War in Gaza: Self-defense or war crime?

How far can Israel go in its offensive against Hamas rockets in the Gaza Strip? International legal experts are divided over where the right to self-defense ends and when the use of force becomes disproportionate.

Deutsche Welle, 24 July 2014

The war in Gaza is not just about military and political goals. In the face of the mounting death toll, questions of proportionality and international law have been raised. When and to what extent can Israel defend itself against rocket attacks launched by Hamas? Is the ongoing bombardment of the Gaza Strip by Israel a grave violation of human rights?

The UN Human Rights Council believes so. On Wednesday (23.07.2014), the body sharply condemned the military offensive in Gaza and called for an investigation into whether or not Israel has committed war crimes.

But Israeli UN Ambassador Eviatar Manor has rejected these accusations. Every state has the right to defend itself, Manor said, and Israel is doing everything it can to avoid civilian casualties. The diplomat accused Hamas of committing war crimes.

Israel's right to self-defense

Experts disagree on the legality of the war, which has killed 700 Palestinians and 34 Israelis. According to Hans-Joachim Heintze, an international law expert at Ruhr University in Bochum, Israel has the right to respond to rocket fire from Hamas.

"It's indisputable that Israel can defend itself militarily against such attacks," Heintze told DW.

Under Article 51 of the UN Charter, states do not need permission to exercise the use of force if it's done in self-defense. But Israel should have consulted the UN Security Council after the fighting began, according to Heintze.

'War against the civilian population'

But Norman Paech, a law professor and former Bundestag representative for the Left party, believes that Israel has violated international humanitarian law.

"This war is very clearly a war against the civilian population of the Gaza Strip," Paech told DW.

The Israeli offensive has taken a
heavy toll on Palestinian civilians

"In a region like the Gaza Strip, which is so densely populated, the type of warfare that Israel is practicing is forbidden," he said.

Paech does not deny that Israel has a right to defend itself against rocket fire from the Gaza Strip. The "Iron Dome" system has proven itself to be very effective at protecting Israelis, he said.

"The Israeli government can launch targeted operations against launch pads," Paech told DW. But he believes that Israel's attacks against areas populated by civilians have been completely disproportional.

Heintze also emphasizes proportionality, saying that it's important to examine if and to what extent civilians are harmed. Israel warns the civilian population before it launches strikes, according to Heintze. But in the densely populated Gaza Strip, it's very difficult to weigh what's proportional.

Hamas war crimes?

It's also difficult to judge whether the strategy of Hamas is compatible with international law. The Islamist group operates out of residential areas.

According to Israeli UN ambassador Manor, Hamas fires rockets from Palestinian schools, hospitals and apartment buildings. If Israel attacks rocket launchers in those locations, civilian casualties are hardly avoidable, he said. This implies that Hamas is willfully risking the lives of Palestinian civilians.

International law has a much clearer position on Hamas rocket attacks against Israeli cities. While the Palestinians also have a right to self-defense, Hamas must protect the civilian population, according to Paech.

"That's why one has to say that these rocket attacks, which rain down so arbitrarily and uncontrolled on civilian areas, are not permitted under international law," he said.

Question of accountability

It's unclear whether either side will ever have to justify its actions before an international tribunal. According to Heintze, both state and non-state actors such as Hamas must answer for war crimes. But national courts have jurisdiction first.

"In Israel, military actions have already been brought before the courts," said Heintze.

Israeli cities have come under
fire from Hamas rockets

International tribunals wouldn't have any responsibility, because neither Israel nor Hamas have recognized their jurisdiction. According to Paech, the UN Security Council can initiate a case at the International Criminal Court in The Hague against a state that has not signed the treaty.

But Heintze says that there's another way. War crimes can be investigated in other states, when suspects are on their territory. That's why war criminals from the former Yugoslavia have been tried and convicted in Germany.

But it's unlikely that a case from the current Mideast war will end up in a German court, according to the international legal experts.

"Theoretically it could happen, but whether it's likely is another question," Heintze said.

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