Article

Legal ramifications of the war in Gaza

Johan D. van der Vyver

• Florida journal of international law, Vol. 21, no. 3, December 2009, p. 403-448

English

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The purpose of this Article is to highlight the major rules of international (humanitarian) law that have been implicated by the war in Gaza.The first section of this Article is devoted to the international status of Gaza. Although Israel in 2005 officially withdrew from the Gaza Strip, there are compelling grounds for maintaining that Gaza is de facto still subject to Israeli occupation. If that is found to be the case, resistance to Israeli occupation would qualify as a war of liberation, which in terms of Protocol I to the Geneva Conventions of 12 August 1949 is subject to the rules of international humanitarian law applying to international armed conflicts. That is the focus of the second part of this Article. The legality and legitimacy of a war of liberation do not afford a right to freedom fighters to conduct hostilities by all conceivable means, and especially do not exonerate the belligerents from attacking civilians or civilian targets. Hamas conducted its militant operations from within a civilian environment. The consequences of doing that is analyzed in the fourth section of this essay. The possibility of this amounting to using civilians as a human shield is discussed at some lengths. In the fifth section, focus shifts to Israel. It is there argued that Israel had every right to defend itself against the armed attack orchestrated by Hamas. However, the ways and means of doing that are again not without far-reaching limitations. Section six again turns attention to Hamas. The law relating to the inherent right of individual or collective self-defense does not apply to Hamas, since the hardships suffered by Gaza residents in consequence of Israeli control measures did not amount to an armed attack as required by Article 51 of the U.N. Charter.

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