Thread by @profsarahj

1/ what’s happening in Israel and Gaza is war, and it’s horrible because war is horrible. The footage is horrible, tho some of the footage is from horrible former conflicts.

I’m going to say some things here about relevant international law.

2/ Israel was already at war with Gaza as it has blockaded the strip for over a decade. That’s an act of war. One can also make arguments about “effective occupation” but regardless, war existed.

Due to occupation same pertains to West Bank.

3/ the better view, but not the only view, is that this is an international armed conflict, where the international rules are clearer. Though the law of internal armed conflict is catching up.

4/ the military forces of Gaza have a right to resist, rebel and fight. It is their right of self defence, which all occupied/blockaded peoples have.

They haven’t started an unprovoked war as much of the media is saying. There’s been a lot of “provocation” for decades

5/ so it’s not a breach of jus ad bellum, the law governing whether a war can be fought.

Indeed, that goes the other way - the Israeli blockade of Gaza and effective 57 year occupation are breaches of that part of international law.

6/ on that last point, Israel justifies blockade and occupation as its own right of self defence. I’m not going to get into that, but I will say I won’t buy it. The relentless settlement project in West Bank, for example, is not necessary in self defence

7/ back to the current conflict, the conduct of which is governed by jus in bello, aka the law of armed conflict (LOAC), or international humanitarian law (IHL). There is a debate over whether LOAC and IHL are exactly the same thing but whatever, I’m gonna call it LOAC.

8/ a basic law of LOAC is principle of distinction. War should be fought by identifiable combatants who can target other combatants, including killing them even if they can be captured

So, Hamas’s incursion is legal to the extent they’re targeting IDF

As an aside, it doesn’t seem like there’s an issue of whether Hamas is identifiable - though I don’t know. The rules of distinction are also murkier when it comes to guerilla warfare (APII, to which Israel not party) but doesn’t seem relevant right now .

IDF is identifiable

10/ the kidnapping of IDF are also legal if they’re being treated as POWs. That’s possible but I understand if one thinks that’s unlikely.

Now … to the civilians.

11/ deliberate targeting of civilians, including hostage-taking is not legal under any reading of LOAC, and is a war crime. Footage so far (if real) indicates such war crimes by Hamas

But there is another LOAC principle of relevance here too - that of proportionality >>

12/ civilians can be “legally” killed in LOAC by mistake (eg in crossfire - I won’t get into this) but also where military objective gained is proportionate to civilian lives lost. It’s not an exact science, given much of this takes place in “fog of war”

13/ proportionality doesn’t seem relevant to actions of Hamas, from what I know (or think I know). While they might get an advantage from holding civilian hostages, it just doesn’t stand up to proportionality analysis.

Where it’s very relevant is in response of Israel

14/ it’s important to distinguish between 2 different types of proportionality. Proportionality in self defence (part of jus ad bellum), and proportionality in terms of conduct of war and impact on civilians (part of LOAC).

Media & Israel’s allies often conflate the 2.

15/ eg. The statement which we hear all the time, that Israel has a right to defend itself, says nothing about LOAC. It says nothing about permissible tactics that Israel may use to defend itself.

But media/allies act as if it does.

16/ 2 asides. Those same allies/media, inc Australia, never talk of the right of Palestinians to self defence.

Second, extent of RSD in context of occupation is murky. Eg does Russia have RSD in Crimea or eastern Ukraine?

Hopefully ICJ can bring clarity there.

17/ back to LOAC which is divorced from issues of self defence. Israel’s response to Hamas must be proportionate.

The military advantages gained must be proportionate to the likely loss of civilian life.

18/ we are likely to see, & may already be seeing (not sure as some footage is of previous wars) that response is to aerially bombard major centres of civilian life in Gaza - apartments etc. That seems disproportionate! And thus a war crime. It certainly has been in the past.

19/ Israel will argue that Hamas combatants and supplies are hidden in civilian centres, and that this is the only way to target them. Eg if weapons cache is in basement of building they bomb the building. Or fighters live in apartment block etc.

A few things re that

Practical matter. Israel didn’t see this coming. So something has gone v wrong with its intelligence. We can’t assume its claims to know where fighters, weapons are are correct. They can’t just guess and indiscriminately bomb the hell out of Gaza.

21/ if Hamas is mixing its fighters and weapons and military stuffs with civilian infrastructure, and it seems it has in the last, that’s a breach of principle of distinction in LOAC.

Distinction = offensive and defensive principle. That’s true despite Gaza’s population density

22/ but even so, proportionality still applies to Israel. If Hamas is mixing its military stuff with civilian stuff in Gaza, & breaching LOAC in doing so, that’s not a free pass to just bomb the hell out of Gaza. The proportionality calculation must still be made!

23/ certainly, some things assist, such as warnings (eg leaflet droplets telling people to get out of a building). But such things have to give people meaningful time to escape

in any case lives aren’t the only thing - civilian infrastructure matters too re proportionality

24/ so that, I think, lays out LOAC re this war.

LOAC is pragmatic in recognising that wars happen so there must be rules that apply. Those rules if followed reduce the horror but still allow for horror.

When it’s breached, as here, the horror increases.