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When Gaza is bombarded so indiscriminately that French President Emmanuel Macron is reduced to “imploring” the Israelis to spare women and children – or when the Israeli Defense Minister, Yoav Gallant, vows to capture Yahya Sanouar, the mastermind behind the October 7 raid, to eliminate him without any form of trial – are we still within the framework of international legality?
How far can legitimate defense go, and from what threshold of violence can military operations be qualified as retaliation or responses driven by vengeance? In Gaza, the vehemence of combat in civilian areas is condemnable under international law, this “gentle civilizer of nations,” this law that specialized jurisdictions are supposed to apply, in the very unlikely event they would have to do so.
Customary Law, Codified as Subsidiary and Provisional Law
A legal person, be it an individual or a state, cannot take justice into their own hands except in cases of legitimate defense. This customary law was so obvious that the United Nations Charter codified it and explicitly recognized it in Article 51. Nevertheless, this right to resort to armed force to counter an aggression remains a subsidiary and provisional right until the UN Security Council takes the necessary measures to fulfill its mission of maintaining international peace and security. Take, for example, the conflict that erupted in the Far East when North Korea invaded South Korea’s territory on June 25, 1950. The troops of the latter defended themselves as best as they could, supported by the American contingent. The communist authorities in Pyongyang, the aggressor in this case, assured of a swift victory, would disregard the call for an immediate ceasefire decreed by the Security Council. It was then that this body, based in New York, would recommend to the member states to provide military assistance to South Korea. From that moment, it was Resolution 84 of July 7, 1950, that would govern the situation, and no longer the survival reflex that materializes in self-defense.
Back to our Middle East: it is clear, in the eyes of international law, that Israel was the aggressed party last October 7. Israel will undoubtedly invoke the right to self-defense to continue its military operations in Gaza. However, it turns out that this right cannot serve as a pretext for a disproportionate response. Nor does it grant the aggressed party the absolute latitude to carry out retaliatory operations and even less immunity to absolve itself of any responsibility on the “day of judgement.”
Who doesn’t remember President Truman’s decision to dismiss General MacArthur, the commander-in-chief of the Allied forces in Korea, who wanted to take advantage of the momentum to extend the conflict to China, using atomic weapons if necessary?
The sacred right to ensure one’s own survival or physical integrity cannot justify excesses or allow the unquenchable thirst of Nemesis, the goddess of vengeance.
Humanity and Military Necessity
The exercise of this right of defense is not only provisional and subsidiary, as mentioned above, but it is also framed, in its very exercise, by the criteria of humanity, military necessity and proportionality. As evidenced by the so-called Martens Clause, which appears in the Preamble of the 1899 Hague Convention II, “Civilian persons and combatants remain under the protection and authority of the principles of international law, from the principles of humanity and from the dictates of public conscience.” Therefore, whatever the reasons for going to war, it is incumbent on belligerents to take all necessary measures to “avoid unnecessary suffering caused by the use of force.” One should remember the principle of necessity, which requires that only military objectives that “contribute effectively to the enemy’s military action by their nature” can be the subject of attacks. Hospitals, where the injured, military and civilians are treated, cannot be targeted. Nor can schools or places of worship.
Improbable Proportionality
In 1939, seeking a pretext to invade its neighbor, Hitler’s Germany had concocted an incident on its border with Poland. However, the attack, supposedly ordered by Warsaw, on a radio transmitter in German territory, could not justify the formal invasion of a country. It was a serious violation of the principle of proportionality, according to which “the intensity of the reaction of an aggressed state should be proportionate to the armed aggression it is subjected to.”
Regarding Gaza, the excessive aspect of the Israeli reaction borders on ethnic cleansing, as some UN officials believe. This in no way absolves Hamas, which evidently uses civilians as human shields.
Seeking to eradicate this organization, deemed terrorist by some countries and guilty of massacring civilians, can be pleaded before a court of justice. However, bombing Gaza City or pushing Gazans into the Egyptian Sinai cannot be justified by humanitarian law.
