International Law

Israel-Gaza and the Law of Armed Conflict: Recommended Readings

By Matthew Waxman
Thursday, August 21, 2014, 11:12 AM

A number of friends and colleagues have asked me recently for recommended readings on the law of armed conflict and Gaza. I’ve decided, therefore, to post some of my suggestions and some explanation as to why I chose them. I hope to update this compilation as I improve it and perhaps as more is written. I note upfront that these are simply my personal recommendations. I don’t necessarily agree with everything that’s written in them (though I do agree with a lot of it), and I also don’t pretend that this is comprehensive or reflects a complete range of views (other blogs have posted various compilations or analysis, including Just Security, Opinio Juris, and EJILtalk, and there’s a lot available on the ICRC’s website). I do think that these are good readings for anyone studying the issues. *** For context of the recent/current Gaza conflict and Israel’s Operation Protective Edge, this New York Times story describes methodological and factual disputes about civilian casualties. A similar Associated Press story quotes my Columbia Law School colleague Sarah Knuckey for the critical point that the raw numbers don’t answer the important legal questions. For an overview of signficant legal issues arising under the law of armed conflict or international humanitarian law, I recommend reading this report (The Operation in Gaza: Factual and Legal Aspects) published in 2009 by the Israeli government, analyzing the legality of Israel’s Gaza operations in Operation Cast Lead. The chapter on the Use of Force provides very good background on the basic principles of the law of armed conflict, and then provides a remarkably clear discussion of Israel’s interpretation of that law, including the required principles of distinction and proportionality. Some readers might be inclined to quickly dismiss this document as biased – it is, after all, a piece of legal and diplomatic advocacy – but that would be a mistake. It is very rare that any government documents with this level of clarity its official positions and their doctrinal bases on these issues, especially as they apply to specific military operations. For example, I don’t know of a comparable U.S. government document with regard to the last dozen years of U.S. targeting operations in Afghanistan. On the issue of proportionality, I recommend the expanded online essay by Laurie Blank, introduced by Ken Anderson, from the Volokh Conspiracy/Washington Post (Blank had a shorter op-ed on the topic that was widely circulated, but this essay contains important additional detail and analysis). So much commentary about Operation Protective Edge contained erroneous or irresponsible judgments on this issue, without adequate factual knowledge or understanding of the appropriate legal standards for assessing proportionality of attacks. This piece helps to address those misunderstandings and the difficult questions that go into proportionality analysis. As background on the issue of human shields, I recommend Mike Schmitt’s article from several years ago titled “Human Shields in International Humanitarian Law.” I like it as a background piece for several reasons other than that Schmitt is a superb lawyer and scholar in this area who is both rigorous and operationally practical in his thinking. First, Schmitt’s piece begins by showing that human shielding – generally, the placement of civilians or other protected persons to deter attacks on military targets – has been a common tactic for a long time, and by explaining the reasons why some parties so often resort to this this atrocious practice. Second, Schmitt’s legal analysis begins by discussing the defender’s obligations to refrain from placing civilians in harm’s way and to avoid collocating civilians and military forces or assets. He then turns to the attacker’s obligations to comply with targeting law (distinction, proportionality, feasible precautions). I like that Schmitt discusses defenders’ obligations first, because they are often presented as an afterthought (if at all) and because in my view the rules governing attacks only function effectively if the two sets of obligations operate together.