Prickly Questions of International Law Amid the Gaza War
The war in Gaza presents a problem for international politics. But it also poses problems for international law. Specifically, if we were to evaluate the events that have transpired since October 7, from the perspective of international law to assess the legality of actions and determine liability, many questions need to be addressed foremost among those, whether the events here rise to a level that could be adjudicated in some international forum, such as the International Court of Justice (ICJ) or the International Criminal Court (ICC).
The most complicated of all factors is about the status of Gaza—is it a state or not? The entire framework of post-1945 international law is premised upon a state-centric model. By that, nation-states or countries are the principal if not the sole actors in international public law. The United Nations is premised upon states as members of, not individuals or ethnic groups, for example. Non-governmental actors (NGOS) are not members of the UN, nor is the European Union, despite how important they are internationally.
Hamas is a terror group, not a state, and its legal standing under international law is unclear. The Gaza Strip, Jerusalem, and the West Bank are Palestinian territories. The Palestinian Liberation Organization proclaimed their territories a state in 1988. Palestine is recognized as a sovereign state by 138 of the 193 UN member states, but it is not a United Nations member itself. But neither Israel nor the U.S. recognizes it as a separate sovereign state, even though there is still lip service given to the idea of a two-state solution. While Gaza has some limited control and autonomy, it is effectively under the control of Israel.
On the one hand then, if Gaza is not a separate state, how does one characterize the attack against Israel by Hamas? The simple answer is that all the attacks were criminal acts and should be treated as such. This means the appropriate reaction by the Israeli government should have been to follow domestic criminal law, searching out the suspects who committed the crimes, prosecuting them, and putting them on trial. Israel instead chose an alternative approach and according to Gaza health officials, over 17,000 civilians, mostly women and children, have been killed as a result.
Instead, Israel formally declared war against Hamas. Under international law, one state cannot declare war against a non-state, let alone a group of individuals. First, aggression by states against another is supposed to be illegal against other states according to the 1928 Kellogg-Briand Pact, the UN Charter, and a 1974 UN resolution defining aggression. Second, while self-defense is recognized as legitimate by the UN Charter, the International Court of Justice has declared in a 2004 advisory opinion that states may not use force as a form of self-defense against non-state actors.
As far as international law is concerned, Israel’s war declaration and response are problematic. A formal declaration of war by Israel is tantamount to recognition of Gaza as a separate sovereign state against which it may be justified to use force as a form of self-defense. On the contrary, if Gaza is not a separate state but part of Israel, then its actions may violate international law.
No one should think what Hamas did was justified regardless of Israel’s policies in the Occupied Territories. However, with that said, how Israel treats Palestinians is possibly a form of genocide under international convention, or at the very least, it violates other international conventions such as the 1966 International Covenant on Civil and Political Rights. Israel is a signatory to these treaties. Legal action to determine if Israel violated either should have been brought before the ICJ.
But assume that Gaza is a state. Israel does have a right to self-defense under Article 51 of the UN Charter. Still, international law encourages peaceful means to resolve conflicts, or at the very least, to use international tribunals to resolve disputes. One option is the International Criminal Court. Unfortunately, neither Palestine nor Israel recognizes its jurisdiction, thereby foreclosing or at least limiting that as an option to hold either Hamas or, as some claim, Israeli officials such as Benjamin Netanyahu responsible for possible war crimes.
Moreover, if Palestine is a state, there are questions regarding whether Israel’s use of self-defense is legal. Self-defense is limited to proportionality, and it cannot take on actions that might amount to genocide, in violation of the 1972 convention. These are questions that are proper matters for the ICJ to address.
It is possible that the ICJ could be involved in other ways too. The UN General Assembly has requested an advisory opinion from the ICJ, which is currently before the Court. Hamas and the Palestinian state should have waited for this advisory opinion. It is also possible that the current conflict could be brought to the Court, but the authority of the ICJ could be complicated by the issue of statehood.
However, for many, the argument will be that turning to these international forums is futile. On the one hand, Israel has arguably violated international law with impunity over the years when it comes to the Palestinians, and despite repeated UN resolutions little has changed or been accomplished to resolve the disputes that led up to the events of October 7. There is a lot of truth to many of these claims and this begs the question of whether the current regime of international law can resolve the conflict that started on October 7 if it failed to resolve the disputes that led up to it.