Israel and Gaza: The world without international law


1) U.N. Security Council meeting on Gaza-Israel conflict, May 16, 2021 UN TV (live and recorded);

2) Patrick Kingsley, “After Years of Quiet, Israeli-Palestinian Conflict Exploded. Why Now? A little-noticed police action in Jerusalem last month was one of several incidents that led to the current crisis,” New York Times,
May 15, 2021.

3) Sam Sokol, “Israel Demolished Tower Blocks in Gaza. Here’s What They Housed; The leveling of the high-rise buildings, several of them housing media outlet offices, has led to widespread criticism. What did the towers actually hold? Haaretz, May 18, 2021 (8:55 PM).
The live TV or recording of the meeting is found here.

Hamas has been firing rockets at Israel from the Gaza Strip in violation of international law. Specifically, it has been violating the prohibition of the use of force contained in article 2 paragraph 4 of the United Nations Charter. This prohibition is contained in a norm of jus cogens or peremptory law, from which there can be no derogation by agreement.

Israel has the right of self-defense against an armed attack in accordance with Article 51 if the U.N. Charter and general international law.

However, the exercise of this right is subject to two conditions:

First, the use of force in self-defense must be necessary to stop the armed attack to which the country is being subjected. Here, that means the force used must be aimed at stopping the armed attack, and rationally related to that objective.

Second, the use of force by Israel must be proportional to the threat posed by the armed attack by Hamas.

Those are the two requirements. Force used in the exercise of the right of self-defense must be necessary and proportional to the armed attack.

There is serious reason to question whether Israel’s military actions in Gaza meet these requirements. It is difficult to see how bombing civilians and civilian infrastructure is necessary and proportional to halting the rocket attacks.

Israel says that its bombing is aimed at destroying Hamas’ military infrastructure related to the launching of the rockets.

This is a factual assertion which can only be confirmed by an international commission of inquiry, which should be established by a resolution approved by the U,N. Security Council.

The United States as a Permanent Member of the Security Council has the right to veto any Security Council resolution, In the past, the U,S. has used its veto power to protect Israel from any such international scrutiny.

In the present circumstances, however, the U.S. should absolutely not use its veto to block Security Council action, including the establishment of a commission of inquiry,

To do so would be to support Israel in its apparent disproportionate use of force in self-defense, and its apparent commission of war crimes in bombing civilian targets in Gaza.

Regardless of whether or not Israel can sustain its argument under international law, as interpreted by impartial experts, that its use of force against Gaza is a necessary and proportionate response to Hamas’ rocket attacks against Israel, Israel is legally obligated to comply with international humanitarian law (the laws of war).

International humanitarian Law prohibits the targeting of civilians, including news agencies. The Israeli military gave residents of a residential building in which the Associated Press and Al Jazeera had their offices one hour to evacuate the building before it was bombed.

This warning constituted undeniable evidence that this residential building, filled with civilian residents and workers, was deliberately targeted.

Consequently, the bombing of this building would appear to constitute an egregious war crime by Israel. Bombings of other civilian targets also represent presumptive war crimes.

The United Nations Security Council should set up a commission of inquiry to establish or confirm these facts and the commission of war crimes.

The United States should not veto any Security Council resolutions necessary to take these steps.

The steps suggested above would lead back to the path of international law and a cessation of hostilities.

The alternative is a continuation of the the illegal actions we have witnessed in recent days, and a progression toward a wider war.

The Trenchant Observer

About the Author

James Rowles
"The Trenchant Observer" is edited and published by James Rowles (aka "The Observer"), an author and international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. Dr. Rowles is a former staff attorney at the Inter-American Commission on Human Rights (IACHR) of the Organization of American States OAS), in Wasington, D.C., , where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, Dr. Rowles has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. Dr. Rowles speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.=LL.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, Dr. Rowles has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on some the best articles that have appeared in the blog.

1 Comment on "Israel and Gaza: The world without international law"

  1. Michael Mauldin | May 21, 2021 at 8:40 am |

    So what happens when laws are broken?
    Apparently not much.
    If the USA would fund each the two countries equally…I wonder what would happen?

Comments are closed.