33 Fall 2021 Israel of war crimes and “crimes against humanity of apartheid and persecution”10 dating back to “Israel’s sweeping closure of the Gaza Strip, which began in 2007.”11 Accusations of this sort peppered the Human Rights Council Report on Operation Cast Lead in DecemberJanuary, 2008-09.12 And, of course, political agendas are never far from the surface of Arab-Israel discussions. Every armed clash leads to expressions of opinions as to whether and how Israel should exist. Nonetheless, the law governing military operations merits its own reexamination as references to it and claims about what it is and what it requires of combatants, reappear with every conflict. The May 2021 conflict was no different in this regard. Note that the character of the armed conflict – international or non-international – determines the applicability of parts of the laws of war. If the conflict is international in character, usually meaning a conflict between or among states, the Geneva Conventions and other conventions dealing with international armed conflict apply. If the conflict is determined to be a noninternational armed conflict, other bodies of law govern, although the law governing the issue of targeting is the same in both situations.13 Commentators have discussed the relevance of international human rights law in situations of international armed conflict when the laws of war predominate but do not necessarily exclude the applicability of international human rights law.14 II. The Principal Purpose of the Laws of War15 The laws of war address “what level of violence is reasonably necessary and proportional in the context.”16 Their purpose is to alleviate “as much as possible the calamities of war.”17 Since the adoption of these words in the 1868 St. Petersburg Declaration, the laws of war have grown more elaborate.18 The chief method for alleviating the calamities of war with respect to noncombatants is implementation of the principle of distinction – differentiation between military and civilian targets. Despite the logic in judging every action carried out in an illegal war as ipso facto criminal, the laws of war do not address the legality of a particular war; that is left to a different body of law.19 Depending on context, an otherwise civilian object can indeed become a lawful military target despite the risk of civilian casualties. For example, under the laws of war, a hospital is not a permissible target.20 To ensure that it is a civilian object, it therefore ought to be situated well away from the battlefield and easy to avoid. But if it is used as a military base or place for gun or missile emplacements, the hospital loses its protected character. As the first 1949 Geneva Convention provides: The protection to which fixed establishments and 10. Human RightsWatch,“Gaza: Apparent War Crimes During May Fighting,” HUMAN RIGHTS WATCH (July 27, 2021), available at www.hrw.org/node/379290/printable/print 11. Id. 12. UN Human Rights Council, Report of the United Nations Fact-Finding Mission on the Gaza Conflict, 25 Sept. 2009, A/HRC/12/48, available at https://www.refworld.org/ docid/4ac1dd252.html 13. Gary D. Solis,THE LAWOF ARMED CONFLICT: INTERNATIONAL HUMANITARIAN LAW IN WAR 149 et seq. (Cambridge: Cambridge University Press, 2010). 14. See e.g. Dinstein, supra note 8, at 19-26; Special Rapporteur on Extrajudicial Summary or Arbitrary Executions, Study onTargeted Killings, Addendum, UN Doc. A/HRC/14/24/ Add.6 (May 28, 2010);Yoram Dinstein,“Counter-Terrorism and Extra-Judicial Killing: Can Such a Policy Be Justified?” Remarks at the Raoul Wallenberg International Human Rights Symposium (Jan. 19, 2006) (transcript on file with Rutgers Law Review). A fuller discussion of these issues is in Nicholas Rostow,“The Laws of War and Killing of Suspected Terrorists: False Starts, Rabbit Holes, and Dead-Ends,”63 RUTGERS L. REV. 1215 (2011). 15. Also known as international humanitarian law or the law of armed conflict. I prefer the older term, “laws of war,” because it is more precise as to the content and applicability. See W. Michael Reisman and Chris Antoniou, THE LAWS OF WAR xxi-xxii (NewYork:Vintage Books, 1994). (Because "the outcome of the 1977 codification efforts is still uncertain and the similarity in names of human rights law and humanitarian law could be confusing, we feel that, despite the indelicacy of the terms, a certain clarity is secured by continuing to use the terms ‘law of armed conflict’ and ‘law of war’.”) 16. Id., at xxi. 17. Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, reprinted in DOCUMENTS ON THE LAWS OF WAR, Adam Roberts and Richard Guelff, eds. 30 (Oxford: Clarendon Press, 2nd ed., 1989); Dinstein, supra note 8, at 5. 18. Similarly, laws of war manuals published by ministries of defense have grown in length and complexity. A good example is the U.S. manual, designed for use online. It is more than 1100 pages long. See Office of the General Counsel, Department of Defense, DEPARTMENT OF DEFENSE LAW OF WAR MANUAL (Dec. 2016), available at https://dod. defense.gov/Portals/1/Documents/pubs/DoD%20Law%20 of%20War%20Manual%20-%20June%202015%20 Updated%20Dec%202016.pdf?ver=2016-12-13-172036-190
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