The inadequacy of international law

Daniel Taub
Boston Com.
May 7, 2009

A SHORT WHILE ago I met with a group of eminent jurists who were on a fact-finding mission, examining Israel's military operation in Gaza. After listening to their concerns and criticisms, I asked them: "Considering the rocket attacks launched against Israel by terrorist groups in Gaza, what in your view would have constituted a lawful response?" The answer was total silence. The troubling notion that international law has no practical advice for a state facing terrorist attacks other than to grin and bear it is increasingly pervasive. John Dugard, the UN Special Rapporteur on Human Rights in the Palestinian territories, issued eight reports on Israel's responses to terrorism and never found a single measure adopted by Israel to be lawful or proportionate. His successor, Richard Falk, recently issued a report that goes one remarkable step further. In the conditions existing in Gaza, he asserts, any Israel military response would be "inherently unlawful." According to Falk's understanding of international law, Israel has no right whatsoever to defend itself.

Contrary to the impression created by such experts, international law is not a suicide pact. For all its limitations - which are many - it offers practical guidance to a state seeking to respond responsibly and effectively to threats to the lives of its civilians.

International law does not require, for example, that a state refrain from attacking a lawful military target - a missile launcher or a weapons stockpile, say - solely because it has been placed in the heart of a civilian area. To require this would simply encourage terrorist organizations to operate from within kindergartens and hospitals.

It does, however, require an armed force to assess the proportionality of its actions, by measuring their anticipated military advantage against the likelihood of civilian harm.

This is a tough calculation at the best of times. All the more so when, as in Gaza, Hamas, in clear violation of the humanitarian principle of distinction, booby-trapped civilian areas and concealed its missiles, weapons factories, and headquarters within hospitals, schools, and mosques.

In the situations when terrorist groups chose to turn densely populated civilian areas in Gaza into their battlefield, Israeli forces made remarkable efforts to act in accordance with the principles of international law. These efforts included the dropping of thousands of leaflets and making tens of thousands of phone calls to warn civilians of impending attacks, as well as prefacing attacks with non-lethal weaponry to urge non-combatants to leave.

And when, in the cynical calculus of Hamas, such warnings were used to round up hundreds of women and children and herd them onto the roofs of terrorist headquarters and weapons factories, the dilemmas became yet more excruciating. On numerous occasions Israel aborted planned attacks against known terrorists because they no longer met the test of proportionality.

These are intricate and fateful calculations. There are inevitably lessons to be learned after the event and, to its credit, Israel has launched a series of investigations into various aspects of its operations. But such calculations have to be made not in retrospect but in real time, and not by dispassionate observers but by commanders in the field.

As the Committee Established to Review NATO Bombings in Yugoslavia noted: "It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to non-combatants. . . . the determination of relative values must be that of the 'reasonable military commander.' "

Yet some legal "experts" fail to apply this test. One cannot but be troubled by the discrepancy between their blanket condemnations and the assessment of those with genuine experience of making tough decisions in times of combat. Colonel Richard Kemp CBE, a former commander of British forces in Afghanistan, was interviewed during the Gaza operation and gave his assessment of Israel's performance: "I don't think there has ever been a time in the history of warfare when any army has made more efforts to reduce civilian casualties and deaths of innocent people than the IDF is doing today in Gaza."

In stark contrast to the complex and even painful balancing exercise that international law requires of soldiers and legal advisers alike, a vocal group of legal "experts" remains unwilling to roll up its sleeves and grapple with the tough complexities of conflict situations such as Gaza. There may indeed be attractions to maintaining a pristine ideal of international law. But in practice, it offers a simplistic and unworkable legal model that absurdly posits that the more irresponsible, illegal, and morally reprehensible the actions of terrorists, the less a state is permitted to do in response. Ultimately the greatest casualty of such an approach will be international law itself.

Daniel Taub is a senior legal adviser in Israel's Ministry of Foreign Affairs.