On the laws of war – Economist:

‘More than 1,900 Palestinians have been killed in Israeli air strikes on Gaza since October 7th, when Hamas terrorists murdered 1,300 people in southern Israel. Israeli jets and artillery have been pounding the coastal enclave. “The scenes out of Gaza will be hard to stomach,” warned a spokesman for the Israel Defence Forces (idf) on October 12th. Hamas, which has deliberately massacred civilians, and whose founding charter commits it to the destruction of Israel, is undoubtedly guilty of war crimes. How far can Israel go in response?

Israel’s initial actions have prompted a wave of criticism. B’tselem, an Israeli human-rights group, has accused Israel of “a criminal policy of revenge”, arguing that the scale of its air strikes and blockade constitute “war crimes openly ordered by top Israeli officials”. Médecins Sans Frontières, a humanitarian organisation, has accused Israel of unlawful “collective punishment” of Gaza “in the form of total siege, indiscriminate bombing, and the pending threat of a ground battle.”’

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‘Proportionality does not mean symmetry in the type of weapons used or the number of casualties caused. It means that the defending state can use as much force as is needed to address the threat—and no more.

Drawing that line is a subjective and contentious process. But Israel’s campaign so far would meet those criteria, argues Aurel Sari, a law professor at the University of Exeter who lectures to nato armed forces. The scale of Hamas’s attack, its demonstrated intent and proven capability means that invading Gazaor even occupying it temporarily to destroy the group “will be relatively easy to justify” legally, he says.
Nonetheless, some measures are particularly contentious. Israel, helped by Egypt, which controls a southern crossing, has maintained a ground, air and naval blockade of Gaza for years, with only some goods and people permitted to cross. Sieges and blockades are not in themselves illegal. But on October 9th Yoav Gallant, Israel’s defence minister, said that would turn into a “complete siege”, with “no electricity, no food, no fuel, everything is closed”. Three days later Israel Katz, the energy minister, warned that no “electrical switch will be turned on, no water hydrant will be opened and no fuel truck will enter” until Hamas freed hostages.’

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‘Others, such as Tom Dannenbaum, a law professor at Tufts University in Boston, argue that Mr Gallant’s order plainly violates a prohibition on starving civilians—even if the goal is to squeeze Hamas. That may be one reason why, despite Mr Gallant’s combative rhetoric, Israeli officials are privately working with Egypt to ensure that some supplies can come in from the south.
A second source of legal dispute is the idf’s decision, late in the evening of October 12th, to tell 1.1m civilians living in the northern part of Gaza to move south. (Hamas called on civilians to ignore the call.) The grave humanitarian consequences of this decision are not in doubt. Gaza’s infrastructure is in ruins and there are few places for so many people to go. But the legal aspects are more complicated.
Lawyers distinguish between temporary evacuation of civilians in warzones, which can be lawful, and permanent displacement, where the intent is to prevent them from returning, which is not. However the International Committee of the Red Cross (icrc), a humanitarian group, says that the evacuation instructions, combined with the siege, “are not compatible with international humanitarian law”. It is also not always safe to move while the bombardment continues. Video footage verified by the Washington Post showed a number of people including several children who had been killed, apparently by an Israeli strike while they were fleeing to the south on Friday.’

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‘IHL, which governs the conduct of armies once they are waging a war, demands that soldiers distinguish between combatants and military objects on the one hand, and civilians and civilian objects on the other. Targeting the latter on purpose is always illegal. But an attack that kills civilians—even lots of them—can be legal if it is necessary for some military purpose and proportional “in relation to the concrete and direct military advantage anticipated”.
Israel’s targeting is “broadly within the mainstream of contemporary state practice” and in line with American doctrine, argued Michael Schmitt of the University of Reading and Lieutenant-Colonel John Merriam, a us Army Judge Advocate, in papers published after they visited the idf’s headquarters and studied its procedures shortly after Operation Protective Edge, Israel’s 50-day war on Hamas in 2014.
But the same legal principles, even interpreted in broadly the same way, can result in different and sometimes jarring outcomes because of local circumstances. Hamas’s large rocket force, capable of striking most of Israel, means that the anticipated “military advantage” of attacks is seen to be high, note Mr Schmitt and Lt-Col Merriam. That can justify, in the idf’s view, high levels of collateral damage that would appear excessive to an army whose civilian population did not face a comparable threat—though, conversely, the effectiveness of the country’s Iron Dome missile-defence system can have the opposite legal effect. Similarly, Israel’s conscript-heavy armed forces are casualty averse and sensitive to soldiers being taken prisoner. That can result in a greater reliance on firepower.’ (…)

‘But this system is likely to face its greatest test in the weeks ahead. On October 10th an Israeli official told a television station: “Gaza will eventually turn into a city of tents. There will be no buildings.” Daniel Hagari, an idf spokesperson, boasted that “hundreds of tons of bombs” had been dropped on Gaza. Then, he added: “the emphasis is on damage and not on accuracy.” Neither statement can be squared with the law.’

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‘Israel’s war has acquired an existential quality. “This time it’s going to be a war to the end,” says Mr Mandelblit. “It’s either us or them because we know what they’re going to do to us.” Yet Mr Cohen warns that the law is not the only consideration in waging war. “The fact that a lot of children in Gaza, Palestinian children, will die in an attack—even if it’s legal—is destructive for Israel’s legitimacy around the world.”’

Read the article here.

A good and balanced article.

What is ‘proportional’ will ultimately be decided by a judge.

Neither Hamas nor Israel will ever face a judge.

More important is legitimacy, especially for a country like Israel; there, there are many obstacles. And the fact that the US is sending one official after another to Israel is not only out of solidarity but also to influence the war, i.e. a damage control mission.

Much depends on Iran – experts say it’s fifty-fifty. Today, I would say that Hezbollah will refrain from widening the war, but much depends on Gaza and mistakes are easily made, by one side or the other.
Then, the laws of war will be an afterthought.