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The Gaza Flotilla and International Law

(Hoover Institution-Standford University) Peter Berkowitz - The standard arguments for viewing Israel's blockade of Gaza as unlawful are unsound and insubstantial. Their popularity reflects the determination to subordinate the international law of war to partisan political goals. The sustained campaigns to criminalize Israel's exercise of its inherent right of self-defense are among the gravest abuses to which the international law of war has been subject. When it comes to Israel's exercise of military force, critics exhibit a tendency to infer criminal conduct from civilian harm. This inference, however, which involves an elevation of humanitarian responsibility and a disregard of military necessity, is invalid under the law of armed conflict. The main tests of criminality in war are distinction and proportionality. They require fighters to strike a reasonable balance between humanitarian responsibility and military necessity. The inherent difficulties of applying distinction and proportionality are compounded when, as is the case with Hamas, one side unlawfully abandons the use of uniforms, refuses to carry its arms openly, hides amidst civilian populations, stores arms in ostensibly civilian facilities, and fires mortars, rockets, and missiles from civilian areas. Such blatantly unlawful conduct inevitably increases civilian casualties. But the international law of war is clear: Fighting forces that operate among civilians remain legitimate military targets, and fighters who use civilian areas and structures for military purposes cause them to lose their immunity. The writer is the Tad and Dianne Taube Senior Fellow at the Hoover Institution, Stanford University, where he chairs the Koret-Taube Task Force on national security and law.
2011-08-01 00:00:00
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