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Legal Ramifications of the War in Gaza

47 Pages Posted: 7 Oct 2011 Last revised: 6 Jun 2012

Johan Van der Vyver

Emory University School of Law

Date Written: December 7, 2009

Abstract

This essay proclaims in essence that the firing of rockets by Hamas into Israel constituted acts of terrorism and afforded to Israel every right to defend itself through military action. However, since Hamas operated from a civilian environment, it was inevitable that civilians will be injured or killed, and civilian objects will be damaged or destroyed. That placed on persons in command of the Israeli forces the obligation to consider whether or not the injuries, deaths, damage and destructions would be proportional to, and justified by, “the concrete and direct overall advantage” of an armed attack foreseeable at the time of the attack. The conclusion is inevitable that the answer to this question is in the negative, and that a final settlement of the Israeli-Palestinian dispute can only be achieved through meaningful, sincere, and effective mediation between the conflicting parties.

In developing this theme, it is pointed out that although Israel in 2003 officially withdrew from the Gaza Strip, it for all ends and purposes remained in occupation of that territory. Under the rules of international humanitarian law, Hamas was therefore engaged in a war of liberation. As such, the conflict in Palestine was subject to the laws and customs of international humanitarian law applicable in international armed conflicts. The author rejects the view of those who claim that militant forces engaged in a war of liberation are entitled to commit acts of terrorism. Hamas also could not justify the rocket attacks as a matter of self-defense or as legitimate acts of reprisal. Belligerent reprisals against civilian targets are in this day and age no longer lawful.

Conducting military operations from within a civilian environment constitutes a violation of the laws and customs of armed conflict. However, proclaiming this to fall under the proscription of the use of a human shield is not acceptable since the law relating to human shields confines the concept to using particular persons, such as prisoners of war, children, or United Nations personnel, to protect military targets from an attack.

Suggested Citation

Van der Vyver, Johan, Legal Ramifications of the War in Gaza (December 7, 2009). Florida Journal of International Law, Vol. 21, No. 3, 2009; Emory Public Law Research Paper No. 11-172. Available at SSRN: https://ssrn.com/abstract=1940442

Johan Van der Vyver (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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