Israel, Gaza, and International Law

Did Israel Violate International Law during the Recent Gaza Demonstrations

Pro-Palestinian commentators and social media activists have been lambasting Israel over the course of the recent Gaza demonstrations for violating international law with proclamations of war crimes and human rights violations.

While a law degree apparently comes free with every twitter account, much of this talk is mere bluster with no foundation in the actual law itself, but rather, espoused with an intention to falsely vilify Israel and its leaders in the court of public opinion. Anti-Israel activists feel that if they tweet these accusations often enough, the general populous will perceive them to be true.

As Pierre Beaumarchais once said: “Vilify! Vilify! Some of it will always stick!”

The reality is that international law is complex and often ambiguous, but a proper examination of the law paints a far different picture than the one being charged. While a detailed explanation requires one to wade through the trees, this is an attempt to provide a general view of the forest.

The two main areas of the law that could govern the recent Gaza border unrest are International Human Rights Law and International Humanitarian Law, often referred to as the law of armed conflict.

The first body of law, Human Rights Law, would be applicable if Gaza was considered “occupied territory” under international law.

The rights and duties of an occupying power are laid out by four different instruments: customary law, the 1907 Hague Convention on land warfare, the Civilians Convention of 1949 and Protocol I to the Geneva Convention 1977.

According to international law, a territory is considered occupied only when it is actually under the control and administration of an occupant and extends only to those areas that the occupant is able to exercise such control.  Additionally, if an occupying power evacuates from a territory, as Israel did in 2005, it ceases to be an occupying force once it retreats and the local population reasserts its authority, as the Palestinian Authority and then Hamas did in 2005 and 2007 respectively.

In the case of Gaza, the people living in the territory live under Hamas administration and control. It is Hamas law that governs the people’s lives and it is the Hamas soldiers that enforce their laws.

As a side, while Israel and Egypt do maintain a blockade of Gaza, that doesn’t equate to occupation and the legality of the blockade is also in dispute. A United Nations panel found the blockade to be illegal while the official United Nations’ Palmer Commission Report concluded the blockade was legal.

The laws that govern blockades are derived from customary international law, which was codified in the 1909 Declaration of London and updated in 1994 in a legally recognized document entitled the “San Remo Manual on International Law Applicable to Armed Conflicts at Sea.”

Since Hamas controls Gaza, and Israel is engaged in an armed struggle with Hamas, many consider the blockade of the territory to be legal, while some argue that it is a form of collective punishment. However, there is always some level of legal collective punishment in all armed conflicts.

These latter claimants are also stretching the legal analysis of the term. For instance, there was near unanimity that the sanctions that were in place against Iran, and that are currently in place against North Korea, are legal despite the citizens of those countries suffering under sanctions aimed at their leaders. These forms of “collective punishment” against rogue regimes, which threaten to destroy their neighbors, as Hamas does with Israel, are seen as legal.

Further complicating this determination stems from the ambiguous status of Gaza itself, which is neither a sovereign state nor part of Israel. The territory was controlled by the Ottoman Empire for centuries, then taken over by the British in the form of a mandate after World War I, then conquered by the Egyptians as disputed territory once the British abandoned the territory in 1948 and after Arabs, under the leadership of Haj Amin al-Husseni and the Arab League, rejected the 1947 United Nations partition plan, before coming under Israeli control in 1967 and then Palestinian control in 2005.

Nonetheless, even if considered occupied, under Human Rights Law, Israel faces no legal liability for the deaths of the rioters and civilians during the clashes.

Under this body of law, lethal force against demonstrators is prohibited unless unavoidable in the case of an imminent threat to life or a threat of serious injury. However, quelling a riot, such as those that happened at the Gaza border, is specified as a legitimate basis for the use of deadly force. This exception is explicitly stated in Article 2(2) of the European Convention on Human Rights and also outlined by the International Committee for the Red Cross.

Various rioters burnt tires, hurled rocks, threw Molotov cocktails, dispatched incendiary kites and balloons, planted IED’s, fired weapons, carried knives, charged the border fence, cut through portions of the border fence and even destroyed the Kerem Shalom border crossing.

Additionally, Hamas leaders made their intentions perfectly clear during the border riots. On April 6th, Yehya Sinwar proclaimed that: “We will tear down the border and will tear out their hearts from their bodies.” He also stated that: “Palestine is from the [Mediterranean] Sea to the [Jordan] River and we shall never, never, never recognize Israel.” On April 9th, Hamas leader Ismail Haniyeh stated: “Palestine and Jerusalem belong to us, we will break the wall of the blockade, remove the occupation and return to all of Palestine.”  Then on May 13th, Hamas co-founder, Mahmoud al-Zahhar, stated on Al-Jazeera that calling the border protests peaceful resistance is “deceiving the public.”

Since Israel is most likely not considered an occupier of Gaza under the law, the border riots are best examined under the aforementioned International Humanitarian Law (IHL), or the law of armed conflict.

Under this body of law, deadly force is permitted during hostilities, including against civilians who are engaged in hostilities, while also allowing for the possibility of civilian bystander casualties.

The right to self-defense is enshrined in Article 51 of the United Nations Charter and in customary international law, regardless if a State or non-State actor commits the attack. A country is allowed to take military action when 1) the threatened attack is imminent threat to safety 2) there are no other means to repel the attack and 3) the action is proportionate.

Taking each point in turn, as outlined above, there is no doubt there was an imminent threat to safety when taking into account the violent actions of the rioters, the threatening rhetoric of the Hamas leaders and Hamas’ violent history.

When Hamas and the other Islamic fundamentalist terrorist groups had easier access to Israeli territory from 2000 to 2005, they perpetrated 144 suicide attacks, killing 605 people. Although, these numbers are just from suicide attacks alone during that period and don’t include the thousands of other attacks committed against Israel by these groups since Israel’s founding.

This prior history, coupled with the actions of the rioters and the rhetoric of the Hamas leaders, posed a clear threat of imminent death.

Secondly, lethal force was only used after various non-lethal measures were not sufficient to eliminate the threat of imminent harm. Unfortunately, rubber bullets and water cannons have limited capabilities due to proximity and weather-related issues. Nonetheless, Israel dropped pamphlets in Gaza warning the populous not to try and breach the border fence and to stay a few hundred yards away, they issued similar warnings via radio, social media and television, they fired tear gas to first try and disperse the crowds and then fired non-lethal lower body shots, all before using lethal force. Even then, Israeli soldiers shot using single fire rifles and not machine guns, grenades, bombs, or other indiscriminate arms.

Thirdly, proportionality in IHL is not a question of equivalent body counts and the number of those injured. Instead, it is based upon the Israeli military’s assessment of whether the expected civilian casualties would be excessive in relation to the anticipated gain of preventing the breach of the border fence to protect its own citizens. The rule of “proportionality” relies upon intent, particularly in regards to collateral damage.

As mentioned before, IHL accepts the possibility of civilian casualties under Article 57 of the First Additional Protocol to the Geneva Conventions (1949), especially amongst those that voluntarily enter the conflict zone.

According to the Hamas run Palestinian Ministry of Health in Gaza, of the tens of thousands of protesters bearing down on the border fence over a period of two plus months, around 112 people were killed and 332 people were critically injured.

While even one death is tragic, the number of those killed and critically injured is a fraction of the number of people who actually took part in the riots. We must also keep in mind that even on the biggest days of protests, around 98% of Gaza’s residents stayed away from the demonstrations. None of those people were targeted or physically harmed.

Finally, the Israel-based Meir Amit Intelligence and Terrorism Information Center found that 83 percent of the Palestinians killed by Israeli forces during the violent demonstrations were operatives of militant organizations.  They determined that at least 63 were from Hamas, which lines up with the reporting from Hamas itself, which stated that 50 of the 62 Palestinians reportedly killed in riots on May 14th, were members of the Islamist terrorist group.

The fact is, the vast majority of those killed were members of militant groups dedicated to the destruction of Israel and were actively participating in a violent attack on the State.

While anti-Israel activists will continue to spread their malicious claims of war crimes and human rights violations, those claims don’t hold up under international law.

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Ari Ingel is an international attorney and foreign policy strategist. Follow him on twitter at http://twitter.com/ogaride