16 January 2009: Casting Lead and Breaking Rules in Gaza

Military strategists are inclined towards horror-inducing codes for their battle operations, perhaps for fear of emasculation. Few would forget the American “Shock and Awe” military offensive in Iraq. In the theatre of war, such a strategy is perhaps explicable. But when the theatre includes women, children, the elderly, the sick and the trapped, then operation code names take on a particular chill. And so it is with Operation Cast Lead – the Israeli’s code name for their military onslaught in Gaza. The continuing air strikes have now been followed by Israeli ground troops, which invaded the Gaza Strip on the night of 3 January 2009. Within less than three weeks, Israeli occupying forces have killed at least 940 Palestinians; many of these deaths were civilian, including 280 children. In addition Israeli forces injured at least 4,200 [as on 13 Jan 2009].

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Israel claims it is acting in self-defence (and therefore lawfully) in response to rocket attacks directed against its civilian populations living in the South Israeli towns. Indeed international law does not outlaw the use of self-defense, and there is no doubt that the firing of rockets by Hamas at civilians is morally repulsive and legally unjustifiable. However, Israel’s claim touches on the core of the international legal regime regulating state use of force in self-defence. These are universally adopted, although not universally understood, principles.

Part of Israel’s argument is that "anything affiliated with Hamas is a legitimate target”, and that it has been provoked. As one radio commentator put it – if one pulls the wolf’s tail, there should not be a surprise when it turns around and bites. The difference of course, is that the wolf is not bound by international law. Unlike the wolf, international law limits Israel’s ability to bite: and it does so through clearly defined doctrines. And, before condoning the wolf’s bite, it is necessary, surely, to consider why its tail was pulled in the first place – including the 18-month unlawful blockade of Gaza by Israel.

In any event, even if Israel was provoked, it has to be careful how it bites. Let us briefly consider the relevant facts:

- Israel’s assumption that anything is a legitimate military target has had tragic consequences on the ground. More than 80% of the 935 Palestinians already killed are civilians.

- Israel’s air strikes and ground incursions have to date resulted in the total destruction of at least 300 houses and damage to 3 800 more.

The following principles must be considered when assessing the legality of Israel’s response:

- The fundamental customary international rule of distinction obliges parties to a conflict to at all times distinguish between the civilian population and combatants, and only the latter may be targeted. Among the thousands of Palestinian civilians killed and injured were members of the Civil Police and representatives of the political wing of the de facto Hamas government. International humanitarian law stipulates that members of the Civil Police who are engaged in regular police duties such as ordinary internal law enforcement or traffic officers are civilians. Although it would appear that Hamas is committing war crimes by surrounding themselves with civilians, caution should nevertheless be exercised when conducting such military operations. Attacks on civilians who are not taking direct part in hostilities that result in deaths constitute willful killing, amount to war crimes.

- Article 52 of the First Additional Protocol to the Geneva Conventions, which is accepted as customary international law, defines civilian objects as “all objects which are not military objectives”. In all circumstances, the principle of proportionality must be observed, and in case of doubt, an object shall be presumed to be civilian. Accordingly, Civil Police compounds, government buildings, medical storage units and farms must be presumed to be civilian objects in the absence of evidence to the contrary. Israel’s extensive destruction of civilian property is not justified by military necessity.

- The principle of distinction must be read in conjunction with the principle of proportionality. Under the principle of proportionality, when conducting hostilities in an urban area, the warring parties have a heightened duty of diligence to spare civilians from the effects of hostilities. Israel’s reported use of heavy artillery, tanks and combat fighter jets against heavily populated civilian centres in the Gaza Strip, has resulted in a disproportionately high number of deaths and injuries to civilians and damage to civilian objects in breach of the principles of proportionality and distinction. This is clearly unlawful under international humanitarian law.

Although Israel has the right and duty to protect its civilian population from Hamas’ rocket attacks, it is doubtful, however, that its actions can be justified – as it has purported to do – as an act of lawful self-defence. International law makes it clear that the right of self-defence is an act of last resort and is subject to the established rules of military necessity, proportionality and distinction. Israel’s actions thus amount to an abuse of the self-defence doctrine. International law does not countenance a doctrine of self-defence, which amounts to two eyes for an eye.

Max du Plessis: Senior Research Associate, International Crime in Africa Programme , ISS Tshwane (Pretoria)