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Israel’s actions in Gaza and international law

By Atif Raza | MEMO | October 23, 2023

The developments of the past few days in the Middle East have once again laid bare the brutality of decades-long conflict in Palestine, its grave impact on civilians and implications in the region and beyond. Palestinian people, who have been driven from their homeland, sometimes multiple times, continue to suffer under the oppressive control of the occupation and a ruthless and inhuman regime of apartheid. The Gaza Strip, in particular, has been reeling under the heavy yoke of blockade and siege for over a decade and half.

Beyond occupation of Palestinian territories, unequivocally considered illegal under international law and the primary cause of vicious cycles of violence in the holy land, there is a need to dissect Israel’s actions from the perspective of “laws of war” – the body of international law which in essence is concerned with minimising the impact of war and human suffering and protection of civilians.

As observed by the International Court of Justice in its Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, international human rights law is applicable at all times, including during the time of conflict and hostilities. International humanitarian law (IHL) is applied as lex specialis of human rights law during armed conflict.

The longstanding position by the United Nations is to view Israel as an occupying power in the Palestinian territories. Specifically with regards to Gaza, the circumstances of “effective control by Israel” have led the United Nations to believe that the “Gaza Strip remains occupied by Israel.” The first report of the Independent Commission of Inquiry submitted to the United Nations General Assembly in October 2022 also confirmed the Israeli occupation of Palestinian territory to be “unlawful under international law due to its permanence and the Israeli Government’s de-facto annexation policies.”

Therefore, the United Nations has concluded that the provisions of the Fourth Geneva Convention apply with regards to obligations of Israel towards the people of Gaza. Whilst the first three Geneva Conventions dealt with combatants; the Fourth Geneva Convention is concerned with the protection of the population from the consequences of war and occupation.

It may also be noted that IHL is applicable on belligerents regardless of their status: state or non-state actors. Therefore, combatants are required to observe the law at all times and in all conditions. Another important point is that the provisions of international law are valid and must be followed even when the other party is considered to have violated them.

Broadly, “laws of war”, the codified body of international law as well as customary practice, require the parties to ensure:

• the protection of civilian population and their basic rights;
• discrimination between combatants and non-combatants;
• observe proportionality;
• avoid excessive use of force that would harm unarmed civilians, their properties and civilian infrastructure, especially schools and hospitals;
• allow unimpeded access to humanitarian assistance;
• save civilians and wounded combatants from degraded treatment or torture.

While keeping these “rules of war” as our guide, let us now examine if Israel’s actions in Gaza are compatible with the norms of international law:

1. Protection of civilians: Given the dense population of Gaza and Israel’s decades-long occupation decimating wide swaths of civic life, any military action and use of force would only add to the suffering of the civilian population and thus be contrary to the letter and spirit of international human rights law as well as international humanitarian law. Article 32 of the Fourth Geneva Convention specifically prohibits “physical suffering or extermination of protected persons.” As of now, Israel’s military actions have resulted in the killings of over 4,200 people in Gaza, including women, children, elderly, journalists and health workers. The heavy loss of civilian life in Gaza, especially after incendiary and fiery rhetoric of Israeli senior officials, could be considered war crimes.
2. Safeguarding basic rights: Israel’s decision to cut power, food, fuel and medicine to Gaza is also contrary to international law as well as basic human rights. Such Israeli measures, as pointed out by several governments and international organisations, amount to “collective punishment” and war crimes. The action of a belligerent entity, regardless of its status, cannot provide justification to subject the civilian population to cruel treatment and deprive them of protections guaranteed under international law.
3. Principles of proportionality and discrimination: In the past few days, Israel has pulverised wide areas of Gaza indiscriminately, including civilian properties and businesses. Indiscriminate and disproportionate targeting and the use of heavy weapons in urban areas that are sure to affect civilians are prohibited under IHL. The choice of weapons is not unlimited and parties are obliged not to use excessive force beyond the necessity of achieving specific military targets. Israel’s aerial bombardment and the use of indiscriminate weapons such white phosphorus in densely populated areas amount to a breach of provisions of international humanitarian law.
4. Siege as a method of warfare: As explained above, Gaza has experienced military blockade of land, sea and air by Israel for decades. On top of that, the Israeli defence minister’s announcement of a “complete siege” is against all norms of international law and civilised conduct. According to Tom Dannenbaum, an expert of international humanitarian law at Fletcher School, the statement represented an “unusually clear-cut example of starvation of civilians as a method of warfare, which is considered a violation of international humanitarian law, a crime against humanity and a war crime.” Article 55 of the Fourth Geneva Convention demands the occupying power “the duty of ensuring food and medical supplies of the population.” The notion of “complete siege” runs counter to such clear requirements of international humanitarian law.
5. Forcible transfer of civilians: Israeli authorities have also warned civilians living in the north of the Strip to move to south within a very short period of time. Such pronouncements have been declared incompatible with international humanitarian law. Article 49 of the Geneva Convention requires that “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” The relocation of civilians in a confined and overcrowded place like Gaza is particularly tricky and risky. Even if touted as a temporary refuge, though Israeli authorities have intentionally not provided the rationale and details behind such pronouncements, it carries the danger of turning into long-term displacement, especially painful from the experience of Palestinians. Israel’s warnings have been widely condemned by the United Nations, several governments and international human rights organisations.
6. Access to humanitarian assistance: One of the cardinal requirements of international humanitarian law is the provision of unimpeded access to humanitarian assistance. In the case of Gaza, the whole territory is under Israel’s blockade and only viable connection with the outside world – Rafah international border crossing with Egypt – opened only on Saturday and only to a very limited number of aid trucks (less than four per cent of the daily amount of good delivered prior to Israel’s recent bombing campaign). Adding to the agony of trapped civilians, Israel has targeted the border crossing several times in the past week. This also runs counter to the international humanitarian law and amounts to war crimes.

In addition to international humanitarian law, international criminal law is applicable during the situations of armed conflict and occupation. The breach of international humanitarian law would itself constitute crimes under international criminal law. As concluded by the UN Commission of Inquiry, “some of the policies and actions of the Israeli Government leading to permanent occupation and de-facto annexation may constitute elements of crimes under international criminal law, including the war crime of transferring, directly or indirectly, part of one’s own civilian population into occupied territory, and the crime against humanity of deportation or forcible transfer.”

And this was before the current cycle of violence. In the midst of intensification of occupation and apartheid, Palestinians are again being subjected to war crimes, crimes against humanity and ethnic cleansing. The world must not watch silently but correct historical injustices and bring the perpetrators to justice with the full and effective implementation of international law.

October 23, 2023 - Posted by aletho | Ethnic Cleansing, Racism, Zionism, Timeless or most popular, Video, War Crimes | Gaza, Human rights, Israel, Palestine, Zionism