The contention that Israel is on its path of conflict against Gaza in its pursuit of self-defence is not acceptable. If armed force is to be justified as self-defence under the UN Charter, it is absolutely necessary that a precursor armed attack occurred. This is simply not the case with respect to illegally-occupied Palestine.
By Kirthi Jayakumar
The first thing I learned at law school was that the law does nothing to obliterate the effects of death and destruction that have already taken place. Rather, it is something that is learned out of death and destruction – in furtherance of an effort that strives to ensure that such death and destruction does not repeat itself. International Humanitarian Law has been born out of the ashes of conflict, in an attempt to govern and regulate conflict since its creation. Unfortunately, however, as with Public International Law, Humanitarian Law is observed very often in its breach than otherwise. The latest instance of in-the-breach-observation happens to be the latest round of strikes by Israel on Gaza.
A state of war
Whatever one might like to counter this with, Israel and Palestine are undoubtedly in a “state of war”; and this state of war has continued for 66 years straight. International Law has a role to play in the conflict in two different contexts. On the one hand, International Humanitarian Law (IHL) is applicable through the rubric of the Geneva Conventions of 1949 and their Additional Protocol I of 1977. On the other hand, International Law governs the territorial question that pegs Israel and Palestine in a state of conflict – the implications of which can go a long way in determining sovereign control over the region, while also characterizing the nature of Israel’s acts.
In 1948, the Israeli occupation of the Palestinian nation drove Palestinians out of their homes. Israel conquered 78% of Palestine; and three-quarters of a million Palestinians became refugees; over 500 towns and villages were obliterated; and a new map was drawn-up, in which every city, river and hillock received a new, Hebrew name. In 1967, Israel conquered more land, following the Six Day War and occupied the final 22% of Palestine that had eluded it in 1948 – namely, the West Bank and Gaza Strip. Post-war, Israel also occupied parts of Egypt (since returned) and Syria (which remain under occupation). In 1973, the Yom Kippur War saw Syria and Egypt embark on a surprise attack on Israel on the holiest day of the Hebrew Calendar. The war spiralled out of control when Jordan, Iraq and other Arab Nations either joined in or offered staunch support. In 1978, the Camp David Accords were signed with Egypt by Israel, with the latter agreeing to withdraw from the Sinai Peninsula for peace, and for a future negotiation over the West Bank and the Gaza Strip. In 1979, the Egypt-Israel Peace Treaty was signed, with Egypt becoming the first Arab country to officially recognize Israel. In all the years between, violence continued.
From 1967 through a peace agreement in 1993, including during the first intifada, Israel largely limited its use of force to police actions and imprisonment, though human rights violations persisted. However, with the redeployments agreed to under the Oslo Accords, and particularly since the start of the second intifada, Israel asserted its right to wage war on Palestinians in Gaza and the West Bank through military force.
Since 1967, Israel has continuously laid claim that the Geneva Conventions do not apply to the areas it had acquired, and do not apply to its conduct towards the Palestinians. They buttress these contentions with several “grounds”, one of which simply asserts that the Palestinians are not a High Contracting Party to the Geneva Conventions. However, the Fourth Geneva Convention governing all militarily captured territories and their civilian population does and can apply to this case, and this view is supported by international legal opinion, United Nations resolutions and the International Court of Justice. Israel further relies on rather different interpretations of International Humanitarian Law in order to assert legitimacy. In reality, however, Israel indulges in unlawful practices as it continuously opposes Palestinian resistance to its occupation. Israel claims that Palestine’s resistance is not resistance, but terrorism, and that there is no right to self-determination or right to seek freedom for the Palestinians. Israel thus lays claim that it fights terrorism, and not a war, therefore, it is not governed by International Humanitarian Law. Nevertheless, these contentions are not acceptable. Primarily, Palestine is a state even if Israel chooses to reject its status thus. Palestine has a population, a territory although impinged upon by an external actor, a government, and active relations with other states across the world which evidences a capacity to enter into relations. Therefore, the Geneva Conventions do apply to the conflict. Even if one were to support the notion that Palestine is not a state and that Israel wages war against ‘terror’, the Geneva Conventions will still apply, because it is a part of customary international law, which applies to any war.
International Humanitarian Law
Given that there is a state of war. International Humanitarian Law immediately comes into play. It governs the process of waging war, and its effects on civilians, dictating five main principles that govern conduct in an armed conflict, the violation of which are construed as grave breaches that can be construed as war crimes. The five principles are:
- Civilian Immunity must be preserved. There is a prohibition against intentionally targeting civilians or otherwise treating them as combatants
- The principle of distinction must guide conduct in conflict. It is imperative to distinguish between civilians and combatants in military operations, and equally so for combatants to distinguish themselves as such through identifiable dress and insignia and by carrying arms openly
- The element of proportionality needs to be satisfied. Force if used, should be used only in a manner that is proportionate to the military value of the target.
- The element of necessity needs to be fulfilled. It is essential to restrict targets or tactics only to those that are necessary to achieve legitimate military goals
- Meting out humane treatment is a sine qua non. There is a prohibition of torture, inhumane and degrading treatment of prisoners, and a continued existence of the imperative to guard the rights and interests of “protected persons” – who in effect, are civilians in occupied territories.
Israel’s conduct against these principles reveals clearly that it is on the wrong side of the law. Palestine’s resistance against occupation is not wholly legally prohibited, as Additional Protocol I to the Geneva Conventions has established the right of a people to use armed force in order to resist foreign occupation and colonial domination, and to fight against racist regimes in the exercise of their right of self-determination. That Israel and its strongest ally in international relations, the US, have refused to sign the protocol is no basis for the non-recognition of the existence of such rights. The lawfulness of the use of armed force does not have anything to do with the status of the enemy, but rather, on the way the force has been used in keeping with the principles of International Humanitarian Law.
The contention that Israel is on its path of conflict against Gaza in its pursuit of self-defence is not acceptable. If armed force is to be justified as self-defence under the UN Charter, which is what should be the norm, it is absolutely necessary that a precursor armed attack occurred. If it must be justified under customary international law, there must be a grave, overwhelming and imminent threat that can only be responded to by using military force as means of last resort because diplomacy and politics have failed. But none of this exists: the people of Palestine are resisting a force meted out to them in the form of illegal occupation and dispossession, through resistance. And yet, this self-defence rationale has been happily endorsed by Israel’s core allies.
Israel, this time round, is hiding behind a defence that it has been using since 2009 – that it had warned civilians, but they hadn’t vacated in time, making them “legitimate collateral damage”. Except, these “warnings” have barely been warnings – comprised as they are of phone calls with only minutes to spare for evacuation, or even warning fire.
Kirthi Jayakumar is a Lawyer, specialized in public international law and human rights. A graduate of the School of Excellence in Law, Chennai, Kirthi has diversified into research and writing on public international law and human rights. She has worked as a UN Volunteer, specializing in human rights research in Africa, India and Central Asia and the Middle East. She also runs a journal and consultancy that focuses on international law, called A38.