By Dr Aftab Alam
a 6 mins read.
Delicate Balance
Ever since Hamas’s October 7 attacks on Israel, killing close to 1,200 people and taking around 240 hostages, the besieged Gaza Strip has been subjected to relentless airstrikes to ground operations by Israel invoking its right of self-defence, in which, as of now, nearly 34,950 Palestinians, most of them women, and children, have been killed, and around 78,600 others injured. The continuing conflict has damaged or destroyed approximately three-quarters of its buildings across the Gaza Strip. The UN Security Council, the premier global body for maintaining international peace and security and enforcing international law, appears to be helpless and a bystander in the face of escalating and unprecedented fatalities and wanton destruction, with no end in sight. The continuing conflict in Gaza raises serious questions about the efficacy and relevance of international law governing the use of force (jus ad bellum) and the conduct of hostilities (jus in bello).
Jus ad bellum and jus in bello are two distinct but increasingly interweaving branches of international law applicable to the present Israel-Hamas conflict. While jus ad bellum deals with the reasons for fighting and aims at maintaining peace, jus in bello contains rules regulating the conduct of hostilities and seeks to mitigate the horrors of war by striking a delicate balance between military necessity and humanitarian imperatives and restricting belligerents’ choice of means and methods of warfare. jus in bello or International Humanitarian Law (IHL) norms are equally applicable to all parties, irrespective of their status as aggressors or victims, or irrespective of what the other side has done.
The basic rules of jus ad bellum are set out in articles 2(4) and 51 of the United Nations (UN) Charter of 1945, which prohibit the use of force unless it is undertaken in self-defence. IHL relies on international customary rules based on recognised state practices during armed conflicts as well as treaty laws, which most importantly include the four Geneva Conventions of 1949 and the Additional Protocols of 1977.
While exercising the right to self-defence, Israel must meet the twin requirements of ‘necessity’ and ‘proportionally’ in addition to observing the core principles of International Humanitarian Law.
The Core Principles
One of the most fundamental principles of contemporary international law is the general prohibition against the use of force. However, recognising the fundamental right of every state to survive international law allows a state to use force in self-defence, provided it is a victim of an armed attack. But based on a conjunctive reading of articles 2(4) and 51 of the UN Charter, self-defence is generally interpreted to constitute a state-centric right. The right to self-defence cannot be invoked against non-state armed groups. The International Court of Justice (ICJ), in its Wall opinion (2004), denied Israel the right to self-defence against terrorist attacks on this ground. Thus, the invocation of the right to self-defence by Israel against Hamas, which is a non-state actor, will be a difficult proposition to justify.
Furthermore, even if we recognise that Israeli invocation of self-defence is permissible, it certainly fails to meet the requirements of a lawful exercise of such a right. For example, while exercising the right to self-defence, Israel must meet the twin requirements of ‘necessity’ and ‘proportionally’ in addition to observing the core principles of IHL. The Caroline doctrine, a customary international law formulation, requires a victim state to show a “necessity of self-defence,” which must be “instant, overwhelming, leaving no choice of means and no moment for deliberation.” The victim’s response is allowed only as a last resort when there are no alternative peaceful means available to it.
There is no evidence on record to show that Israel ever made any genuine and serious attempt to employ any alternative peaceful method, either before launching full-fledged military attacks on Gaza or during the ongoing conflict, to address the challenge posed by Hamas, let alone find out any solution to the question of Palestinian statehood, which lies at the root of the present conflict. Contrarily, Israel has defied all the UN resolutions concerning the Palestinian question, including the most recent one calling for a ‘lasting, sustainable ceasefire.’
It must be noted that the right to self-defence does not entitle a victim state to unrestricted and indiscriminate use of force for any period of time. International law allows a state acting in self-defence to use only such amount of force as is both necessary and reasonable in order to defend oneself and to halt and repel an ongoing armed attack that gave rise to the right of self-defence. The goal of defensive use of force is limited to driving the aggressor back.
Conflict Obligations
However, the stated goal of Israel seems to be to destroy Hamas, and it treats entire Palestinians as either members or sympathisers and therefore considers all of them legitimate military targets. In February, Israeli Prime Minister Benjamin Netanyahu declared that its offensive in Gaza will continue until it achieves “absolute victory.” Israeli President Isaac Herzog claimed that there were no innocent civilians in Gaza and that the entire Gazan population was responsible for the October 7 attacks. The characterisation of the entire Palestinian population of Gaza by Israel as armed enemies is again a problematic proposition.
Israel, while using force in self-defence, is also required to meet the requirement of proportionality, which is generally judged first in terms of the ‘act’ that provoked it and secondly, against the legitimate ‘goals’ of defencive force. If we consider the enormity and scale of Israeli military operations in Gaza, it is amply clear that they violated the principles of proportionality, as they are exceedingly violent, causing more deaths and destruction compared to the October 7 Hamas attacks that provoked them.
There is also damning evidence of Israel violating its obligations under IHL, including its core principle of ‘distinction’, which requires all parties to an armed conflict to distinguish, at all times, between combatants and civilians, and military and civilian objectives and direct their military operations only against combatants and military objectives. Civilians and civilian objects must never be the target of a deliberate attack. Parties to an armed conflict are obligated to take steps to minimise the harm caused to civilians and civilian objects. IHL prohibits attacks on even otherwise lawful targets when the expected civilian casualties would be excessive in relation to the concrete and direct military advantage anticipated.
The UN agencies and other human rights organisations have documented the Israeli violations of IHL, including the principle of distinction, and human rights law in its operations against Hamas. Israel is routinely bombing and raiding healthcare facilities such as hospitals and ambulances, blasting civilian dwellings, including schools and places of worship, and destroying roads and other infrastructure. Israel has not even spared UN personnel and other humanitarian aid workers. The high number of civilian casualties caused by the air strikes suggests that Israeli attacks are unlawfully disproportionate.
To protect civilian populations from the horrors of conflict, the UNSC, after several unsuccessful attempts, called for an immediate ceasefire and the unconditional release of the Israeli captives taken by Hamas.
Complete Siege
The deliberate blocking of humanitarian relief by Israel from reaching civilians in need has led to starvation and the onset of famine in the Gaza Strip. This amounts to collective punishment, a prohibited act under IHL, and a war crime. At the very beginning of the current conflict, Israel’s Minister of Defence, Yoav Gallant, stated “We are imposing a complete siege on [Gaza]. No electricity, no food, no water, no fuel – everything is closed. We are fighting human animals, and we act accordingly.”
Realising the need for international action to uphold the principles of IHL and human rights and to protect civilian populations from the horrors of conflict, the UN Security Council, after several unsuccessful attempts, called for an immediate ceasefire and the release of the Israeli captives taken by Hamas. It also reminded all parties to comply with their obligations under international law. However, defying the UN call for a ceasefire, Israel has launched fresh massive attacks in the southern Gazan city of Rafah.
An immediate ceasefire and unconditional release of all hostages, along with permanent actions towards a two-state solution and compliance with international legal norms by all parties, could only help to bring about long-term peace in the region. The core principles of IHL and human rights law remind us that humanity must prevail even in times of armed conflicts, and basic human rights cannot be cast aside in dire emergencies. Israel cannot use its right to self-defence against Hamas as a blanket license for IHL and human rights violations.
(Dr Aftab Alam, is a Professor and Head of Department of Strategic & Security Studies, Aligarh Muslim University. He also teaches international law. The views expressed are of the author and do not necessarily reflect the views of The News Analytics Journal.)
