As Gaza’s civilians see violence perpetrated by the Israeli Defence Forces and as news media gets flooded by the photos and videos of suffering of the people of Gaza, it is important to remind and remember the war violations that Israel has been committing.
International Humanitarian Law (IHL) is a vital framework that governs the conduct of armed conflicts, aiming to minimize human suffering during times of war and protect the fundamental rights and dignity of individuals. IHL is a constituent of the broader field of public international law, which governs the relationships between sovereign states. Public international law primarily consists of formal treaties or conventions that states enter into, commonly accepted customary practices regarded as legally binding, and fundamental legal principles. This essay explores the significance of International Humanitarian Law, its historical development.
Historical Evolution of IHL
The roots of IHL can be traced back to ancient civilizations and religious texts, providing guidance on the humane treatment of prisoners and non-combatants. Modern IHL began to take shape in the 19th century, driven by the widespread suffering and devastation caused by armed conflicts, including the Napoleonic Wars and the American Civil War. The adoption of the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field and the 1868 Declaration of Saint Petersburg, which prohibited the use of certain projectiles in wartime, and other conventions such as the Hague Conventions of 1899 and 1907, laid the foundation for IHL’s core principles of humanity, distinction, proportionality, and necessity.
Treaty based systems
A treaty-based system in international law refers to a legal framework composed of international agreements or treaties that are negotiated, concluded, and ratified by sovereign states. These treaties are binding instruments that set forth the rights, obligations, and responsibilities of the parties involved.
The Geneva Conventions: The cornerstone of treaty-based IHL is the four Geneva Conventions, which were first adopted in 1949. These conventions provide comprehensive guidelines for the protection of wounded and sick soldiers on land and at sea (First and Second Conventions), prisoners of war (Third Convention), and Relative To The Protection Of Civilian Persons In Time Of War (Fourth Convention). They establish the fundamental principles of humanity and protection that underpin IHL.
Additional Protocols: The two Additional Protocols to the Geneva Conventions, adopted in 1977, significantly expanded and modernized IHL. The First Additional Protocol addresses international armed conflicts, emphasizing the protection of civilians and combatants who are no longer taking part in hostilities. The Second Additional Protocol focuses on non-international armed conflicts, offering similar protections for individuals involved in conflicts within a single state.
Other Treaties: In addition to the Geneva Conventions and their Additional Protocols, numerous other treaties contribute to the body of IHL. These include treaties regulating specific weapons, such as the Chemical Weapons Convention and the Convention on Cluster Munitions, and agreements addressing the treatment of certain categories of individuals, like the Convention on the Rights of the Child in Armed Conflict.
The Four Core Principles of IHL
IHL is built upon four core principles:
- Humanity: This principle emphasises humane treatment for all individuals affected by armed conflict, obliging all parties to provide care to the sick and wounded, protect prisoners of war, and ensure the well-being of civilians.
- Distinction: Parties must distinguish between combatants and civilians and between military and civilian objects. Intentional targeting of civilians or civilian infrastructure is prohibited, designed to protect non-combatants and their property.
- Proportionality: This principle ensures that harm to civilians or civilian objects during an attack is not excessive compared to the expected military advantage, striking a balance between military necessity and civilian protection.
- Necessity: The use of force must be necessary to achieve a legitimate military objective, prohibiting excessive force or unnecessary harm to individuals and property.
Palestine-Gaza Conflict and IHL
In this conflict, IHL is applicable to protect the rights and dignity of civilians on both sides. It addresses issues like the protection of civilians, the treatment of prisoners, and the conduct of hostilities. However, the complexities of this conflict present unique challenges.
Non-state actors: The involvement of non-state actors, such as Hamas in Gaza, complicates the application of IHL. Ensuring that these groups abide by IHL standards and are held accountable for violations is challenging.
Blockades and restrictions: The blockade of Gaza by Israel, in place since 2007, has raised concerns about the humanitarian impact on the civilian population and whether it complies with IHL principles, particularly the principle of humanity.
Accountability and enforcement: Holding violators of IHL accountable is a persistent challenge in the Israel-Palestine conflict. The political complexities of the situation make achieving accountability for violations difficult.
There were recent reports that White Phosphorus was used against Lebanon and Gaza by Israel. The use of incendiary weapons in densely populated areas like Gaza violates international humanitarian law, which requires parties to a conflict to take all feasible measures to avoid harming civilians and preventing loss of life. There are various reports stating that Israel has targeted civilian populations, including homes, refugee camps, hospitals, and infrastructure during military operations. These actions can be considered violations of IHL, which mandates the protection of civilians and civilian objects.
Conclusion
The ongoing Palestine-Gaza conflict highlights the enduring importance of International Humanitarian Law in contemporary conflicts. The principles of humanity, distinction, proportionality, and necessity are crucial for preserving human dignity in the face of complex, protracted conflicts. As the international community grapples with the intricacies of this conflict, it remains imperative to uphold IHL standards and work toward a just and lasting resolution that respects the rights and dignity of all individuals affected by the conflict. The historical context of the Israeli-Palestinian conflict, with its roots in occupation, displacement, and dispossession, demands a more just and equitable application of IHL. The disproportionate use of force, the siege on Gaza, and the infringement upon basic human rights, including the right to self-determination, have all been ongoing issues that require a more robust enforcement of international law.
(The author is a legal reasercher with the organisation)
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Palestine-Israel conflict: Need to look beyond security paradigm