As Israel continues to mass troops outside the Gaza Strip ahead of an anticipated full-scale ground invasion, it is becoming more and yet more apparent how extraordinarily difficult the new national unity government finds itself in.
Both Israel and Hamas have already been accused of perpetrating war crimes, both before and since the latter’s horrifying incursion of October 7.
Yet such charges are much more dangerous to Israel’s war effort. Hamas is, well, Hamas. Everyone (save an ugly antisemite fringe and, apparently, the BBC) knows that it’s a terrorist organisation; it’s principal financiers, the Islamic theocracy in Iran, know exactly what they’re paying for.
Israel, on the other hand, is a democratic Western nation, and even its staunchest allies will rightly hold it to a higher standard. A spokesman for the EU has already said the wholesale blockade of Gaza is illegal, whilst charities such as Amnesty International have branded it “collective punishment”.
The basic case against Tel Aviv has been set out succinctly by Michael Bryant in the Spectator. In addition to the fundamental principle that there are limits to what strategies nations can employ in the conduct of war (the so-called “principle of humanity), there are:
“…two other customary rules have emerged from the travail of war: proportionality and discrimination. According to the rule of proportionality, no more force may be used than is necessary to achieve a legitimate military objective.
“The rule of discrimination requires that civilians and soldiers hors de combat (rendered unable to fight) be spared attack.”
As so often with international law, all of this sounds perfectly reasonable, indeed laudable. But a moment’s thought about the situation in Gaza reveals the difficulty. Hamas is not a conventional military, and it is not waging a conventional war. It deliberately employs human shields, precisely to weaponise such legal codes against Israel.
It also runs Gaza, a fact sometimes forgotten when news reports quote “Palestinian authorities” in the Strip. That means that it controls the flow of any international aid, and can (as is so often the case) divert it or use it to tighten its grip on the civilian population, just as Saddam Hussein exploited the Oil for Food programme.
All this means that it is not quite so easy to eyeball the current situation in Gaza and pronounce with any confidence on its legality as commentators such as Bryant suggest – especially given the protean nature of a principle such as proportionality.
Israel will be able to argue, for example, that there is no outright prohibition on sieges in international law. Whilst an indefinite full blockade of Gaza would almost certainly be ruled an unlawful collective punishment, a much shorter one – aimed at disrupting and degrading Hamas’ capabilities ahead of a ground invasion – could be proportionate, so long as Israel acts swiftly to re-establish civilian supply lines once the operation is underway.
Likewise, the mere fact of civilian casualties does not make the operation which caused them illegal; were that the case then any sort of war against terrorists and insurgents prepared to make use of human shields would be functionally impossible. Netanyahu’s government will argue that the IDF are not deliberately striking civilians and that each attack was mounted against a legitimate military target, which is legal.
Then there’s the thorny question of which laws actually apply – for unlike a domestic legal order, a nation’s international obligations depend in large part on which agreements it has signed up to and which authorities it recognises.
For example, as Thomas Wheatly, an American law professor from West Point, points out, Article 54(1) of the 1977 Additional Protocol I, Article 14 of the 1977 Additional Protocol II, and Article 8(2)(b)(xxv) of the 1998 ICC Statute all prohibit the starving of civilians as a military strategy, which Israel’s full blockade could be argued to do. But Israel doesn’t recognise the International Criminal Court.
Moreover, as another law professor from the United States Military Academy argues, any absolute prohibition:
“…could well render siege impossible as it has historically been known. The steps required in terms of evacuation, or admitting relief to the besieged area that will almost certainly find its way to the besieged force, render isolation practically impossible.”
As siege is not prohibited outright under international law, it can be reasonably argued that an absolute protection for civilians which would render it de facto impossible to mount a siege must not exist.
Ultimately, as the above-linked Stratcom paper acknowledges, all of these issues pose as much political as strictly legal challenges to the Israeli government:
“Even if a targeted strike may be justifiable from a legal perspective, first impressions frame the narrative. Public opinion tends to be influenced more by images depicting the suffering of innocent civilians than by well-thought-out legal arguments.”
In the age of the internet, when every phone has a camera, it has never been easier for terrorists to put the human suffering caused by western militaries in front of western audiences – and whether Israel maintains its siege-and-strike strategy or sends in the troops, there is going to be plenty of it.
Hard-nosed statesmen and military commanders, and their legal departments, might be able to mount coherent and rational defences of the IDF’s conduct. Wheatley says that: “Israel has acted swiftly. It has acted effectively. And yes, even brutally. But it has acted lawfully.”
But that won’t necessarily help them in the propaganda battle, and if they lose it then western governments (whose foreign policy so often rests on a stridently moral tone, if not always character) will come under pressure to change their stance towards Tel Aviv.