International Law and the War in Gaza: from fog of war to fog of law

Author: Juan Amaya Castro

Originally Published at Peace and Conflict Monitor on 08/03/2009

The Israeli theory of what it tried to do here is summed up in a Hebrew phrase heard across Israel and throughout the military in the past weeks: “baal habayit hishtageya,” or “the boss has lost it.” It evokes the image of a madman who cannot be controlled.

“This phrase means that if our civilians are attacked by you, we are not going to respond in proportion but will use all means we have to cause you such damage that you will think twice in the future,” said Giora Eiland, a former national security adviser.

It is a calculated rage. The phrase comes from business and refers to a decision by a shop owner to cut prices so drastically that he appears crazy to the consumer even though he knows he has actually made a shrewd business decision. 

(…)

Shlomo Brom, a researcher at the Institute for National Security Studies at Tel Aviv University and a retired brigadier general, said it was wrong to consider Hamas a group of irrational fanatics.

“I have always said that Hamas is a very rational political movement,” he said. “When they use suicide bombings, for example, it is done very consciously, based on calculations of the effectiveness of these means. You see, both sides understand the value of calculated madness. That is one reason I don’t see an early end to this ongoing war.”(1)

1. The War in Gaza: Irrationality and Lawlessness?

Listening to many of the reactions that have been voiced in response to the horrible events in the Gaza strip, it would seem that many people consider what is going on there to be ‘irrational’. Indeed, the pictures we see, the stories we read, make it difficult to believe that all that is happening there, the bombs, the destruction, the civilians that are killed, that any of that could be in some way obeying some type of rationality. Not just is it easy to consider it all irrational, it is also easy to consider it a prime example of ‘lawlessness’. Many reactions that I have heard, and some have been communicated directly to me in my role as professor of international law, indicate that the war in Gaza is seen as an example of lawlessness, as evidence of the failure of international law and its international legal institutions.

People have expected many things from international law and from international institutions. And more often than not, they have been disappointed. International law, the law of the international community, its institutions, they all seemed relatively powerless – visible through their powerlessness. As we will see below, the war effort obeyed its own rhythm, and nothing much seemed to be able to be done. When the warring parties finally ceased fire, it seemed for many reasons that were not related to international law and its institutions.

2. The Law Behind the Scenes in Gaza

Seen this way, international law would indeed seem helpless. War criminals would seem to get away with their war crimes. Victims would have no recourse. The killing could just go on without anything being done to stop it. The various international institutions, all the courts, national and international, seem helpless and this helplessness is seen to be the helplessness of international law in general.

However, from another perspective, law springs very much alive. The irrationality that we want to see in the war is not always seen by those who carefully study the war and the motives and decisions taken by the warring parties. Military and Political experts have called the reaction by Israel to the rocket attacks by Hamas ‘Calculated Rage’, in other words, a deliberate strategy that aims to be seen to overreact, but that is in fact a very controlled action. Likewise, other experts have referred to the tactics and strategies of Hamas as ‘Calculated Madness’, again referring to a deliberate attempt to seem unpredictable and even suicidal, while in fact being carefully selective in the risks they take. The rage and the madness are here described as part of a strategy – as part of a very rational scheme and set of calculations about intentionality and causality.

Law first appears as part of the strategic landscape of all actors involved. And I am not merely talking of law in terms of the very specific binding and non-binding rules. I am referring to the general picture of rules and principles, legal and moral, as well as the broader set of institutions, legal, political, and other, which includes the media and the ‘international court of public opinion’. Paradoxically, in our age in which weapons have achieved a degree of unparalleled precision and destructiveness, wars are as much about perception than they are about physical military victory and defeat.

To fight this modern war, political and military strategists employ various forms of expertise. Media expertise and political strategy are as essential as knowledge of the physical and geographic terrain. The U.S. military has invested heavily in the last couple of years in the development of the so called ‘human terrain’ expertise, which involves deploying cultural anthropologists in the various levels of military planning and operations. In the same way, legal expertise and general knowledge of legal avenues and procedures are an essential part of any modern military machine. In fact, the Israeli army deploys hundreds of lawyers, many of them with a high level of expertise. Israeli military manuals have been prepared with the assistance of the UN and the ICRC and are generally considered to be of a very high legal quality in terms of the way that they incorporate the principles of International Humanitarian Law (IHL) into every aspect of their operations. Israeli military lawyers participate in the various levels of military decision-making, and the Israeli army is heavily equipped with state of the art technology that allows it to be precise in its attacks and to wage a legally clean war. The legal expertise allows them to expand the grey area left open by the rules, and to do things that, even though they can be questioned, can also be defended by reference to the rules.

To the point that Israel has at times committed clear violations of the rules of war, this may be explained by a deliberate calculation that takes into account the weak enforcement mechanisms of international law and the seemingly unconditional support of western countries. In other words, law, and the political context in which law exists, can be said to be a central part of Israeli military calculations.

But, Hamas too can be said to take law (and the political, moral and media context in which law operates) as the starting point of their strategic calculations. Though Hamas does not have the same amount of legal expertise or the technical capacity to carry out high precision bombings, this does not mean that it is not aware of the legal terrain on which the battle takes place. The thing that Hamas can
do, in this very asymmetrical military and political struggle, is to radically affect the Israeli strategic terrain, which includes the legal one. One way in which Hamas can be seen to be doing this is by hiding their weapons in areas with a high density of civilians, in the vicinity of schools and around the proximity of UN buildings. By doing this they make it more difficult for Israel to apply the principle of distinction, under which military attacks must distinguish between military targets and civilian ones, and avoid the
civilian ones. It also makes it more difficult for the Israelis to abide by the rule that all efforts must be undertaken to avoid civilian casualties, even when targeting military objectives.

In this way, they raise the cost of military attacks for Israel, not just in terms of the efforts made trying to play by the rules, but in terms of the political, moral, and potential legal costs of causing large numbers of civilians to die. Here too, Hamas may at times choose to disregard clear rules, and here too the calculation can be traced to broad considerations that include the political and media context in which the legal rules operates, as well as the deficient enforcement mechanisms. As far as the costs in human lives is concerned, Hamas may have been taking a cue from Hezbollah, which two years ago was able to claim some sort of victory amidst the rubble and destruction, and the hundreds of civilian casualties.  

From this perspective, international law, in spite of the best intentions of its drafters, operates as a terrain that can be played out in ones advantage. Even so, most of the attention goes to law’s helplessness, as is evidenced by the responses in the formal legal institutions.

3. The International Legal & Institutional Response

International lawyers all over the world have been doing a lot of work, talking about the legality of the whole war, as well as the legality of the various individual armed actions that have been a part of this war. The issues are complex: is Gaza an occupied territory? Who is in control there? If it is not an occupied territory, then what is it, since it is not a sovereign state? Does all this matter at all? Each and every one of these questions has international lawyers typing away like crazy – and for each one there are strong positions, one way or another.

Meanwhile, people have looked to the various international legal institutions and their attempts to deal with the situation:

• The United Nations Security Council passed a resolution: Resolution 1860 (2009), which calls on all parties to respect civilian lives and to stop the fighting and resolve their issues peacefully. This
  resolution, miraculously passed with a US abstention, has been found to be too soft on Israel by some and to hard on Israel by others. More significant however, it does not seem to have had any effect on the hostilities of either side.
• The UN General Assembly joined the action, in a special emergency session, and adopted a resolution more or less along the lines of the UNSC’s one. Even though UNGA’s resolutions are not binding, this one elicited the same response: widespread support from most, strong rejections from the parties involved: too soft on Israel, too hard on Israel; and the same effect: non that can be discerned.
• There is talk of the UN General Assembly requesting the International Court of Justice to pronounce itself on the matter in a so-called Advisory Opinion, such as it earlier did in relation to the Wall that Israel was building in the West Bank. However, not only are these Opinions of a non-binding nature (in spite of their significant authority), but the last one was easily ignored by Israel (and its allies).
• The UN Human Rights Council had previously asserted itself through another non-binding resolution, in which it strongly condemned Israel and decided to dispatch a fact finding mission to verify how the human rights of the Palestinian population had been violated. So far, it is unclear that the fact finding mission has been deployed. In any case, the resolution had no immediate effect. Since non of these ‘actions’ did anything to stem the violence, in any apparent way, attention among international lawyers and human rights activists has turned in another direction, a very popular one lately. The idea: war crimes committed by Israel need to be punished. Many ideas about this have been floated around:
• Let the International Criminal Court (ICC) spring into action. It could do so, but it is unlikely. The only way that it could happen is through a UNSC resolution. Such a resolution however, is unlikely, and it will remain unlikely even after Obama’s government springs into action. The US will just not support it – and probably others too…
• Let’s establish a special international tribunal, a War Crimes Tribunal. Not a very original idea, and not very likely to happen. Special tribunals so far have been established by the UNSC. Moreover, even if it was somehow done differently, there would be the problem of making it happen. How can you give this tribunal access to the area, and how could it ever do its work without Israeli cooperation, let alone without US support?
• Some Israeli Human Rights NGOs have initiated legal proceedings before Israeli courts. Now, Israeli courts are not as biased as some people might suspect. They have, at times, posed a significant instrument of restraint and accountability on Israeli use of raw power. However, in this type of situations, as was seen two years ago during and after the war in Southern Lebanon, against Hezbollah, their track record is that they will be very understanding and empathic of what the Israeli Defense Forces have done in the Gaza. Again, not that much can be expected from this option.
• As the cease fire seems to be taking effect, some people in Israel are preparing for the next round in the ongoing war. Not warfare, but lawfare, as it has been called. Weakening your opponent, perhaps even defeating him/her by means of legal proceedings in courts and other types of litigation. The main instrument in this type of action is socalled trans-national adjudication. In other words, bringing cases before other national courts, in particular in the U.S., in the U.K., but also in other countries (Spain, France, The Netherlands, Belgium, etc.). Unsuspecting Israeli officials might find themselves tried in any of these countries. Cases could be either of a criminal nature, aimed at imprisoning the suspects. They could also be of a civil law/ tort -nature, aiming at demanding large quantities of financial compensation. It is clear that various NGOs and other groups will be trying to get their courts to initiate proceedings. But, will these courts accept these cases? What about jurisdiction? What about immunity? Well, apparently some Israeli officials are not taking any chances, but whatever happens in this area, it will be a far cry from a comprehensive legal accountability for the various alleged war crimes.

4. The Pursuit of Justice through Law… and its limitations

But, is it a good idea to pursue the objective of criminal prosecutions? How much do these legal instruments offer anyway? How clear are the rules that have allegedly been breached? What can international law really offer to the thousands of victims and their survivors? In this section, I want to highlight a number of limitations offered by international humanitarian law and by international criminal law for the achievement of the justice and accountability that many of us would like to see.

1. IHL and ICL have achieved significant results in the past, but in different types of situations. The crimes that were tried in Nuremberg and Tokyo, as well as the growing number of convictions that have come from the ad hoc tribunals (Yugoslavia and Rwanda), and the so-called hybrid tribunals (Sierra Leone, Cambodia, etc.), to the extent that these have been successful, have mostly been of a different nature than what has been seen so far in the Gaza war. The convictions were for large scale and systematic massacres, mass rape and the attempt to systematically exterminate a particular group of people. In the case before us it is a very different situation, with armed groups attacking each other while civilians are caught in the middle. As we will see below, these are much more difficult to deal with.
2. It is extremely unlikely, though not unthinkable, that the military actions of a country that enjoys the strong support of the U.S. as well as from the large majority of Western countries will be brought to some form of international legal prosecution. The political and institutional context in which these rules operate will make it a very arduous legal battle indeed. Unfortunately, various examples of this type of lack of accountability precede the Gaza war.
3. Many of the violations of international humanitarian law (such as the use of certain weapons or the lack of adequate precautions when targeting military objectives) will not lead to the finding of individual responsibility; rather only state responsibility, which under international law does not carry a specific penalty or even punishment. At best, Israel might be under the obligation to pay some form of financial compensation or reparation. Though better than nothing, it is very different from the justice that is now pursued in human rights quarters. Moreover, the same unlikeliness applies here as well.
4. There is a precedent (involving the war between Ethiopia and Eritrea) in which an international (pseudo) judicial body looked into the question of state responsibility for violations of international
   humanitarian law, but was forced to find most of the allegations void for lack of evidence. This brings us to the point that this type of proceedings is often very costly and difficult.
5. Though there may be a couple of alleged violations of international law that can be ascertained through (independent) fact finding missions, many of them will get stranded in the ambiguity of the
   legal rules that relate to warfare. Here is a list of challenges:

• Under international humanitarian law one would need to demonstrate that the Israeli Defense Force (IDF) actually targeted civilians. This is extremely difficult to demonstrate and it would require a very serious cooperation on behalf of the IDF itself, in order to ascertain what happened exactly.
• If civilians were killed, one would have to demonstrate that adequate measures were not taken to limit the number of civilian casualties. The thing is, international humanitarian law completely allows the killing of soldiers, even if this would cause civilian casualties. However, the military is expected to at least try to limit these, as long as it does not jeopardize its military campaign. The way that this is referred to is that there needs to be a balance between humanitarian considerations and military necessity. However, it is unclear how one can measure whether, in a particular instance, amidst incredibly complex circumstances, the right balance was made. In particular, the IDF has demonstrated that it can talk the language of this balance –so they will argue forcefully that they did do the effort. In any case, negligence or a weak effort in making this balance, though it might lead to state responsibility, would probably not qualify as a war crime.
• In some cases it might be possible to make a case, such as in the UN operated school, where dozens of civilians died in an IDF attack. However, even there, there are various different versions, and it is not clear who would have the burden of proof in a court of law. Here too it would probably be easier to find the state of Israel responsible, and more difficult to find individual IDF commanders responsible.
• Other, fairly ‘easier’ cases involve the use of phosphorus bombs by the IDF. Here the facts are easier to ascertain and here too the situation is slightly easier to qualify. There are clear limitations about the circumstances in which these weapons can be used, so it would be easier to demonstrate that an unlawful decision was made. However, here too the responsibility will likely end up on the state, and not on the individual persons.
• The problem underlining this whole exercise is that things in Gaza got really complicated. Urban warfare, with the intensity with which it happened, can test the wits of the hardest and best trained fighters. Accidents happen, all the time. Weapons fail, intelligence systems confuse, and people misunderstand each other’s communications, all the time. Evidence of this is the fact that at least four of the Israeli military casualties were caused by so-called ‘friendly fire’. It is clear that in a war situation a lot of things happen that are not meant to happen.

All the complexities, the confusion, the sensory overload, the stress, and even how the mind deals with these experiences after the fact, all this is often referred to as ‘the fog of war’, and it communicates the difficulty to maintain your wits about during battle. However, in my opinion, the rules and procedures available are filled with unavoidable ambiguity and will lead the clarity of moral outrage to go astray in the fog of law.

References
[1] (Ethan Bronner, Parsing Gains of Gaza War, NY-Times, 19.01.09) http://www.nytimes.com/2009/01/19/world/middleeast/19assess.html?pagewanted=all.

Bio: Since March 2004, I have been working as Co-director of the Department of International Law, and head, together with Gudmundur Eiriksson, the two Masters Programmes: “International Law and the Settlement of Disputes” and “International Law and Human Rights”. I first came to UPEACE in September 2003 as a visiting professor to teach part of the general introductory course on international law. In my current capacity I am responsible for general management and further development of our two programmes, planning of the curriculum and academic calendar, and overall functioning of the department. I will be teaching in the general foundational courses, and also in some of the specialized courses in our programmes, as well as in other UPEACE programmes. I will also supervise many of the independent studies with which students conclude their ten month programme. Before coming here and while working on my Ph.D. dissertation on the public/private distinction in human rights discourse, I lectured on both international law and human rights at a number of Dutch universities. I plan to defend my dissertation soon at Erasmus University in Rotterdam. Prior to assuming this position I spent six months as a visiting researcher with the European Law Research Center at Harvard Law School. My research interest generally concerns the integration of contemporary thought on power, knowledge, subjectivity, and language with our thinking about international law and human rights.