Was 9/11 a criminal act or an act of war justifying the U.S. invasions of Afghanistan and Iraq? Similarly, are actions against Israel by militants in Gaza criminal acts or acts of war justifying the habitual Israeli invasions and shelling of Gaza? These are not legalistic questions, but rather speak fundamentally about the degree to which powerful states like the United States and Israel can legitimately claim to be governed by the rule of enlightened law.
In response mainly to the Nazi invasions of Austria (1938), Poland (1939), France (1940), the Soviet Union (1941) and other countries, the major post-war addition to international law was the establishment of the Charter of the United Nations, the cardinal rule of which is the prohibition against the threat and use of armed force by states in the conduct of their international relations. The idea was to make force the instrument of the world community (through the U.N. Security Council) and not of individual states. The effect was to outlaw war, with one narrow exception—self-defense in response to an “armed attack”; that is, as the Lawyers Committee on Vietnam observed in 1967, when “military forces cross an international boundary in visible, massive and sustained form” (now citing Daniel Webster in The Caroline) “leaving no choice of means and no moment for deliberation.”
As horrific and unprecedented as 9/11 was, the terrorist attacks in New York and Washington did not rise to the level of an “armed attack” as defined under international law, since the survival of the United States was not in doubt. In short, 9/11 was a terrorist crime and should have been investigated and prosecuted as such.
Instead, the United States invaded Afghanistan and Iraq and killed hundreds of thousands to avenge the killing of 3,000 at a projected total cost to U.S. taxpayers of more than $3 trillion, while destroying Iraq as a social and cultural entity. Israel exacts a proportionately similar degree of retribution in response to the capture of an Israeli soldier or the firing into Israel of relatively ineffective rockets, that is, compared especially to Israel’s U.S.-supplied howitzer tank and artillery shells, which Israel has fired into Gaza in far greater numbers with far more destructive power. As Haaretz reporter Amira Hass once wrote: “For us, the Israelis, history always begins when the Palestinians hurt us, and then the pain is completely decontextualized.”
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Committed apparently to “disproportionate force” and “collective punishment,” both of which are outlawed under international humanitarian law, a sizable portion of Americans and Israelis have cited “self-defense” as justification for Israel’s invasion and bombardment of Gaza in recent weeks. However, similar to Afghanistan and Iraq having no military capability in 2001 to invade the United States, Hamas has no mechanized army or a navy or air force with which to invade Israel. Hamas thus has no military capability to realistically engage in an “armed attack” against Israel as the term is defined in international law—a reality which legally nullifies virtually any unilateral claim by Israel to invade Gaza in self-defense.
Furthermore, while Israel obviously is entitled to shoot down rockets from Gaza and to intercept an attack inside Israel, its armed reprisals aimed at Gaza in response to the illegal firing of rockets into Israel are also illegal. Neither Israel nor Hamas has a right to respond militarily to a use of force (short of an “armed attack” as defined above) by the other side. The alternative, which is for both sides to claim a right of reprisal, would guarantee armed reprisals by each side in perpetuity, thus leading to an ongoing state of armed conflict that is, in essence, outlawed by the U.N. Charter.
Nor are the existence of tunnels inside Gaza, including those that cross into Israel’s southern border, a legal justification for Israel to invade Gaza for the reasons already cited. The civilized way to eliminate both the rocket fire from Gaza and the tunnels to Israel is for Israel to end its suffocating blockade of Gaza. The thing about legal rights and obligations is that they apply to both sides.
The road to peace for Israel-Palestine is for the U.N. Security Council (or its appointed brokers) to mediate a final-status, two-state solution that is consistent with the international law rights and obligations of both parties to the conflict. This would feature formal Palestinian recognition of the state of Israel within its internationally recognized 1967 borders and the establishment of a Palestinian state in the West Bank and Gaza Strip.