International law in the conflict in Gaza/Israel: Meeting the challenges
The unfolding situation in the Occupied Palestinian Territories (OPT) and Israel underscores the importance of international law, and the terrible consequences of its disregard.
Frequent references to ‘international law’ by politicians, media, international organisations and NGOs, among others, speak to its perceived significance. At the same time, the terrible events of the past month force many to question the relevance and effectiveness of international law, and the selectivity of its application – in respect of which norms are cited, which actors are held to account, and which victims are protected.
Areas of international law
Many areas of international law are implicated in the current conflict. Some have been foregrounded in political discourse, such as the assertion of Israel’s right to self-defence, albeit without following through consistently on the ongoing requirements of that law with respect to the necessity and proportionality of the force employed.
Other areas have been neglected as a whole. These include international human rights law, which continues to apply in armed conflict situations and will be increasingly important going forward, and refugee law, of clear relevance to a Gazan population that consisted of 70% refugees before this round of hostilities, which the UN indicates has displaced almost 1.5 million people.
Perhaps the area of international law that is most cited and undoubtedly of central relevance – both to hostilities in Gaza today, and Hamas’ actions on 7 October – is international humanitarian law (IHL), which specifically regulates armed conflict and occupation.
Role of international humanitarian law
IHL brings a framework that incontrovertibly applies to both parties to the conflict, and carries obligations for other states. The core IHL treaties are uniquely universal in nature, ratified by all states globally. The International Committee of the Red Cross’ (ICRC) customary law study provides a rich and accessible guide to binding customary IHL, clarifying the narrowing gap between IHL applicable in international and non-international armed conflict. Serious violations also carry individual criminal responsibility under international criminal law (ICL).
IHL contains clear principles and provisions by which unfolding events can be assessed. These include fundamental principles of distinction, precaution, proportionality and humanity, and corresponding prohibitions on targeting civilians and civilian objects, indiscriminate attacks or attacks anticipated to cause disproportionate civilian harm (compared to military advantage anticipated from the particular attack). IHL includes obligations to allow humanitarian corridors, protect humanitarian actors, and the prohibition on starvation as a method of warfare and collective punishment. Safeguards – often overlooked – include the rule that where there is doubt as to the status of a target, it should be presumed civilian.
One of the challenges we face as international lawyers is to ensure that IHL is applied accurately, consistently, and in a way that gives it meaningful effect. While the many IHL questions arising cannot be addressed in a short blogpost, a few points on the role of IHL (and confusion in its application) are worth underscoring.
- Non reciprocal IHL
One crucial, overarching, point that must be emphasised in light of political discourse and popular polarisation around this conflict is that the IHL framework, a key part of which is directed to the protection of civilians, is not reciprocal. As Human Rights Watch noted poignantly, the protection of civilians is not (only) a deal with other states or parties, it is a deal with humanity.
Violations of that deal by Israel and Hamas did not begin on 7 October. In the 56-year-long occupation of the OPT, a plethora of authoritative decisions and reports record IHL violations by Israel, including unlawful settlement expansion and displacement of Palestinians, the blockade on Gaza and excessive use of force, among many others. We need to recognise this and grapple with the stark failure of the international community to follow up and ensure accountability, and its implications for the current escalation of violence.
These violations do not affect the legal classification of the atrocities of 7 October, when 1400 Israeli and foreign citizens (predominantly civilians) were brutally attacked and taken hostage, just as it did not justify prior indiscriminate rocket attacks on Israel from the Strip. While there is scope for legal discussion on some issues, such as the line between detention of opposing forces and hostage taking, there is little doubt that the 7 October attacks involve serious violations of IHL and war crimes (and crimes against humanity). These violations must be brought to an end (hostages released), care afforded to those affected, and accountability secured, in accordance with the legal framework.
Hamas crimes, in turn, do not change the characterisation under IHL of the force unleashed on Gaza. In less than one month more than 10000 have been killed, including over 4000 children. Hospitals, refugee camps and large residential neighbourhoods, quintessential civilian objects, have been levelled. Evacuation orders, and the imposition of a ‘total siege’ have displaced the majority of Gaza’s population and denied access to basic necessities. Statements by Israeli officials about the destruction of Gaza, viewed alongside devastation on the ground, constitute evidence of the Israel Defence Force’s failure to distinguish civilians and legitimate targets and the commission of IHL violations and war crimes (among other claims of crimes against humanity and even genocide).
- IHL in conduct of hostilities cases
Among the recurrent IHL issues of concern are insidious questions raised as to the status of Palestinian civilians in Gaza, and the role of ‘warnings’ or evacuation orders. Under IHL, warnings play an important role, provided they are effective. But as noted elsewhere, Palestinian civilians that cannot leave or do not leave remain civilians. Using civilians as human shields, or locating military objectives near civilian objects – as commonly alleged by Israel – would amount to further violations of IHL by Hamas. It does not dispense Israel from the obligation not to carry out attacks that cause disproportionate harm to civilians or civilian objects, and to take all necessary measures to minimise that harm. Importantly, when attacking a prima facie civilian target, at a minimum a heavy burden lies on Israel to justify those decisions, which it has not discharged, and if in doubt civilian status should be presumed.
Undoubtedly, the application of this IHL framework in conduct of hostilities cases is challenging. Targeting decisions, based on the information available to the commander at the time, are not mere numerical analyses of military targets pursued versus civilian losses anticipated, and are difficult to appraise from afar. International lawyers often feel understandably cautious. None of us have access to all the facts. We do not like trials by media but by courts of law, following the thorough investigation that is, after all, required by international law.
- Giving IHL effect in real time
However, IHL is not a framework intended to be applied retrospectively. A wait and see attitude, while casualties mount, hardly seems consistent with IHL’s protective role and the need to influence behaviour in real time. Nor are meaningful assessments of IHL impossible, in the face of documentation from press and humanitarian workers, often gathered on the ground at great personal risk, and publicly available official statements.
This has implications for all states. One final and crucial (but relatively neglected) aspect of IHL deserving emphasis are the obligations on all states parties to the Geneva Conventions to take measures to ensure IHL is given effect (Article 1 GCs). This implies concerted effort to ensure the parties observe the law, exercising leverage and making cooperation and support conditional on compliance. Vague reminders are not enough. Moreover, states that provide concrete and direct support despite evidence of violations may be responsible for aiding and assisting the wrongs (Article 16 ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts), which could potentially entail various forms of complicity under ICL.
In conclusion, international law is not a political tool, but a binding legal framework that must be brought to bear against all those responsible in a timely and effective way. Undoubtedly, some facts will only be revealed after thorough investigations, which should happen sooner rather than later if evidence is to be preserved, and accountability signalled to those on the ground and in positions of power. The prospect of justice is crucial, but insufficient. We must engage with the abundant information available today that provides ample indicators of violations, which need to cease. Allegations that international law is simply another tool of Western domination are growing, and they threaten the power of international law to make a difference in other situations too. As scepticism rises, it becomes all the more imperative to insist that the law can and does protect the most vulnerable and hold to account even the most powerful. All states and international organisations must take IHL seriously, ensuring all sides respect IHL and know they will be held to account if they do not.
As academics we must fulfil our role too, being rigorous but not afraid to use the power of law to discuss and address difficult realities, responding to the needs and demands of all our students. In this way we can hope to support them to move us towards a tomorrow in which international law is better able to fulfil its protective mandate.
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