Can the Gaza War of 2008 be justified under the doctrine of self defense?

Codenamed ‘Operation Cast Lead’ (OCL), the 22-day Israeli offensive on Gaza began on 27^th December 2008. Around 1400 Palestinians including some 300 children died while thirteen Israeli’s were killed including four soldiers fatally injured by friendly fire[1]. Israel contended that it had the right to defend itself against constant rocket attacks being perpetrated by terrorist groups like Hamas and other Palestinian militant factions[2]. The justification of self-defense under Article 51[3] of the United Nations (UN) Charter is the only exception to the prohibition on the unilateral use of force in international law[4].

This essay aims to discover whether Israel’s offensive qualifies as an act of self defense. First it shall be determined whether Gaza was occupied territory under international law, in which case the right of self defense would no longer be an appropriate justification for Israel. Further- assuming that self-defense is an applicable norm in this case- An observation on the concept self defense under international law both in the modern Charter system and in customary norms will be provided. After applying the sound principles to the facts of Operation Cast Lead a conclusion shall be drawn.

Israel had allegedly exercised effective command over Gaza long before OCL had begun. It was reported[5] that following a Hamas victory in the parliamentary elections of 2006, Israel began blocking aid to Gaza. Hamas’ seizure of power the following year resulted in much greater restrictions on the flow of goods including fuel, electricity and food into the Strip[6], further deteriorating the area’s socio-economic conditions[7]. The control of vast amounts of resources by a minority of Jewish settlers[8] and the capacity of the Israeli military to blockade, enter and exit Gaza at will is further evidence of Israel’s authority over the territory[9].

An armed attack is an attack directed from outside the territory controlled by the state principally therefore, it cannot invoke self-defense in relation to an attack which originates within territory it occupies[10]. In light of the International Court of Justice’s advisory opinion in Wall[11], it is to be noted that in such a situation “the question of self-defense in the sense of Article 51 does not normally arise[12].” The observation therefore made is that Gaza was occupied territory under international law before the war began. The correct governing mechanism therefore is not self-defense but the international laws of occupation[13]. This means that Israel had the responsibility of looking after the welfare of the civilian population and infrastructure. It was duty bound under the 4^th Geneva Convention to ensure the supply of foodstuff, medical and hospital items as well[14]. However, since Israel denies it had occupational status the essay further examines the lawfulness of OCL under the concept of self-defense under international law.

Whereas Article 2(4) prohibits the unilateral use of force, Article 51 provides an exception in the form of self defense. Despite the reference to “territorial integrity” and “political independence” it is widely accepted that any incursion into another territory would be considered a violation of the Charter[15]. Article 51 lays down two types of self-defense measures: individual self-defense and collective self-defense. For the purposes of the present study it is the former that is to be looked at specifically.

In relation to Article 51 however, there is considerable debate amongst legal scholars particularly over the inclusion of the word “inherent” and the reference to an “armed attack”[16]. Dr Martin Dixon characterizes this debate into two schools of thought: the permissive and the restrictive[17]. The former believes that the Charter did not fundamentally change the direction of international law and complements the pre-existing customary law. Citing the inclusion of ‘inherent right’ in Article 51 they argue that it preserves the legitimate use of force for anticipatory self-defense, retaliation and retribution. Vindication of a state’s rights in the absence of a global police force, an unreliable international legal mechanism and recent rise in global terrorism they argue, justifies this interpretation. The restrictive approach emphasizes the limitation put on pre-Charter law by Article 51 allowing the use of force in only exceptional circumstances. They point out that the harm caused by an outbreak of violence nearly always outweighs the ‘evil’ it was intended to prevent. Moreover, they see permissive thought as a tool in the hands of powerful states to advance their interests.  It is submitted therefore, that the inherent right of self-defense should only be invoked as a consequence of an armed attack.

Secondly, the question arises as to what constitutes ‘armed attack’ under Article 51?  The ICJ has held that for an attack to be classified as ‘armed attack’ it must be of such scale and gravity as to amount to an actual armed attack conducted by regular armed forces and not merely a ‘frontier incident’.[18] Even cumulative attacks may not satisfy this requirement[19]. Thus infrequent skirmishes should not be used as an excuse to invoke article 51.

Self-Defense under customary law is defined by the Caroline incident[20]. This has formed the basis of the Caroline Doctrine and set the standard requirements for self-defense in this field namely: necessity, immediacy and proportionality. It was confirmed by the ICJ in Nicaragua v United States[21]. The Caroline doctrine therefore allows for reprisals and anticipatory self-defense provided that there is an immediate threat that has to be engaged necessarily.

With regard to self-defense under the pre-Charter law, the issue of proportionality in armed conflict has a central importance. While neither the UN Charter nor the customary norms significantly differ conceptually, proportionality is measured by these two systems differently. The Charter system measures the overall evil against the self-defense achieved while the latter sees it in the context of the good it would create[22]. The Additional Protocol to the Geneva conventions under both forms does not permit unlimited evils of war[23].

There is also a general consensus that military operations will be cancelled if civilian loss of life or damage outweighs the advantage being sought and there exists a prohibition on civilian populations being made the object of attack. Also that the force applied must not only be in conformity with humanitarian laws but should also be measured in context of the entire conflict as opposed to an isolated perspective[24].The more radical approach to proportionality dictates that it is to be evaluated on the basis of a State’s intent therefore if a state completely rids itself of the threat it is not unreasonable or disproportionate[25]. This second view however, threatens complete annihilation of the attacker with the defending party having an unlimited authority of action[26].

Applying Article 51 of the UN Charter to the facts of OCL it is noted that Israel justified its attack on Gaza on the basis of self-defense stating that the objective was to remove an immediate threat[27]. Under Article 51 of the Charter self-defense can only be invoked in the event of an armed attack as opposed to a mere threat or history of past attacks. Egypt brokered a ceasefire in June 2008 between Hamas and Israel which obligated Hamas to stop attacking Israeli territories while Israel recognized previous armed attacks by Hamas[28]. For the Israeli justification to stand the truce must have been violated as a result of an armed attack after its signing into force.

While Hamas did renew its rocket attacks before OCL, it did so as a result of an Israeli airstrike on 4^th November 2008 that killed six Hamas militants[29]. Moreover, Hamas was recorded as having not fired a single shot during the ceasefire but instead had tried to strictly enforce its terms preventing other militias from attacking Israel[30]. The Israeli observation that Hamas lived up to its part of the agreement and the 4^th November raid not only falls short of the law’s requirements but also makes Israel the attacker instead.

When viewed under customary international law Israel’s attack may have been intended to thwart the threat of an attack or to deter renewed attacks. This is permissible under customary international law if the Caroline doctrine’s standards are satisfied: necessity, immediacy and proportionality. On the one hand Israel claims that it had no choice but to launch an aerial and ground offensive in Gaza in order to protect its civilian population in the South. Yet only a few months before, Israel’s Ministry of Foreign Affairs had pointed out that signs of normalcy could be seen around Gaza with only sporadic violations taking place[31]. In a chart, the MFA prominently demonstrates the ceasefire’s success in diminishing attacks on its citizens[32].

The figures strongly demonstrate that Israel diminished rocket attacks and mortar shelling in a matter of weeks through diplomatic means[33]. Israel was able to bring more protection to its citizens during the four months when it agreed to a ceasefire than it was able to provide in all the months preceding and in the month following the ceasefire when it had used force. The requirement that the offensive was necessitated by rocket attacks is not satisfied in a situation where the State using the justification of self-defense was able to provide more security for its citizens by other peaceful means. Evidence also suggests that Israel had been deliberately planning for this assault for 6 months[34]. This defies the requirement of immediacy which requires that the State must be overwhelmed and left with no moment for deliberation. Therefore if Israel had pre-planned OCL then the justification used i.e. rocket attacks from Gaza may be entirely irrelevant in the first case.

The doctrine of proportionality concentrates here on whether Israel violated the principle of direct attacks against civilians or showed negligent behavior in ascertaining proper targets. This is the least controversial and most agreed upon requirement of self-defense in relation to the proportionality aspect. Investigations by a number of credible organizations will now be examined.

The Goldstone commission determined that OCL was directed at the people of Gaza as a whole which could not be justified under self-defense[35]. Amongst other incidents the report cites specifically Israeli precision bombing of the United Nations Relief and Works Agency (UNRWA) compound on 3^rd January 2009. The compound housed more than 700 Palestinian refugees, tons of supplies and 120,000 litres of fuel at the time. Constant communications with the Israeli authorities proved futile as the attack continued for more than 3 hours[36]. The Goldstone report also states that Israel had pre-planned used the ‘Dahiya Doctrine’[37] to inflict disproportionate destruction and violence on the Palestinian people[38]. The doctrine transforms civilians and civilian objects into military targets and prescribes disproportionate force against them. The report was condemned by Israel which refused to co-operate with the commission saying that it was biased in nature and weakened the rights of democratic countries in their fight against terror[39].

In another report, Amnesty International cites an incident where a captive family was struck by an Israeli tank shell killing 31 civilians inside on the second day of their captivity by the Israeli army. Israeli soldiers shot and injured those who fled from the house[40]. The report describes several family members dying of their wounds as Israeli forces refused to allow ambulances into the area for three days.

Human Rights Watch (HRW) documents six incidents involving unmanned drone strikes resulting in 29 civilian death including eight children[41]. In one such incident an Israeli drone fired at a group of students waiting for their bus near the UNRWA  camp in which nine students and bystanders were killed aged between 17 and 19[42]. The area did not come under the conflict zone for two reasons: firstly, there was no fighting going on there at the time and neither was there any presence of militant forces. Secondly, Hamas did not use the area as a launch pad for attacks against Israel because the presence of international agencies and aid workers made it an unsuitable location to conduct rocket attacks from[43].

Additionally testimonies collected from various soldiers who participated in the war have revealed the military’s loose rules of engagement in Gaza. One such report was published by ‘Breaking the Silence’ an Israeli army veterans organization that collected about 30 testimonies. The report notes that Israeli soldiers were ordered to give their own safety more importance than Palestinian civilians. They were also ordered to fire at anyone deemed to be involved in suspicious activity. In one such incident a civilian man between 50 and 60 who was unarmed was shot from 50 meters as the unit commander called “Here’s an opener for tonight”. Palestinians were made into human shields or “johnnies” (as they were termed) to enter suspected hideouts before the soldiers while military rabbis told the troops that everything they did was sanctified[44]. These accounts and more are sufficient basis for concluding that there were clear violations of the norms of self-defense both under customary and modern international law. As discussed above civilian objects and facilities are prohibited as direct targets under the law, which in this case was not abided by. The offensive violates various principles of the Universal Declaration of Human Rights, the Additional Protocols to the Geneva Convention and the International Covenant on Civil and Political Rights.

The Israeli offensive in Gaza fails to qualify as an act of self-defense. The sheer disproportionality of force applied would render the argument void anyway. Recently, Israel reprimanded two military officers over the bombing of the UNRWA compound however both officers have retained their ranks[45]. What should be investigated are the workings of the Israeli intelligence community. In the heat of the battle it is difficult to guarantee the authenticity of every piece of intelligence information provided to the battlefield commander. However, the intelligence sources, the alternatives available, the significance of the risk and potential collateral damage, the conviction of the commander in the intelligence sources and his line of communication with them are essential factors in ascertaining proper targets in any kind of warfare[46]. On the facts presented and the evidence collected there seem to be multiple levels of intelligence failures generally in the war and particularly in relation to this particular bombing incident.

Israel maintained a complete media blackout during the conflict while international bodies were apprehensive of Israel’s own investigations into the conflict[47]. It is true that rocket attacks against civilian targets in Israel constitute acts of terrorism under international law however this has always been a dilemma for the Palestinians who never had the military or economic mean to fight Israel equally. Israel has kept its dominance over Palestinian territories and continues to be one of the world’s biggest military powers equipped with sophisticated weapons and equipment. The Palestinians on the other hand remain stateless people with limited access to military weapons and capability. To conclude it is safe to say that the Israeli action in Gaza does not constitute an act of self-defense but an act of aggression.

[1] Israel/Gaza:Operation ‘Cast Lead’: 22 days of death and destruction, Amnesty International, July 2009 available at http://www.amnesty.org/en/library/asset/MDE15/015/2009/en/8f299083-9a74-4853-860f-0563725e633a/mde150152009en.pdf

[2] Responding to Hamas Attacks from Gaza-Issues of Proportionality, Background Paper, Israel Ministry of Foreign Affairs, December 2008. http://www.mfa.gov.il/NR/rdonlyres/A1D75D9F-ED9E-4203-A024-AF8398997029/0/Responding_to_Hamas_Attacks_from_Gaza_december_2008.pdf

[3] United Nations Charter 1945 Article 51: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

[4] UN Charter Article 2(4) All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

[5] The Goldstone commission was established on 3^rd April 2009 by the UN Human Rights Council to determine violations of international law by any side during the conflict.

[6] Goldstone Report (page 95-96)

[7] Goldstone Report Page 338: By 2007 79 % of the population was living below the official poverty line while 70 % were expected to be living under the deep poverty line, this amounted to US$ 4 per capita/day and US $ 3 per capita/day respectively.

[8] Avi Shlaim, Professor of International Relations at University of Oxford, “How Israel brought Gaza to the brink of humanitarian catastrophe” published in ‘The Guardian’ on 7^th Jan 2009 (http://www.guardian.co.uk/world/2009/jan/07/gaza-israel-palestine) notes “In Gaza, the Jewish settlers numbered only 8,000 in 2005 compared with 1.4 million local residents. Yet the settlers controlled 25% of the territory, 40% of the arable land and the maximum share of the scarce water resources.”

[9] Gaza: Not a war of self-defense- Victor Kattan, Jurist Legal News and Research (http://jurist.law.pitt.edu/forumy/2009/01/gaza-not-war-of-self-defense.php)

[10] Chatham House ‘Principles of International law on the use of force by States in Self-Defense’ ILP WP 05/01 page7  (www.chathamhouse.org.uk/files/3278_ilpforce.doc) (Hereafter to be referred as Chatham)

[11] Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ, 9 July 2004, at para. 139

[12] Chatham supra note 10

[13] Self-defense is a legal justification for the initiation of force (jus ad bellum), not for its exercise in a situation of belligerent occupation (jus in bello).

[14] See 4^th Geneva Convention of 1949- Articles 47-78 (http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6756482d86146898c125641e004aa3c5)

[15] Major Jason S.Wrachford. the 2006 Israeli invasion of Lebanon: Aggression, Self-Defense or a Reprisal Gone Bad?, 60 A.F.L. REV.29,59 (2007). http://findarticles.com/p/articles/mi_m6007/is_50/ai_n27874054/?tag=content;col1

[16] Noura Erakat, Operation Cast Lead: The Elusive Quest for Self Defense under International Law, Legal Implications of Operation Cast Lead, Part 2. Rutgers Law Record Volume 36, Fall 2009.  www.lawrecord.com/files/36-Rutgers-L-Rec-164.pdf

[17] For more see Martin Dixon, Text Book on International Law Sixth Edition, Chapter 11 ‘Use of Force’, page 312.

[18] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment, ICJ Reports 1986, p. 14, para. 194.

[19] Oil Platforms (Islamic Republic of Iran v United States of America), Judgment, ICJ Reports 2003, p. 161, paras. 51 and 64.

[20] The Caroline Case, 29 Brit. & For St. Papers 1137: In 1837, the Caroline, a U.S. naval vessel carrying arms and supplies to Canadian insurgents rebelling against the British rule in Canada was boarded by the British forces inside U.S. territory, set on fire and sent down the Niagara Falls. On subsequent action for the release of one of the individuals involved in the attack, the U.S. Secretary of State Daniel Webster in response to British claims of self-defense stated that it needed to be shown that the necessity of self-defense was instant, overwhelming and had left no moment of deliberation. What was also required, he said, was that the act must have not been unreasonable or excessive. Refer to Martin Dixon supra note 16 page 315.

[21] Supra note 17 see (Nicaragua v United States of America) “The Court has therefore to assess whether the risk run by these ‘essential security interests’ is reasonable, and

secondly, whether the measures presented as being designed to protect these interests are not merely useful but

‘necessary.”at 117.

[22] Ibid

[23] Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of

International Armed Conflicts (Protocol I) art 35, para. 1, June 8, 1997, (“In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.”) [hereinafter Protocol]

[24] “..a use of force that is proportionate under the law of self-defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law”. Legality of the Threat or Use of Nuclear Weapons ICJ Rep 1996 (Para 42) and “the Court cannot assess in isolation the proportionality of that action to the attack to which it was said to be a response; it cannot close its eyes to the scale of the whole operation.” Oil Platforms (Para 77)

[25] Supra note 14 Wrachford at page 76

[26] Ibid page 75

[27] Israel Ministry of Foreign Affairs, Address to the Knesset by FM Livni on Gaza Operation, (Dec. 29, 2008),  http://www.mfa.gov.il/MFA/Government/Speeches+by+Israeli+leaders/2008/

Address_Knesset_FM_Livni_Gaza_operation_29-Dec-2008.htm

[28] Israel and Hamas ceasefire begins, BBC, Jun. 19, 2008, http://news.bbc.co.uk/2/hi/middle_east/7462554.stm.

[29] See for example Noura Erakat(above) page 171 ,Victor Kattan(above), Avi Shlaim and Adrian Neowhof.

[30] Intelligence and Terrorism Information Center, Gaza Hamas Fact Sheet, Dec. 22, 2008,

http://www.israelpolitik.org/wp-content/uploads/2008/12/gaza_fact_sheet.pdf and Intelligence and Terrorism Information Center at the Israel Intelligence Heritage and Commemoration Center, The

Six Months of the Lull Arrangement at 3, (Dec. 2008),  http://www.terrorism –

info.org.il/malam_multimedia/English/eng_n/pdf/hamas_e017.pdf (“Hamas was careful to maintain the ceasefire and its operatives were not involved in rocket attacks.”

[31] Behind the Headlines: Rocket and mortar fire despite calm in South, Israel MFA,

http://www.mfa.gov.il/MFA/About+the+Ministry/Behind+the+Headlines/Behind+the+Headlines-

+Calm+in+the+South+19-Jun-2008.htm

[32] The chart graphic is available at http://www.mfa.gov.il/NR/rdonlyres/297F5195-4BB4-4C98-9DCE-

A9BFF91E6407/0/rockets2008.jpg.

[33] According to the chart, only twenty rockets and eighteen mortar shells were fired from Gaza into Israel during the four months following the implementation of the ceasefire. Significantly, in the single month following Israel’s raid into Gaza on4th November 203 rockets and 121 mortar shells were fired at Israel.

[34] Ian Black, Six months of secret planning – then Israel moves against Hamas, GUARDIAN, December 29, 2008,

http://www.guardian.co.uk/world/2008/dec/29/israel-attack-hamas-preparations-repercussions.

[35] Goldstone Report (page 523)

[36] Ibid (for a detailed account of this incident read pages 162-174)

[37] For more see Abettors of war crimes will be held accountable-Adri Neowhof and Daniel Machover (Soc. L. 2009, 51(Jan), 18-21) www.haldane.org/pdfs/SL51.pdf :

Under the ‘Dahiyah Doctrine’ (named after an area of Beirut bombed by Israel in 2006),unveiled early October 2008 by Major General Eisenkot,former Israeli military secretary under then prime minister Ehud Barak, the army ‘… will wield disproportionate power against every village from which shots are fired on Israel, and cause immense damage and destruction. From our perspective these are military bases. This is not a suggestion. This is a plan that has already been authorised.’

[38] Goldstone report  (page 329)

[39] Goldstone’s UN Inquiry Team Arrives in Gaza, BBC, Jun. 1, 2009, available at

http://news.bbc.co.uk/2/hi/middle_east/8076690.stm Foreign Ministry spokesman, Yigal Palmor, stated to the Associated Press, “[t]hey have been instructed to prove that Israel is guilty and we will not collaborate with such a masquerade.”

[40] Amnesty, supra note 1 (page 20-21)

[41] Precisely Wrong: Gaza Civilians Killed by Israeli Drone-Launched Missiles, Human Rights Watch, June 2009, at 3, available at http://www.hrw.org/sites/default/files/reports/iopt0609web_0.pdf

[42] Ibid (page 16-47)

[43] ibid

[44] For a detailed view read Donald Macintyre, Israeli soldiers reveal the brutal truth of Gaza attack, The Independent, Wednesday 15^th July 2009. Available at: http://www.independent.co.uk/news/world/middle-east/israeli-soldiers-reveal-the-brutal-truth-of-gaza-attack-1746485.html

[45] Israel reprimands officers over UN compound shelling. http://news.bbc.co.uk/2/hi/middle_east/8490646.stm

[46] Anticipatory self-defence and international law – a re-evaluation. Amos N. Guiora (J.C. & S.L. 2008, 13(1), 3-24)

On Page 7 the author notes the issues the battlefield commander needs to take into consideration ordered to strike the enemy after with the actual facts.

[47] Goldstone report (page 495)