Israel's Attack on Gaza: An Unjust War? - Henny Ziai and Nabeel Qureishi

Open Democracy, April 17, 2009 - Israel's attack on Gaza on December 27, 2008 has evoked strong emotions that frequently obscure rational discussion of the situation. With such a high human cost, objective and factual analysis is vital. In this article, we explore whether Israel's attack was justified under the principles of just war theory, as codified in international law. International law makes a distinction between the justness of a state's decision to go to war (jus ad bellum) and the justness of a state's conduct during war (jus in bello). We have chosen to focus on Israel's case for going to war. There are at least four necessary conditions for a just war: i) just cause; ii) last resort; iii) effectiveness in achieving aims; and iv) proportionality.

Did Israel have just cause?

Legally, there are two just reasons for war: self-defence (Article 51 of the UN Charter) or with a UN Security Council mandate (Article 42). Israel did not have a mandate to go to war.

We will therefore focus on whether Israel's attack was defensive. To understand why Israel's war cannot be deemed defensive some context is required. This means we must look at both the immediate context of the ceasefire, as well as the broader context of the conflict.

There was a 6-month ceasefire declared on June 19, 2008 and broken by Israel on November 4, 2008. Under the terms of the ceasefire, Israel was expected to ease its blockade on Gaza and there were to be negotiations on the release of prisoners, such as the one Israeli, Gilad Shalit, and the roughly 11,000 Palestinians. Negotiations on the latter took place; however, Israel has not lifted its blockade at any point. All evidence shows that this was a successful ceasefire with respect to the primary condition: that both sides stop firing. Mark Regev, spokesman for the Israeli Prime Minister, confirmed that there were no rockets fired by Hamas during the ceasefire. The Israeli Intelligence and Terrorism Centre stated in a report that "Hamas has been careful to maintain the ceasefire". Hamas also made a number of arrests of violators during this period.

Israel broke the ceasefire 4½ months in when the IDF raided a tunnel and killed 6 people alleged to be members of Hamas. Though widely reported (e.g. The Guardian, Reuters, New York Times) this was largely ignored in light of the US presidential elections, which took place on the same day.

As well as breaking the ceasefire, Israel's lack of interest in sustaining it was evident in their decision to attack in spite of Hamas's calls for a renewal of the ceasefire. A delegation to Egypt on December 14 said that Hamas was prepared to stop all renewed rocket attacks. Furthermore, at an Israeli cabinet meeting on 21st December the head of Israel's Internal Security Agency, Yuval Diskin, told the cabinet that Hamas is interested in continuing the truce conditional on (a) an end to the blockade and (b) a ceasefire in the West Bank. Despite this, Israel invaded Gaza six days later.

It makes little sense to see Israel as a state on the defensive. Israel is currently occupying large swathes of Palestinian land; it also actively encouraged the 2007 civil war between Hamas and Fatah. First, Israel is currently occupying territory and building settlements on land that does not belong to it under international law. This is any territory outside its pre-1967 borders. 75% of these settlements are even against Israeli law. In 2008, Israeli settlement construction increased by 60%; by the end of 2008 there were a total of 479,500 settlers in the West Bank.

Second, Israel has built a wall that cuts through the West Bank, annexing the most fertile Palestinian land - such as the Jordan Valley - and using it for settlement expansion. In 2004 the International Court of Justice (ICJ) called construction of the wall "contrary to international law".

Third, the economic blockade: since June 2007, Israel has allowed little basic humanitarian aid to enter the Gaza Strip, meaning that food, fuel and medical aid were largely unable to reach the population. For example, a quarter of children in Gaza suffered from malnutrition. This illegal (under the Fourth Geneva Convention, Article 33) collective punishment of a civilian population has been condemned by human rights organizations from both within and without Israel.

Israel has also been on the offensive by interfering in Palestinian politics. In January 2006, Hamas won a democratic victory in the Palestinian Legislative Council elections over the ruling party, Fatah. Fatah and Hamas formed a unity government in March 2007 and began pushing for a long-term cease-fire. Israel rejected that offer and, with American backing, supplied Fatah with both money and weapons and encouraged the coup that led to a brutal civil war....