The Gaza War and International Law: An Informed Assessment

In the law of war, the standard of proportionality is never just a matter of intuition or “common sense.” It is a matter of reason, an integral foundation of both codified and customary international law. [...] The related principle of “military necessity” is correctly defined as follows: “Only that degree and kind of force, not otherwise prohibited by the law of armed conflict, required for the partial or complete submission of the enemy with a minimum expenditure of time, life, and physical resources may be applied.”1 In present-day circumstances, though we still speak narrowly of “international law,”. [...] These rules are also binding on the basis of customary international law, a jurisprudential source identified in Article 38 of the Statute of the International Court of Justice. [...] In its 12th Session, the PLO’s highest deliberative body, the Palestinian National Council, reiterated the PLO aim as being “to achieve their rights to return, and to self-determination on the whole of their homeland.” The proposed sequence of Palestinian violence is expressed as follows: FIRST, “to establish a combatant national authority over every part of Palestinian territory that is liberated. [...] Hamas celebrations of “martyrdom” underscore the two-sided nature of Palestinian terror/sacrifice - that is, the sacrifice of “the Jew” and the reciprocal sacrifice of “the Martyr.” Such reasoning is explicitly codified within the Charter of Hamas as a “religious” problem.