The law of self-defence is easy enough to state. It is much harder to apply in practice.
In a typical criminal case an argument breaks out in a pub. A punch is thrown. The situation escalates and a drinker smashes his glass into someone’s face causing deep cuts. He claims that he did so in the heat of the moment because he thought he was about to be stabbed.
Was his action lawful?
It is impossible to give a purely legal answer. It all depends on what the jury make of his explanation. If the jurors are sure that he’s lying when he says “I thought I was about to be stabbed,” and that in fact he just wanted to join in the fight, he will be convicted.
On the other hand if they accept that he may have thought he was about to be stabbed they will probably acquit him. A glassing is a terrible thing, but if the alternative is a potentially fatal knife in the ribs then it is the lesser of two evils. It would, though terrible, be a proportionate response to an imminent and terrifying threat.
In English domestic law whenever a defendant claims to have acted in self-defence juries are directed that they should consider whether the force he used was “reasonable”. The issue of proportionality is central to that question. The classic exposition comes from Palmer v. R  A.C. 814:
“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. …It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have [to] avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence… If there has been an attack so that self-defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.”
The principle has now been given statutory force. What it boils down to is that a person may use reasonable force in necessary self defence. He is judged on the facts as he believes them to be, and the law accepts that it is impossible to weigh the exact degree of defensive force required.
Very similar principles apply in all common law and many continental jurisdictions.
The international law of self defence has many similarities to this principle of criminal law. It is the law that Israel uses to justify its current incursion into Gaza. But does it in fact provide a legal justification?
As with the pub glassing, it is impossible to give a purely legal answer. A court hearing evidence after the event could give a verdict. An onlooker observing from afar cannot give a verdict, only an opinion .
As children are killed in their hundreds so the temperature of the debate rises in the West. In fact “debate” hardly seems the right word: the dispute is conducted with an extraordinary vehemence.
Other conflicts – not least the current Syrian civil war – have resulted in far higher casualties without exciting the passion of Western commentators to anything like the same extent. There is a repulsive anti-semitic flavour to some of the anti-Israeli comment. But for many it is precisely because we believe that Israel broadly shares Western values, especially democracy and the rule of law, that we are particularly disturbed to see it engaged in such a brutal conflict.
Some supporters of Israel appear to see no particular moral or legal problem with almost any number of Palestinian civilian casualties as long as they are caused as “collateral damage” in a war against Hamas. They can seem callous to the point of amorality in defending its actions irrespective of the numbers of civilians killed.
On the other hand there are those who regard all Palestinian civilian deaths as tantamount to murder. There are even some in the West who are prepared to justify attacks on Israeli civilians as legitimate acts of resistance.
It is impossible to join in the debate without attracting abuse from one side or the other, and often from both; but here goes.
Into this hideous mess the law, though providing no absolute answers, is probably as good a guide as any.
Some things should be completely clear.
Israel exists and has a right to exist. Legally and morally this right to exist – within its 1967 borders – is as clear as that of Britain, France or America. Given that starting point a number of things follow.
First, it is entitled to defend itself. International law is completely clear on that. The right of self-defence is recognised in customary law, and codified in Article 51 of the United Nations which provides:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security ….”
Secondly, it has been under attack from Hamas rockets for years. The rockets may be relatively primitive and inaccurate but they are also potentially lethal and indiscriminate. The precise number of such attacks may be disputed but it certainly runs into thousands. Hamas have also used mortar fire against Israel. The number of Israeli civilians killed by either rocket or mortar attacks since 2004 is not easily accessible but it appears to be in the region of 35 (of whom 5 were killed in July of this year). Prior to July the last Israeli fatality from a Hamas rocket was in November 2012. By comparison, the total number of civilian deaths attributable to terrorists in Northern Ireland between 1970 and 1980 was 1,207. The population of Northern Ireland was about 1.5M in the 1970s; the current population of Israel is about 8M. The chance of an Ulster citizen being killed during the 1970s by an IRA bomb or bullet was a great deal higher than the chance of an Israeli citizen being killed by a Hamas missile in the last ten years.
Such a direct comparison though is misleading. Apart from the rockets there have been other terrorist attacks in Israel, including some that have involved the use of tunnels.
More importantly, Irish terrorists, cruel and murderous though they were, used violence to force a change of government in Northern Ireland but posed no genocidal threat to its population as a whole. Hamas, on the other hand, does precisely that. Its Charter is an anti-semitic rant littered with absurd but chilling threats against world Jewry, as represented not only by the state of Israel (“Nazi Zionists”) but also by Rotarians, Freemasons and Lions Clubs. The Charter helpfully points out that the Jewish plan for world domination is set out in The Protocols of the Learned Elders of Zion. The goal of Hamas is not to restrict Israel to its 1967 borders: nor is it interested in a negotiated peace, as Article 13 of its charter makes clear:
“As far as the ideology of the Islamic Resistance Movement is concerned, giving up any part of Palestine is like giving up part of its religion. …
“There is no solution to the Palestinian Problem except by Jihad. The initiatives, options, and international conferences are a waste of time and a kind of child’s play ….”
Its aim is quite unambiguous; to eliminate Zionism and establish an Islamic state as a part of its battle against a world-wide Jewish conspiracy. One can readily understand why Israel, a country founded to provide a safe haven for Jewish people, would be profoundly alarmed by such a neighbour. If the weapons Hamas has at the moment are relatively weak that is certainly not through choice.
Moreover, while the death toll from Hamas rockets may be relatively low, the effect on the Israeli population of the constant threat of indiscriminate bombardment must be considerable. Clearly any government of Israel has not only the right but the duty to defend itself against such attacks which are unquestionably illegal under international law.
However, the fact that Israel has a right to defend itself certainly does not mean that it has complete legal freedom to pursue that defence in any way it thinks fit. It is generally accepted in international law that for a state to rely upon the law of self-defence the following conditions must be met:
The force used must be a response to an armed attack (or at least to an imminently anticipated armed attack);
(A further condition is imposed by Article 51 of the UN Charter: that the use of force must be reported to the Security Council and must cease when the Security Council has taken ‘measures necessary to maintain international peace and security’).
There is no necessity that the “armed attack” should have been launched by a sovereign state. The UN security council, for example, accepted that the Al-Qaeda 9/11 attacks engaged the right of a state to “individual or collective self-defence,” even though the Taliban government of Afghanistan was not directly responsible for the attacks. Nor, for the purpose of exercising self-defence, does it matter how serious the attack is. Subject to the question of proportionality, a state has as much right to defend itself against a small attack as against a large one.
A further argument has been raised to suggest that Israel is not entitled to use military force. It is said that as Israel is in “occupation” of Gaza so that it is bound by the duties of an occupying power rather than those of a neighbouring state. A similar argument was accepted by the International Court of Justice in its Advisory Opinion Legal Consequences of the Construction of a Wall on Occupied Palestinian Territory (I.C.J. Reports 2004, p. 136). The short answer to that is that whatever may have been the case in the West Bank, Israel is not in occupation of Gaza. The last settlers left in September 2005. The relevant law during a short term incursion into Gaza is not that of occupation but that of war.
The nub of the question is whether Israel’s action against Hamas is “necessary” and “proportionate”.
Whether a military act is in “necessary self-defence” depends upon whether some other act, falling short of military force, could bring the attacks to an end. International law is rather different from the ordinary criminal law in this respect. A man in a pub can reasonably be expected, at least sometimes, to walk away from a threat. That is not an option available to a state. While Hamas remains in control of Gaza it is very difficult to see anything except some form of military force stopping the missile attacks. Obviously a political solution could do so, but even if Hamas were willing to agree a short term truce – as to which its messages have been decidedly mixed – its long term policy of annihilating Israel makes it inconceivable that it could be a partner in any lasting agreement.
The “Iron Dome” anti-missile system has destroyed some missiles, especially over cities, but many still get through. Hamas has rarely shown the slightest inclination to stop firing the rockets. It may be that the rocket attacks have been relatively ineffective, but they have continued nonetheless. Diplomacy, persuasion and economic pressure have all been unable to halt the rockets.
Israel’s partial blockade of Gaza has also failed to stop the attacks, although it may well have restricted Hamas’s ability to obtain more sophisticated weapons.
It is therefore hard to dispute that the criterion of “necessity” has been made out.
According to the Israel Defence Force (IDF) in early July: “the single goal of [Operation Protective Edge] is to stop Hamas’ incessant rocket attacks against Israel’s civilians.”
This may have been so (although destroying tunnels now seems to have become a second goal) but the events which led to the latest incursion into Gaza – Operation Protective Edge – were not started by any dramatic increase in the firing of rockets at Israel. Rather, they followed the kidnapping and murder of 3 Israeli teenagers, not in Gaza but in the West Bank, by Palestinians who (whether or not they were members of Hamas as Israel originally claimed) were congratulated by Khaled Meshaal, the organisation’s political leader.
But even granting that only military action of some sort would be able to stop the rockets, the question of proportionality remans.
This has two aspects: it must be proportionate to resort to force in the first place, and the force that is then used must be proportionate .
To what must the force must be “proportionate?” There are various ways that this requirement can be understood: it must be proportionate to the damage that the attack has done and to what it will do if left undefended. One could add that it should also be proportionate to what is necessary to bring it to an end: the forcible deportation of the whole population of Gaza followed by its annexation by Israel (as has been seriously suggested by one Jerusalem Post columnist) would indeed end these particular rocket attacks but it would also be grotesquely disproportionate (as well as morally indefensible and illegal for several other reasons).
If the question is whether Operation Protective Edge is proportionate to the damage done, or likely to be done, by the firing of rockets at Israel it is difficult to see the actions of the IDF, taken overall, as anything other than disproportionate.
Although over the years thousands of rockets have been fired at Israel from Gaza, in the 18 months immediately preceding July 2014 they had failed to kill or seriously injure a single Israeli civilian. The intention of Hamas may be genocidal, but (because of other defensive measures put in place by Israel including its widely criticised “blockade”) its effectiveness was minimal.
To say that the deaths of over 1500 Gazans killed in the last 3 weeks, many of them civilians and children, to say nothing of those injured and the destruction of vast tracts of Gazan buildings, is “proportionate” to the killings of 30 Israeli civilians as a result of rockets fired at Israel in the ten years since 2004 is surely to drain the word of most of its meaning.
If the action as a whole is disproportionate to the scale of the armed attack it is unlawful.
This is separate from the question of whether individual acts in which large numbers of civilians were killed might themselves constitute war crimes. Where this has happened the argument that Hamas has been using civilian facilities for military purposes does not, in itself, provide a defence.
The fog of war may make it impossible at the moment to say for sure that Israel has flouted international humanitarian law in this way. Nevertheless, as Aeyal Gross, Professor of Law at Tel Aviv University has pointed out:
“The multitude of civilian casualties by itself doesn’t prove that war crimes were committed. But in many cases … a real suspicion arises that violations were committed. It’s not just the deliberate targeting of civilians that’s prohibited; so are attacks that by nature indiscriminately harm civilians, or civilian property, in addition to their military targets.”
It is, as Amos Oz has observed, a “lose-lose” situation for Israel:
“The more Israeli casualties, the better it is for Hamas. The more Palestinian civilian casualties, the better it is for Hamas.”
It is sadly even more a lose-lose situation for the civilians of Gaza. They are ruled by fanatics whose actions invite death and destruction, and under attack from an Israeli government which seems all too ready to accept that invitation.