International Law and the War in Gaza
International Law and the War in Gaza
Yasmin Obeidallah
Associate Editor
On October 22, the Middle Eastern & North African Studies Program and the Department of History hosted a talk by Professor Jonathan Hafetz of the Seton Hall University School of Law that explored the legal issues surrounding Israel’s ongoing war on Gaza. Professor Hafetz examined the principles of jus ad bellum and jus in bello, which concern the right to self-defense and violations of International Humanitarian Law (IHL), and discussed which tribunals have jurisdiction over international crimes committed during the war.
Professor Hafetz first described the principle of jus ad bellum, the right to war, and the right to self-defense under international law. Article 2 (4) of the Charter of the United Nations (UN) “prohibits the threat or use of force and calls on all Members to respect the sovereignty, territorial integrity and political independence of other States,” effectively prohibiting the use of force in international relations. This creates a rules-based international order in which states must respect territorial boundaries and allows the use of force only when authorized by the United Nations Security Council (UNSC). These limitations on interstate violence are made with the aim of avoiding destructive war and extensive human suffering.
However, Article 51 of the UN Charter prescribes the right of member states to defend themselves from armed attacks. Israel’s right to exercise self-defense against Hamas depends on two factors: Hamas’s status as a state or non-state actor and Israel’s status as an occupying force in the Gaza Strip. Hamas’s role in the international order raises the question of the legality of the right to self-defense against non-state actors. If Israel was acting as an occupying power within Gaza, its right to self-defense would be affected. Although Israeli forces withdrew from Gaza in 2005, some experts say its control on the enclave through its land, air, and sea blockade would constitute occupational power over the Strip.
Israel’s actions in Gaza have amassed criticism on the conduct of war from other nations, international organizations, and non-governmental organizations. This introduces the idea of jus in bello, sometimes called International Humanitarian Law or the law of armed conflict. Professor Hafetz described the characteristics of international and non-international armed conflict, clarified the differences between IHL and International Criminal Law, and outlined the crimes Israel and Hamas are accused of committing.
The classifications of conflict affect which set of international laws apply to the conduct of the parties involved. An international armed conflict is an armed conflict between two states and a non-international armed conflict is an armed conflict between a state and non-state actors. There is variance amongst scholars about which category the current violence between Hamas and Israel falls into. IHL is largely based on customary international law, which reflects state behavior and the state’s legal obligation to adhere to certain norms. The Geneva Conventions, a series of international treaties that are central to IHL, govern the actions of states and non-state actors during armed conflict. International Criminal Law, which originates from the Nuremberg Trials after World War II, makes certain acts crimes under international law and holds individuals accountable for violations of international norms. These crimes include war crimes, or breaches of customs of law and war, including torture and willful killing; crimes against humanity, including systematic attacks on a civilian population; and genocide, the intent to eliminate a particular religious, ethnic, or national group in part or in whole. These crimes apply to both international and non-international armed conflict, though not all crimes apply to non-state actors.
The war in Gaza has brought about several cases before international tribunals. The case before the International Court of Justice (ICJ) brought by South Africa against Israel for violating the Genocide Convention has resulted in preliminary measures against Israel, including to prevent and punish genocide, to allow for more humanitarian aid, and to halt military action in Rafah. The final determination of the crime of genocide is likely years away, but these interim actions address the gravity of the current situation and show the claims against Israel are plausible. Although South Africa is not directly affected by Israel’s actions in Gaza, it believes that a serious breach of peremptory norms was committed, invoking the principle of erga omnes partes that triggers the ICJ’s jurisdiction.
The role of international law in the war in Gaza goes beyond public perception and tribunals. This set of legal rules exists to minimize harm to civilians, deter and punish atrocity crimes, and create political and diplomatic pressure for a peaceful resolution of the conflict. Professor Hafetz admits that a gap exists between what is morally right and what is legal under international law. As for the larger objective of Israel, both the international community and esteemed scholars can acknowledge that international law is not living up to the ideals of deterring devastation and human tragedy in Gaza.