Paper was first published in The Jurist, January 11, 2009
Two weeks ago, Israel Defense Minister Ehud Barak declared war on Hamas. It is unclear whether he meant “war” in the classic sense, a term of art or as a political phrase. What is clear is that "Operation Cast Lead" is fundamentally different than classic operational counterterrorism. The operation includes four goals:
- destroying tunnels between Egypt and the Gaza Strip used for smuggling weapons;- destroying Hamas’s ability to manufacture Kassam missiles;- destroying Hamas ammunition depots; and- preventing Hamas from firing Kassam missiles into Israel.The IDF launched Cast Lead after two significant developments: Hamas had fired 6,000 missiles from the Gaza Strip into southern Israel during the past three years after Israel had unilaterally disengaged from the Gaza Strip and Hamas had unilaterally violated an Egyptian negotiated cease-fire.This is classic self-defense; to that extent, Operation Cast Lead is not different.From a legal perspective, however, there are three critical differences between Cast Lead and previous IDF operations, each of which may pose significant challenges to existing interpretations of international law:- declaring war against a non-state actor;- re-articulating proportionality; and- redefining what is a legitimate target in the context of collateral damage.Before analyzing these three issues, one should recall that Israel previously has referred to its operational counterterrorism measures in the West Bank and Gaza Strip as “armed conflict short of war”. While surely a clumsy phrase, it signaled Israel’s attempt to articulate a “hybrid”— something that is neither war nor a police action. Declaring war on Hamas is not “armed conflict short of war”; it is an additional step – perhaps more than that - in the definitional spectrum. It suggests that war can be declared against a non-state entity. While President Bush declared war on “terrorism” after 9/11, a declaration of war specific to a particular organization represents a fundamental change.How that change comes into play” best illustrated in how proportionality and collateral damage are discussed.Israel and Hamas have disproportionate weapons available to them. The IDF has planes, helicopters, tanks, artillery and patrol boats. Hamas has Kassam and Grade missiles. What needs to be asked as a matter of international law is whether the available, disproportionate weapons are used proportionally. With regard to the current situation in Gaza, proportionality must be viewed from two perspectives: the threat posed and how is that threat posed.The threat posed is to a million innocent Israeli civilians - Jews and Arabs - living within a 40 km (25 mile) radius of the Gaza Strip. The threat is actual and has been realized. There have been fatalities, injuries, damage to property and general disruption of daily life within Israel. How this has occurred is critical in understanding Operation Cast Lead in the context of collateral damage. It has occurred because of a broadly-based Hamas infrastructure.In declaring war on Hamas, Israel has deliberately left undefined the degree to which an individual must be affiliated with Hamas in order to be categorized as a legitimate target. The consistent and constant bombing of southern Israel over a number of years required a broadly based and highly developed infrastructure. Such an infrastructure enabled the digging of many tunnels, the building of weapons and their storage and the firing of thousands of missiles. In contrast to the traditional model associated with the suicide bombing infrastructure predicated on the individual bomber, the planner, the driver and the financier, the Hamas rocket firing infrastructure is inherently broader.By expanding the definition of “legitimate target,” the IDF has narrowed the definition of “collateral damage.”This new paradigm presents enormous risk, for it invariably leads to the photographs that have caused Israel significant damage in the court of international opinion. The visual images from Gaza during the last two weeks are far more powerful than any spokesman’s words.However, Israel declared war on an organization, and by extension on all those involved in that organization — active and passive alike. That is precisely how Operation Cast Lead is different from all previous Israeli operations.While self-defense (in the classic model) is the legal basis for Cast Lead, the IDF’s re-articulation of proportionality and collateral damage is a new development in international law. How this new paradigm is implemented in the Gaza Strip is the essence of the issue. It means that the IDF is conducting an aggressive policy directed at Hamas. It suggests expanding the number of legitimate targets and broadening the definition of “military necessity”.It does not — and must not — mean that all Gazans are legitimate targets. Israel’s Defense Minister declared war on Hamas, not on Gaza. The IDF must minimize collateral damage; to do otherwise is a violation of international law.Further, Israel must not ignore its international humanitarian law obligations. To do otherwise is a violation of international law. The three-hour respites from aerial attacks to facilitate attending to humanitarian needs represent an attempt to balance between humanitarian obligations and operational necessities. However, the essence of the Israeli policy — the rightness or wrongness of which must be debated — is that declaring war on an organization that has fired more than 6,000 rockets into Israel since 2005 justifies enlarging the definition of legitimate targets and therefore narrowing the definition of what is considered collateral damage.