Israel's attack on Gaza: an unjust war?

17 April 2009

Israel's attack on Gaza on December 27, 2008 has evoked strong emotions that frequently obscure rational discussion of the situation. With such a high human cost, objective and factual analysis is vital. In this article, we explore whether Israel's attack was justified under the principles of just war theory, as codified in international law. International law makes a distinction between the justness of a state's decision to go to war (jus ad bellum) and the justness of a state's conduct during war (jus in bello). We have chosen to focus on Israel's case for going to war. There are at least four necessary conditions for a just war: i) just cause; ii) last resort; iii) effectiveness in achieving aims; and iv) proportionality.

Did Israel have just cause?

Legally, there are two just reasons for war: self-defence (Article 51 of the UN Charter) or with a UN Security Council mandate (Article 42). Israel did not have a mandate to go to war.

We will therefore focus on whether Israel's attack was defensive. To understand why Israel's war cannot be deemed defensive some context is required. This means we must look at both the immediate context of the ceasefire, as well as the broader context of the conflict.

There was a 6-month ceasefire declared on June 19, 2008 and broken by Israel on November 4, 2008. Under the terms of the ceasefire, Israel was expected to ease its blockade on Gaza and there were to be negotiations on the release of prisoners, such as the one Israeli, Gilad Shalit, and the roughly 11,000 Palestinians. Negotiations on the latter took place; however, Israel has not lifted its blockade at any point. All evidence shows that this was a successful ceasefire with respect to the primary condition: that both sides stop firing. Mark Regev, spokesman for the Israeli Prime Minister, confirmed that there were no rockets fired by Hamas during the ceasefire. The Israeli Intelligence and Terrorism Centre stated in a report that "Hamas has been careful to maintain the ceasefire". Hamas also made a number of arrests of violators during this period.

Israel broke the ceasefire 4½ months in when the IDF raided a tunnel and killed 6 people alleged to be members of Hamas. Though widely reported (e.g. The Guardian, Reuters, New York Times) this was largely ignored in light of the US presidential elections, which took place on the same day.

As well as breaking the ceasefire, Israel's lack of interest in sustaining it was evident in their decision to attack in spite of Hamas's calls for a renewal of the ceasefire. A delegation to Egypt on December 14 said that Hamas was prepared to stop all renewed rocket attacks. Furthermore, at an Israeli cabinet meeting on 21st December the head of Israel's Internal Security Agency, Yuval Diskin, told the cabinet that Hamas is interested in continuing the truce conditional on (a) an end to the blockade and (b) a ceasefire in the West Bank. Despite this, Israel invaded Gaza six days later.

Some related reading on openDemocracy:

Article 51: Israel's false claim     Reza Nasri  (17 February 2009)

Lawfare in Gaza: legislative attack Eyal Weizman (1 March 2009)

Israel, Gaza and international law Conor Gearty  (21 January 2009)

The ICC and the Gaza war: legal limits, symbolic politics  Marlies Glasius ( 28 March 2009)

Palestine: the pursuit of justice
 John Strawson and Rosemary Bechler (2 March 2008)

It makes little sense to see Israel as a state on the defensive. Israel is currently occupying large swathes of Palestinian land; it also actively encouraged the 2007 civil war between Hamas and Fatah. First, Israel is currently occupying territory and building settlements on land that does not belong to it under international law. This is any territory outside its pre-1967 borders. 75% of these settlements are even against Israeli law. In 2008, Israeli settlement construction increased by 60%; by the end of 2008 there were a total of 479,500 settlers in the West Bank.

Second, Israel has built a wall that cuts through the West Bank, annexing the most fertile Palestinian land - such as the Jordan Valley - and using it for settlement expansion. In 2004 the International Court of Justice (ICJ) called construction of the wall "contrary to international law".

Third, the economic blockade: since June 2007, Israel has allowed little basic humanitarian aid to enter the Gaza Strip, meaning that food, fuel and medical aid were largely unable to reach the population. For example, a quarter of children in Gaza suffered from malnutrition. This illegal (under the Fourth Geneva Convention, Article 33) collective punishment of a civilian population has been condemned by human rights organizations from both within and without Israel.

Israel has also been on the offensive by interfering in Palestinian politics. In January 2006, Hamas won a democratic victory in the Palestinian Legislative Council elections over the ruling party, Fatah. Fatah and Hamas formed a unity government in March 2007 and began pushing for a long-term cease-fire. Israel rejected that offer and, with American backing, supplied Fatah with both money and weapons and encouraged the coup that led to a brutal civil war.

Given Israel's violation of the working ceasefire, its lack of interest in renegotiation, and its continued occupation of Palestinian territory, it cannot be argued that Israel's attack was justified on the grounds of self-defence.

Was this a war of last resort ?

The idea that a war must be a last resort entails that all non-military means of solving an issue must have been exhausted. In this conflict, the issue was the rockets being fired from the Gaza Strip. In response to this, we say that firstly, there was already a working ceasefire in place which reduced Hamas rocket fire to nothing, and secondly there was absolutely no attempt at negotiation by the Israeli state before the attack. Israel has consistently refused to negotiate with Hamas on the grounds that it will not negotiate with those who do not believe in Israel's right to exist - that is, those who challenge the legitimacy of Israel's establishment. This is often conflated with the notion that Hamas want to destroy Israel physically. One can, however, reject the legitimacy of the establishment of Israel (as some academics have done) without wanting to destroy Israel physically. In fact, Hamas do not want to destroy Israel physically: they have tied their cessation of military action and violence to a return to the pre-1967 borders, a policy that shows that their aim is to establish a Palestinian state on the West Bank and the Gaza strip. In January 2007 Hamas leader Khaled Mashaal said to Reuters: "The problem is not that there is an entity called Israel. The problem is that the Palestinian state does not exist... I speak of a Palestinian and Arab demand for a state on 1967 borders ... there will remain a state called Israel, this is a matter of fact."

Furthermore, Hamas have frequently shown themselves amenable to negotiation despite not recognizing Israel's formal legitimacy. They do not recognize Israel because formal recognition entails an acceptance of the status quo, an unrealistic expectation given Israel's expanded borders, the increasing settlements, the wall that has been built through the West Bank, and its violation of UN resolutions as far back as Resolution 194 concerning its expulsion of Palestinian refugees. These are all legitimate grievances against the Israeli state that need to be addressed: thus negotiation must precede recognition, not the other way round.

An historical example serves to illustrate this point: the former Palestinian government (The PLO) gave Israel formal recognition in the Oslo Accords. Following the agreement, Israeli territorial expansion accelerated. Between the start of the Oslo process in September 1993 and the outbreak of the Second Intifada in 2000, Israel confiscated more than 40,000 acres of Palestinian land; built 250 miles of bypass and security roads; established 30 new settlements; and increased the settler population in the West Bank and Gaza by almost 100,000. The lesson from this, for Hamas, is that an agreed-upon set of borders should be a precondition to recognition.

The media focus excessively on the military wing of Hamas, which is generally seen as being hostile to negotiation. In reality, the military wing is subordinate to its party; it maintained the ceasefire. It should also be noted that many in Israel, not least the Likud party, are rejectionist in that they deny the Palestinians' right to a state and call for Israel to expand to capture all of ‘Greater Israel', which includes both the West Bank and the Gaza Strip. Despite this, no one says that the Israeli government should not be negotiated with. The excuse, therefore, that Israel cannot negotiate with Hamas on the basis of their supposed ‘rejectionism' does not hold water.

Furthermore, this unrepresentative focus on the radical rejectionism of the few is harmful; it entrenches the idea that the conflict is irresolvable except through brute military force or through the forcible removal of Hamas. This attack was nowhere near a last resort. Israel had clear alternatives: a renegotiation of the ceasefire, which it broke, and talks with Hamas.

Did Israel's attack achieve its aims?

A war should only be undertaken where there is a reasonable chance of achieving one's aims. Here we outline three of Israel's possible aims: i) To stop rocket fire from the Gaza strip; ii) To deter future violence against Israel; iii) To weaken or even destroy Hamas. Israel is unlikely to succeed on any of these counts.

During the ceasefire months no Hamas rockets were fired and Hamas arrested the odd few militants that did fire rockets. For example, in the entire month of October only 1 rocket was fired by a militant who was subsequently arrested by Hamas. As a result of Israel's breaking of the ceasefire, rocket fire increased again - 125 in November. During and after the war, rockets continue to be fired into Israel at rates higher than during the ceasefire. If Israel was interested in reducing rocket fire, it should have maintained the ceasefire and ended its crippling blockade on Gaza. Instead, it chose to launch an attack that has set peace back even further.

Secondly, Israel's use of brute military force only strengthens the idea that it is not interested in a peaceful settlement with the Palestinians and can therefore only be resisted through violence. Israel's use of force only serves to drown out the voices of moderation among Palestinians. It is clear that a long-term end to violence can only be achieved through dialogue and the addressing of the fundamental grievances that drive the conflict - not with an iron fist. The war will therefore not be effective in achieving its stated aim of securing long-term peace.

When it comes to weakening support for or destroying Hamas, it is surely a fallacy to suppose that the latter's grievances can be separated from those of the Palestinian people. In blockading or invading Gaza, one of Israel's aims appears to have been to convince ordinary Palestinians to turn against Hamas; it is Hamas' policies and actions that have supposedly led to their suffering. However, this ignores the fact that Hamas was elected on a platform broadly representative of Palestinian grievances. If Israel's aim is to destroy or overthrow Hamas, they will simply destroy the mouthpiece without addressing the grievances themselves. As it happens, Israel is unlikely to have weakened support for Hamas, given the widespread knowledge that Israel was the perpetrator of the violence.

Was Israel's attack proportional?

The principle of proportionality has been the cornerstone of just war theory and has been codified in international law since the Hague Conventions of 1899 and 1907.

In short, the principle states that the "cause must be important enough to justify force; any good that may follow must outweigh the inevitable pain and destruction". The pain and destruction caused in Gaza by Israel's offensive was entirely predictable: given the humanitarian crisis instigated by Israel's blockade, Gaza's high population density, and the evidence of Israel's past military record, the high human cost of the invasion was inevitable. (For example, Israel's invasion of Lebanon in 2006 led to the deaths of 1,191 citizens of which 30% were children under 13). Israel acted in full knowledge of the consequences of its offensive.

But more importantly, it does not even make sense to frame Israel's attack in terms of a response to unprovoked aggression. Rockets, fired from an occupied and blockaded territory, that killed 4 people in the entirety of 2008 prior to the invasion (and which killed no one during the ceasefire) surely cannot render Israel's attack on Gaza proportional in any sense of the word - especially since Israel itself killed 413 Gazans in the same period (this figure does not include the deaths resulting from the Israeli blockade). In short, Israel's attack was not a response to unprovoked aggression; rather Israel itself has acted as a continual aggressor.

In conclusion

We do not accept that this issue has to be polarized, nor do we accept that this issue should remain unexamined because it is ‘emotionally charged', especially when the attack has had such horrific consequences. Assessing Israel's attack on Gaza using the standard of just war theory has led us unequivocally to the conclusion that the attack was unjust, illegal and unnecessary.

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