The Origins of International Humanitarian law and its relevance today
The legality of the continuing Israeli occupation of the territories seized in the 1967 war, specifically Gaza, East Jerusalem and the West Bank together with the seemingly wanton killing of civilians and destruction of hospitals in Raqqa by the Syrian and Russian military demand an invocation of international humanitarian law to counter such barbarity and hold those responsible for such atrocities legally accountable.
The realm of international law comprising of international humanitarian law ‘grew out of centuries of primarily customary law.’ (Alston, p.70). Such customs were the historical result of multilateral declarations and treaties of sovereign states governing the rules for waging war and treatment of civilians.
Issues pertaining to the ‘protection of wounded combatants, prisoners of war, civilian populations and medical and religious personnel’ are regulated by the four Geneva Conventions and its two protocols.
For instance, Protocol I ,171 parties and Protocol II, 166 parties ‘constitute the principal contemporary regulation of jus in bello: of how war is to be fought.
These treaties, together with the Hague Conventions, underpin ‘the ideal of reducing human suffering’ by laying down:
‘broad standards like proportionality in choosing military means or like the avoidance of unnecessary suffering …employed to draw the line.’ ( Alston, p. 70)
Violence in Gaza: Self-defence or War Crimes?
The Israeli Defence Force’s (IDF) purported use of lethal force in the Gaza Strip since March 30th 2018 against Palestinian demonstrators who posed no imminent threat to life may amount to war crimes.’ ( Human Rights Watch 2018). Over a 100 Palestinians were killed by Israeli snipers and thousands were wounded with live ammunition, while 4 Israeli soldiers were wounded according to the Human Rights Watch.
Israel’s claim that most of those who were shot by the IDF belonged to Hamas or supported the organisation is unsupported by witnesses interviewed by the Human Rights Watch.
‘Human Rights Watch interviewed Abd el-Rahman Abu Qamar, a 14-year-old boy, at his bedside at al-Shifa hospital on May 17. He said he was running away from teargas and shooting and was about 200 meters from the fences east of Gaza City when he was shot in the leg at about 2 p.m. on May 14.
His brother, Malek, 18, who went with his brother to the demonstration, said they were in a large group “chanting for Jerusalem.” Malek said Israeli forces fired on the group and he hit the ground to avoid the bullets, and then saw a paramedic and a civil defense worker evacuating Abd el-Rahman.’ ( Human Rights Watch 2018)
Are the Palestinians in Gaza protected by the Geneva Convention?
One is left with the inevitable question of whether the Israeli government’s argument that they had acted only in self-defence to prevent a breach of the Gaza fence was a justifiable response to a unjustifed threat to Israel.
Article 3 of the Convention (IV) relative to the Protection of Civilian Persons in Times of War, 1949 (The Geneva Convention) states that:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
Human Rights Watch documents cases in which ‘Israeli forces shot protesters who posed no imminent threat to life in the upper body, indicating that Israeli soldiers may have intended to kill them.’ HRW reports that:
‘One witness said he was shot in the back at a distance of 200 meters from the fences, with the bullet exiting his chest. Another said he saw a civil defense worker fatally shot in the chest 200 meters from the fences.
Another witness said he saw a man in his 50s who was shot in the head when he approached to within 15 meters of the fences while holding a Palestinian flag. Two witnesses said they saw a man who was fatally shot in the head while being evacuated from close to the fences after being shot in the arm.’
It is argued that violence against unarmed civilians who were peacefully protesting their unlawful imprisonment on the Gaza strip by Israel was a clear violation of the 4th Geneva Convention’s prohibition against ‘violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture’ (Art 3(1)(a)).
Were the IDF soldiers engaged in the cold blooded murder and mutilation of the Palestinian protestors when they shot live rounds into the legs and bodies of more than 6000 Palestinians, or were the IDF acting in self-defence?
Consider the grossly disproportionate response evinced by the IDF in response to the largely non-violent Palestinian protestors:
‘During the weekly protests, the Israeli military shot and killed protesters on the basis of a policy, according to public statements by Israeli officials and a submission to Israel’s supreme court, to use live ammunition against people who approached or attempted to cross or damage the fences.
The vast majority of protesters were unarmed. Some threw rocks and “Molotov cocktails” (improvised gasoline bombs), used slingshots to hurl projectiles, launched kites with incendiary materials, and sought to damage the fences between Gaza and Israel.’ (Human Rights Watch 2018)
It is submitted that a governmental policy that endorses a ‘shoot to kill’ order against any protestor who drew near to the Gaza fence may be considered by some as reflecting Israel’s political right to defend its territorial sovereignty.
But to use live ammunition to kill and maim defenceless unarmed women and children under the ideological guise of protecting one’s territorial sovereignty speaks of a form of brutish barbarism, which can never be legitimized under international law.
The political scientist and scholar, Norman Finkelstein argues:
‘this professed concern for the sanctity of the Gaza “border” is opportunistically selective. Israel invades Gaza at will; only when Palestinians seek to cross in the other direction does the fence become sacrosanct.’ (JACOBIN 2018)
The real issue here does not concern Israel’s use of self-defence, but has to do with the rights of an oppressed people to protest against decades of physical, emotional and economic tyranny that Israel as a belligerent occupier had endlessly subjected them to. It is argued that Israel practices a ‘cruel, unjustifiable policy, which sentences the nearly two million people living in Gaza to a life of abject poverty and nearly inhuman conditions.’ (B’TESLEM 2017).
Consider the deplorable ‘living’ conditions of the people in Gaza:
‘Infrastructure and public services in Gaza are in dire condition. Of the water pumped in the Gaza Strip, 96.2% is contaminated and unpotable. Residents must buy desalinated water.
Electricity is supplied for just a few hours every day, partly because of a fuel shortage caused by high costs, and partly because of restrictions Israel imposes on the entry of spare parts to maintain existing systems – including repairing the power station Israel bombed in 2006.
The electricity shortage affects water and sewage systems as well, which rely on a constant supply of power and barely function without it.’ (B’TESLEM 2017).
Given these horrific living conditions that nearly 2 million men, women and children have had to face daily in what has been described as the ‘World’s largest open-air prison’ (NRC 2018), it is entirely unsurprising that these resilient people desire the right to self – determination, to live free lives.
Imagine, for a moment, that you were living among the Palestinians, if only for a day, deprived of the basic medical necessities to sustain life, your children drinking water contaminated by sewage, your loved ones languishing in damaged or destroyed hospitals and homes without electricity for about 4 hours everyday, constantly fearful of indiscriminate bombings of civilian homes by Israeli fighter planes, would you not rise up to resist your oppressors as the Palestinians do?
Israel’s argument that Hamas was making use of Palestinians as human shields to further violence against Israel sounds strangely familiar as it was a repetition of similar arguments raised by the Israeli government during Operation Cast Lead (2008) during which ‘some 1400 Palestinians were killed …of whom up to four-fifths were civilians and 350 children’.( Finkelstein, p. 68, quoting Palestinian Centre for Human Rights , 12 March, 2009).
What possible reason could the Israeli government have for denying any culpability in the killings of the civilians in 2008 when Human rights organisations such as Amnesty International found that: ‘Contrary to repeated allegations by Israeli officials of the use of ‘human shields,’ …no evidence that Hamas or other Palestinian fighters directed the movement of civilians to shield military objectives from attack.’ (Finkelstein, p.70)
Amnesty research findings did however inculpate the Israeli Defence Forces (IDF) in their use of Palestinian civilians as human shields.
‘But in fact, Israeli soldiers used civilians, including children, as human shields, endangering their lives by forcing them to remain in or near houses which they took over and used as military positions…. and the post-invasion testimony of Israeli soldiers corroborated the IDF’s use of human shields.’ ( Finkelstein , p. 71, quoting from ‘Breaking the Silence, Soldiers’ Testimonies from Operation Cast Lead, Gaza 2009 pp.11-12)
Israel: Apparent War Crimes in Gaza, Human Rights Watch, June 13, 2018.
‘Gaza, An Inquest into its Martyrdom’, Norman Finkelstein, University Of California Press, .
Treaties, State Parties and Commentaries’, ICRC.
‘Israel’s right of self-defence against Gaza’, JACOBIN, 27 July 2018.