Bad but legal: When war is necessary

If we want to "stay human," as Israel's detractors say, we have to defend Israel.

By GIOVANNI QUER
Reserve soldiers at sunset 370 (photo credit: REUTERS)
Reserve soldiers at sunset 370
(photo credit: REUTERS)
The often improper use of legal words, combined with a certain pacifist narrative, has given rise to the idea that war is both unjust and illegal. Moral judgement on armed conflicts has taken over legal considerations: war is always bad, but still, legal.
With the creation of the UN, the ban on the use of force has become a general principle of international law. This principle has a relevant exception: self-defense—as happens in every domestic legal system. Therefore, when a state is under attack, it has the right (even the duty) to defend itself, resorting to the use of force for fighting back the attack. The launch of missiles on Israel is an aggression to be countered.
Two principles regulate armed conflicts: distinction and proportionality. According to former, one has to distinguish between civilians and combatants; according to the latter, the counter attack has to be proportional to the danger of the target to be struck.
With respect to the principle of distinction, combatants have to be distinguishable from civilians by uniforms and emblems. From this principle an important question follows, regarding the evolution of the concept of combatant. The US recognize the category of unlawful combatants, who are civilians behaving like soldiers. Israel follows traditional categories of international law and defines terrorists as civilians taking part in hostilities, whereby they loose their "immunity" and become legitimate targets.
Likewise, legitimate targets of an attack are only military targets, which "by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage" (art. 53, Additional Protocol I to Geneva Conventions). In this respect, even civilian hospitals may be legitimate military targets when used for hostile activities against the enemy (Geneva Convention IV).
With respect to the principle of proportionality, a legitimate attack has to bring a substantial military advantage. Several evaluations may apply to the "military advantage test," taking into account an immediate or future advantage. There are no general formula to evaluate proportionality in the use of force, since it is based on intelligence information, strategic assessment as well as past experience.
Moreover, international law includes two further norms: a final assessment on the legitimacy of the target before the attack and the warning directed to civilian population on the imminent attack.
IDF attack units include legal experts, who give legal advice on military target legitimacy; a military operation contrary to the legal opinion may be approved by the prime minister only.
Israel adopts different early warning procedures, including flyers, phone calls, public announcements.
The attack on the Gaza stadium is an example of legitimate attack on civilian infrastructure that lost immunity because it was used for military purposes—the launch of missiles onto Israel. Proportionality may be assessed according to the following reasoning: a consistent number of missiles is being launched by the stadium, therefore its destruction will neutralize the base for the launch of missiles onto Israeli civilians.
War is regulated by international law with limits and standards of behavior for both combatants and civilians, including the prohibition of indiscriminate attack on civilian population, such as the launch of missiles from Gaza; the obligation to adopt visible signs distinguishing combatants from civilians, while Hamas militias maintain civilian outfit; the prohibition of jeopardizing civilian targets, while Hamas uses civilian buildings to launch missiles and stock weapons; and, finally, the prohibition to use civilians as human shields.
Broadcasted images of wounded children and false images of alleged victims are part of an emotional propaganda that challenges the assessment of facts: Israel has conducted a legal war, attacking legitimate targets for defending its population under indiscriminate attack by the Hamas regime, which, by using civilians and civilian infrastructure, blatantly violates international law, based on principles of humanity. If we want to "stay human," as Israel's detractors say, we have to defend Israel.
The writer, who has a PhD in international studies, works in the field of human rights and is a legal commentator for the Italian think tank and media watchdog "Informazione Corretta."