Dilemmas in International Law: Israel and the Gaza protests
Dealing with violent demonstrations, such as those taking place along the Gaza border, is only one of the many legal challenges Israel faces fighting asymmetric conflicts and hybrid threats. In coping with these challenges, Israel must strive to be part of an international coalition leading the legal battle to combat terrorism, and should draw upon the experience of its widely-respected community of international lawyers
In the Israeli public and many circles in local politics, the prevailing attitude these days towards international law, particularly the law of war, is suspicion. For example, in a critique of the State Comptroller's report on the implementation of international law during the 2014 Gaza War, Maj. Gen. (res.) Amiram Levin, until recently a candidate for chairman of the Labor Party, wrote: “The laws of war are still based on laws from the end of the Second World War, which view war as an act between the regular armies. In the 21st century, the reality is utterly different, and the fight is held against terrorists ... [who] exploit the inapplicability of international law to this reality as a weakness, a way to harm soldiers and civilians.”
In light of this, Maj. Gen. Levin wonders, “what kind of proportionality do we owe to jurists sitting in ivory towers in Europe, who have never in their life heard the wailing of air raid sirens?” In his view, “Israel should not grovel before the international legal system, which relies on an irrelevant body of law.” Apparently, Mr. Levin resonates a sentiment in Israel that views the law of war, also known as International Humanitarian Law (IHL), as a threat to Israel's national security.
A completely different approach was expressed at the First Zionist Congress in Basel (1897). The delegates of the First Congress declared that “Zionism aims at establishing for the Jewish people a publicly and legally assured home in Palestine.” In other words, they envisioned international law to have a positive role in ensuring the legitimacy of the Zionist project, perhaps even in guaranteeing its existence.
As Israel celebrates its 70th year of independence, neither Levin’s critical view nor the near-utopian vision that was laid out in Basel reflect the complex relationship between the State of Israel and the international law and the institutions. responsible for its development and enforcement. Focusing on national security and counterterrorism, Israel faces significant challenges. To be met, these challenges must be addressed wisely and creatively by its political and legal leadership.
The recent violent clashes on the Gaza Border provide a striking example of this complexity. The large number of what appear to be largely civilian causalities on the Palestinian side has led to harsh legally-oriented condemnations worldwide. Israeli officials, in response, have assumed an unapologetic stance concerning the legality of Israel’s policies. But in fact, positive international law does not provide clear and unequivocal answers to the questions raised by these events. A sober view and wise political and legal conduct – in this example, by welcoming a dialogue about the evolving law in this area, while displaying a willingness to investigate the widespread use of force – are critical in order to meet the challenges ahead.
The Main Challenge: Asymmetric Warfare and the Hybrid Threats
In the near future, Israel is due to face increasing difficulty in utilizing military force acceptable under the Laws of Armed Conflict against threats by terrorists operating from highly populated areas. This is due to several recent developments in international law, the first being the mounting regulation on categories of weaponry permitted in warfare. This was reflected in the campaign to ban the use of cluster munitions following the Second Lebanon War in 2006, and another campaign currently being conducted, perhaps influenced by the recent confrontations in Gaza, which aims to limit the use of large scale explosive munitions, such as mortar shells or multiple rocket launchers (Katyushas) in populated areas.
Additional recent trends that might limit Israel’s operational leeway are the waning tolerance to collateral civilian casualties in combat, and the tendency to hold developed countries to stricter legal standards than other warring parties, similar to the distinction made between developed and developing countries in environmental protection treaties.
These developments should be evaluated alongside more general trends concerning the nature of actors in the international legal arena: the rising influence of non-state actors, who do not bear practical responsibility for the balance between military necessity and humanitarian considerations on the trajectory of international law; the penetration of International Human Rights Law (IHRL) norms to the battlefield; and the growth in international enforcement mechanisms. This occurs not only through international, hybrid and state bodies, but also indirectly - for example, by banning arms exports to countries that violate international law within the framework of the new Arms Trade Treaty that came into effect in late 2014.
Civilian riots, mass attempts to cross the border into Israel, and “lone wolf” stabbing and shooting attacks are difficult to classify into one of the traditional legal paradigms
Another challenge lies in providing an effective and legal response to mixed, or hybrid, threats. Civilian riots, mass attempts to cross the border into Israel, and “lone wolf” stabbing and shooting attacks are difficult to classify into one of the traditional legal paradigms – armed conflict or law enforcement. Some observers have taken the view that Israel must limit the measures it employs against those who attempt to damage the Gaza security fence or infiltrate into Israel to those designed to disperse demonstrations, and to use deadly force only in response to an imminent risk to life. These voices are based on a strict standard for the use of force deriving from HRL. They reject the applicability of IHL, which imposes fewer restrictions on the use of force, including lethal force.
A more complex and nuanced position emphasizes the context of the confrontations in Gaza, which are violent acts originating from an area effectively controlled by an armed and well-organized terrorist entity. Substantial damage to the fence might allow the infiltration of terrorist squads or incited masses into Israeli communities and create a life-threatening situation that, even if not immediate, is tangible, severe and will be difficult to prevent ex-post facto. IHL, the governing body of law under this approach, permits the use of lethal force against civilians even if they are not armed so long as they are direct participants in the hostilities, i.e., carry out actions that cause direct and real damage in support of the enemy's military effort.
Which approach should prevail? Such dilemmas, which have no clear answers, are likely to be raised frequently in the near future.
Opportunities for Israel in International Law
On the opportunities side, the international regulatory apparatus and international cooperation in combating terrorism have developed significantly in recent years, and Israel – a state that is at the forefront of the anti-terror campaign since its independence – can benefit from legal advancements in this area.
One development is the evolution of economic and criminal instruments for fighting terrorism. Although the formulation of international conventions against international terrorism began in the 1960s and 1970s, they were carefully and narrowly worded and generally prohibited specific actions (such as hijacking planes and attacking diplomatic representatives). However, for political reasons, they bypassed the need to define “terrorism”. The 1999 International Convention for the Suppression of the Financing of Terrorism broadened the scope towards a more comprehensive concept of counterterrorism, regardless of the nature of the act itself or the tactic employed, by “drying up” the financial sources feeding terrorist organizations. For this purpose, the term “terrorism” was defined and specified.
Police forces in Lyon in France. Developments in international law may help Israel |
A second example is the policing power and lawmaking power of the UN Security Council. In the wake of the terrorist attacks of September 11, 2001, the fight against terror by means of criminal enforcement and extradition was also accompanied by a direct action of the UN Security Council, by virtue of its authority to take enforcement measures for the maintenance of international peace and security under Chapter VII of the UN Charter. In this manner, sanctions were imposed on individuals and organizations involved in terrorism, and the Security Council assumed the role of a quasi-international legislator through binding decisions. In addition, states have invoked their right under the UN Charter to self-defense against attacks emanating from terrorist organizations – implicitly adopting a long-held Israeli position. A striking example is the use of military force against the Taliban regime in Afghanistan following the 9/11 attacks.
Third, Israel could also benefit from a less discussed aspect of international law – the creation of Status of Forces Agreements (SOFA). SOFA is a bilateral or multilateral agreement between states regulating military cooperation. Recently Israel entered into SOFAs with Cyprus and Greece, and expansion of this practice may facilitate new alliances and opportunities.
Despite impressive achievements, Israel's its ability to influence the development of international law through international institutions and formal processes is limited
To what extent are these developments in fact opportunities for Israel to improve its national security and international standing? It is important to consider the strengths and weaknesses of Israel in this context. I will begin with the former: Israel, despite its impressive achievements in many fields, is a small country which is not affiliated with a wider bloc of countries. Consequently, its ability to influence the development of international law through international institutions and formal processes is limited. Levin's statement that Israel “can lead the legal confrontation with modern terror and bring about a revision of the laws of war to suit the reality” is not grounded in reality.
Another significant vulnerability is Israel’s control over the lives of millions of Palestinians, who cannot participate in Israel’s political process since they are not citizens. This situation is perceived as an infringement of one of the core principles of international law: the right to self-determination. This reality undermines Israel’s status as a legitimate voice in international law.
On the other hand, Israel has a strong and widely respected community of international lawyers. It includes lawyers and legal academics who have been appointed to prominent positions in international committees, UN institutions, and other international organizations; civilian lawyers in the government and civil society organizations; and highly qualified military lawyers, who have accumulated considerable experience in dealing with practical and complex questions related to the implementation of international law.
Israel's size and its character ensure a familiarity with this community and a fruitful discourse with it. By its very nature, this community cannot be recruited to serve a particular political agenda. However, through promoting a healthy and respectful discourse, its members can be drawn upon to help better understand how law can be developed creatively, internally and consistent with the principles of international law. Such a dialogue may also indicate how Israel can influence developments in its interest, especially on the formulation of norms and behavior patterns known as “soft law”, which - though lacking a binding legal nature - are actually of great importance in the international arena.
Is the Increasing Backlash against Globalization an Opportunity for Israel?
Some will identify another opportunity for Israel in what may be a more general trend in international law, although it is yet too early to assess its true course. Since the end of the Cold War, globalization has been expanding and is reflected in the tightening of the network of international norms and their enforcement through international institutions.
In recent years, however, a counter-movement has arisen, with examples such as the British withdrawal from the European Union (i.e., the Brexit); The election of Donald Trump as the United States President, heavily influenced by a separatist sentiment which views universal values and international institutions with suspicion and underscores the national interest; and the growing power of Russia and China, who regard international regulation of human rights with suspicion. A communiqué published recently by the two countries concerning the promotion of international law heavily stresses the principle prohibiting external interference in the internal affairs of states. It is also possible that the expansion of the International Criminal Court's jurisdiction has also been put on hold, as Burundi has recently withdrawn from its constitution and a number of other African countries are threatening to follow suit, in protest of what they perceive as selective enforcement.
Is what appears to be a backlash to globalization an opportunity or a threat? It is possible that its result may be a temporary decrease in the pressure exerted on Israel in the Palestinian context. However, support for the principle of self-determination is not limited to the liberal West, but also includes non-democratic states – especially post-colonialist ones.
Strengthening the principle of non-intervention in the internal affairs of states cannot help Israel in the case of the Palestinians under its control, if they are not its citizens and live within its sovereign territory. In addition, raising barriers on international trade may harm the Israeli economy, which is export-oriented. It appears that in the overall balance, this development constitutes more of a threat than an opportunity.
In conclusion, the relationship between Israel and international law will continue to be complex and delicate. The continuation of the status quo in the West Bank and the confrontations in Gaza, which are increasingly becoming more civilian-oriented, are the main sources of tension. As long as there are no political developments in these areas, Israel will struggle in the international legal arena. At the same time, Israel has at its disposal the resources and tools to maintain an effective legal dialogue with the international community and its legal institutions, and it must strive to preserve and strengthen it.
 International humanitarian law and the challenges of contemporary armed conflicts Report (2015), available here (last visited: 15.12.2016).
For criticism of the ICRC's approach, while emphasizing tactical advantages in the use of artillery and detail in the context of Operation Protective Edge in Gaza, see: Peter Margulies, "LOAC and Artillery in Urban Areas: The Case of Gaza 2014", Lawfare (31.12.2015), available here (last visited: 16.12.2016).
 The International Criminal Court is one prominent example and has recently been given further authority, allowing it to act against the crime of aggression, as well as war crimes and crimes against humanity.
Col. (res.) Liron A. Libman is a researcher at the Israel Democracy Institute and the former Chief Military Prosecutor and Head of the International Law Department in the Israel Defense Forces. In his last post, he participated in the international legal campaign that followed Operation Cast Lead (2009) and the Goldstone Report. Libman was involved in presenting the Israeli case following the Marmara Affair (Gaza Flotilla) before the Israeli public commission (the Turkel commission) and international forums. Libman holds an LL.M from the Hebrew University in Jerusalem and is a graduate of the IDF's Commander and General Staff College.
(Photo courtesy of the author)