Int’l law being tested in Gaza (1)

A harsh principle of the law of armed conflict is that even when one side of a conflict violates and disdains the law, the other is still bound to uphold it.

Anyone who has heard the testimony of the survivors of the Hamas massacre of October 7th or seen the gruesome body camera recordings of murder, torture, and mutilation filmed by the exhilarated terrorists themselves will be hard-pressed to think of a war crime or crime against humanity that the barbarians did not commit.

Still, Israel is bound to uphold the laws that Hamas flouts. To this end, Israel incorporates international law in all aspects of its use of armed force, from providing military personnel with legal training to integrating legal supervision into operational planning and decision-making.

At the heart of this commitment is a conviction that, as President Biden asserted on his recent visit to Israel: "Democracies are stronger and more secure when we act according to the rule of law."

But are they? Not only Israel but international law itself is being tested in Gaza. Do its principles actually enable a terrorist enemy to be effectively defeated? If international law fails this test, it is unlikely that any state facing similar threats will respect it in the future.

For this reason, statements by international officials that misstate international law and rewrite its principles to render it ineffective and unworkable are not only a gift to Hamas in the current war but constitute a major threat to the ability to comply with international law in other conflict situations.

Consider the recent statement by UN Secretary-General Guterres, through his spokesperson, in which he "reiterates that all parties must abide by international humanitarian law" but then adds that he "condemns in the strongest terms any killing of civilians."

This is a dangerous and fundamental misreading of international humanitarian law.  The death of civilians is tragic, but not necessarily a violation of international law. In a situation in which terrorist bases and armaments are embedded in the heart of dense civilian areas, there is no principle of international law that says these terrorists must be left free to perpetrate attacks with impunity.

On the contrary, the law explicitly recognizes that civilian facilities used to house or shield terrorist groups are indeed lawful military targets, and that collateral civilian casualties may be legitimate if these are not excessive in relation to the military goal of the operation.

In the tragic reality that Hamas has deliberately created, meeting this proportionality test requires an agonizing balance. The heart-breaking suffering of civilians is one side of this equation. But there is another: Meeting the military goals of the operation and preventing more casualties in the future.

Under international law, both sides must be weighed. If a medical operation is described only in terms of the pain it might cause with no regard to the disease it aims to cure, it will always appear to be an unjustified assault on the patient.

(To be continued)

(Daniel Taub is an international lawyer who served as Israel's ambassador to the UK from 2011 to 2015.)