International Humanitarian Law and Gaza: A Legal Analysis
28 Jan 2009
By Jayne Brady for ISN
Beginning on 27 December, Israel's bombing of Gaza in response to months of Hamas' rocket fire triggered a "non-international armed conflict" for the purposes of international law. This conflict is classified as such because neither Hamas nor other armed Palestinian groups are formally recognized as states by the international community. In a non-international armed conflict, IHL is applicable and, in a complementary way, international human rights law may also be invoked.
Potential violations of IHL
As UN Special Rapporteur for Human Rights in the Occupied Territories Richard Falk suggested, Israel violated IHL by imposing collective punishment on the entire Palestinian population for acts committed by a specific group of militants. He also argued that Israel broke IHL by targeting civilians when attacking the most densely populated area in the Middle East. Finally, Falk claimed that Israel violated IHL by using a disproportionate military response, when destroying every police and security office in Gaza while killing large numbers of civilians. Falk refers implicitly to Israel's treaty obligations under the Geneva Conventions, to which Israel is a party, as well as customary IHL, discussed further below.
Turning to non-state actors, such as Hamas armed militants and other armed Palestinian groups, some treaty law (most importantly Common Article 3 to the Geneva Conventions of 1949) sets forth minimum standards for all parties to a non-international armed conflict. Common Article 3 provides protection for civilians and persons no longer taking part in hostilities, such as captured combatants and those who have surrendered or been wounded.
Customary IHL - those aspects of law that are derived from state practice and custom but are not codified in treaty form - also applies to all parties, providing more detailed protection to civilians and other non-combatants. It also regulates the means and methods of warfare. For example, parties should take care to minimize harm to civilians and refrain from attacks that fail to discriminate between combatants and civilians or would cause disproportionate harm to the civilian population.
Yet media reports claim that both sides have conducted armed confrontations in residential areas, and humans have been used as shields. The UN Relief and Works Agency (UNRWA) has also published accounts of its schools being bombed, despite Israeli authorities having been given specific target coordinates away from the schools.
It is also prohibited under customary IHL to deny access to necessary supplies, and parties must allow and facilitate the rapid and unimpeded passage of humanitarian aid to the population. Access can be restricted only temporarily for reasons of imperative military necessity. Yet the Israeli Defense Forces (IDF) blocked access to Gaza for most basic supplies and, according to the ICRC, failed to adequately care for and evacuate the wounded. Meanwhile, Hamas militants are reported to have interfered with work facilities, keeping an armed presence inside some hospitals, for example.
Potential violations of international human rights law
Multiple human rights obligations may have been violated during the Gaza incursion. The International Court of Justice's Advisory Opinion on the wall in the Palestinian territories made clear that both IHL and human rights law may be simultaneously applicable, at least with respect to states, such as Israel. For non-state actors, the situation is less clear, but the theories which apply IHL to non-state actors could equally create human rights obligations, according to some international lawyers. Based only on the core international human rights treaties, there may well have been a large number of political, social and economic human rights violations committed, including the abrogation of freedom of expression when Israel banned media from Gaza during the conflict.
The respondents plead not guilty
The IDF reported it regularly consulted lawyers and took steps to comply with IHL, judging the proportionate military gain of a particular operation in relation to the likely or actual civilian losses to determine whether to abort a mission. However, the distinction between 'civilian' and 'combatant' is often blurred for the sake of expediency. While the ICRC clearly defines a combatant as a person "directly engaged in the conflict," the terms have been interpreted resourcefully by both parties in this conflict: "Anyone who is involved or anything associated with terrorism within Hamas" was the definition of a legitimate military target produced by the IDF, while Hamas articulated that attacks on civilian areas are justified because most Israelis serve in the military.
From law to practice
Such reactions show that while the law may well apply to all sides, serious problems remain in practice. With at least 1,300 Palestinians and 13 Israelis dead and daily IHL and human rights violations committed, it may prove more significant to find practical answers.
One such solution might be stronger enforcement mechanisms. For example, Security Council Resolution 1860 passed on 8 January failed to directly address IHL and human rights violations taking place in Gaza. References to international law were conspicuously missing from the resolution that called for an immediate ceasefire and full withdrawal of Israeli forces in Gaza. Also following the vote, the Mexican representative highlighted the absence of "an international mechanism to monitor the implementation of all the measures" outlined in the resolution.
Certainly, the mechanisms in place to ensure respect for international law are frustratingly weak. The UN has a series of bodies, agencies and Special Rapporteurs who can pass judgement on violations, but these are only heeded at the parties' will. Only the Security Council has the potential military strength to enforce the law, but as we have seen with Resolution 1860, it is rarely willing to do so. In any case, one may question the effectiveness of fighting "fire with fire" to protect civilians.
At a later date, individuals who commit or assist grave or serious violations of IHL with criminal intent may be tried as war criminals in national or international courts. In this latest conflict, for example, UNRWA suspects Israeli Defense forces of committing war crimes, and the High Commissioner for Human Rights has called for an independent investigation. Israel has dismissed these claims outright, however, and it is not yet clear whether they will be pursued.
Left with only credibility and reciprocity
Of course, international law provides a certain benchmark for measuring the activities of actors; in this respect the UN, NGOs and the ICRC may play a key role. In reports from these organizations, both sides of the conflict may lose credibility, not only within their own communities but most certainly within the international one. Inversely, Hamas may actually gain international credibility as an important global actor.
With lives at stake, it is maddening to talk of ultimate law enforcement in terms of political realities such as credibility loss or gain, but that is the sorry state we are in; the most important "legal" judgement is that of government leaders deciding which rules apply for their troops. Sorrier still, once "tailored" rules are set, they are reciprocated. As Btselem, an Israeli human rights group stated, "I certainly would not expect my government to act according to the standard Hamas has set for itself - we demand a higher standard." However, this "level playing field" attitude is precisely what has manifested on the ground today.
Changing our foundations
The foundations of IHL, however, were not about leveling playing fields but protecting victims. Perhaps, in this war, that is precisely what went wrong. In other words, instead of tormenting ourselves about why the parties refuse to respect the rules, we should be asking ourselves with urgency why each party ignores the rules and how we might better ensure compliance.
How can we update the fundamental principles of IHL in an era when urban warfare exists? How can we better ensure a clear distinction between civilian and military targets when the battlefield of Gaza is one of the most densely populated in the world? The bereaved and wounded of Gaza await our answer.
Recommended Resources for "International humanitarian law in Gaza: A legal analysis" by Jayne Brady:
News articles and reports:
Amnesty International, Gaza: Military tactics of both sides endangering civilians, 7 January 2009, external pagehttp://www.amnesty.org/en/for-media/press-releases/gaza-military-tactics-both-sides-endangering-civilians-says-amnesty-inte
BBC, Gaza conflict: who is a civilian?, 5 January 2009, external pagehttp://news.bbc.co.uk/1/hi/world/middle_east/7811386.stm
Reuters, Israel rejects suggestions of Gaza "war crimes", 17 January 2009, external pagehttp://www.reuters.com/article/latestCrisis/idUSLH286481
Human Rights Watch, Israel: end Gaza's humanitarian crisis at once, 12 January 2009, external pagehttp://www.hrw.org/en/news/2009/01/12/israel-end-gaza-s-humanitarian-crisis-once
ICRC, Gaza: life-saving ambulances must be given unrestricted access to the wounded, 8 January 2009, external pagehttp://www.icrc.org/web/eng/siteeng0.nsf/htmlall/palestine-israel-news-080109?opendocument
Journal Articles:
Clapham, A., Human Rights Obligations of Non-State Actors in Times of Armed Conflict, International Review of the Red Cross, Volume 88 No. 863, (2006), pp. 491-523, external pagehttp://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/review-863-p491/$File/irrc_863_Clapham.pdf
Council of Europe, Committee of Legal Advisors on Public International Law: 31st meeting, Strasbourg, 23-24 March 2006, Appendix IV Statement by Prof. Martin Sheinen, pp. 38-42, external pagehttp://www.coe.int/t/e/legal_affairs/legal_co-operation/public_international_law/texts_&_documents/2006/CAHDI%20_2006_%2017EWeb31meeting_en.pdf
Droege, C., The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict, Israel Law Review, Vol. 40, No. 2, pp. 310-355, (2007)
Sassòli, M.,« Le droit international humanitaire, une lex specialis par rapport aux droits humains », excerpt from, La protection des victimes des conflits armés, Sudre F., pp. 29-33.
Useful Background Links:
Human Rights Council, Mission to Lebanon and Israel (Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston; the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt; the Representative of the Secretary-General on human rights of internally displaced persons, Walter Kälin; and the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, 7-14 September 2006,
external pagehttp://www.mineaction.org/downloads/Emine%20Policy%20Pages/Human%20Rights%20Council%20Docs/Israel%20Lebanon%20Special%20Rapporteurs%20Report%20on%20Res.%2060%20251.pdf
ICRC, International Humanitarian Law section, external pagehttp://www.icrc.org/web/eng/siteeng0.nsf/iwpList2/Humanitarian_law?OpenDocument
United Nations High Commissioner for Human Rights, Statement made by Prof. Richard Falk, United Nations Special Rapporteur for Human Rights in the Occupied Territories, 27 December 2008
external pagehttp://www.unhchr.ch/huricane/huricane.nsf/0/F1EC67EF7A498A30C125752D005D17F7?opendocument
UN Security Council Resolution 1860, SC/9567, 8 January 2009, external pagehttp://www.un.org/News/Press/docs/2009/sc9567.doc.htm