Israel, Gaza and international law

As confirmed by the United Nations, the people in the Gaza Strip face a “critical emergency.” Over 12 days, the Israeli offensive has killed roughly 660 Palestinians (at least one-quarter noncombatants, including many women and children) in comparison with Hamas killing three Israeli civilians and three Israeli soldiers (with four more soldiers killed in friendly fire). More ominously, a population of 1.5 million people is trapped in a small land mass subject to a devastating militarily onslaught and severe shortages of food and medical needs.

Predictably, the dominant response among American politicians (Republicans and Democrats) and the media has been to blame Hamas as a “terrorist” actor that has attacked Israel. Israelis are seen as kin to Americans, innocent victims forced to “retaliate” against “Muslim extremists.” Such solidarity, however seductive, hinders a more reflective and just analysis.

It is imperative to seek generalizeable standards for evaluating the conflict. The best source is international humanitarian law spelled out in the Geneva Conventions and in long-standing customary law.

Consider first Israel's siege of the Gaza Strip, which has greatly restricted the flow of people and of goods, including food, fuel and medical supplies. To justify this, Israel must prove an overwhelming security necessity. Israel's indefinite blockade, which long predates the recent hostilities and continued in violation of the cease-fire agreement with Hamas, fails this demanding standard. Indeed, Israel has prevented most international observers from entering Gaza, including a U.N. special rapporteur for human rights (who was subjected to a humiliating strip search).

Next is Hamas' lobbing of rockets into Israel, which dramatically increased after the six-month cease-fire agreement expired last month. Hamas justifies its actions as a response to Israel's siege and prior shelling in November. Because these crude attacks make no distinction between military and civilian targets, they are illegal even if one concludes that a military response is permissible.

Lastly, we have Israel's intense bombings and ground invasion. Even assuming that an armed reprisal to crude rocket attacks is acceptable, Israel must show that its actions are proportionate, directed at military targets, and not inflicting excessive harm to civilians. Regrettably, Israeli actions and statements indicate the opposite. To begin, the proportion of Palestinian deaths to Israeli deaths is roughly a hundred to one. Moreover, Israeli officials have proclaimed their goal to be not simply to stop rocket attacks but to destroy the infrastructure of the Hamas-led government and undermine popular support of Hamas. Hence, Israel has attacked police cadets, a television station, a school in a U.N. refugee camp, and a number of government offices that even Israel does not claim to be involved in militarily matters. Such actions amount to illegal collective punishment of the broader population.

In sum, a humanitarian-legal analysis does not spare Hamas but incorporates censure of Israel, whose legal violations have produced far more deadly consequences. Defenders of Israel's military actions sometimes counter that Israel cannot afford to abide by international humanitarian law when it is endangered by a ruthless enemy. Americans have heard similar arguments from defenders of the Bush doctrine.

Given the disturbing moral implications, this argument demands a high burden of proof. Namely, has Israel's aggressive militarism over the years made it more secure or simply engendered hate and fanatical resolve among the occupied Palestinian population? Moreover, could not defenders of Hamas make a more compelling argument for discarding military-civilian distinctions? After all, Hamas is hardly in a position to wage a conventional war with Israel's powerful military.

Granted, international humanitarian law is so often discarded in practice by those in power. Israel, for example, need not fear global sanction for illegal actions because the United States will block any U.N. Security Council action. Why, then, even discuss international law? The answer lies in the value of international law, especially moral-based humanitarian standards, to provide impartial benchmarks. Such benchmarks enable us as citizens to make informed demands of our political representatives.

For Americans, this means insisting that the United States support an immediate U.N.-supervised cease-fire that commits all parties to discontinue their legal violations, including Israel's crippling blockade. If the United States were to stop automatically protecting Israel and become a genuinely honest broker, it would likely inspire a more accommodating Israeli response.

I have no illusions that such a change will come readily. Despite President-elect Barack Obama's talk of “change,” neither he nor the Democratic Party at large has offered a new vision for U.S. Middle East policy or seen fit to invoke international law. Yet I have more confidence that a majority of the American population would support a change to a more law-abiding policy toward the Middle East and the rest of the world. For this to happen, we must insist upon sustained self-scrutiny about the behavior of the Unite States and its closest allies. A legally informed analysis provides an essential foundation.

Graubart is an associate professor of political science at San Diego State University, specializing in international relations and international law. He recently published “Legalizing Transnational Activism: The Struggle to Gain Social Change from NAFTA's Citizen-Petition Mechanisms” (Penn State Press). He will be part of a panel, “Making Sense of the Gaza-Israeli Conflict: A Teach-In,” from 2 to 4 p.m. Jan. 15 at San Diego State.