An Israeli ground assault in the Gaza Strip is imminent, fueling a dispute about what the “laws of war” require for protection of civilians. Those principles, grounded in the U.N. Charter and treaty obligations, reflect considered judgment by many experts. But applying them in the abstract risks “ivory tower” judgments of little practical use.
I am a courtroom lawyer in Dallas, Texas. I recently wrote an an op-ed in the Dallas Morning News, suggesting that Americans should view the applicable international law in the context of two established principles of our own legal system. That examination leads to a perspective that significantly supports Israel’s current response to the Hamas attacks. I wanted to share that analysis with the readers of the Times of Israel.
1. The first point is grounded in substantive civil-rights law. The problem in applying the law of war to Gaza arises from Hamas’ aggressive use of civilian population and infrastructure to conceal its members and activities. If, for example, the Israeli Defense Forces learns that a dangerous rocket launcher is hidden in one room of a large apartment building, international law compels it to act in a a “proportionate” way to minimize risk to civilians.
That rule is easy to state but hard to apply. But American civil rights law has developed norms that give significant latitude and deference to domestic authorities in analogous situations. Two recent court cases illustrate this.
In Baker v. City of McKinney, decided just two weeks ago, the U.S. Court of Appeals for the 5th Circuit held that the government did not have to compensate a woman after police severely damaged her house while pursuing a dangerous criminal. The officers’ reasonable perception that they had to act immediately to avoid severe consequences justified their use of destructive force, and was not a “taking” of her property in violation of the Fifth Amendment to the U.S. Constitution. (The 5th Circuit is the federal court of appeals that reviews federal cases from the states of Texas, Louisiana, and Mississippi, and appeals from it go to the U.S. Supreme Court.)
Similarly, Ramirez v. Guadarrama, decided by the 5th Circuit in 2021, rejected tort liability for police officers responding to a high-risk 911 call. After responding to a call about a man threatening to kill himself and burn down his family’s house, the officers discharged their tasers at him. He had doused himself in gasoline, and when the taser prongs made contact, he died and the house burned down. Again, the officers’ reasonable perceptions of an emergency with dire consequences immunized them from tort liability.
Neither case is free from controversy. Ramirez, in particular, led to a debate among a debate among all the judges on the 5th Circuit about the relevant doctrine, called “qualified immunity.” But the full court stood by the result, and it is not an outlier in that area of civil rights law, which generally protects the police against tort liability when the controlling law is not fully settled.
The lesson of these cases is clear and directly relevant to the evaluation of Gaza by American decisionmakers. If American courts customarily grant domestic law enforcement this degree of latitude in dealing with violent suspects, then Americans should be slow to criticize Israel’s military for making comparable judgments involving comparable emergencies.
2. The second point involves a rule of court procedure. The U.S. Constitution, along with its counterparts at the state level, limits courts to resolution of “cases or controversies.”
A proper “case” must involve all relevant parties. When faced with an objection that a party is missing, the federal (and most, if not all state) rules of procedure require a federal court to decide whether that party qualifies as a “necessary party.” To guide the decision, the relevant federal rule asks “whether a judgment rendered in the person’s absence would be adequate.”
That concept relates directly to many claims that Israel uses excessive force against civilians. Critics often cite the growing number of civilian casualties in Gaza. That number is certainly relevant and troubling because of the anguish it represents.
But on the specific question of whether Israeli force is “proportionate” under international law, that statistic is unhelpful. It ignores a “necessary party”—concealed Hamas soldiers and assets. Without consideration of those factors, “judgment rendered” is inadequate, because the reason for the use of force is not included. A review of the presence and activity of Hamas is necessary to fairly evaluate the use of force.
Of course, the law of war is only one standard by which the Gaza conflict can be measured. The recent blast at a Gaza hospital shows that even if the conduct is “proportionate,” the sheer magnitude of its consequences may become unbearable.
But the high number of casualties also shows the importance of the law of war, even if the responsible party is still being debated. Those principles provide some objective standard to evaluate claims of excessive force, instead of simply appealing to emotion. That’s why their application to the Gaza conflict deserves careful and ongoing examination.
In that review, it’s important to remember that the concept of “proportionality” is not unique to the law of war. When we engage that concept as Americans, we should bring with us the holdings and principles of our own laws. And when we do, we are compelled to give deference to the difficult decisions made by Israel’s military leadership in this crisis, because that is what we do in our own domestic affairs.