Scott Ritter: Russia, Israel, and the Law of War Regarding Civilians

There has been much discussion in the aftermath of Hamas’ October 7 attack on Israeli military bases and settlements in the vicinity of Gaza related to issues of legitimate self-defense and the legality surrounding Israel’s use of force in response to that attack.

Inevitably, this discussion leads to an effort to compare Russia’s conduct in the Special Military Operation with Israel’s behavior to date regarding Gaza. The particular example of Mariupol is often raised as a point of comparison with the ongoing Israeli operation in Gaza. While it is far too soon to be able to make such a direct comparison of those two battles, one can examine the foundation of international law relied upon by both Russia and Israel in justifying their respective military operations. Sadly, Israel is found wanting.

Russia has cited the inherent right of individual and collective self-defense, as enshrined in Article 51 of the Charter, as justification for the initiation of its military operation.

Article 51 reads as follows:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

In his address announcing the initiation of the special operation, Russian President Vladimir Putin laid out a case for pre-emption, detailing the threat that NATO’s eastward expansion posed to Russia, as well as Ukraine’s ongoing military operations against the Russian-speaking people of the Donbass.

NATO and Ukraine, Putin declared, “did not leave us [Russia] any other option for defending Russia and our people, other than the one we are forced to use today. In these circumstances, we have to take bold and immediate action. The people’s republics of Donbass have asked Russia for help. In this context, in accordance with Article 51 of the U.N. Charter, with permission of Russia’s Federation Council, and in execution of the treaties of friendship and mutual assistance with the Donetsk People’s Republic and the Lugansk People’s Republic, ratified by the Federal Assembly on February 22, I made a decision to carry out a special military operation.”

Russia’s President set forth a cognizable claim under the doctrine of anticipatory collective self-defense as it applies to Article 51, citing the ongoing, imminent threat to the Russian-speaking population of the Donbass from a brutal eight-year-long bombardment that had killed thousands of people.

For its part, Israel has repeatedly cited its inherent right to self-defense when justifying its ongoing military operations in Gaza. But Russia’s Ambassador to the United Nations, Vassily Nebenzia, has rejected that claim, declaring that, “as an occupying power, it [Israel] does not have that power.”

Nebenzia’s argument is founded in a 2004 advisory opinion written by the International Court of Justice. “Article 51 of the Charter,” the court wrote, “thus recognizes the existence of an inherent right of self-defense in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State.”

The ICJ did not say that “Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population,” adding that Israel “has the right, and indeed the duty, to respond in order to protect the life of its citizens.” However, the ICJ found, any measures taken by Israel must be “in conformity with applicable international law” As such, in so far as Gaza and much of the land that currently constitutes the territory of Israel can be considered “occupied territory” under international law, and noting that the threat Israel is responding to originates from within, and not outside, this occupied territory, Israel cannot invoke the right of self-defense based upon any claim of a “state of necessity” in order to preclude the wrongfulness of its occupation of Palestinian territory, under Article 51 of the UN Charter.

According to Nebenzia, Israel’s right to security “can be fully guaranteed only in the case of a just solution to the Palestinian problem on the basis of the well-known UN Security Council resolutions. We don’t deny Israel’s right to fight terror,” the Ambassador noted, “but fight terrorists and not civilians.”

Having established that Russia, in its conflict with Ukraine, has acted in conformity with international law by adhering to the requirements set forth under Article 51 of the UN Charter regarding self-defense, and that Israel is, due to its status as an occupying power operating in direct contravention of international law, not able to cite legitimate self-defense under Article 51 as a justification for its actions, the question now moves on to the question of whether or not either Russia or Israel executes their respective military missions in a manner which conforms to the standard set under international humanitarian law.

The key considerations that distinguish a legitimate act of war from a war crime is the concept of “military necessity.” Military necessity, by definition, “permits measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by international humanitarian law. In the case of an armed conflict the only legitimate military purpose is to weaken the military capacity of the other parties to the conflict.”

The issue of “distinction” becomes paramount when discussing any question of “military necessity.” The notion of “distinction” ensures that parties to an armed conflict must “at all times distinguish between the civilian population and combatants and between civilian objects and military objectives, and accordingly shall direct their operations only against military objectives.” The distinction prohibits “indiscriminate attacks and the use of indiscriminate means and methods of warfare,” such as carpet bombing, or an artillery bombardment which lacked a specific military purpose.

“Military necessity” and “distinction” serve as the core principles around which the international community has codified specific acts that constitute war crimes in the form of the Rome Statute of the International Criminal Court, in particular Article 8 (War Crimes). These include:

Regarding their respective battles for Mariupol and Gaza, both Russia and Israel have been accused of engaging in activity that violates all of the acts described above. The main point that distinguishes Russia from Israel in this regard is that Russian doctrine specifically prohibits the behavior described. Israeli doctrine, both written and spoken, embraces it.

During the 2006 Lebanon War, Israel Defense Force Northern Commander Gadi Eisenkot implemented a military strategy that sought to target and destroy entire civilian areas rather than engage in difficult and dangerous ground combat necessary to capture them. The goal of this strategy was more than simply trying to reduce Israeli casualties—the stated purpose of this new approach was to hold the entire civilian population accountable for the actions of Hezbollah fighters. Eisenkot did away with the requirement under international law to distinguish between military and civilian targets. This new doctrine was first used on the West Beirut Dahiya neighborhood, and the doctrine took its name from this location—the “Dahiya” Doctrine.

The “Dahiya Doctrine” specifically calls for the deliberate targeting of civilian populations and civilian infrastructure for the specific purpose of causing suffering and severe distress throughout the targeted population. The goal was to simultaneously destroy any enemy in the targeted area, to intimidate the targeted population into turning on the militants (in the case Hezbollah), and to deter other population centers from supporting Hezbollah. The “Dahiya Doctrine” was used extensively against Gaza since 2008, killing thousands of civilians. In its definition and through its execution, the “Dahiya Doctrine” amounts to nothing less than state terrorism, which means that the Israeli military, through its implementation of this policy, has become a state sponsor of terrorism.

As the facts emerge about the performance of the Russian military during the battle for Mariupol, it becomes crystal clear that the Russian soldiers behaved in an exemplary fashion, putting themselves at risk to ensure that the principles of distinction and military necessity were applied liberally and well within the spirit and letter of international law.

One cannot make a similar claim about the Israeli Defense Force and Gaza, where the "Dahiya Doctrine" is being executed with a vengeance.