Gaza and Israel: What Do Calls for “Restraint” Really Mean?

International reactions to the violence that erupted this week on Gaza’s border with Israel have taken shape around a somewhat familiar refrain – a call for restraint.   Some actors, like the European Union, have urged mutual restraint, as in the EU’s “We expect all to act with utmost restraint to avoid further loss of life.”  Others, like the UK and China, have tilted their calls to Israel, as in the latter’s “call on both sides, especially Israel, to maintain restraint.”  The United States, for its part, stated that Israel had, in fact, already acted with “restraint,” even as many states condemned its use of lethal force, in particular on 14 May 2018.

Demands on parties to a conflict, or even a non-violent dispute, to exercise restraint are hardly unique to the current Israeli-Palestinian morass.  The Security Council routinely calls on the parties to a conflict, international or civil, to do so, sometimes clarifying certain expectations (e.g., avoiding violence), but in other situations not specifying exactly what conduct constitutes restraint.  (Examples include resolutions 2238 (2015) on Libya and 2337 (2017) on Gambia.)  So does the Secretary-General.  It’s not hard to decode this diplomatic messaging. Sometimes actors prefer the call for restraint to something more specific, whether a legal condemnation of one side or a specific prescription for future conduct.  The ICRC, with its sense of identity so tied to neutrality between warring parties, frequently calls on parties to exercise restraint for this self-conscious reason.

So does a demand to one or both sides to act with “restraint” reflect some sort of legal claim?  Is it asking the parties to act on a legal duty?  Or is it requesting something supererogatory—something not legally required but morally good?  Or is it in some vague middle?  A review of sources of international law suggests that a number of clear legal obligations fall within the bounds of restraint, and, moreover, that international legal practice supports a broad duty of restraint by parties in situations of violence or significant risk of violence.

In the case of the Gaza demonstrations, the calls for restraint take place against a background where the sides offer clashing legal claims and competing factual narratives.  Israel defends its actions based on the right to self-defense, which it asserts justifies lethal force in response to attacks on its border.  It couples this claim with an accusation that Hamas puts Gazans in harm’s way by encouraging the assault on the border fence and co-mingling Hamas militants with civilians.  For Hamas, or the Palestinians, the justification for the demonstrations and actions near the fence would seem (this is more my characterization than anything stated by any official Palestinian source) to be (1) the illegality of the occupation of the Palestinian Territories in light of the Palestinians’ right of self-determination; (2) relatedly, the denial of the Palestinians’ right to return to their former lands in Israel; and (3) intolerable living conditions in Gaza.  I will not argue here who has the stronger legal claims in this regard – I think many readers have probably made up their mind anyway.  Some of the facts remain contested and uncertain regarding the incidents as well.

On the legal content of “restraint,” certainly the term should be read to include some clear, extant legal obligations.  Assuming the border clashes do not rise to the level of an armed conflict between Israel and Hamas,  then restraint indeed encompasses stringent legal duties.  Restraint by Israel would need to include avoidance of lethal force except in imminent defense of the lives of Israelis or Palestinians, the standard position regarding law enforcement in human rights law – as suggested by both the Office of the High Commissioner for Human Rights and the head of the UN’s peacekeeping operation (UNTSO) in his statement to the Security Council [at 3:57]. Unless the facts demonstrate that individuals were threatened with immediate harm, avoidance of lethal force would be a legal duty.

As for Hamas, restraint encompasses a legal obligation not to use the territory of Gaza to carry out attacks on border positions against Israel and a duty of due diligence to ensure that Palestinians on their territory do not do so.  Theses duties on a state (and presumably a quasi-state actor like Hamas) regarding its own conduct and those of persons on its territory are well-accepted, including in the authoritative 1970 UN Friendly Relations Declaration, and more generally as reiterated by the International Court of Justice in the Tehran Hostages Case (paragraph 63) and the Nicaragua Case (paragraphs 155-160).  At the same time, one’s views on whether Gaza is occupied and whether Palestinians are denied their right of self-determination will play a role here too.  If international law does not prohibit some acts of violence by individuals to carry out resistance to occupation or in pursuit of self-determination (which seems to be the case if those acts are not against civilians), then the sort of restraint just suggested may go beyond a legal duty on Palestinians.

If one sees the demonstrations as part of an armed conflict between Israel and Hamas (the Israeli position, which does not seem to be shared by other states), then restraint encompasses fewer, but still important, legal duties.  It includes the obligation on Israel not to target civilian protesters and to use force according to the principle of proportionality.  Indeed, the EU statement calls on Israel to “respect . . . . the principle of proportionality in the use of force” (although this principle also applies under human rights law, so the EU statement does not suggest acceptance of the situation as an armed conflict). Restraint also captures a legal duty on the parties not to direct civilians in harm’s way in order to shield military targets from attack (AP I, Art. 52(7)).  So restraint by Hamas must include cessation of efforts to encourage or direct civilians toward area where its forces are attacking the fence, and maybe Israelis on the other side of it.

It would be a distorted appraisal of international expectations, however, to limit restraint to these specific legal duties.  For in many ways international law endorses a broader notion of restraint — one that, while perhaps not a hard legal duty, is certainly more than merely a best practice or good policy.  That idea is best summed up as one of non-aggravation of a dispute, especially when that aggravation is likely to lead to violence, and, a fortiori, when that violence is likely to lead to deaths of many innocent people.

This notion of restraint could be said to have its origins in Article 2(3) of the UN Charter – the requirement that states settle their disputes by peaceful means.  But it is also reflected across different areas of international law.  For instance, the precautionary principle in international environmental law requires states not to use lack of scientific certainty as an excuse to postpone measures to prevent environmental harm.  This is in essence at a minimum a duty not to aggravate a situation when one is not sure of the consequences.  And the UN Convention on the Law of the Sea has provisions aimed at avoiding aggravation of a dispute when one state intercepts the vessels of another (e.g., Article. 225).  Non-aggravation is also the reason that international courts sometimes issue provisional measures pending the final judgment in a case, as the ICJ did in the Georgia v. Russia (para. 149.C) and Cambodia v. Thailand (paragraph 69.B (4)) cases.  Such obligations of restraint or non-aggravation apply across different domains of international practice, and a violent dispute should trigger them.

Indeed, the repeated calls by the Security Council for the exercise of restraint by disputants, combatants, and other competing claimants in the international legal process suggest a clear expectation by states as a whole that parties – not just states — should refrain from reckless measures, even if they see their cause as legally justified.  Recklessness will depend on the circumstances, and this is not the place to elaborate all its details.  But, at a minimum, a state or non-state actor’s conduct is reckless when it takes action, even if otherwise lawful, that has a significant possibility of provoking a violent reaction by others within the cluster of a particular dispute, when less provocative measures are highly feasible.  Restraint and recklessness are opposite sides of a coin.  Of course, the principle has its limits – a state undergoing an armed attack with no possibility of negotiation need not take restraint so far as to persuade an aggressor to stop.

Restraint also has the virtue of being a demand that can attach to many subjects.  In the Israel-Palestine conflict, it means that states that, to put a technical term on it, egg on one side or the other have a responsibility to avoid that sort of behavior too.  Indeed, when those states have a great deal of influence over the competing claimants, the duty of restraint might even entail a positive responsibility to use that influence to urge restraint by their ally.  Restraint thus reflects a broad sense of responsibility, not backward-looking in terms of liability for prior acts, but forward-looking in terms of avoiding catastrophic outcomes.  Restraint is a sort of common but differentiated responsibility – the notion perhaps most easily conceptualized in environmental law that all states must contribute to improving the environment but recognizing that each state’s contribution will vary.  Thus, Israel and Hamas have greater responsibilities compared to the United States and Iran, even though all must do their part.  (From this perspective, the U.S. embassy move certainly seems like a lack of restraint.)

Restraint is a tough demand to swallow when a situation seems hopeless, as with the fate of Gazans today.  It is also difficult for Israelis to accept when they think it puts their soldiers on the border at risk of killing or kidnaping.  But restraint does not mean passivity or surrender.  It simply means that, despite the merits (or one’s perceptions of the merits) of one’s legal claims, certain actions should be avoided; and that the disputing parties must have as their default position the active pursuit of less dangerous alternatives. That is, fully understood, what calls for restraint really mean.

 

Image: Israeli soldiers look out at protesters at the border fence with Israel on May 15, 2018 in Gaza City, Gaza (Photo by Spencer Platt/Getty Images) 

About the Author(s)

Steven Ratner

Bruno Simma Collegiate Professor of Law at the University of Michigan Law School, Serves on the State Department's Advisory Committee on International Law, Formerly Served in the Legal Division of the ICRC in Geneva (2008-2009)