The argument, made by an American law professor and presented to the Israeli parliament as Israeli forces pummeled Gaza and Hamas rained rockets, was as provocative as it was straightforward:
Israel has the legal right to shut off electricity and water to Gaza as part of its Operation Protective Edge, which, now in its fifth week, has resulted in more than 1,900 deaths and more than 10,000 injured.
Howls erupted in legal circles. Days later, dozens of legal experts around the world piled into a debate with origins dating back decades, if not, centuries: in times of armed conflict, what exactly is a war crime?
“How do you balance military targets with human lives? That’s exactly what all commanders must do,” said Gary Solis, a U.S. law professor and author of a definitive textbook on war crimes and humanitarian law. “And many think the Israelis have not done this well.”
War has evolved quickly over the years. Less so the laws of war. Also known as humanitarian law, the laws of armed conflict were birthed in the U.S. Civil War, matured in the devastation of the First World War and refined after the Second, built on the proposition that even if war is inevitable, it doesn’t have to be immoral.
The 1949 Geneva Conventions, adopted by every country in the world, spell out the rules for everything from how prisoners of war should be treated and who exactly is considered a soldier, to what objects or buildings are considered legitimate targets. Two “Additional Protocols” updated those rules in 1977 to include special protections for children, women and civilian medical personnel, and measures of protection for journalists.
The International Committee of the Red Cross, considered the interpreter of international humanitarian law, or IHL, tries to be the neutral arbiter of conflicts like those now raging in Gaza, Ukraine and Syria.
As of last Friday, more than 1,900 people had been killed in Gaza, along with 10,000 wounded and at least 400,000 people displace, according to the ICRC. That included at least 10 people killed when Israeli artillery hit a United Nations-operated school that was sheltering women and children.
U.N. Secretary-General Ban Ki-moon called that shelling a "criminal act.”
Necessity vs. Proportionality
"International humanitarian law is meant to strike a balance between military necessity and humanitarian considerations,” ICRC president Peter Mauer said in a statement Aug. 8. "Having seen the destruction on the ground, and met the victims of the hostilities, I can affirm first-hand that this balance has not been respected.”
Humanitarian law’s slow evolution was jolted by the Sept. 11, 2011 terror attacks, whose resulting wars highlighted the laws’ limitations. It’s one thing to have armies clashing on a battlefield — think U.S. and German tanks in the Ardennes in 1945. It’s another when the enemy doesn’t wear uniforms, or targets civilians with suicide bombs. When an attacking force launches Qassam rockets near schools or hospitals, or a soldier fires a Hellfire drone missile with the push of a button from suburban Washington, D.C., the Geneva Conventions’ proscriptions seem almost quaint.
That was something the Bush administration struggled with, what to call men captured in Afghanistan who may or may not have had connections to al-Qaida. Under traditional laws, they would have been called prisoners of war and entitled to legal protections. For some Bush advisers, that was problematic: a “terrorist” is not the same as an “enemy combatant.”
“The verbal gymnastics that the U.S. and others have undertaken is a good illustration of the conceptual challenge that IHL has had in trying to keep up with this new form of conflict,” said John Ciorciari, an assistant professor of international law at the University of Michigan’s Gerald R. Ford School of Public Policy.
Last month, Abraham Bell, a professor at the University of San Diego, submitted a legal brief to the Israeli Knesset arguing that Israel is within its rights to cut off the water and electricity supplies it provides to Gaza.
“In times of armed conflict, warring parties have to allow humanitarian supplies to flow to civilians [in] enemy territory as long as they are certain the supplies will not be appropriated by the enemy combatants,” Bell said in an email interview with VOA. “[B]ut they obviously have no obligation to provide the supplies themselves, and they certainly have no duty to allow the passage of non-humanitarian goods.
On July 26, on the legal blog OpinioJuris and elsewhere, Bell was rebutted by others who called cutting off power and water a violation of humanitarian law: civilians in Gaza are not combatants and shouldn’t be targeted as part of military action.
That question, Cornell University law professor Jens David Ohlin said, turns on whether Gaza is considered occupied or not.
“If Gaza is occupied territory, then Israel has certain humanitarian obligations to the residents of Gaza based on Israel’s status as a belligerent occupier of the territory,” Ohlin wrote in an email. “Many questions of international law hinge on whether a territory is a state or not, and the status of Palestine continues to be controversial and unsettled.”
Days after Bell’s argument circulated on OpinioJuris, an open letter signed by more than 140 legal experts from around the world began circulating on the Internet, accusing Israel of war crimes. The letter, which doesn’t appear timed to Bell’s argument, argued that, among other things, Operation Protective Edge was in fact part of an armed conflict that’s been ongoing since 1967.
Many argue that Israel, which has “smart” weaponry, sophisticated surveillance and a clear command structure, has a greater duty to avoid civilian casualties. If you have satellite-guided missiles that can be targeted with pinpoint accuracy, then using an artillery barrage in an area crowded with civilians is indiscriminate — illegal.
Others point to the fact that Hamas is firing its missiles amid Gaza’s high-rise apartments where Palestinian civilians live— also a violation under IHL. The Palestinian group Hamas also doesn’t fit the traditional definition of a combatant; rather it is closer to something called a “non-state actor,” a legal concept that, according to Ohlin, is only gradually being incorporated in international legal thinking.
“What we’re seeing in Gaza are the problematic outcomes when you try to apply IHL principles in these highly asymmetric conflicts,” Ciorciari said.
Prime Minister Benjamin Netanyahu has said Israel tries to minimize civilian casualties in Gaza, and instead insisted that Hamas uses human shields in its tactics.
“Israel deeply regrets every civilian casualty, every single one. We do not target them; we do not seek them,” he told reporters in Jerusalem on Aug. 6. “The people of Gaza are not our enemy. Our enemy is Hamas.”
The goals of prosecuting war crimes overlap with the International Criminal Court, the 12-year-old Hague-based tribunal established to prosecute war crimes, as well as genocide and crimes against humanity. The Palestinian Authority has signaled it might seek an ICC criminal investigation into Israeli tactics in Gaza. That, however, might also result in investigations for Hamas leaders, also for war crimes.
On Monday, the United Nations Human Rights Council announced the appointment of three experts to look into possible legal violations in Gaza, a step that in the past has resulted in full criminal investigations in other places.
“A pox on both their houses,” Solis said.