When the dust finally settles in Gaza, the battle will head to the courtroom.
- By Suzanne NosselSuzanne Nossel is executive director of the Pen American Center and was formerly deputy assistant secretary of state for international organizations at the U.S. State Department.
The U.N.’s human rights chief, Navi Pillay, accused Israel of potential war crimes on Wednesday, July 23, ratcheting up the rhetoric and the potential consequences of the ongoing battle between Israel and Hamas. In Gaza, open warfare means that not far behind lurks the intellectual equivalent of ricocheting rockets; namely, lawfare. Waged in the media, at the United Nations, and in legal and academic circles, lawfare is a fight over the rules of war, the fate of civilians, and the international legal protocols that purport to govern armed conflict.
Lawfare — roughly defined as the invocation of legal rules, analyses, and proceedings to further a political position in an international conflict — is not new to the Middle East. The nation-state of Israel was midwifed via a 1948 U.N. resolution that mandated the very two-state solution that remains elusive some 66 years later. While the Jews endorsed the plan, the Palestinians and their Arab neighbors invoked legalese to reject the split, citing a violation of the U.N. Charter’s principle of self-determination.
Ever since, the Palestinians have looked to the United Nations for support, leveraging their heavy majority of sympathetic post-colonial governments. In 1988, the Palestinians reversed their stance on the original 1948 partition resolution, invoking it as grounds for their claim to a state, an argument that was upheld by the International Court of Justice. In recent years, the Palestinians have stepped up their legal and diplomatic battles, hoping to gain ground that has proven elusive through either negotiation, terror tactics, or intifada-style rebellion. They secured a 2012 resolution at the U.N. General Assembly acknowledging their statehood and have sought membership in several other multinational bodies including UNESCO.
The rising temperature in Israel and Gaza can be felt in faraway U.N. conference rooms and committee meetings. For diplomats, prosecutors, lawyers, and judges, the horror and futility of rocket volleys, air raid sirens, and little children lying face down in the sand feed a belief that the tools of their craft — fact-finding missions, investigations, resolutions, referrals, and legal proceedings — can somehow make a difference. Some ply their trades aiming to help the side they are on; others in an effort to uphold principles and values at risk in the crossfire.
The frenzy is already in high gear. The op-eds, tweets, and Facebook posts are flying fast and furious. Human Rights Watch and other groups are busy documenting and condemning the killings. Palestinian rights group Al-Haq and left-wing Israeli group B’tselem are excoriating Israel for wanton disregard of civilian life in Gaza. Israel-friendly NGO Monitor is pinpointing Israeli human rights organizations as the prime movers behind an effort to repeat the 2009 Goldstone Report, a UN report that accused both Israel and Hamas of war crimes. And Harvard Law’s Alan Dershowitz faults the media for its emphasis on body counts, claiming the lopsided numbers fuel anti-Israel bias and encourage Hamas to use human shields.
The momentum is growing. On Wednesday, the U.N. Human Rights Council in Geneva met to hear accounts of the violence and to vote on the establishment of a fact-finding mission to examine alleged abuses. The United States was the only "no" vote; 29 countries voted in favor (Britain and Germany were among the 17 abstentions). The special session marked the seventh of its kind focused on Israel’s conduct since the council’s inception in 2006, though the first in nearly five years. While the investigative mission’s mandate is to probe "all violations of international humanitarian law and international human rights," meaning violations on all sides, the text’s preamble includes repeated condemnations of Israel’s conduct, making clear that it is the prime focus. If the establishment of prior commissions to investigate the 2008-2009 Cast Lead operation and the 2010 flotilla incident are any guide, many of the jurists and experts qualified to serve on such a body will flee from the assignment, seeing only political and reputational pitfalls. Those willing to accept the job will be accused of having an axe to grind; every statement, utterance, and whisper will be probed for traces of anti-Israel animus.
But long before the fact-finding is carried out and the report written, all eyes will be on whether these latest alleged abuses will bring Israel any closer to an appearance before the International Criminal Court (ICC). Israel is not a party to the court. Nor, for the time being, is Palestine, though human rights groups have urged them to seek membership now that they’ve won statehood status at the General Assembly. While Palestinian President Mahmoud Abbas has weighed the idea, Israel has made it clear that it views a Palestinian application for ICC membership as a kind of nuclear option, threatening unspecified retaliation. It is an open question whether the court would view Palestinian recognition at the General Assembly as opening the door to a potential prosecution of Israel, as some have argued it should. Regardless, the struggle will grind on long after the violence itself has ebbed, almost certainly ending in its own equally unproductive and unsatisfying stalemate, one that reinforces Israel’s sense of paranoid isolation and Palestinian feelings of frustrated futility.
Amid it all will be a palpable sense of déjà vu; the scenario is a repeat of what unfolded after Cast Lead, which killed between 1,100–1,400 Palestinians, and caused wide damage to property and infrastructure. Cast Lead crowned a human emblem of misplaced faith in lawfare in the person of Richard Goldstone, the South African jurist who fatefully raised his hand to assume the chairmanship of the U.N. Commission created to probe the 2008-2009 Israel-Gaza conflagration. As a Jew and longtime supporter of Israel, Goldstone was also trusted by human rights organizations and diverse governments because of his work on South Africa’s apartheid system and human rights crimes in Rwanda and the former Yugoslavia. Goldstone believed that despite a one-sided resolution and mandate from the U.N.’s Human Rights Council, he could shepherd a fact-finding effort that both Jerusalem, Ramallah, and even Gaza City might accept — a breakthrough, in other words.
Though he didn’t see it right away, Goldstone’s hopes were doomed from the start. Israel refused to cooperate with his probe, dismissing Goldstone’s personal assurances as no match for the HRC’s track record of bias. With Jerusalem unwilling to tell its side of the story, Goldstone and his panel relied on evidence from Palestinians. The resulting report drew broad and firm conclusions, fingering Israel for deliberately targeting civilians and calling for its conduct to be referred to the International Criminal Court. While Hamas and the Palestinian Authority were also accused of abuses, the Goldstone Report exploded like a bomb in Israel, awakening profound fears of global delegitimization and the international prosecution of military leaders, rank-and-file soldiers, and reservists.
Fueled by indignation, Israel initiated its own investigations into the incidents recounted in Goldstone’s report, gradually telling its side of the story via reports to U.N. Secretary-General Ban Ki-moon. After Goldstone absorbed the alternative account, he recanted major parts of his report in a Washington Post op-ed. The reaction to his reversal only perpetuated the polarization — Israel’s supporters felt vindicated whereas Palestinian sympathizers dismissed it as craven capitulation to Israeli pressure. The net result left both the report, Israel’s standing, and Goldstone’s reputation badly battered.
Though it is worth remembering the twists and turns of the Goldstone saga, doing so does not mean the international community isn’t destined to repeat them. The obstacles to using the law to effect accountability, much less reconciliation, in the Palestinian-Israeli conflict are entrenched. They derive from the very legal regimes that sit at the heart of Goldstone’s legal analysis, its rebuttals, and the new rounds of salvos in the making.
The conduct of war is governed under the international law of armed conflicts, also known has international humanitarian law (IHL), and codified in the Geneva Conventions and other instruments, which aim to balance imperatives of humanity and military necessity. The law applies three principles: distinction, proportionality, and military necessity to determine whether harm to civilians in the course of conflict is justified. The problem is that in Gaza today — and perhaps in any modern conflict that involves something other than two relatively evenly-matched armies going head-to-head on a formal battlefield — none of these concepts can be applied cleanly, if at all.
The principle of distinction requires combatants to differentiate between military and civilian personnel and targets. From the paltry success rate of Hamas’s rocket fire, it seems clear that they lack the capability to distinguish targets, or even select them with any refinement. The law doesn’t address this scenario, leaving open whether, absent the ability to distinguish, the obligation to do so falls away or, instead, whether no targeting at all is permitted in that case. As far as Hamas’ conduct is concerned, the analysis is even more fraught and inconclusive. As a hybrid political and civilian military movement embedded amid a dense urban population, Hamas’s very structure makes distinction between combatants and civilians near impossible. While IHL contemplates that civilians may enter into combat, temporarily relinquishing their protected status, it does not address whether that involvement must be active and intentional, or what happens if the civilians are coerced into participating.
Seeking to minimize civilian killings and international condemnation, Israel has stepped up tactics aimed at differentiating military and civilian targets, using text messages, leaflets, phone calls, and non-lethal "knocks" on roofs to warn civilians of impending attacks. While Israel’s supporters trumpet the care taken to avoid casualties, in the eyes of its opponents these measures reinforce the Israel Defense Forces’ acute awareness of the potential risks to civilians from its every move, and do little if anything to detract from culpability.
Moreover, Hamas is relatively candid that distinction is not in its interest: its arms caches and military equipment are concealed and moved through secret tunnels. During the current conflict, its leaders have urged civilians to flat-out ignore warnings of attacks, to stand their ground in order to deter fire, or failing that, martyr themselves to expose Israeli brutality. International law does not address whether the principle of distinction can be fulfilled, even in part, by Israel asking civilians to distinguish themselves, in many cases by abandoning homes and properties to be hit by enemy fire. While there is no internationally recognized right for civilians to "stand their ground" in the face of hostilities that endanger them, nor is there an obligation to flee from imminent danger. Nor does it pronounce on what to do when civilians decline Israel’s warning to run either because they can’t, don’t want to, or are urged by combatants not to get out of the way. The current Gaza conflict is in part a fight between one combatant seeking to distinguish (presumably motivated by a mix of moral conviction and public relations imperatives) and another (out to highlight human costs and stigmatize its enemy) bent on blurring the lines. In such a scenario, the duties of distinction are anything but distinct.
The second principle governing the law of armed conflict is proportionality. The concept of proportionality contemplates that a certain amount of incidental harm will unavoidably inflict civilians and their property during wartime. But such harm must be proportionate to the military objectives pursued. So a lawful attack on a military objective can become unlawful when the foreseeable collateral harm to civilians outweighs the significance of the military objective. During Operation Cast Lead, Israel’s campaign, with its heavy toll in property and lives, was widely decried by U.N. officials and human rights experts as disproportionate. As theorist Michael Walzer noted, the Israeli campaign was judged excessive from day one, before anyone even knew what the damage would be. Today, considerations of proportionality are at least as obscured. Israel’s objectives in the current conflict include ending a barrage of more than 1,300 rockets that had been fired from Gaza at the time of the launch of the ground invasion as well as rooting out Hamas’s network of weapons transmission tunnels, some leading directly into Israeli territory. Hamas’s goals are harder to pin down — a moral and psychological victory, the mobilization of domestic and international support.
No jurist could credibly outline what would constitute means proportionate to Hamas’s aims. Hamas has already lobbed well over double the number of rockets against Israel as were fired during all of Cast Lead. Yet, Israel’s Iron Dome defense system is better able to intercept such missiles than it was five years ago, meaning that the number of hits is fewer. The law doesn’t answer whether the strength of a combatant’s defenses can render a larger than otherwise number of potentially lethal strikes nonetheless proportionate. If just a single Hamas rocket hit a major civilian target — say, a plane landing in Tel Aviv — it’s hard to imagine that the proportionality calculus wouldn’t shift radically. Though their lethality is limited, the range of Hamas’s rockets has increased, putting a larger segment of Israel’s territory and population at risk and in fear. IHL does not address whether the operative test of proportionality is inchoate fear, proximate danger, or actual harm. In this case, the level of justifiable Israeli use of force in response would vary dramatically depending on which measure is used. Proportionality must also rest on the shoulders of distinction, in that if military and civilian targets cannot be told apart, direct and collateral damage merge. Absent the ability to distinguish, and with no conceivable yardstick by which to measure proportions, the concept of proportionality melts into nebulousness.
The third legal principle is that of military necessity, which derives from the Preamble to the 1868 St. Petersburg Declaration, a precursor to the late Hague conventions. The document proclaimed that the sole legitimate objective of war is to weaken enemy military forces and to "disable the greatest possible number of men." Wanton pillaging, revenge killings, and terror campaigns aimed to frightened civilians fail to meet the necessity threshold. The criterion of necessity is perhaps the most pliable of all — both Israel’s and Hamas’s attacks could be, and are, described variously as essential measures of self-defense and as pointless, fruitless violence.
And that’s the problem. Its polarizing contestedness, baffling inconclusiveness, and passionate politicization render lawfare almost entirely unsatisfying as a route to achieve the main goals that tend to motivate its use: finding truth, assigning blame, and advancing resolution of conflict and preventing the next one. That doesn’t make lawfare entirely useless, though. Legal and policy debates offer intelligent observers around the world a way to process the horrors of the fight, channeling their high emotions into essays, reports, and briefs that are less dangerous than rockets, bombs, or hate speech. The hot debates over the fate of innocent victims also signify a value placed on human life; we feel better having casualties meticulously documented in a U.N. report than we do when bodies are buried in unmarked and unknown graves. For the dead and their families, though, the distinction may not mean much. Perhaps the most useful consequence of lawfare is its power to expose the inadequacy of current legal regimes to address the deep fog of conflicts that pit sstates against militant groups entrenched among civilian populations. These attributes characterize confrontations now underway in Syria, Iraq, Afghanistan, and Ukraine, and across the global battleground of America’s counterterror campaign.
But for all of its meticulous statistics, resolutions, and reports, lawfare lags far behind warfare. In order to be useful, it will have to somehow catch up.