|Isreali military on Operation Protective Edge in Gaza. Image from www.defence-discovery.com
The conflict between Israelis and Arabs did not start in July 2014. Both sides have been fighting for decades. A great number of Jewish people had advocated for a country of their own when 6 million Jews were killed in World War II and the Holocaust in 1948. The Jews had always considered Palestine their ancestral home. Although Arabs were already living in Palestine, a large part of it was given to the Jews. The Arabs didn’t think this was fair so they never recognised the Jewish country. Shortly after, they both went to war. When the war ended, the Jewish people had the upper hand. This led to thousands of Palestinians fleeing their homes- now Isreal. When the war ended, Gaza fell under Egypt’s control, including the area by Jordan called the West Bank.
But after another war between the Isrealis and Arabs, Israel decided to occupy Palestinian areas with their troops in 1967. The occupied areas were to be given to Arab countries that recognized Isreal as a state. It did not work as expected. It took almost 40 years before Isreal finally left Gaza. Hamas, a group in Gaza controlled power in that area after elections. It did not recognise Israel’s sovereignty. Hamas also wanted Palestinians to live in their old home as they did before the war. Violence was one of Hamas’ means of making demands. Isreal became increasingly worried. To ensure it had effective control of Gaza, it blocked Gaza’s borders, controlling its coastline and all the entry and exit to Israel. Hamas and many Palestinians, including voices in the international community largely consider this occupation a siege.
The Gaza Strip is inhabited by about 1.5 million Palestinians. It has no army; no police; no stable power; and no seaports or working airports. Enough food is also not getting into Gaza. With a poor economy, there are no jobs for its predominantly young population. The UN provide humanitarian help to Palestinian families who have become refugees in various places. Schools and hospitals are also mainly run by the UN. From the West Bank to the Gaza Strip; from Syria to Jordan, and up to Lebanon, over 4.6 million Palestines live in refugee camps. Hamas fired rockets into Israeli territory every now and then. Isreal launches offensives under the excuse of self-defense aimed at preventing Hamas from firing rockets into Isreal. Gaza suffers great civilian casualties after every Isreali offensive, and a number of Isrealis have also been killed. According to a UN preliminary report, after the 50-day armed conflict, 2139 Palestinians were killed, 490 of them were children. 11000 Palestinians were wounded- 3000 children were wounded. Up to 500000 Gaza residents displaced were displaced, and 20000 homes destroyed. Isreali casualty is not as high. 64 Israeli soldiers, and 6 Isreali civilians were killed; 1 of those killed was a child. These civilian deaths, injuries and destruction represent a huge humanitarian crisis in the Isreali-Gaza armed conflict.
|Map showing areas hit in Gaza, Isreal, and the West Bank
International Humanitarian Law: Bleeding from Shrapnel, Rockets, Mortars and Terror Tunnels
International humanitarian law provide principles aimed at protecting civilians during armed conflicts. It regulates the conduct of hostilities involving both state and non-state actors. Isreali military forces and Palestinian armed groups who are actors in the current armed conflict are therefore required to respect international humanitarian law.
The principles of international humanitarian law I am going to be looking at are:
1. the principle of distinction;
2. the principle of proportionality; and
3. the principle of precautions in attack and against the effects of attack.
There have been allegations that both Isreali military forces and Palestinian armed groups have violated international humanitarian law. And this is why the UN Human Rights Council set-up an international fact-finding inquiry on 23 July 2014.
Different questions have been raised by many, just as answers have differed. Western media have been accused of been bias towards Isreal in its reports of the armed conflict. The White House is no doubt politically interested, and that appears to have informed its stand- Isreal has the right to self-defense against rockets fired from Gaza, but civilian casualties should be avoided. The Isreali government plays the same card, but its military force on ground had been unable to totally avoid civilian casualties. Up to 2139 Palestinians were killed, mostly women and children. International humanitarian law bleeds.
Whether Isreali military forces and Palestinian armed groups had stopped or continued fighting, both parties remain bound by their obligations under international humanitarian law. What are the principles of international humanitarian law that may have been violated in the current Isreal-Gaza armed conflict? Which party’s actions violate these principles? Will they be punished for the alleged violations if found to be true under international criminal law? These are some of the questions that have agitated the minds of many as rockets flew from Gaza to Isreal, and shrapnel dropped on Gaza; some UN schools and hospitals blown-up by Isreali forces with high civilian casualties; and tunnels dug from Gaza to Isreal being used by Hamas for military advantage.
|Image from www.cdn.timesofisrael.com showing one of the 32 tunnels dug from Gaza to Isreal
The Principle of Distinction
Parties to an armed conflict must at all times distinguish between civilians and combatants. Actors may only direct attacks against combatants, and not civilians. But civilians take direct part in hostilities are not protected. This is an important customary international humanitarian law principle.
No party must deliberately target homes, hospitals and clinics, schools, and public buildings. Any military operation that targets these locations amount to war crimes. The only exception is if such locations are being used by the other party for military purposes. Only participants in hostilities such as soldiers and armed groups can be directly attacked. Military bases housing weapons and ammunition, including armed forces can also be lawfully targeted. If a party is not sure if a person is a civilian or combatant, it must be presumed- under international humanitarian law- that the person is civilian. The same presumption applies to whether a building is used for military purposes or not.
In the ongoing Isreal-Gaza armed conflict, Israeli military forces killed more civilians than armed fighters. In their ‘Protective Edge’ operation in Gaza since June 8 2014, Isreali forces have used drone-fired missiles, and used munitions such as artillery on very densely populated residential areas. Homes where civilians live were also reduced to rubble in the Gaza Strip. UN Relief and Works Agency (UNRWA) schools in Gaza, and thousands of other schools run by the Ministry of Education were destroyed. Even an UNRWA school that sheltered Palestinian families displace from the al-Maghazi refugee camp in central Gaza was shelled by Israeli forces. According to an Amnesty International Report on the armed conflict, another UN school that sheltered displaced families in Beit Hanoun in northern Gaza was also struck on 24 July. The attack killed at least 15 civilians and injured a number of civilians.
Israeli authorities claimed the targeted civilian buildings were been used by Hamas for military purposes. They also said at all times they warned civilians in the targeted areas to leave before any offensive. These are not sufficient defenses. Isreal has largely failed to observe caution. It’s military operation which has resulted in the death of over 1300 civilians in in Gaza amounts to war crime. The only defense would be if the UN Human Rights Council’s fact-finding inquiry shows that civilian buildings were actually used by Hamas for military objectives. So far, there is no such evidence.
Hamas with other Palestinian armed groups also fired thousands of rockets towards Israel since 8 July to date. By 20 august, up to 3700 rockets had been fired. 7 Isreali civilians have been killed, and some others wounded by shrapnel. Some civilian buildings in Isreal have also been hit. Hamas’ military wing have been firing these rockets into Israel indiscriminately. If Isreal did not have an advanced drone that protected its civilians from these rockets, the civilian casualty would certainly have been significantly higher. And if Isreali authorities’ position that one or two of the civilian objects in UN buildings were hit by rockets and mortars misfired by Hamas is anything to go by, then these indiscriminately fired rockets and mortars may also have posed serious threats to Palestinians.
Hamas’ military wing with other Palestinian armed groups in the Gaza Strip and West Bank have not hidden their intentions. The rockets and mortars are fired into Isreal to kill and injure Israeli civilians- and they have in few occasions. Having resulted in the death of a few Isreali civilians, the attacks constitute war crimes. The death of over 60 Isreali soldiers is immaterial in international humanitarian law. The soldiers are combatants, and so are the armed Palestinians who have been killed by Isrealis. They do not enjoy protection.
The Principle of Proportionality
It requires that a party must not launch an attack that may be expected to cause the death of civilians, injury to civilians or damage to civilian objects in an excessive way in relation to the attack suffered or anticipated. This principle has been codified in Article 51(5)(b) of the 1977 First Protocol Additional to the 1949 Geneva Conventions (Additional Protocol I) and repeated in Article 57.
According to Prof. Horst Fischer, Academic Director of the Institute for International Law of Peace and Armed Conflict at the Ruhr-Universität Bochum in Germany, and Adjunct Professor at Columbia University, wrote in the Crimes of War Project:
“The principle of proportionality is embedded in almost every national legal system and underlies the international legal order. Its function in domestic law is to relate means to ends… In the conduct of war, when a party commits a lawful attack against a military objective, the principle of proportionality also comes into play whenever there is collateral damage, that is, civilian casualties or damage to a non-military objective…attacks are prohibited if they cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that is excessive in relation to the anticipated concrete and direct military advantage of the attack. This creates a permanent obligation for military commanders to consider the results of the attack compared to the advantage anticipated.”
Your guess is as good as mine. As can be gleaned from Prof. Fischer’s definition above, the principle of proportionality has never been a simple one for states to strictly adhere to. The history behind the adoption of proportionality principle by the international community also proves this. At the Diplomatic Conference leading to the adoption of the Additional Protocols, states had expressed the view that the principle of proportionality could be dangerous to the protection of the civilian population. But the Conference did not provide any alternative. In the Diplomatic Conference leading to the adoption of the Additional Protocols, German Democratic Republic, Hungary, Poland, Romania, and Syrian Arab Republic had all expressed their fears about the risks that the proportionality principle may have. France was totally against it but did not raise any reservation when Additional Protocol 1 was adopted. The United Kingdom was more diplomatic. It stated that Article 51(5)(b) was:
“a useful codification of a concept that was rapidly becoming accepted by all States as an important principle of international law relating to armed conflict”.
In international law, the principle of proportionality in attacks has been recognised in the International Criminal Court (ICC) Statute. Article 8(2)(b)(iv) the ICC states that “intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects.…which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” constitutes a war crime.
In 2014, in the Isreal-Gaza face-off, has Isreali attacks been proportionate in relation to the aim of protecting Israeli civilians from attacks by Hamas’ rockets and terror tunnels leading into Isreal?
In international law, what is disproportionate is not a matter of the number of lives that have been lost on each side. This is one point that most analyst- locally and internationally- continue to get wrong. The proportionality principle applies this way: the fact that over 1300 Palestinian civilians have been killed in Isreali attacks, and only 7 Isreali civilians have been killed by Hamas’ rockets and mortars is immaterial. It is not also about the type of munitions used. Obviously, all the firepower in the Gaza Strip and West Bank put together are not proportional in anyway to Isreal’s firepower. Isreal’s munitions are significantly greater and more advanced both offensively and defensively. Armed conflict such as the instant one is not a sport. Firepower will not always be equal; Battlefields will not always be fair. Shoshana Bryen captured this important point well in ‘The Doctine of Proportionality‘ when he said:
“Proportionality in international law is not about equality of death or civilian suffering, or even about firepower returned being equal in sophistication or lethality to firepower received. Proportionality weighs the military necessity of an action against the suffering that the action might cause to enemy civilians in the vicinity.”
So the real issue here is determining whether Isreal had no choice but launch attacks in Gaza knowing that such attacks might kill or injure civilians there.
Every government has a duty to protect its citizens. It is the same for the Isreali government. And it should be no different for the Palestinian authority in the Gaza Strip. The terror tunnels from Gaza to Isreal definitely constitute military threat to Isreal. These tunnels, during the armed conflict, enabled Hamas cross the border and enter Israel to carry out attacks on Isreali civilians. Handcuffs and tranquilizers have been found in this tunnel system, raising fears and concerns about their potential dangers to Isreali civilians. No responsible government should treat that with levity. The terror tunnels encroach on Isreal’s sovereignty. That the tunnels were originally being used for civilian purposes such as smuggling civilian goods and supplies into Gaza may not be military objectives but it still amounts to an encroachment on Isreal’s territory. Hamas’ refusal to recognise Isreal’s as a state does not reduce Isreal’s sovereignty in any way.
Having stated that, as far as Isreal continues to occupy the Gaza Strip, the result is that Hamas will also continue to constitute a threat to Isreal’s peace. But if Isreal stops laying siege on Gaza, it might not have been necessary to launch attacks on Gaza in the first place. It is such attacks following its decision to continue to lay siege on Gaza that have resulted in the death of over 1300 civilians in Gaza. Isreal’s decision to continue to occupy Gaza therefore limits its choices, and it must bear the risk of such occupation. As far as it is Isreal’s decision in the first place to occupy Gaza, it cannot validly raise the defense of necessity. It cannot also assume that if it leaves Gaza, it would expose itself to attacks orchestrated by Hamas with other Palestinian groups in an unoccupied Gaza. As far as international law does not recognise Isreal’s occupation of Gaza, the rockets and mortars from Hamas demanding an end to Isreali occupation cannot be a valid legal justification for launching offensives that endanger and take away the lives of Palestinians.
So while Isreal can be said to have no choice in the circumstances but launch attacks in Gaza knowing that such attacks might kill or injure civilians there, the situation in the first place was created by Isreal’s decision to illegally occupy Gaza.
It cannot therefore flout international law on one hand, and rely on the same international law as a defense on the other hand. Israel has an obligation as the occupying power in Gaza. It should comply with those obligations and allow the people of Gaza enjoy equal political, economic and cultural rights as Isrealis do. This is because however way it’s decision to lay siege on Gaza may be seen as morally understandable considering possible threats of terrorism against it, its military operation there cannot enjoy the legal protection that the principle of proportionality provides if satisfactorily met.
The Principle of Precautions in Attack and Against the Effects of Attack
Attacks often have effects on civilians. Parties to a conflict must take all feasible precautions to protect the civilian population and civilian objects under their control against the effects of attacks. Also, the attacker is also required to take precautions. This means both the attacking and defending party are obliged to observe this principle.
This principle of precautions in attack and against the effects of attack also prohibits parties from using civilians as human shields. And this is why it is also required of the attacking party to effectively warn civilians in target areas to leave well before any attack.
Did both Isreali and Palestinian authorities take all feasible precautions during hostilities?
The Gaza Strip is a densely populated area. What would have been exits and entrances around its borders have been closed by both Isreal and Egypt. During the hostilities, every part of Gaza was under attack. Isreal’s determination to blow up the 32 terror tunnels meant its forces had to invade Gaza, shelling homes and buildings. There was no safe humanitarian route in place for civilians in Gaza to avoid becoming casualties of the military attacks. From very clear facts, Isreal failed to take all feasible precautionary measures to avoid the death and injury of civilians in Gaza, including private and public properties.
Israeli authorities said they adequately complied with international humanitarian law by warning civilians in targeted areas about their planned military attacks in those areas. But an objective analysis of this claim would show that the warnings were not adequate for the kind of attacks witnessed in Gaza. Timeliness was inadequate- some dangerous attacks were launched even before civilians had evacuated. Again, there was no safe humanitarian passage through which civilians could evacuate. Considering the fatal result of those attacks, Isreal’s claim to complying with this precautionary principle is unjustifiable. It’s not just all about issuing warnings. What is required under international humanitarian law is more than that. Isreal ought to have weighed the target against the possible civilian casualties and reconsider is military methods.
The other defense raised by Isreali authorities is that Hamas and Palestinian armed groups intentionally used Palestinian civilians as human shields. So far, there is no evidence to prove this allegation. Ongoing investigations by the UNHCR, and even Amnesty International reports, have not also produced such evidence. The essential word is “intention”. It may be true that the presence of some Palestinian civilians in certain locations considered by Isreal to be used for military objectives were actually inhabited by Palestinian civilians. But whether Hamas or Palestinian armed groups intentionally put them there to “shield” certain military locations, armed persons, or equipment from Israeli attacks remains to be proven.
Isreal’s allegation against Hamas and Palestinian should not be easily dismissed though. In the past, using civilians as human shields was one of the strategies of armed in the Gaza Strip in previous hostilities. They stored munitions in residential areas. They also fired rockets indiscriminately from these residential locations. Even in the just ended hostilities, there have been reports that Hamas told Palestinian civilians to stay in their homes even after Israeli forces warned civilians in that areas to leave. This was through leaflets and phone calls. But I will not flog the issue further. International humanitarian law has provided what each party’s obligations are- however way Hamas and Palestinian armed groups’ have acted, it is immaterial in this respect. Isreali authorities are required to take all feasible precautions to ensure the protection of civilians. In the absence of any other defense, Isreal has violated this principle.
Though Isreal may still rely on an essential provision under this precautionary principle- A party’s obligation to take feasible precautions is not without limit. The obligation is limited to those precautions that are practically possible considering the circumstances at the time. Such circumstances include humanitarian and military considerations. State practice also indicates that an attacker is allowed to attack military targets if the defender fails to take appropriate precautions. So Isreal could say that it was practically impossible to have avoided the civilian casualties resulting from their military strikes based on the consequences it might most likely suffer. And that’s exactly the tune Isreali authorities have started singing- we had no other choice in the circumstances. The Isreali government says it had an obligation to protect its own people from the arm caused by more rockets and mortars fired into Isreal.
On the other hand, it’s not only Isreal that has got obligations under this principle of international humanitarian law; Palestinian authorities also do. It is true that Hamas and the Palestinian armed groups did not have the same military might as the Isreali military. It is also true that Hamas and the Palestinian armed groups were fighting the people’s cause of finally ending Isreal’s siege. But could it also be true that knowing that they could not possibly measure up with Isreal’s firepower, Hamas and Palestinian armed groups were using the rising civilian casualties in Gaza to win the war psychologically? As more Palestinian children and women were being killed in Gaza, Hamas continued to fire more rockets into Isreal. Ordinarily, one would have expected Hamas to stop firing these rockets seeing that while it was hardly hitting any civilian target in Isreal, Isreali military was shelling homes and buildings that continued to kill Palestinians. Sure, the Palestines eventually won many hearts over to its side globally, but 2139 Palestinians had lost their lives. Does this justify the end? It may be a moral question, and not a legal issue. But one way or the other, it appears to give some credence to Isreal’s claim that Hamas and the Palestinian armed groups may have used civilians as human shields; or perhaps human sacrifices to get a lasting ceasefire in Gaza, and end Isreali occupation.
|Ending Isreali occupation in Gaza can bring lasting peace to Palestinians and Isrealis. Image from www.i1.tribune.com.pk
Palestinians want to live peacefully. They also want to live freely in a land without siege. They want a secure existence, and equal access to opportunities towards realising their full potentials- as individuals and as a people. The right to life, security and self-determination are not too much to ask for.
Isreal also wants lasting peace. Isrealis want to feel secure at all times with no threats on their national security from their neighbours. Providing that peace and security is a sacred constitutional duty the Isreali government owes its people.
The current vacuum and resulting conflict is mainly due to each side’s failure to recognise and respect the other’s right to live, feel secured and develop. The international community has failed to help Isreal and Gaza protect their national interests under an international legal framework this strong, certain and unbiased.
In this current ceasefire agreement between Isreali and Palestinian authorities, the international community represented by the United Nations must play a leading role. It must appreciate the ultimate needs of Palestinians in Gaza, and also understand the genuine fears of Isrealis. An international force can be deployed to Gaza in place of Isreal’s military presence there as an occupying authority. Isreal needs to gradually remove its blockades in the Gaza Strip. On the part of the Palestinian authorities, Hamas and all armed Palestinian groups cannot be allowed to continue using violence to make political demands. It’s unhealthy and unsafe to the ultimate wish of Palestinian people in the Gaza Strip who wants a peaceful, secure and meaningful life.