36 No. 67 JUSTICE or between states. Otherwise, how could the ICJ conclude, as it did, that the international law right of self-defense did not apply?32 The body requesting the advisory opinion (in this case, the UN General Assembly) may or may not treat it as binding. For this reason, the ICJ wrote in its advisory opinion concerning nuclear weapons in 1996, that “the effect of the [Advisory] opinion is a matter of appreciation,”33 that is, a matter of interpretation. The comment also applies to the 2004 Advisory Opinion. The Supreme Court of Israel repeatedly has held that the laws of war for international armed conflicts govern IDF actions.34 Conflict with Hamas, for example, from the point of view of the governing law in Israel, is not a conflict with a domestic, criminal gang. Conclusion Armed forces engaged in combat must use no more than proportionate force against the enemy. Doing so requires the exercise of judgment.“Proportionality”does not mean equivalency or tit-for-tat.35 It means that the employment of minimum force required to attack lawful military objectives is permissible if the collateral damage or incidental civilian death is not excessive in relation to the concrete and direct military advantage anticipated from the attack. For Israel, according to former lawyers for the IDF,36 the goal is to protect the country from attack by degrading enemy military capabilities at minimum cost to civilians and itself. Given that enemies of Israel supply Hamas and its allies with weapons, and given the refusal of Hamas to live in peace with Israel, renewed conflict with Hamas is foreseeable and likely. It is equally foreseeable that the tactics used by Israel’s enemies of embedding weapons, command and control centers, and fighters in urban settings and in civilian structures – using human shields – will result in civilian casualties and an ongoing debate about the rights and wrongs of each side’s actions. It therefore is unlikely that the attempt in this discussion to recall fundamental legal rules governing armed conflict in the context of the May 2021 Israel-Hamas conflict will change anyone’s mind. Nonetheless, it appears that Israel’s conduct of the May 2021 campaign against Hamas in response to the thousands of rockets launched against Israeli cities and towns complied with international legal requirements.37 n Completed Sept. 2021 Nicholas Rostow is Senior Research Scholar, Yale Law School, and Senior Partner, Zumpano, Patricios & Popok, PLLC. He serves on the Academic Editorial Board of JUSTICE. 32. Legal Consequences of the Construction of a Wall, supra note 9. 33. Legality of theThreat or Use of Nuclear Weapons, Advisory Opinion, [1996] I.C.J. Rep. at 237, para. 17. The court also noted that it lacked legislative power; ibid. at 237, para. 18. 34. See supra note 31 and cases cited therein and Rostow, supra note 24, and cases cited therein. According to the U.S. National Public Radio (NPR), the Hamas rocket attacks launched in May 2021 aimed at Jerusalem and other cities were“in support of Palestinian protests against Israel’s heavy-handed policing of the Al-Aqsa Mosque compound in Jerusalem and the threatened eviction of dozens of Palestinian families by Jewish settlers.” See NPR Staff,“Timeline: Israel-Hamas Fighting Has Taken A Dire Toll,” NPR, May 20, 2021, available at https:// www.npr.org/2021/05/19/997989474/timeline-israel-hamasfi g h t i n g - t a k e s - a - d i r e - t o l l - w i t h - n o - e n d - i n - sight?t=1633288602309. NPR’s analysis suggests that there was no basis in international law for Hamas to launch rockets at Israel. Indeed, Professor Aeyal Gross wrote that“Hamas’s firing of rockets into Israel indiscriminately . . . is considered ipso facto a violation of international humanitarian law.” See Aeyal Gross, “The 2021 Gaza War and the Limits of International Humanitarian Law,” JUST SECURITY (June 1, 2021), available at https://www.justsecurity.org/76737/the-2021-gaza-war-andthe-limits-of-international-humanitarian-law/. Gaza and the other self-governing Palestinian territories are not generally recognized as states or a single state. One may argue that Israel is not engaged in state-to-state conflict with Palestinian forces in such territories. Yet the Supreme Court of Israel, sitting as the High Court of Justice, has repeatedly held that the laws of war governing international armed conflict apply. 35. See e.g. Michael Walzer, “On Proportionality,”THE NEW REPUBLIC, Jan. 8, 2009, available at https://newrepublic. com/article/64580/proportionality; Alon Ben-Meir, “Weighing Proportionality in Gaza” (Jan. 13, 2009), available at http://alonben-meir.com/writing/weighingproportionality-in-gaza/; Oren Bar-Gill and Gabriella Blum,“Defenses,”97 TEX. L. REV. 881 (2019). 36. Supra note 4. 37. Solis, supra note 13, at 281, noted that“In armed conflict, lethal force is often the first recourse.”Dinstein noted that“The issue of collateral damage to civilians is tied in with that of proportionality. . .. Protocol I does not mention proportionality at all.The only expression used there is ‘excessive.’The question is whether the injury to civilians or damage to civilian objects is excessive compared to the military advantage anticipated. Many people tend to confuse excessive with extensive. However, injury/damage to non-combatants can be exceedingly extensive without being excessive, simply because the military advantage anticipated is of paramount importance.”Quoted in id. at 280 (citation for the internal quotation omitted).
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