Israeli Military
Action in Gaza and The U.S. Response
By Frederic L. Kirgis
April 2001
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.
__________________________________________________________________________
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