Israeli Military Action in Gaza and The U.S. Response
On April 17, Israeli military forces, after what was described in the press as fierce bombardment of Palestinian security positions in Gaza, took control of a square mile of territory in the Gaza Strip (territory that had been transferred to Palestinian control pursuant to the 1993 Oslo accords) and announced plans to hold it indefinitely as a buffer zone. The Israeli action was in response to a Palestinian mortar attack on Sederot, a town in Israel about four miles from the border with Gaza. The Israeli government explained its action as part of its ongoing effort to defend Israel from Palestinian violence.
United States Secretary of State Colin Powell issued a statement that said in part, "The hostilities last night in Gaza were precipitated by the provocative Palestinian mortar attacks on Israel. The Israeli response was excessive and disproportionate. We call upon both sides to respect the agreements they've signed." Shortly after Secretary Powell's statement was issued, the Israeli army announced that it was withdrawing from its positions in Gaza. The army withdrew, though it returned for 45 minutes the next day and destroyed a police station. The Israeli government denied that it had yielded to U.S. pressure to withdraw, but Israeli state radio and some others said the withdrawal was a response to U.S. pressure.
Customary international law is developed in a number of ways. One prominent way is through a process of assertion and acquiescence. Governments assert that they have a right to do something or that another government has no right to do what it is doing or proposes to do. If the other interested government(s) acquiesce in the assertion, a precedent is set. Such a precedent is not necessarily authoritative, and is subject to interpretation or even rejection over time. Like all precedents in domestic as well as international law, it is limited by its particular facts. If a comparable fact situation later arises (even if it is not exactly the same as the earlier one), government officials and other decision-makers may apply the precedent by analogy or may attempt to distinguish it from their situation. As they do so, they may confirm, expand or limit the precedent.
Under customary international law, the right of self-defense depends on both necessity and proportionality. It must be necessary to use armed force (rather than peaceful means) to defend oneself, and the use of armed force must be proportional under the circumstances. Although Secretary Powell did not expressly mention international law, his statement was tantamount to an assertion that Israel had violated the self-defense proportionality standard. Thus, if Israel did yield to U.S. pressure after Secretary Powell called the Israeli action "excessive and disproportionate," it could be interpreted as an acquiescence in a U.S. assertion that Israel acted beyond the permissible bounds of self-defense. As has been indicated above, the exact scope of any such precedent remains to be seen. The key facts appear to be: the Palestinian mortar attack on an Israeli town; the Israeli counter-attack; the seizing of territory within the recognized control of another political entity (here, the Palestinian Authority) with the announced intention to stay indefinitely; the assertion by a third state (here, the United States) that the action is disproportionate; and the withdrawal of armed forces.
International incidents can be sources of state practice (and thus can influence the development of international law), but care must be taken not to make too much of any one such incident.
About the Author
Frederic L. Kirgis is Law School Association Alumni Professor at Washington and Lee University School of Law. He has written a book and several articles on United Nations law, and is a member of the Board of Editors of the American Journal of International Law.