The fighting in Gaza, proportionality, and the laws of war:
international lawyer explains rules
Published: 25 January 2009
Briefing Number 231
Summary: The following is the text of an interview which appeared in the Israeli newspaper The Jerusalem Post ( www.jpost.com ) on 16 January 2009 with Dr Robert Sabel, who is a lecturer in international law at the Hebrew University , and formerly legal adviser to the Israeli Foreign Ministry.
We are republishing this interview on Beyond Images as it provides a concise, balanced and relevant summary of the international law principles.
We add comments of our own, as well as an important statement on proportionality from the President of the International Court of Justice; background on the allegations against Israel regarding the use of white phosphorous; and why Hamas use of human shields is a war crime.
Question: Israel has been accused of violating the laws of war during the Gaza fighting. What are these laws, and is the accusation true?
Sabel: Israel , during the fighting in Gaza , has taken greater steps than any other army in recent history to try and prevent enemy civilian casualties. The laws of war were formulated when armies in uniforms were battling other armies in uniform, usually in open fields. We are now facing an enemy often dressed as civilians, hiding among civilian buildings and aiming its fire deliberately and cold-bloodedly at Israeli civilian targets.
The classic laws of war can provide only general principles as to how to combat such an enemy. These principles include the rule that an army should only target combatants and military objectives; if there are civilians close to military targets, efforts must be made to minimise civilian casualties; and the civilian casualties may not be disproportionate to the military advantage to be gained. Israel has strictly applied these rules, and the Israeli army is one of the few in the world to have legal advisers in the battle command centers, posted there to ensure compliance with these rules. Israel has repeatedly warned Palestinian civilians of impending attacks. This has allowed the civilians time to flee, even though Israel has thus lost the element of surprise and no doubt also given the enemy combatants the opportunity to flee.
[Beyond Images adds - Israel has done this by dropping thousands of leaflets hours in advance onto the affected areas notifying of a future attack on that target area, sending text messages direct to Palestinians' mobile phones, and interrupting Palestinian radio broadcasts to announce warnings of future attacks].
Question: Israel has been accused of using disproportionate force
Sabel: Since the fighting began, we have been attacked with some 700 rockets with explosive warheads aimed at civilian towns and villages. I don't know what should be proportionate to that.
[Beyond Images adds - by the end of the three-week war, a total of 849 rockets had been fired by Palestinian rocket squads from Gaza into Israel, with the Grad-Katyusha missile striking major Israeli population centers like Beersheva and Ashkelon, as well as Sderot. Targets struck included a kindergarten (empty, due to Israeli civil defence precautions) and a synagogue (in Ofakim, also empty for the same reason)]
Furthermore, the rules of war do not impose a cricket-game type of equilibrium on the parties to a conflict. In an armed conflict, a party is entitled to use its force to destroy the enemy's armed forces and military capabilities. For example, if the enemy shoots at your troops with a machine gun, you are entitled to reply with tank fire.
[Beyond Images adds - Dame Rosalind Higgins, who is currently the President of the International Court of Justice, and therefore the most senior international lawyer in the world, has made the same point. She has written as follows: “Proportionality cannot be in relation to any specific prior injury – it has to be in relation to the overall legitimate objective of ending the aggression” (R Higgins, Problems and Process, 1994, p232). In other words, in measuring what it proportionate, you have to assess the true extent of the military threat – past, present and future. You don't simply say “they fired 10 missiles at us, so we are allowed to fire a maximum of 10 missiles back…”]
Question: Has Israel prevented supplies from reaching the civilian population of Gaza ?
Sabel: Classic laws of war in fact permitted total embargoes, as was done during the Second World War. Modern laws prohibit using starvation of civilians as a means of warfare. Israel has taken the unprecedented step of allowing large-scale food and medical supplies from its territory into Gaza while actual fighting continued. Furthermore, Israel applied a unilateral cease-fire of three hours every day to ensure distribution of such food and medicine.
[Beyond Images adds - During the three weeks of fighting, according to the Jerusalem Post (20 January 2009) 41,937 tons of humanitarian supplies, including food, medical supplies and other equipment, were transferred from Israel into Gaza for the benefit of civilians, as well as 2,263,351 litres of fuel. On Monday 19 January alone, for instance, 195 trucks laden with 5000 tons of supplies, were brought into Gaza from Israel . Most of these supplies come from foreign governments and international organisations]
Question: Has Israel used phosphorous shells which are illegal under international law?
Sabel: Like every single army in the world, Israel uses phosphorous shells in flares and smoke shells. They are standard equipment in all NATO armies and in the armies of the Arab states. They are of course dangerous to handle when burning (so, too, are flares in civilian use) but absolutely legal.
[Beyond Images adds - On 13 January, Peter Herby, who is the head of the mine-arms unit in the International Committee of the Red Cross, stated publicly that Israel's use of white phosphorous shells was not illegal under international law. Herby stated: “In some strikes in Gaza it's pretty clear that phosphorous was used…. But it's not very unusual to use phosphorous to create smoke or illuminate a target. We have no evidence to suggest it is being used by Israel in any other way…..” (as reported by Associated Press, 13 January 2009 ). Herby added that using phosphorous for these purposes was legitimate under international law; what would be illegal would be to target civilians deliberately using phosphorous. Nonetheless, in view of widespread criticism, especially in the UK , Israel has established a full investigation into white phosphorous use during the war]
Question: What are the rules surrounding attacks on mosques, schools and medical teams?
Sabel: A mosque (or church or synagogue) that is used for military purposes, such as storing weapons and ammunition, loses its immunity from attack and becomes a legitimate target. Any other rule would lead to granting an illogical advantage to an enemy hiding weapons in such a building. Israel has information that a certain hospital has been used for hiding the headquarters of Hamas. Nevertheless, Israel has refrained from attacking the hospital because of the civilian casualties that would be caused by such an attack. Israel has never knowingly attacked a school knowing children were there. Children have, however, been injured [and killed – Beyond Images] and I believe it is Hamas that should have to answer for the placing of military targets adjacent to the presence of children.
[Beyond Images adds - Hamas use of Palestinian civilians as human shields is a war crime. Article 28 of the Fourth Geneva Convention states that the presence of civilians ‘may not be used to render certain points or areas immune from military operations' – see JR Weiner and A Bell, 'International Law and the Fighting in Gaza', December 2008, Jerusalem Center for Public Affairs ( www.jcpa.org )]
Question: Has Israel prevented evacuation of wounded to outside Gaza ?
Sabel: Although Israel in the past allowed wounded persons from Gaza into Israel , it is of course under no obligation to do so. The Gaza Strip has a border with Egypt , which I believe has allowed wounded persons to enter for treatment.
[Beyond Images adds - for more details see: ‘Access of Gaza Palestinians to Israeli hospitals: The facts' – Beyond Images Briefing 215, July 2008]
Question: Despite all the legal points you have made, Israel 's response is seen by the world as disproportionate
Sabel: I am reminded of the French political cartoon which showed an animal in a cage at a zoo, and the caption under the cage was: “Be careful: this animal is dangerous. When attacked, it defends itself….”