arab invasion and Israel’s push-back.

The Position of Palestine/Hamas

The position of Palestine and Hamas is complex. The Palestine National Authority governs West Bank, and a separate Hamas Movement (political and social wing) governs Gaza. Palestine is essentially self-governing, however chaotically.

Who is legally responsible for the rockets fired by Hamas’ military wing? Is it the ‘Observer State of Palestine’ which communicates to the UN over the alleged crimes by Israel in Gaza? Does that make the state of Palestine responsible for Hamas’ rockets?

Is Hamas a terrorist organization? The military wing is identified as such, in the UN list and by Western governments including New Zealand. But, when I lived and worked in the United States in the ‘90s, it was a Republican congressman who used to say that “one man’s terrorist is another man’s freedom-fighter”. Castro and Mandela, Begin and Arafat were seen as terrorists yet subsequently accorded head of state dignity by the world. So was George Washington. Churchill insisted on ‘continuing the terror’ on German cities until the war was won, and Truman, who presided over the creation of the United Nations, immolated two cities with atomic weapons.

So these concepts are relative, not absolute, and we in the West who unctuously adopt positions of absolute, even relative, piety, are best advised to surrender them.

The Position of Israel

Israel regards most, or all, of Palestine as ‘disputed territory’, regards the state of Palestine as having separate and discrete obligations. It regards the situation as an international conflict, Hamas as a terrorist organisation, and Israel as having the right of self-defence against its rocket attacks, including the discriminate bombardment of rocket launchers which incurs collateral civilian damage because Hamas uses people as ‘civilian shields’. Israel “cannot end this operation without neutralising the tunnels whose sole purpose is killing our citizens”.

Is Israel’s right to self-defence sufficient to justify its actions? In other words, is there no constraint on the use of military action in the name of self-defence? Not if the obligation to proportionality and discrimination in targeting during retaliatory self-defence is seen as part of customary international law and a continually applicable constraint on self-defence.

The most important provisions of Geneva Protocol I are, in fact, declaratory of customary international law and are binding on all states regardless of their treaty rights and obligations. The rules of proportionality and the rules prohibiting direct attacks on civilians who are not taking a direct part in hostilities is a part of customary international law. There is simply no debate on this issue. The debate is whether a particular action breaches the rule of proportionality – not whether the rule of proportionality exists.

Additional Protocol I is clear.
- Article 51 requires that a civilian population shall not be subject to attack. Indiscriminate attacks (those not directed at a specific military objective) are prohibited. This includes bombardment which treats as a single military objective a number of clearly separated and distinct military objectives located in a city or other area containing a similar concentration of civilians. And it includes an attack which may be expected to cause incidental loss of civilian life that would be excessive in relation to the concrete and direct military advantage.
- Article 57 requires that precautions be taken: to do everything feasible to verify that the targets are not civilian, and to refrain from attacking anything that may be expected to cause incidental loss of civilian life.

Does Israel use excessive force? Yes, in the opinion of most jurists.

Conclusion

It seems that, on the basis of either of the two arguments, the firing of rockets by Hamas and the retaliatory rain of death and destruction both violate their respective legal obligations. Each side has its responsibilities.

But the huge asymmetry in casualties would be a factor in any legal judgement of state responsibility or individual leadership liability under international criminal law. Some 56 Israelis have been killed, mostly in the ground invasion of Gaza, three by Hamas rockets. But in Gaza, 1,269 Palestinians have been killed, 7,110 injured, 2,333 structure demolished, 2,080 partially demolished, and 23,160 homes, 133 schools and 13 hospitals damaged.

Comment

Two principles – the right of self-defence and the obligation of proportionality / discrimination – derive from customary international law. Does one over-ride the other? No. Do they exist, side-by-side? Yes. Does the latter act as an imperative constraint on the former? Yes.

Parroting a blunt assertion that Israel has the right to defend itself, as the US, UK and EU do, and leaving it purely at that, is morally repugnant and legally inadequate. Washington, London and Brussels are complicit if all they do is call limply on Israel to do its best to avoid civilian casualties and do not make a preliminary judgement on whether it may be in breach of its Geneva Convention obligations, along with Hamas.

The most extraordinary thing about the latest carnage is the apparent acquiescence of the international community in noting, and not refuting, the assertion that a country has the right of self-defence unconstrained by proportionality and discrimination.

An initiative should be taken by leading elected members of the Security Council to refer the Israel-Palestine situation to the International Criminal Court; and in order to assist the Prosecutor, to request an advisory opinion from the International Court of Justice on these issues. Let the moral-legal onus be on any permanent member to veto, or not.

Green Party of Aotearoa New Zealand