When Laws Aren’t Laws
The problem with this, as with much of “international law”, is that even if you buy into it a law without an enforcement mechanism isn’t a law.
All parties to both these controversies proceed from a common premise: that Israel has the right to use force in order to prevent Gazans from breaching the fence. The dispute comes down to: how much? Critics who allege “disproportionate” or “excessive” force tacitly legitimize Israel’s use of “proportionate” or “moderate” force, while those who insist upon the applicability of human rights law acknowledge that Israel’s resort to force is legitimate if demonstrators pose an “imminent threat” to a sniper’s life.
This presumption holds even at the most critical pole of the debate on Gaza. The Israeli human rights group B’Tselem condemned as “illegal” Israel’s resort to lethal force against unarmed persons “approaching the fence, damaging it, or attempting to cross it.” But it conceded that “[o]bviously, the military is allowed to prevent such actions, and even to detain individuals attempting to carry them out.” A senior Human Rights Watch official argued that Israel’s use of live ammunition in Gaza was “unlawful.” But she suggested that “nonlethal means, such as tear gas, skunk water, and rubber-coated steel pellets” would have passed legal muster. The International Committee of the Red Cross cautioned Israel that “lethal force only be used as a last resort and when strictly unavoidable in order to protect life.” Even the major Palestinian human rights organizations characterized Israel’s use of force as “excessive,” “indiscriminate,” and “disproportionate” rather than inherently illegal.
But the fact is, Israel cannot claim a right to use any force in Gaza — whether moderate or excessive, proportionate or disproportionate; whether protesters are unarmed or armed, don’t or do pose an imminent threat to life. If it appears otherwise, that’s because the current debate ignores critical caveats in international law and abstracts from the specific situation in Gaza.
And further, a law without an enforcement mechanism that requires a more powerful force to lay down its arms against a less powerful one is even less of a law.