Introduction
You take my water, burn my olive trees, destroy my house, take my job, steal my land, imprison my father, kill my mother, bombard my country, starve us all, humiliate us all, but I am to blame: I shot a rocket back.
Noam Chomsky
On October 7, 2023, the Palestine-based group Hamas launched an armed attack on Israeli cities, killing nearly 1,200 citizens. Immediately after Hamas’ attack, Israel declared that it was at war, and it would take “mighty vengeance” upon Hamas. It retaliated by launching a prolonged offensive on Gaza by air and ground, killing nearly 20,000 Palestinians. The United States justified the legality of Israel’s actions, arguing that Israel has a “right to defend itself.” This has prompted a wave of international criticism, with many arguing that Israel cannot claim “self-defence” against Hamas under international law. However, I seek to explore this question through a different lens. If Israel’s actions cannot be justified as “self-defence”, can its actions be justified as reprisals? In this essay, I use the Israel-Hamas conflict as a stage to examine whether reprisals can be justified against non-State actors; and if so, with what limits?
First, I will introduce the concept of reprisal, and distinguish its purpose, and legality from self-defence. This will set the context for reprisals in the contemporary international framework. Second, I will examine whether reprisals can be taken against non-State actors, and what the implications of this answer are. Finally, I will explore whether Israel’s acts could be justified as reprisals. In doing so, I will explore the limits of reprisals, and whether Israel complied with them. I conclude by arguing that while reprisals can be exercised against non-State actors, Israel’s actions were unjustifiable since they exceeded the limits of reprisals.
Reprisals: What Are They, And Are They Legal?
In this section, I will define the concept of reprisals, and discuss its scope and legality in international law. While reprisals are notoriously hard to encapsulate in a single sentence, there is consensus that they are different from acts of self-defence. Broadly, reprisals are countermeasures to force another State to abide by its international law obligations. Unlike self-defence, they are not necessarily preventive or pre-emptive but arise as a response to a State’s breach of international obligations. Thus, they differ primarily in purpose. Self-defence seeks preservation, and reprisals seek reparation. Some have also argued that reprisals have a “punitive” element.
After the emergence of a new international order post World War II, the international community converged on the position that reprisals were illegal under international law. On the other hand, self-defence was recognised as legal under Article 51 of the UN Charter and as a rule of customary international law. However, scholars have argued that Article 51 does not permit the use of reprisals. This position was supported by the Security Council and General Assembly Resolutions, which denounced the use of reprisals as part of Article 51.
Nevertheless, the debate about their legality has made a comeback in international law, with some arguing that reprisals are largely prevalent in State practice and should be legal, particularly after Al-Qaeda’s 9/11 attacks. The UNSC enthusiastically affirmed a US intervention in Afghanistan on Al-Qaeda as ‘self-defence’, when such an attack would be more in the nature of a reprisal. It is noteworthy that characterizing such a retaliatory action as an act of self-defense, particularly in the preventive context outlined in Article 51, presents challenges in the interpretation, as a ‘strike-back’ inherently deviates from the envisioned preventive self-defense framework.
Following this, the UK, Israel and other countries used the justification of self-defence and ‘anticipatory self-defence’ for actions that more closely resemble reprisals. These actions were affirmed by States and even implicitly endorsed in UNSC resolutions, such as the resolution condemning attacks on ISIL.1 This shift in State practice suggests that the line between reprisals and “anticipatory self-defence” is blurring. Self-defence is being used as a cover for the “functional equivalent” of reprisals.
Given this contested and prevalent nature of reprisals, could Israel justify its actions as a reprisal, if not self-defence? To explore this question, we must ask the question – Against whom can a state launch reprisals?
Could Reprisals Be Justified Against Non-State Actors?
Reprisals have ordinarily been discussed as being taken against States. Scholars and judges have discussed whether actions of self-defence can be taken against non-State actors, but there has been no discussion on whether reprisals can be taken against non-State actors. However, I believe that evolving State practice suggests that reprisals may extend to non-State actors. I argue that State practice has ‘evolved’ from mere self-defence to reprisals against non-State actors.
The conventional method of justifying the use of force against non-State actors was by attributing the attack to a State, or the failure of a State. However, this method of attributing acts to a State fails in the Israel conflict, since it is not clearly established if Palestine is a State. Thus, we must look at whether force could be used against a non-State actor without reference to a State. The majority of the ICJ in The Wall held that any act of self-defence must be imputable to a State. J. Higgins dissented, arguing that Israel had a right to self-defence against threats emanating from Palestinian territory. He rejected the ‘doctrine of attribution’ formulated in Nicaragua, holding that the injuries caused need not be attributed to a State. In Uganda Armed Activities, J. Kooijmans delivered a separate opinion along similar lines. He held that the right to self-defence can be exercised against non-State actors, even if the acts are not attributed to a particular State. In the same case, J.Simma also held that the use of self-defence post 9/11 suggests that it can extend to non-State actors. While these do not establish authoritative or binding interpretations of self-defence, they are significant precedents for reprisals since they set the backdrop for State practice against non-State actors.
Now that we have seen some of the legal bases for the use of self-defence against non-State actors, let us look at prevailing State practice on this issue. While scholars emphatically write that reprisals are illegal, States engage in them routinely. In 1954, Israel’s assault on Nahallin in Jordan was unaddressed by the UNSC. In the Israel-Egypt conflict, the UNSC again refused to condemn Israel’s assault on Egypt’s oil refineries, which was in response to Egypt’s destruction of an Israeli ship. Israel’s air strikes on Jordan in 1966-69 were not condemned by the UNSC. UNSC’s endorsement of the US response to Al-Qaeda after 9/11 is the most prominent use of a reprisal cloaked as “self-defence”. Further, in 2015 the UNSC did not condemn Britain’s attacks against ISIL in Syria. This rise of terrorism has been particularly important in altering the scope of self-defence in State practice to include reprisals. A member of the ILC, David Bowett argues that this State practice serves as evidence for the weakening of the prohibition against reprisals. Not only that, this State practice (particularly with respect to ISIL and Al-Qaeda) serves as evidence that these reprisals are accepted against non-State actors. Thus, we have that through State practice, the scope of self-defence has broadened to include reprisals against non-State actors.
Even if Israel’s actions could be justified as reprisals against Hamas, this does not mean that its actions are legal. There are limits on the use of reprisals, which I will explore in the next section.
The Limits of Reprisals: Has Israel Has Exceeded Them?
Despite its contested legality, there are several generally agreed-upon limitations on reprisals. This issue first arose in 1928 before an arbitral tribunal in Nauliaa. It established that there are three requirements for conducting reprisals – they must be in response to illegal activity, there must be an attempt at non-violent redress, and the reprisal must be proportional in response. Subsequent developments in international law, such as in Nicaragua, Armed Conflicts and The Caroline have confirmed these three limitations. In this section, I will trace these three limitations and suggest that Israel has failed to observe all of them in its reprisals against Hamas.
First, the principle of proportionality is accepted as part of customary international law, and the UNGA has even affirmed its applicability to the Israel-Hamas conflict. The question arises; proportional to what? Some argue that it must be proportional to the act being responded to; while others argue that it must be proportional to the reparation that the reprisal seeks. Regardless of which standard, the prohibitions on the excess taking of civilian life would apply. In response to Hamas’ October 7 attack, Israel has continued a months-long siege that includes bombing by air in the residence of civilians. The Palestinian death toll is estimated to be 20,000, whereas Israel’s is around 1,200. Further, civilians locked in the area are suffering from starvation, given that the supply of essentials has been cut off. These actions could hardly be justified as proportional, regardless of the resulting military advantage.
Second, the requirement of “necessity”, has also been settled as part of customary international law. Necessity provides that the objective can only be achieved by the measures in question, and not through peaceful means. The customary test of necessity is derived from The Caroline; that the measures taken must be “instant, overwhelming, leaving no choice of means and no moment for deliberation.” It is not clear Israel’s actions met this standard. A prolonged bombing of Gaza is a calculated and sustained response to Hamas’ attacks. Even if Israel’s objective is to eliminate Hamas entirely, it is questionable whether an air strike is necessary to achieve this.
Third, limits to reprisals are incorporated in the Additional Protocols of the Geneva Convention and ILC’s Draft Articles on State Responsibility. These include the prohibition of reprisals against civilians, wounded and so on. However, Israel has not signed the Additional Protocols, arguing that it is a “persistent objector” to the customs on prohibitions in the use of reprisals. Regardless, Israel is still bound to observe the principles against genocide or hostilities against civilians, as the ILC notes these are jus cogens norms. Given that the bombings were spread across a large area of the Gaza Strip, it is clear that some of the hostilities were directed at civilians. Further, many have argued (as South Africa did in its application before the ICJ) that Israel’s systematic actions against Palestine can be characterised as “genocide”. While I do not explore this question here, the circumstances strongly suggest that Israel is in derogation of jus cogens norms. Thus, even if Israel could claim to take reprisals against Hamas, it has not observed the limitations of reprisals.
Conclusion
In this piece, I have examined the legality of reprisals against non-State actors in the backdrop of the Israel-Hamas conflict. I began by tracing the development of the concept of reprisals and demonstrated that reprisals may have a role to play in our international framework. In this light, I used State practice to conclude that reprisals against non-State actors have developed as an outgrowth of self-defence. Finally, I analysed the legality of Israel’s reprisals, keeping in mind the international law limitations on reprisals. I conclude by suggesting that even if Israel justifies its act as a reprisal against a non-State actor, it has not observed the limits of reprisals. Moving forward, there is much scope for the revival and development of the scope of reprisals. This would allow international law to regulate reprisals; so illegal acts can be responded to effectively, while still protecting the rights and integrity of States and its citizens.
[1] See UNSC Res 2249 (2015) UN Doc S/RES/2249 UNSC.
Prem Parwani is an undergraduate student at the National Law School of India University, Bangalore.
Image: Leila Register / NBC News; Getty Images
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