Proportionality maintained? IDF enters Gaza
Photo: AFP
Mashaal. Syrian case easier to justify
Photo: AFP
Gilad Shalit. POW?
photo: Noam Rotem
Gaza operation: Legitimate self-defense?
Terror attack expands term self-defense, but possibility of hurting civilians may not stand proportionality test. Attack on Syria may be easier to explain, Israeli expert on international law says
The Israel Defense Forces operation in Gaza, as well as talks on Damascus hosting and aiding senior Hamas members, brings up the judicial question of Israel's right to self-defense. Israel's statement on Wednesday that it has no intention to re-occupy Gaza , that the operation focuses on the threats and is aimed at rescuing the kidnapped IDF soldier, serves as a legal foothold in the in international law.
Dr. Nitza Shapira-Libai, who until recently was president of Israel's Press Council and an expert on international law, explains that self-defense could be the claim when a nation is attacked by another nation or a terror group sponsored and supported by another nation. The attacks should stand two tests: Urgent need and proportion.
Israeli Offensive
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The United States attack on Afghanistan caused the United Nations Security Council to set a precedent where the Taliban's sponsorship of al-Qaeda was a justified reason to call the US attack self-defense.
This issue was raised in two cases in the International Court, first regarding the Israeli security barrier and second regarding the Ugandan invasion into Congo. In the Congo case, Uganda claimed that terror cells were operating from Congo, thus the invasion.
The ruling on the security barrier concerned Israel's right to self-defense after terror cells operated against it from the Palestinian territory and which led to Israel's self-proclaimed defensible border. In both cases, judges ruled against the reaction, but the minority of the judges' panel justified the actions.
"I can't compare the Gaza case to Entebbe," said Dr. Shapira-Libai," which was a surgical operation focused on rescuing the hijacked passengers, therefore the Security Council couldn't condemn it. If the Gaza operation would focus on self-defense, would be proportional and would not expand into a wide area – then it would be legal by the minority view like in the cases of the security barrier and Congo."
"However," she stressed, "as it looks now the operation is wide-scale with attacks on bridges and civilian structures. In this case they may be viewed as disproportionate."
Question of proportion
So what is a proportional reaction?
"A proportional reaction," explains Dr. Shapira-Libai, "is an action meant to retaliate against illegal activity, and in essence to foil and prevent the source of evil from escalating."
"Self-defense, it is important to stress out, is not only to rescue the solider but also to hinder on continuous future threats of abductions declared by the terror organizations. The big question is whether hurting civilians is proportional and whether it could foil terror attacks. In my opinion the answer is: No," she said.
The Syrian case, in contrast, is easier to justify in the court of law.
"The premise is that Syria shelters and protects the Hamas headquarter in Damascus and supports them in forms of training camps. In that case we have the right to act against the Hamas headquarters there. Also, Israel's action against Hizbullah last month was determined legal; it was proportional and surgical in order to shunt the threats," Dr. Shapira Libai explained.
The whole issue also one charged question: Is Gilad Shalit a terror victim or maybe a prisoner of war held by guerrillas who are compelled by the Geneva Convention?
According to Dr. Shapira-Libai, "he was a military target so he can be considered a POW. The problem is two-folds: On one hand, Israel does not consider its security prisoners as POWs but rather as political prisoners, and they were sentenced as such."
"Terror cells don't play by the rules of war. If they want to call their prisoners POWs, as they claimed many times, they should follow rules of war and define Gilad Shalit as a POW, with all ramifications, when the first obligation is to keep him alive and allow Red Cross representatives to visit him," she concluded.
