OPINION: Two Wrongs Don’t Make a Right - International Law is Being Tested in Gaza

Anyone who has heard the testimony of the survivors of the Hamas conducted massacres in Israel on Oct. 7th or has seen the gruesome body camera recordings of murder, torture and mutilation of men, women and children filmed by the exhilarated terrorists themselves, will be hard pressed to think of a war crime or crime against humanity that the barbarians did not commit.

Still, Israel is bound to uphold the laws that Hamas flouted. To this end, Israel incorporates international law in all aspects of its use of armed force, from providing military personnel with legal training to integrating legal supervision into operational planning and decision making. At the heart of this commitment is a conviction that, as President Biden asserted on his recent visit to Israel: "Democracies are stronger and more secure when we act according to the rule of law."

But are they? Not only is Israel being tested by its actions in Gaza, but so is international law itself. Do its principles actually enable a terrorist enemy to be effectively defeated? If international law fails this test, it is unlikely that any state facing similar threats will respect it in the future.

For this reason, statements by international officials that mis-state international law and rewrite its principles so as to render it ineffective and unworkable, are not only a gift to Hamas in the current war but constitute a major threat to the ability to enforce international law in other conflict situations.

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There have been many Palestinian movements with many different political leanings but they all sought to end Israeli occupation and establish an independent Palestinian state.

Consider the recent statement by UN Secretary-General Guterres, through his spokesperson, in which he “reiterates that all parties must abide by international humanitarian law” but then adds that he “condemns in the strongest terms any killing of civilians.”

This is a dangerous and fundamental misreading of international humanitarian law.

The death of civilians is tragic, but not necessarily a violation of international law. In a situation in which terrorist bases and armaments are embedded in the heart of dense civilian areas there is no principle of international law that says these terrorists must be left free to perpetrate attacks with impunity.

On the contrary, the law explicitly recognises that civilian facilities used to house or shield terrorist groups are indeed lawful military targets, and that collateral civilian casualties may be legitimate, if these are not excessive in relation to the military objective of the operation.

In the tragic reality that Hamas has deliberately created, meeting this proportionality test requires an agonising balance. The heart-breaking suffering of civilians is one side of this equation. But there is another: meeting the military goals of the operation and preventing more casualties in the future.

Under international law, both sides must be weighed. If a medical operation is described only in terms of the pain it might cause with no regard to the disease it aims to cure, it will always appear to be an unjustified assault on the patient.

This was the approach of a group of human rights experts in Geneva who condemned Israel's actions as collective punishment. The group lacked a single military expert to weigh in on the critical military goal that Israel was seeking to achieve.  Similarly, a group of UNHRC special reporters labelled an airstrike on the Jabaliya camp a “brazen violation of international law” without any knowledge or consideration of the military goals of the operation.  

In the current conflict, international law has been so twisted by some that even humanitarian measures are presented as violations.

In an attempt to minimise the risk of civilian casualties Israel has urged civilians to leave the areas of terrorist entrenchment and move to the safe zones in southern Gaza - by way of flyers, radio broadcasts, even individual phone calls.  Israel even delayed its ground operations for weeks to afford civilians ample time to evacuate, notwithstanding the increased risk to its own soldiers that resulted.

Still, international officials have argued that the call to evacuate the war zone is itself a violation of international law, with the Commissioner General of UNRWA terming the attempt to save civilian lives “forced displacement”. This mis-stating of the law plays directly into Hamas' strategy of trying to keep civilians within, around and above its terrorist centers as human shields.  

International law is not a suicide pact. It makes demands on a defending democracy, but presented accurately it leaves room to defeat terrorism. Not so the parody of international law that is offered by these international experts.

By failing to recognise that Hamas is cynically hiding not only behind its own civilians but behind their misinterpretations of the law, these experts are rewarding its disdain and undermining the laws they claim to uphold.  Inevitably, terrorist organizations become emboldened to continue to deploy these methods, confident in international support for their illegal and immoral actions.

It is challenging enough for a defending democracy to act in accordance with the laws of armed conflict as they are. Israel's supreme court, which insists that Israel's defence forces comply with international law, has stated that “democracies fight with one hand behind tied behind their back.” If international officials, who should know better, make democracies tie both their hands, international law itself may become a victim as well.

Daniel Taub is an international lawyer who served as Israel's ambassador to the UK from 2011-2015

The views expressed in this opinion article are the author’s and not necessarily those of Kyiv Post.