Israel-Hamas war: A blow to international humanitarian law

The October 7 attack by Hamas — a terrorist group that rules by de facto in the Gaza Strip — caused the death of around 1,400 Israeli civilians. More than 150 hostages were kidnapped and taken to Gaza. The response of Israel — the occupying power in the Palestinian territory — has so far caused the death of more than 3,000 Palestinians. The number of wounded and killed is likely to rise further. No one doubts that this is the bloodiest attack and response in Israel’s recent history.

The Palestinian conflict began in 1947, when the United Nations proposed ending the mandate that the United Kingdom exercised over Palestine and divided the territory into two independent states, an Arab Palestine and a Jewish state. Jerusalem would remain under an international regime. All this was in accordance with Resolution 181 (II) of the General Assembly on November 29, 1947. Since then, Israel has decided that it could occupy the Palestinian territory and has proceeded with this plan.

The conflict worsened in 1967 with the Six-Day War, and intensified in 1973 with the Yom Kippur War. More recently, the Israel Defense Forces launched Operation Protective Edge on Gaza territory, and violence between both sides caused the deaths of hundreds of civilians. On August 26, 2014, after 50 days of fighting, Israel, Hamas and the other warring parties accepted an indefinite truce under the mediation of Egypt. The ceasefire agreement included the opening of all border crossings and the entry of humanitarian aid, but this did not occur.

The flagrant violations of international humanitarian law by both sides have become routine and should be explained. In 1862, Henry Dunant described the apocalyptic scenario he witnessed after the battle between the Austrian army and the armies of France and the kingdom of Sardinia. In his book A Memory of Solferino he drew attention to the lack of military medical personnel on both sides. He also drew attention to the lack of protection of medical personnel. In view of these shortcomings, he proposed the elaboration of an international convention to protect wounded soldiers and suggested the use of a distinctive sign. This led to the sign of the Red Cross, and was followed by the Red Crescent and the Red Diamond.

On these bases, The Hague peace conferences of 1899 and 1907 codified the laws and customs of land warfare. And, among other international treaties, the 1949 Geneva Convention and the 1977 Additional Protocols built what today is called international humanitarian law or the law of armed conflicts (the ius in bello). This entire set of rules is not only collected in writing, but has also acquired the weight in international legal custom. Custom is a source of the international legal order, as are international treaties.

International humanitarian law has been woven together over the centuries under the dictate of two great needs: military and humanitarian. The first was coined by the president of the United States Abraham Lincoln during the American Civil War through the Lieber Code. This code set out rules for the conduct of soldiers of the Northern army: they could only carry out attacks that were “indispensable” to ensure the ends of the war. Humanitarian needs, on the other hand, were coined in the so-called Martens Clause, which provides that civilians and combatants remain “under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.”

Two major principles emerged from the search for a balance between military needs and humanitarian needs: the principle that requires distinguishing between the civilian population and combatants and the principle of proportionality. It is worth remembering the literal expression of both. The first indicates: “Parties to a conflict shall at all times distinguish between the civilian population and combatants […] Attacks must be directed solely against military objectives,” as per Article 48 of the Additional Protocol I of 1977). Regarding the principle of proportionality, the rule requires that warring parties take into account whether an attack or defense is excessive “in relation to the expected military advantage” that is sought to be obtained (Article 51 of Additional Protocol I). Hamas’ indiscriminate attack on young people attending a music festival in southern Israel did not distinguish between civilians and combatants, nor is it proportional to the military advantage sought to be obtained. Nor did Israel’s decision to cut off water, gas, and electricity to an entire civilian population proportional. Nor did its decision to deny the population access to food and health services.

What’s more, depriving the civilian population of aid and endangering humanitarian workers’ access to conflict zones instrumentalizes aid and contravenes other founding principles of humanitarian norms, such as impartiality, neutrality, and humanity. Humanitarian aid is neither a weapon of war nor a means of political negotiation, and facilitating its access is an obligation. This is expressed in Article 23 of the Fourth Geneva Convention, which prescribes “free passage for any consignment of medicaments or medical equipment on its way to another contracting state, even an enemy.” This rule also applies to essential foodstuffs.

Hamas’ response to decades of occupation is as illegitimate as Israel’s response to the terrorist attack. The options for ending the conflict are remote. Meanwhile, the alternative is a permanent blow to international humanitarian law.

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