After the reported extension of truce between Hamas and Israel, humanitarian aid has also started to get into Gaza as the region has been facing a shortage of essential supplies.
This humanitarian truce also included a ceasefire on air sorties in the Southern part of Gaza. This development should not deter us from talking about the violations of International Humanitarian law since Benjamin Netanyahu already declared that they will not stop the war after the Ceasefire. A previous part on International Humanitarian Law can be read here.
This article will particularly talk about three issues – Human Shields, Chemical Weapons and Humanitarian Aid and their position in the Gaza Region as well as the International Humanitarian Law (IHL).
IHL is an internationally accepted code of law that governs the conduct of various sides (stares) during an armed conflict including in the subjects of journalist safety, civilian safety.
Human Shields
What are Human Shields?
Simply put- In a way, when the military uses civilians as a cover to prevent the other side from attacking them- the civilians are being used as Human Shields to protect the Military. Sometimes, civilians could also perform this activity voluntarily.
Why is a discussion on Human Shields Necessary now?
There have been reports out of the region, propounded by the Israeli army and politicians and later picked up by mainstream media, that Hamas has been using Palestinians in Gaza as shields from the attack by Israel, resulting in civilian casualties.
However, a more important question emerges on the responsibility on the side of the attacker when faced by a human shield. There is absolute certainty in international law that Human Shields cannot be used by any side but the discourse on the responsibility of a side when faced with human shields while conducting military operations is not as loud.
Human Shields and IHL
The IHL also deals with Human Shields. Geneva Convention, while being the main convention, Additional Protocols also deal with conflict and the law that should be followed during conflict. Additional Protocol I concerns international armed conflicts, that is, those involving at least two countries. Additional Protocol II is the first international treaty that applies solely to civil wars and sets restrictions on the use of force in those conflicts.
Article 51(7) of Additional Protocol-I stipulates that:
The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.
The International Committee of Red Cross has defined human shields as “an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.”
Gaza and Human Shields
A basic principle of International Law is the principle of proportionality. The principle means that incidental and involuntary damages caused to the civilian population during a military attack shall not be excessive in comparison to the direct military advantage obtained. This is one of the core principles of IHL. This principle should ideally guide the State of Israel when it attacks its enemies in Gaza. Added to this, the population in Gaza is very dense, this should have given Israel more responsibility while carrying out its attack. Although Israel dropped leaflets in Gaza asking the civilians to leave, it continued to attack the occupied territory leaving civilians in bewilderment and pain. In a study, it has been observed that civilians caught in the midst of armed conflicts are frequently labelled as human shields. This labelling serves two purposes: to deflect blame for civilian casualties from the perpetrators to those who “deployed” them, and to diminish the value of the “civilian-shields” who died.
Chemical weapons
As the name suggests, the term refers to those chemicals that are used to inflict death and suffering on the other side, in a war.
Chemical Weapons and IHL
Weapons which cause injuries of various kinds and degrees to man and beast by the use of the asphyxiating, toxic, irritant, paralysing, growth-regulating, anti-lubricating or catalytic properties of a solid, liquid or gaseous chemical. Chemical weapons may also pollute food, beverages and materials. Their use, manufacture and stockpiling are prohibited.
The ill effects of using chemicals and different toxic gases in wars are well documented. However, the two nations – USA and USSR-maintained huge stockpiles of chemical weapons during the Cold War Era. After the Soviet Union’s collapse, the international political environment was more conducive for a multilateral level of regulation on chemical weapons. The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction- otherwise known as the Chemical Weapons Convention (CWC) came into force in April 1997. The Convention has 193 state parties i.e., signatories and out of the 193 signatories, only Israel has not ratified the convention. Ratification refers to an approval of agreement by the state, internally. For example, India signed the convention, like Israel, but also ratified the convention by enacting the Chemical Weapons Convention Act, 2000 to give effect to the provisions of CWC.
The CWC prohibits the development, production, acquisition, stockpiling or retaining chemical weapons; the direct or indirect transfer of chemical weapons; Chemical Weapons use or military preparation for use; Assisting, encouraging, or inducing other states to engage in CWC- prohibited activity.
Gaza and Chemical Weapons
Human Rights Watch- an NGO- has stated that it had verified Israel’s use of white phosphorus munitions through interviews and videos, showing the chemical substance was fired on two locations along Israel-Lebanon Border and over the Gaza City port. White phosphorus is a wax-like, toxic substance that burns at more than 800 degrees Celsius (nearly 1,500 degrees Fahrenheit) – high enough to melt metal. Additionally, Israel’s usage has not attracted the attention it should have due to the disagreement in popular scholarship over whether White phosphorus is a chemical weapon or not.
However, Peter Herby- the then head of the International Committee of Red Cross observed in 2009, use of white phosphorus as an incendiary weapon i.e. a weapon to set fire to military targets is subject to restrictions depending upon the concentration of civilians in the area. And air dropping of such weapons in civilian concentration areas is also prohibited. Irrespective of the status of the chemical, if any party in Gaza uses it in a densely populated area, it would violate IHL.
Humanitarian Aid
In the realm of International Humanitarian Law, there exists the acknowledgment that civilians residing in a State undergoing armed conflict have the entitlement to humanitarian assistance. This body of law meticulously oversees the parameters for delivering vital aid, encompassing necessities like food, medicines, medical equipment, and other indispensable supplies, to those civilians facing urgent requirements.
Article 23 of Convention IV (Geneva Convention (IV) on Civilians, 1949 imposes an obligation on belligerents during international armed conflicts to allow relief operations for the well-being of civilians, including those from the opposing side. This article specifically addresses relief assistance for vulnerable groups like children under fifteen and pregnant or nursing mothers. Additionally, it grants the involved States the authority to inspect and verify relief supplies and refuse passage if there are justified concerns about misuse in military efforts.
Furthermore, Article 70 of Protocol I expands the right to humanitarian assistance, requiring relief operations for the entire civilian population during a general shortage of essential supplies. However, this provision comes with a significant limitation—it mandates the consent of all parties involved, including the receiving State, for such assistance to be provided.
Humanitarian Aid and Gaza
There were credible reports that Gaza had shortage of essential supplies like medicines, fuel, food and water. This law also faced a limitation since Gaza is not a state in its entirety but an occupied territory. The application of this part of International Law becomes questionable on the basis of technicality. However, the basic principles of IHL of proportionality and Humanity comes to the rescue here too. If the fuel and water does not go into the occupied Gaza territory, the impact of population is immensely devastating and therefore, the correct application of IHL should result in better transportation of essential supplies into Gaza.
Conclusion
In the realm of international relations, International Humanitarian Law (IHL) is often considered a form of “soft law,” lacking the same enforceability mechanisms as domestic laws. Despite this, the ongoing discourse surrounding IHL remains crucial, particularly in the context of contemporary conflicts such as that between Israel and Palestine. The intricacies of this legal framework provide a vital foundation for addressing humanitarian concerns amid armed conflicts. Picture IHL as an ever surviving instrument in an ever changing geopolitical world—one that refuses to fade into the background. The conflict’s ever-shifting scenes, marked by the clash of historical grievances and contemporary complexities, call for a continuous exploration of the legal and ethical boundaries that IHL sketches. It becomes a script that demands revisiting, a narrative that necessitates reflection and revision to harmonize with the evolving dynamics of conflict.
(The author is a legal researcher with the organisation)
Related:
How Does International Humanitarian Law Apply in Israel and Gaza?