International law monitors the use of military force by states, which is why the legitimacy of the actions of the parties to the Israeli-Hamas war is hotly debated.
Like its previous operations in Gaza, Israel is likely to argue that its recent actions are justified in its own defense.
According to Article 51 of the UN Charter, the right to self-defense is a fundamental principle of international law. Although some aspects of this principle are controversial, it is universally agreed that a state can defend itself against armed attacks.
There is some debate as to what should be the intensity of this armed attack after which a state can legally resort to its right of defense.
Most advocates of international law would agree that rockets fired at civilians, which disrupt the social life of a part of a country, meet Article 51’s definition of armed attack.
However, the basic facts of the defense have often been controversial. In any conflict, the parties rarely agree on who the attacker is and who is defending himself, and so is the Israeli-Palestinian conflict.
Critics of Israel also offer two legal arguments in this regard.
First, he argues that the right to self-defense can be used against another state, but not against a non-state like Gaza. State action, especially since the 9/11 attacks, contradicts this interpretation of self-defense, but the International Court of Justice has not yet resolved the issue.
Second, the International Committee of the Red Cross (ICRC) and many other organizations believe that Gaza is still under Israeli occupation because Israel controls the area and its environs.
Israel, on the other hand, says it has not occupied the area since its withdrawal from Gaza in 2005 and that no area can be occupied “without entering”.
The right to self-defense is not an easy task. International law allows states to defend themselves in the right circumstances, and only with the power that is necessary and proportionate.
A common misconception is that balance in self-defense means an eye for an eye, a rocket for a rocket, or a casualty. But this is not the case: there is no place in international law for the use of force.
In some cases a mandatory and proportionate response may use more force than the military force used in the actual attack, but in some other cases a country may defend itself by using less force.
The law of armed conflict
Another part of international law is the act of aggression after a conflict has started, which is called the law of armed conflict.
The law of armed conflict applies only when it can be classified under the rules of international or non-international armed conflict.
The law of armed conflict applies regardless of the reasons why one party resorted to force. It is also possible that a state used force to carry out illegal acts during an armed conflict.
The law on armed conflict includes detailed rules on various aspects of offensive operations (protection of civilians, treatment of prisoners of war, occupied territories, etc.).
All of these rules are based on a balance of four key principles: humanity and military necessity, and discrimination and proportion.
Humanity and military need
Under the principle of humanity, there is a need to struggle to avoid unnecessary suffering and oppression, and it needs a military equivalent.
According to the British Armed Forces Legal Manual, military necessity allows a state to use force only to “achieve the legitimate goal of the conflict, ie complete or partial capture of the enemy as soon as possible and with minimal expenditure of life and resources.” And besides, it is forbidden.
The argument that the Israeli bombing of Gaza is ineffective because it has always failed to stop rocket attacks may, in a sense, prove the ineffectiveness of the use of force in this context. But from the point of view of military necessity, it can also justify the use of maximum force to achieve the goal of avoiding attacks.
Of course, the fact that the law allows a particular action does not mean that it is politically, morally or strategically correct.
In no case can military necessity justify actions that are prohibited under certain rules or that generally result in “harm or revenge.”
Differences and ratios
There is also a principle of discrimination in the law of armed conflict: in any conflict, the parties must differentiate between militants and civilians.
Several specific rules arise from the contents of this principle. Attacks on civilians and their property have always been banned. Attacks can only be carried out by combatants or non-combatants and allies for military purposes.
This principle of segregation prohibits acts of terror or threats of violence against civilians, as well as attacks that do not target a particular military objective. For example, firing missiles against southern Israel violates the principle of segregation.
But when does an object become a legitimate military target?
International law defines military objectives as: “Things that are an effective part of a military operation or whose destruction, partially or completely, leads to military gain.”
Israeli Defense Forces (IDF) tanks or Hamas rocket launchers fall into this category. Problems arise with so-called dual-use targets, such as the bombing of a Serbian TV station by NATO during the 1999 Kosovo war.
But the most difficult is when a rocket launcher or ammunition depot is located in an urban area. In a densely populated area like Gaza, every goal decision will involve such circumstances.
And this is where the principle of proportion plays its part. The principle of proportionality is considered important in other laws, including human rights, and its role in the law of armed conflict.
Whenever there is a risk of loss of life or damage to property, militants have to balance the expected military advantage with the risk of civilians and their property in mind.
Former International Court of Justice President Judge Roslyn Higgins wrote in a ruling: “Even a legitimate target cannot be attacked if the damage to civilians as a result of this attack is disproportionate to the specific military benefits.” ۔ ‘
It is also the responsibility of the assailant to immediately stop the attack if he feels that it could pose a serious threat to civilians.
Any attacker targeting military targets in densely populated areas will have to do everything possible to verify the nature of the targets and avoid mistakes.
The practice of distributing leaflets or informing residents before a bombing is introduced by Israel and is presented as evidence of efforts to follow these laws. Although critics say that these methods are not always effective because doing so saves the lives of citizens, the damage to their property cannot be prevented, which is actually a source of pain and frustration for citizens. becomes.
Hamas, on the other hand, has been repeatedly accused of deliberately endangering its own citizens by placing military equipment in urban areas.
If this is true, it is a serious violation of the laws of armed conflict, but it does not diminish Israel’s responsibility to take all necessary precautions to minimize the loss of civilian lives.
All modern armed forces, including the Israeli Defense Forces, have experts in armed conflict law who are involved in the approval of targets.
The legitimacy of a particular goal decision often depends on the facts. Was there a real military goal? Was it possible in such circumstances that this target could have been hit without harming the life of any citizen? What did the attacker know or should he have known?
But checking these facts during or after an armed conflict is not an easy task.
However, if the assailant deliberately harms the civilian population and civilian property, there is no other aspect of the facts to explain the act under the law of armed conflict.
The International Court of Justice has repeatedly ruled that the application of human rights law does not expire in times of war, but in practice it is never clear what that means, especially in decisions regarding targets.
However, when it comes to clashes in Israel’s Arab villages, the law of armed conflict does not apply simultaneously: does the response of Israeli law enforcement and security forces in these cases comply with international law? It will depend on the application of human rights law in particular.
The situation in East Jerusalem is more complicated, Israel has attached it to its territory, but it is still considered part of Palestine by everyone else, including the International Court of Justice.
Finally, it is important to remember that the law of armed conflict can only reduce the horrors of war. A war that is fought with all the rules in the book in mind is still a curse.