In an increasingly conflict ridden world plagued by brutal military intervention in the lives of millions of individuals living in places such as Gaza, Syria, Nicaragua and Myanmar, international law becomes even more important in providing some degree of protection to civilians who are victims of violence at the hands of a Nation State and its military.
The fact that Sovereign States across the globe continue to wield a monopoly over the right to use physical and psychological violence against civilians and non- civilians alike, a right sanctioned by respective governments and manifested through State militaries and police forces, demands a correlative legal right for victims of State violence to be protected by International law against such brutalities.
Defining the Law of Armed conflict
The law of armed conflict otherwise known as international humanitarian law is twofold in its purpose; First, ‘it regulates the methods of conducting hostilities and the treatment of victims of warfare’ ( Alston, p.404). For instance, the Israeli Defence forces incursions into Gaza and its air strikes of civilian occupied locations are to be measured against the prohibitions and obligations encapsulated in International Humanitarian law (IHL), since its regime applies only in situations of armed conflict and military occupation.’ (Alston, p. 404).
Does Israel’s claim to the engagement of defensive wars against the Palestinians , such as ‘Operation Protective Edge 2014’, exclude it from the legal obligations of IHL enshrined the in 4th Geneva Convention 1949?
States such as Israel which invoke their Sovereign status to defend their borders or their right to self-determination as a justification for using violence against armed or unarmed groups in military conflicts are subject to the same rules applicable to non-state actors. In fact:
“the rules are neither more stringent for a State that aggressively invades another State, nor more relaxed for a State acting in self-defence against an aggressor.” ( Alston, p.404).
It is therefore irrelevant to argue, as States such as Israel do, that the use of military force against certain groups such as Hamas is necessary to defend itself when such indiscriminate forms of violence are used by by the IDF with the knowledge that it will kill or seriously injure innocent civilians as a consequence.
The ideological and political ends do not justify the means employed to achieve such objectives since ‘the rules that apply to conduct during armed conflict ( jus in bello) are separate from the rules that apply to the initial reasons for going to war ( jus ad bellum).
It is inconceivable that States such as Israel are not held legally accountable for their use of violence against civilians under the IHL regime.
It is instructive to note that the law of armed conflict comprises of a number of general principles:
1.The principle of Necessity: an obligation to use only the amount of force needed to obtain a military objective.
2.The principle of Distinction: an obligation to attack only legitimate military targets and never deliberately attack civilians or civilian objects.
3.The principle of proportionality: an obligation to ensure an acceptable relationship between the legitimate destructive effect and undesirable collateral effects of a military attack;
ie to ensure that any incidental loss of civilian life is not excessive in relation to the military objective of an attack. ( Alston, p.404)
Nation States that frown upon international interference in what they consider as their domestic defence or national security matters, claiming these lie outside the ambit of the IHL, may with impunity invoke their ‘sovereign right’ to engage in military violence against, for instance, minority populations located within their territories.
Yet, Article 3, Common to the 4 Geneva Conventions 1949 is applicable specifically to ‘situations of non-international armed conflicts’ and ‘establishes fundamental rules from which no derogation is permitted’. (ICRC, 2010). For instance:
‘It requires humane treatment for all persons in enemy hands, without any adverse distinction.
It specifically prohibits murder, mutilation, torture, cruel, humiliating and degrading treatment, the taking of hostages and unfair trial.’ (ICRC, 2010).
International law’s recognition of State Accountability for violence against civilian populations
The 1998 Rome Statute is the treaty that created the International Criminal Court. The 1998 Statute includes ‘a broad range of IHL prohibitions’. For instance, ‘Article 8 is widely understood to codify customary IHL’ (Alston. p. 406).
Art 8 states that:
serious violations of the laws and customs applicable in
international armed conflict, within the established framework of
international law, namely, any of the following acts:
Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities
Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (Text of the Rome Statute, 2002)
Customary International law as stated by the International Committee of the Red Cross states that proportionality in attack is defined as:
a prohibition against ‘launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof which would be excessive in relation to the concrete and direct military advantage anticipated .’ (Finkelstein, p.161).
In this respect, the Human Rights organisation, Human Rights Watch, reports that The International Criminal Court (ICC) prosecutor, Fatou Bensouda, is examining alleged serious crimes committed by Israel in Palestine since June 13, 2014, including war crimes and crimes against humanity. Human Rights Watch states that:
‘On May 22, Palestine submitted a “referral” requesting the prosecutor investigate crimes under the ICC’s jurisdiction, including crimes against humanity and the war crimes of willfully killing or willfully “causing great suffering, or serious injury” to civilians and the residents of an occupied territory.’ ( Human Rights Watch, 2018)
Israel’s use of disproportionate force in Gaza: A violation of International humanitarian law
In contradistinction to the abovementioned customary rule of international law, Israel has continued to deny that its illegal air, land and sea blockade of Gaza is a disproportionate response to the perceived threat posed by Hamas to the Israeli State.
The eminent scholar, Norman Finkelstein, notes that the Turkel Report 2011 released by Israel which ‘found that if Gazans did endure hardship as a result of the Israeli siege , it constituted ‘collateral’ damage ‘proportional’ to the security objective of degrading Hamas’s military capabilities….and did not target the civilian population .’ (Finkelstein, p.161).
It is submitted, however, that the doctrine of proportionality was applied by former Israeli Supreme Court Justice Jacob Turkel in a rather warped sense, since it failed to take into account the fact that the Israeli government was fully aware of the overwhelming and inevitable effect of the blockade of Gaza; its deleterious impact on the health, safety and security of the nearly 2 million Palestinian men, women and children, the majority of whom had no links to Hamas.
Does Israel have the legal right to impose the blockade on Gaza and wield military force on the Palestinian people?
One should note the advisory opinion delivered by the International Court of Justices (ICJ) on the 9th of July 2004 ‘on the legal consequences of the construction of a wall in the occupied Palestinian Territory.’
The ICJ concluded that ‘the construction of the wall by Israel, the occupying Power, in the occupied Palestinian Territory, including East Jerusalem…severely impedes the the Right of the Palestinian People to self -determination.’ ( A/ES-10/273 and A/ES-10/273/Corr.1.).
Additionally , the Right of the Palestinian people to self-determination has been unequivocally recognized by the United Nations General Assembly by a resolution adopted on 19th December 2017, which stressed —
‘the urgency of achieving without delay an end to the Israeli occupation that began in 1967 and a just, lasting and comprehensive peace settlement between the Palestinian and Israeli sides’. (A/RES/72/160).
It is arguable that no other people in the world have been subjected to such an indefinite, seemingly perpetual, deprivation of their freedom and liberties by a Sovereign State as the Palestinian people.
The Politics of Killing Children in Gaza
The victims who suffer the most as a consequence of the Israeli blockage and military incursions are the Palestinian children.
According to UNICEF , the population of Gaza comprises of 1,,644,293 people with 839,000 children below the age of 18 (51 % of the population).There are 251,829 children under the age of five, including 54,923 under 12 months. ( Unicef, 2012)
In it military operations, entitled ‘Operation Protective Edge’ , the Israeli military ( IDF) —
‘killed 551 children and injured 3,436. More than 1,500 children were orphaned. In Israel, a child was among the six civilians killed by Palestinian rocket and mortar fire, and dozens more were wounded or suffered trauma (Amnesty International, 2015)
Further, ‘Israeli attacks damaged or destroyed 18,000 homes and half of all education facilities (261 out of 520 schools, kindergartens, and university buildings, according to the UN), including the only school for children with disabilities.
Almost one year since the fighting ended, very few of the seriously damaged homes and schools have been rebuilt due to import restrictions and low donor funds.’ (Amnesty International, 2015)
Professor Norman Finkelstein argues that more than a million children in Gaza are being poisoned by the contaminated water in Gaza.
This assertion is supported by findings of a hydrologist, Ahmed al-Yaqoubi, who advises the Palestinian authority, that 97% of Gaza drinking water is contaminated by sewage and salt ( Haaretz, 2018).
To those who argue that the dire plight of the Palestinian children and their families is the doing of Hamas, which Israel is defending itself from, consider the initial premise that this essay began with–
that under International Humanitarian law or the law of armed conflict, an obligation exists to attack only legitimate military targets and never deliberately attack civilians or civilian objects.
Yet, Israeli airstrikes on civilian facilities in Gaza during IDF operations such as ‘Cast Lead’, 2008, suggest:
‘The whole of Gaza’s civilian population is being punished for acts for which they bear no responsibility. The closure therefore constitutes a collective punishment imposed in clear violation of Israel’s obligations under international humanitarian law ‘ (International Committee of the Red Cross, 2010)
This essay argues that an instrumental form of violence that has as its objective the defence of a State, achieved through collective punishment of civilians involving the killing of innocent children is never legitimate nor is it legally or morally justifiable.
Innocent children of Gaza do not deserve to die for a State to achieve its political and ideological objectives…..
The Geneva Conventions of 1949 and their Additional Protocols, ICRC, 29 October 2010.
Online Access: https://www.icrc.org/eng/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm
Text of the Rome Statute, 2002.
Resolution adopted by the General Assembly on 19 December 2017
[on the report of the Third Committee (A/72/438)]