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Legal Aspects of 'Operation Cast Lead' in Gaza

JURIST Guest Columnist Amos Guiora of the University of Utah College of Law says that while self-defense (in the classic model) is the legal basis for Israel's "Operation Cast Lead" against Hamas, the Israel Defense Forces' re-articulation of proportionality and collateral damage in that context is a new development in international law that carries significant risks...


Two weeks ago, Israel Defense Minister Ehud Barak declared war on Hamas. It is unclear whether he meant “war” in the classic sense, a term of art or as a political phrase. What is clear is that "Operation Cast Lead" is fundamentally different than classic operational counterterrorism. The operation includes four goals:

- destroying tunnels between Egypt and the Gaza Strip used for smuggling weapons;
- destroying Hamas’s ability to manufacture Kassam missiles;
- destroying Hamas ammunition depots; and
- preventing Hamas from firing Kassam missiles into Israel.

The IDF launched Cast Lead after two significant developments: Hamas had fired 6,000 missiles from the Gaza Strip into southern Israel during the past three years after Israel had unilaterally disengaged from the Gaza Strip and Hamas had unilaterally violated an Egyptian negotiated cease-fire.

This is classic self-defense; to that extent, Operation Cast Lead is not different.

From a legal perspective, however, there are three critical differences between Cast Lead and previous IDF operations, each of which may pose significant challenges to existing interpretations of international law:

- declaring war against a non-state actor;
- re-articulating proportionality; and
- redefining what is a legitimate target in the context of collateral damage.

Before analyzing these three issues, one should recall that Israel previously has referred to its operational counterterrorism measures in the West Bank and Gaza Strip as “armed conflict short of war”. While surely a clumsy phrase, it signaled Israel’s attempt to articulate a “hybrid”— something that is neither war nor a police action. Declaring war on Hamas is not “armed conflict short of war”; it is an additional step – perhaps more than that - in the definitional spectrum. It suggests that war can be declared against a non-state entity. While President Bush declared war on “terrorism” after 9/11, a declaration of war specific to a particular organization represents a fundamental change.

How that change comes into play” best illustrated in how proportionality and collateral damage are discussed.

Israel and Hamas have disproportionate weapons available to them. The IDF has planes, helicopters, tanks, artillery and patrol boats. Hamas has Kassam and Grade missiles. What needs to be asked as a matter of international law is whether the available, disproportionate weapons are used proportionally. With regard to the current situation in Gaza, proportionality must be viewed from two perspectives: the threat posed and how is that threat posed.

The threat posed is to a million innocent Israeli civilians - Jews and Arabs - living within a 40 km (25 mile) radius of the Gaza Strip. The threat is actual and has been realized. There have been fatalities, injuries, damage to property and general disruption of daily life within Israel. How this has occurred is critical in understanding Operation Cast Lead in the context of collateral damage. It has occurred because of a broadly-based Hamas infrastructure.

In declaring war on Hamas, Israel has deliberately left undefined the degree to which an individual must be affiliated with Hamas in order to be categorized as a legitimate target. The consistent and constant bombing of southern Israel over a number of years required a broadly based and highly developed infrastructure. Such an infrastructure enabled the digging of many tunnels, the building of weapons and their storage and the firing of thousands of missiles. In contrast to the traditional model associated with the suicide bombing infrastructure predicated on the individual bomber, the planner, the driver and the financier, the Hamas rocket firing infrastructure is inherently broader.

By expanding the definition of “legitimate target,” the IDF has narrowed the definition of “collateral damage.”

This new paradigm presents enormous risk, for it invariably leads to the photographs that have caused Israel significant damage in the court of international opinion. The visual images from Gaza during the last two weeks are far more powerful than any spokesman’s words.

However, Israel declared war on an organization, and by extension on all those involved in that organization — active and passive alike. That is precisely how Operation Cast Lead is different from all previous Israeli operations.

While self-defense (in the classic model) is the legal basis for Cast Lead, the IDF’s re-articulation of proportionality and collateral damage is a new development in international law. How this new paradigm is implemented in the Gaza Strip is the essence of the issue. It means that the IDF is conducting an aggressive policy directed at Hamas. It suggests expanding the number of legitimate targets and broadening the definition of “military necessity”.

It does not — and must not — mean that all Gazans are legitimate targets. Israel’s Defense Minister declared war on Hamas, not on Gaza. The IDF must minimize collateral damage; to do otherwise is a violation of international law.

Further, Israel must not ignore its international humanitarian law obligations. To do otherwise is a violation of international law. The three-hour respites from aerial attacks to facilitate attending to humanitarian needs represent an attempt to balance between humanitarian obligations and operational necessities. However, the essence of the Israeli policy — the rightness or wrongness of which must be debated — is that declaring war on an organization that has fired more than 6,000 rockets into Israel since 2005 justifies enlarging the definition of legitimate targets and therefore narrowing the definition of what is considered collateral damage.


Amos N. Guiora, a professor of Law at the University of Utah's SJ Quinney College of Law, served for 19 years in the Israel Defense Forces' Judge Advocate Generals Corps. His recent books include "Constitutional Limits on Coercive Interrogation" and "Fundamentals of Counterterrorism" and "Global Perspectives on Counterterrorism." His e-mail is guioraa@law.utah.edu.

January 11, 2009


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Comments:

Although Hamas is an organization, it is also a political party, the effective government of Gaza, and a claimant to be the legitimate government of Palestine. So is it a non-state actor?

After WWII Korea was divided into two zones of occupation. It was still regarded as a single country, although two separate governments took power in each zone claiming to be the legitimate government of the entire country. When the army of the government in the North invaded the South, it could not claim more legitimacy as as state than the government of Western Palestine (Gaza).

The UN itself effectively declared war on the possibly non-state actor in Korea. Eventually the war also involved "volunteers" from the also unrecognized Communist Party government occupying mainland China. Just as Hamas is not recognized as legitimate by most countries who recognize Abbas, so at the time the recognized government of China (with representation in the UN) was the Nationalists on Taiwan.

If the UN itself can go to war against the "non-state actors" in Korea, then there is no basis to object to Israel going to war with Hamas. Not Hamas the organization, the charity, or the political party, but rather Hamas the government in control of Gaza and claiming legitimacy over the entire Palestine territory. Regarded as an actual government of an actual territory with a real army, just as the DPRK had a government, territory, and army, then the usual rules of War apply. You cannot bomb little old ladies who donate to the wrong charity. You can bomb legitimate military targets including locations used to import, manufacture, and store weapons and command and control facilities, as well as individuals engaged in combat even when dressed as civilians.

January 12, 2009  

There are two difficulties with this presentation and all articles of this kind.

First, they ignore entirely a) Israeli violations of past cease-fire agreements, when it felt that this was in its interest; b) Israel activity against Hamas and collective punishment of Gazans during the period involved. Instead, we are presented with the typical Israeli "trinitarian" view of recent history: Israel withdrew from Gaza, Hamas launched thousands of rockets, Israel declared war on Gaza. This isan utter misrepresentation of the events of the last several years. There is no mention of the long history of targeted assassinations, incursions into Gaza, restriction of freedom of movement, occupation of Palestine, etc. All that is simply *ignored*.

The second problem is the assymmetry of assumptions regarding the rights of the Palestinian and Israeli peoples. The Palestinian people have no less a moral right to self-defence than the Israelis, even though they do not at present have a recognized state. This is particularly true of those who believe (as most Israelis at least say they believe) in a two-state solution. Given that the Palestinians can hardly rely on the IDF, the army Occupying Palestine for forty years, to protect it (with much greater justification than the Zionists had when they formed the Hagganah), it is clear that they have comparable rights to self-defence. What this entails for groups like Hamas can be discussed and debated. But once Palestinians are conceded a right to self-defence. the picture changes.

I am simply astounded that this point is denied or ignored by advocates for Israel. Where is the fairness?

January 12, 2009  

Can you elaborate or clarify what you mean by "re-articulating proportionality; and
- redefining what is a legitimate target in the context of collateral damage."?
What was the original definition, what is the definition now, and who said it where? Or post links to somewhere that does?
Thanks

January 15, 2009  


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