The English legal philosopher John Austin infamously (well, infamously to international lawyers anyway) called international law ‘positive morality’. He did not mean this as a compliment. Rather, he was describing it simply as a set of moral ideals that have been ‘posited’. International law is not really law, in other words, but merely some nice sentiments.
The Arab-Israeli conflict did not exist in his day, but if it had it would have been the best exemplar of his argument. There are some nice ideas: international law. And then there is what actually happens. The two things are not strongly correlated.
With that said, we can at least try to be clear and consistent about what international law actually says, rather than simply weaponising it on behalf of our favoured side in this or that situation. It is perfectly legitimate in other words to take the stance that while international law does not matter in practice, it should matter, and therefore we should be serious about how it applies. What is not legitimate is taking the stance that international law is only relevant insofar as it makes somebody you don’t like look bad.
Having said all of that, let’s foray into the metaphorical and literal minefield that is international law and the current conflict in Gaza.
First things first: when talking about international law and warfare, one is talking about two separate bodies of rules which each concern a distinct question. There is the jus ad bellum or ‘law to war’, and there is the jus in bello or ‘law in war’. This is a fancy lawyerly way of saying that whether a war itself is lawful is a separate question from whether or not the conduct of hostilities is taking place lawfully. In modern terminology we must treat the legality of the decision to go to war (the law governing ‘the use of force’) as a distinct topic, and the legality of actions taking place during wartime (international humanitarian law, or the law of armed conflict) likewise.
To illustrate: whether the decision to go to war against Germany in 1939 was lawful is a question for the law governing the use of force. Whether the firebombing of Dresden was a war crime is a question for international humanitarian law (IHL).
It makes sense, then, to look at the current Gaza conflict first from the perspective of the use of force and then from the perspective of IHL.
Let’s start with the use of force. It is common sense to anybody who isn’t a student at Harvard or the Mayor of London that Israel is justified in using military means to defend itself and international law of course bears that out. In the post-WWII era it has been illegal to use force aggressively, meaning to grab land or similar, but Article 51 of the UN Charter recognises that self-defence is a lawful reason to use force, and alongside it there is a much older, binding customary rule that States are entitled to use their militaries to protect themselves and their citizens.
This got its modern iteration in something which international lawyers call ‘the Caroline test’. The facts behind this are themselves interesting, and worth briefly stating. In 1837 Canadian rebels in what we now call Ontario launched an insurrection against British rule. They were supported by some Americans in New York state, who used a ship, the Caroline, to ferry passengers and arms across the Niagara River. British soldiers, fighting the rebels, duly crossed the river into U.S. territory, killed an American citizen, captured the Caroline, set it on fire and sent it careering over the Niagara Falls. This naturally caused an uproar, and the American Secretary of State, Daniel Webster, and the British minister (which we would now call ambassador) to the U.S., Lord Ashburton, hashed out a diplomatic solution. Their correspondence inadvertently laid out a general principle which has been a staple of international legal textbooks ever since. This is that the use of force is justified in self-defence where the “necessity…[is] instant, overwhelming, leaving no choice of means, and no moment of deliberation” (‘deliberation’ here meaning negotiation). What is important about this is not that the two men were laying down a law, or thought themselves to be doing so, but rather that they were referring to what they clearly thought was a pre-existing and very old rule of international relations which was binding on them.
Was it necessary for Israel to use force against Hamas in the aftermath of October 7th, and does it remain so in the sense that the necessity is “instant, overwhelming, leaving no choice of means, and no moment of deliberation”? You would have a hard time arguing that it wasn’t, and doesn’t. Narrowly, self-defence extends to the protection of one’s nationals from harm, and Hamas has something like 220 Israeli hostages who need rescuing; this can only realistically happen through force. More broadly, Hamas has just demonstrated to the world in spectacular terms that it is not interested in compromise, negotiation or peaceful co-existence with Israel, and will indeed continue to attack Israel whenever and wherever it can – and therefore that Israel has no choice but to fight it until it no longer poses a threat. Necessity of course implies doing only what is necessary and no more (meaning that the resort to force must in broad terms be proportionate to the need – more on that below), but in this case, that would really have to mean the complete destruction of Hamas’s capacity to pose an ongoing security threat.
Regardless of what one thinks about the situation in Palestine and the Arab-Israeli conflict, and whatever one’s opinion is of Zionism, unless one wants to deny what international law calls the ‘principle of effectiveness’ (i.e., that we should recognise facts on the ground, namely that there is such a thing as Israel and there are such people as Israelis) then Israel has the right to use force against Hamas and probably I think to destroy the organisation – certainly to continue to attack it until it is either no longer able, or willing, to itself attack Israel. Insofar as Hezbollah becomes involved, Israel has the right to use force in self-defence against that organisation, too.
It is an interesting – and hopefully academic – question as to whether Israel also currently has the right to use force against Iran and Syria on this basis. In the case of Nicaragua v USA (1986), the International Court of Justice held that State A could carry out an ‘armed attack’ against State B through proxies, as long as the actions of those proxies could be properly imputed to State A, and that this would then engage State B’s right to self-defence. Can the actions of Hamas and Hezbollah in attacking Israel be properly imputed to Iran and Syria? That’s a question of fact, but it seems likely.)
The use of force issues, then, are relatively clear. I repeat: it doesn’t matter what your views are about the conflict and the wider context in political or moral terms, or even if you think that Israel should cease to exist. The law does not apply only to people who one likes. Its rules apply generally. As a matter of law, in other words, Israel is currently justified in using force against Hamas and Hezbollah, and possibly their sponsors.
It is where the conduct of hostilities is concerned, however, that things start to get very murky, and it is here where most the controversy lies. Serious people don’t deny that Israel is acting lawfully in engaging in armed conflict with Hamas, whatever their views about any of the other important issues surrounding the wider, vexed question of Israel and Palestine. The problem is the collateral damage which, again, no serious person denies is tragic and appalling. And this is where IHL is supposed to come into play.
The history of IHL’s development is an interesting one, but for our purposes, the be-all and end-all is almost entirely the four Geneva Conventions of 1949, and in particular the Fourth, which concerns the protection of civilians or ‘protected persons’ during wartime. This is for the simple reason that both Israel and Palestine are parties to the Conventions, so their contents absolutely and indisputably apply. (It doesn’t matter that Palestine’s Government is split between the West Bank and Gaza; as far as international law is concerned, a state is bound by its treaty obligations irrespective of the vagaries of government, unless the treaty in question has been formally repudiated.) There are other applicable areas of IHL, including the Hague Conventions of 1899 and 1907, and other areas which are sometimes argued to be applicable, but in the current conflict in Gaza we are safest to base ourselves on Geneva Convention IV of 1949.
The first thing to get out of the way here is the question of Gaza’s status. Geneva Convention IV contains some provisions concerning the duties of an occupier vis-à-vis citizens in occupied land. These concern the provision of everything from food and medical supplies to hygiene and public health, not to mention “spiritual assistance”. But since Israel has not occupied Gaza since 2005 (in the language of the Convention, it no longer “exercises the functions of Government” there) these duties cannot realistically be said to apply. There is some controversy about this when it comes to the application of international human rights law (a different body of law entirely) in Gaza and the West Bank. But it is clear that the drafters of the Geneva Conventions were thinking, when they used the words “exercises the functions of Government”, about circumstances such as the German occupation of non-Vichy France after 1940, in which one power essentially takes on the administration of an entire chunk of territory. Gaza’s status is undoubtedly, in practical terms, something less than an independent state, but it cannot really be said that Israel occupies it in that sense.
This means that the conflict has to be treated as being akin to the ‘classic’ scenario which the Geneva Conventions envisaged – a war between two parties who both purport to recognise the Convention’s contents. And here, it bears repeating that the law applies generally – not just to the side one doesn’t like. For example, Article 18 provides that hospitals must “in no circumstances be the object of attack”. But Article 19 provides that hospitals lose that protection if they are used to commit “acts harmful to the enemy”. Israel in other words must not attack hospitals, but may in principle do so if Hamas (as it is known to do) uses them for military purposes. Article 27 provides that protected persons (meaning civilians and wounded and sick combatants) are to be humanely treated and protected from violence, but Article 28 provides that civilians are not to be used as human shields. Article 33 prohibits reprisals against civilian property. But Article 34 prohibits the taking of hostages. And so on and so on.
In the modern law it is common to argue that customary law applies a ‘proportionality’ test to much of what goes on in an armed conflict, deriving from Additional Protocol I to the Geneva Conventions (of 1977), and this will be somewhat familiar to readers – commentators talk about proportionality a lot. It is important to be clear that this does not mean that there must be fairness in terms of the proportion of deaths suffered on both sides, a concept that is revealed to be utterly asinine when thought about for longer than five seconds. Not only would it be absurd (one imagines a team of UN referees adjudicating that since Hamas killed 1,400 Israeli citizens on October 7th, Israel is entitled to go and kill the same amount of Palestinians, but no more); it would also prolong conflict almost indefinitely, and ruinously, by preventing precisely the kind of knock-out blow that is needed to end a war once and for all. Can one seriously imagine what would have happened if WWII had been fought on such terms? (“Well, you guys dropped 10,000 tonnes of bombs on London last month, so we’ll do the same in Berlin tomorrow…”) We would still be fighting today. The war was ended not because the Allies were ‘fair’ but because they used overwhelming force in order to win. Astonishingly, no less a figure than Lord Sumption seemed to be perpetuating the daft notion that proportionality means rough equality of casualty figures in an interview with UnHerd a week or so ago, and it is amazing how many people seem to believe it.
No: the proportionality test in IHL means that a certain amount of collateral damage to civilian objects and civilian life is inevitable during almost any military action in the modern world, but this is permissible provided the loss is proportionate to the military objective that is sought to be achieved. What this means in real terms is that where an attack has some military purpose – i.e., that it was not deliberately targeting civilians, or reckless in the sense of being indiscriminate – it is not per se unlawful simply because civilian objects were destroyed or civilians killed. The analysis has to be more forensic than that: it inquires into the significance of the military objective, the nature of the attack, the amount of collateral damage that was incurred and so on. It is no good, in other words, to say that “Israel’s aerial bombardment of Gaza” (or whatever) is disproportionate. One would have to examine every single airstrike and determine if it caused any collateral damage and, if so, whether this was proportionate in respect of the military advantage gained by the airstrike in question, whether it was indiscriminate etc. At this point, nobody is in a position even to assess this (not even really the IDF itself). It generally goes without saying, but oughtn’t to, that each Palestinian rocket attack on Israel should also be subject to this analysis.
One should not be blithe about the real life aspect of all this. The plight of ordinary people in any conflict is awful, and one’s heart should go out to all of those caught up in violence through no fault of their own. This particularly includes, obviously, children, and no parent can bear to dwell on what it must be like for mothers and fathers currently living in Gaza. War is terrible. But there is a difference between something being deeply undesirable and it being unlawful. If war is going to happen, people are going to suffer and die; the law recognises this.
A final issue is I think important to address in closing. The term ‘genocide’ is bandied about a lot in contemporary debates. The word has a legal definition, found in Article 6 of the Rome Statute of the International Criminal Court. It is quite clear, even if it is sometimes criticised for being too broad, and it requires in particular the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. For all Israel’s sins, and for all that there is absolutely no doubt that it often breaches its international legal obligations with respect to Palestine and Palestinian civilians (most egregiously in its settlers’ gradual encroachments in the West Bank), its actions cannot be called genocidal in these terms. There is only one party to this conflict which is imbued with that intent, and it displayed it openly and gleefully on October 7th in its wholesale murder of innocent people in connection to absolutely no legitimate military objective, and simply because of their membership in a “national, ethnical, racial or religious group”. This should be borne in mind. One side in the Israel-Hamas conflict is plainly flawed and sometimes does very bad things. The other genuinely merits being labelled evil. The law does not recognise that distinction, but morality certainly does.
Dr. David McGrogan is an Associate Professor of Law at Northumbria Law School. He is the author of the News From Uncibal Substack page.