Yes and no.

The right of self-defense is typically understood to mean a right exercised by

sovereign states to defend their territory from invaders. This right is laid out in Article 51 of the
United Nations Charter, which outlaws war between states but allows a state to defend itself if
attacked by another state, until such time as the United Nations Security Council acts.
However, one of the req of self defense under intl law is proportionality. PG 298 BERNAS
Israel’s use of force is “disproportionate” because Hamas is outgunned. Israel’s use of force
may very well be disproportionate, but not for this reason. The concept of proportionality in the
law of armed conflict is not a question of the relative capacity or power of the armed actors.
There is no “pick on someone your own size” rule in the laws of war. Rather, proportionality
refers to a ratio between the military value of a specific target—say, the Gaza building that
housed the offices of Al-Jazeera and the Associated Press—and the expected collateral
damage inflicted by the strike
The laws of war do not specify precisely how military actors are to make such proportionality
judgments. However, a foundational principle of the law of war is that of military necessity: The
only purpose of military action should be to weaken the enemy sufficiently to achieve a victory.
Anything more, such as seeking to crush the enemy, cause superfluous harm or collectively
punish nearby civilians, is a breach of war law. Such acts can in fact defeat the purpose of
weakening the enemy, because harm to civilians has historically galvanized opposing parties
and escalated conflicts.
Jerusalem – Judaism, Christianity, Islam

- Belongs to no one
- It is the jews that made the Jerusalem famous (Zionism)
- Special intl zone (house both religions)
- City of peace
-

Sheik Jarah

The 11days conflict between Israel and Hamas killed 248 P alestinians
- including 66
children and 13 Israelis. Also the damage in Palestine is huge
and devastating. The losers of the war are civilians on both sides
The ceasefire is truly a good thing for now however since the
ceasefire is unconditional, I think there will be no peace with
Israel without justice for Palestinians. Tracing from the history
especially with regard the land conflicts, the struggle will still
continue as long as Palestine will not achieve what is just for
them.
Three Myths About the Laws of War and
the Israel-Hamas Conflict
Charli Carpenter Friday, May 21, 2021

After 11 days of rocket fire and air strikes, a tenuous cease-fire has brought to a close,
at least for now, the latest outbreak of violence between the Israeli government and the
armed group Hamas in Gaza. As in previous rounds of fighting between them,
narratives about which side was to blame and whether either or both were committing
war crimes were rampant in media coverage, social media debates and commentary on
the conflict.

These narratives included a number of misconceptions about or mischaracterizations of

the nature of the conflict as well as of belligerents’ obligations under international law
more generally. Three in particular warrant closer examination because of how common
and widely shared they have become.

Israel has the right to self-defense. Yes and no. The right of self-defense is typically
understood to mean a right exercised by sovereign states to defend their territory from
invaders. This right is laid out in Article 51 of the United Nations Charter, which outlaws
war between states but allows a state to defend itself if attacked by another state, until
such time as the United Nations Security Council acts.

If Palestine is a state, then Israel may defend itself with armed force when attacked. But
if Palestine is a state, then it also has the right to defend its own borders against
territorial incursions by Israel—a right neither reciprocally recognized by Israel nor
acknowledged this week by U.S. State Department representatives.

If Palestine is not a state, as both the U.S. and Israel argue, then the concept of self-
defense under the U.N. Charter would logically not apply in the same way. Instead, the
law on belligerent occupation, which is laid out under the Fourth Geneva Convention,
applies. In this case, Israel, as an occupying power, is responsible for maintaining order
and security in the territories it occupies. To do so, it may use police measures, such as
arrest, detention or trial of individuals who pose a security threat. However, strict limits
are placed on how security may be achieved and maintained. Arbitrary violence, torture
and mistreatment, as well as destruction of civilian property, are prohibited.

Simultaneously, the occupying power also has responsibilities to inhabitants of the

territories under its power, including adequate provision of food, water, medicine and
shelter, protection from violence, and respect for fundamental human rights and
freedoms. Human rights watchdogs have argued that Israel’s actions toward the
Palestinians in Gaza, to the contrary, constitute persecution and apartheid, both crimes
against humanity under the 1998 Rome Statute of the International Criminal Court.
Occupations are also meant to be short-lived; the idea of occupations enduring for
extended periods has been delegitimized by successive U.N. General Assembly
resolutions.

Part of what is confusing about the situation in Gaza is that observers do not agree
whether Palestine is already a state with rights and responsibilities under the U.N.
Charter, or if Hamas should be understood as an armed national liberation movement
resisting an occupying power. In many respects, it is simultaneously both.
Unfortunately, this allows political actors on both sides to self-servingly use one
paradigm to claim rights, while using the other to deny their opponent the reciprocal
rights granted by the first.

Palestinians have a right to resist “in every way possible.” So reads the deck of an op-
ed by Stanley L. Cohen published in Al-Jazeera, which lays out a legal case for
Palestinian insurrection. But this is only partially true. Occupied peoples do have a right
of resistance against occupiers under international law, but this does not give them a
blank check to engage in crimes against humanity, whether against their own civilians
or those of the occupier. The only attacks it justifies are on the military forces of the
opponent.

Even the protections for civilians that exist under

the most generous interpretation of existing
international law may fall short of what public
opinion finds to be just.
The right to self-determination is well-established in international law, and the Fourth
Geneva Convention established the responsibility of occupying powers to end an
occupation as quickly as possible. Facing violations of such rules for an extended
period, national liberation movements have a right under international law to wage war
against a colonial or occupying force, and in doing so they are afforded the protections
and legitimacy of international law on international wars. The specific right of national
liberation groups to armed struggle to protect their people from persecution or
discrimination has also been explicitly endorsed by the international community in
Additional Protocol 1 to the Geneva Conventions. However, whether this rule applies in
Palestine is the subject of debate, in part because Israel has not signed or ratified
Additional Protocol 1, but also because the International Committee of the Red Cross,
or ICRC, which serves as the guardian of international law, has not listed this rule
among those with the status of customary law, which would make it binding upon all
states whether or not they are signatories to it.
For those who recognize or invoke this wider right in Palestine, however, it is important
to note that national liberation movements incur a burden of responsibility as well. They
are expected to comply with the fundamental rules of war, including directing their
attacks at military targets and away from civilians. When they don’t comply with these
responsibilities—as Hamas is accused of for firing rockets at Israeli civilian population
centers—members of the armed group risk indictment and trial for war crimes. But such
breaches do not give the occupier carte blanche to retaliate with collective punishment
against civilians, as Israel’s critics accuse it of doing with its air strikes on Gaza. With
the International Criminal Court now investigating the situation in Gaza, both Israeli and
Hamas violations of war law will be under the microscope.

Israel’s use of force is “disproportionate” because Hamas is outgunned. Israel’s use of

force may very well be disproportionate, but not for this reason. The concept of
proportionality in the law of armed conflict is not a question of the relative capacity or
power of the armed actors. There is no “pick on someone your own size” rule in the
laws of war. Rather, proportionality refers to a ratio between the military value of a
specific target—say, the Gaza building that housed the offices of Al-Jazeera and the
Associated Press—and the expected collateral damage inflicted by the strike.

The laws of war do not specify precisely how military actors are to make such
proportionality judgments. However, a foundational principle of the law of war is that of
military necessity: The only purpose of military action should be to weaken the enemy
sufficiently to achieve a victory. Anything more, such as seeking to crush the enemy,
cause superfluous harm or collectively punish nearby civilians, is a breach of war law.
Such acts can in fact defeat the purpose of weakening the enemy, because harm to
civilians has historically galvanized opposing parties and escalated conflicts.

Consider, in this light, Israel’s argument that it has discharged its responsibility to
protect civilians by dropping leaflets, using phone calls or otherwise alerting civilians to
an imminent attack. The Military Manual of the Israeli Defense Forces requires such
notice to civilians before bombardment to allow time to flee the area, and the IDF
follows this rule, which is a right practice under humanitarian law. However, providing
prior warning of an attack is not sufficient to relieve Israel of responsibility for harm to
civilians and civilian objects from that attack. In an enclosed area with the population
density of Gaza, they may have nowhere to flee to. And elderly or disabled civilians, as
well as the families who care for them, often cannot flee even if they have somewhere
to go. Notification of bombardment does not remove a belligerent’s responsibility to
weigh military necessity against expected civilian damage.

Moreover, evacuating civilians from civilian structures, which are normally off-limits,
does not by itself transform that structure into a legitimate military objective. According
to the ICRC, a protected civilian structure like a school, mosque, hospital or media
center can become a military objective only when it is being used to cause direct military
harm to the opposing party. Thus, a rocket attack launched from a building might
transform that building into a military objective, but the mere suspicion that an armed
group may have members inside a building is insufficient. The burden of proof is on the
Israeli military to show, for example, that the building housing Al-Jazeera and the AP
that it targeted was being used to launch attacks on the Israeli military; that the military
value of destroying the building was proportionate to the harm to civilian lives and
property; and that the threat could not have been mitigated in another way.

Note that the laws of war also state that in situations of doubt as to whether a structure
or object—like a vehicle—is civilian or military, it shall always be presumed to be
civilian. This rule, too, is laid out in Additional Protocol 1 of the Geneva Conventions,
which, as noted above, Israel has not signed. Nonetheless, Israel is bound to this
particular rule, because according to the ICRC it has achieved the status of customary
law binding on all states.

This brings us to a final point. Even the protections for civilians that exist under the most
generous interpretation of existing international law may fall short of what public opinion
finds to be just. This is because, as Giovanni Mantilla argues in his new book,
“Lawmaking Under Pressure,” international treaties always represent compromises
crafted and codified by states aiming to protect their own interests in future wars. So the
agreed-upon rules may fall short of what commentators, observers or war victims would
find morally appropriate, and the law—while an important yardstick—may be an
imperfect guide to ethical foreign policy where the law is contested, manipulable or
incomplete.

https://www.worldpoliticsreview.com/articles/read/YF0_bjF3gfZ5fuyMxobOnRLYS4VG_C-ZpNSXU-
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