Eric Posner on International Law in Gaza

Is Israel or Hamas Breaking International Law in Gaza?
Eric Posner
Slate
November 27, 2012

The latest conflict in Gaza has raised numerous questions about international law. Did Israel violate it? Did Hamas? Does it matter? There are standard ways to approach these questions. At the same time, parsing the relevant law will not give you much understanding of the conflict, or what is at stake. The underlying moral and policy considerations outstrip international law, which is a clumsy tool even in the best of times.

Israel says that it attacked Gaza in self-defense. Hamas had fired numerous missiles onto Israeli territory, and, although by the end of the conflict only four civilians had died, Israel possesses the right to defend its people under international law. Hamas’ response, or at least the response of its defenders, is, as best I can tell, that Israel’s occupation of Gaza is illegal—especially its blockade. Defenders of Hamas say that Palestinians in Gaza have the right to throw off the yoke of oppression, with violence if necessary. Moreover, even if Israel may attack in self-defense, its attack, which has resulted in the deaths of more than a hundred civilians, has been disproportionate to the provocation.

Israel replies that it does not formally occupy Gaza under international law because Gaza does not belong to another country, and is not itself a state that can be occupied. The blockade and other security measures are justified by the continuing threat posed by Hamas—the blockade prevents Gaza from obtaining additional rockets and other means for waging war. Israel also argues that it has not targeted civilians, and that civilian casualties have not been excessive in light of Hamas’ original rocket launches.