Responding to Aggression under International Law
The lofty provisions of international humanitarian law are largely respected by Israel and other civilized nations. How should they be interpreted when dealing with a terrorist group like Hamas which systematically violates them?
The Fourth Geneva Convention (FGC) deals with the protection of civilians in time of war. We are bound to hear quite a bit about its provisions -- and, as usual, about Israel’s purported transgression of them -- during and after the present military operation in Gaza.
It is generally accepted that a party must abide by its obligations under international law, regardless of the other party’s noncompliance. This is what Article 1 says, in compelling “Contracting Parties... to respect and ensure respect [of the FGC] in all circumstances.” (emphasis added). Some scholars argue that insofar as the FGC represents customary law, the reciprocity of Palestinian compliance is irrelevant.
But Article 2 raises the question of reciprocity in its third paragraph:
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof. (emphasis added).
The last sentence above gave rise to an extended discussion during the “travaux préparatoires” conducted by the International Committee of the Red Cross (ICRC) in early 1949. Both the Canadian and Belgian Delegations stressed the precondition that the noncontracting party must comply with the provisions of the FGC, if only de facto, after declaring its acceptance of the FGC. Given the difficulty in reaching consensus, the ICRC recognized that “there could be no question of obliging a State to observe the Convention in its dealings with an adverse Party which deliberately refused to accept its provisions,” and concluded that “in practice any Contracting Power in conflict with a non-Contracting Power will begin by complying with the provisions of the Convention pending the adverse Party's declaration. It will take into account facts above all.” (emphasis added).
The “facts” about Hamas’s noncompliance are beyond any doubt, given inter alia the thousands of rockets they have aimed at the Israeli civilian population for almost a decade, and their systematic use of human shields, each one of them constituting an undisputed war crime.
Therefore, when we will hear calls for “restraint” (as they have already been issued by the U.S. administration, the UN, and the EU), or accusations of “disproportionate force” and/or “collective punishment,” we should perhaps also take the above into account.
International conventions are a “gentleman’s agreement” between civilized -- or relatively civilized -- countries for the purpose of avoiding war. Hamas is not only foreign to any concept of civilization, but is a recognized terrorist organization. Its terrorist activities, including the taking of hostages, cannot be justified “under any circumstances”, as clearly spelled out in Article 3 of the UNSC Resolution 1566 of October 8, 2004, passed under Chapter VII of the UN Charter and thus binding on all UN-member States.
The many major confrontations between Hamas and Israel since 2008 are of an asymmetrical nature. But Israel’s strict unilateral adherence to the provisions of international law has forced the IDF to fight the enemy with “one hand tied behind its back” -- in the words of former Israeli Supreme Court Chief Justice Aharon Barak. This is a noble attitude but it shouldn’t be pursued when the survival of the State of Israel is at stake. As Prof. Louis René Beres stated repeatedly, international law should not be a suicide pact.
Moreover, in several past instances, Israel was strongly pressured to accept a ceasefire before its military objectives were achieved. The net result of these unfinished jobs was the rearmament of Hamas and a resurgence of hostilities in the ensuing years. This is a clear example of how such ill-conceived “restraint” leads to a continuation of the state of war with rogue groups such as Hamas and the rise in civilian casualties, thus contradicting the very principles of international law.
Finally, since the First Zionist Congress, the pursuit of Zionist ideals has rested on actions “secured by law.” This is a fundamental aspect of Israel, for which it should be highly commended. Legal scholars should reflect on the aspects described above and realize that when the Geneva Conventions were drafted, no one could possibly anticipate large-scale armed aggressions from rogue terrorist groups. Should the spirit and the letter of the Geneva Conventions be revisited in view of the present realities?