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?

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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:

1. 1. 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.
   2. 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.
   3. 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.
   4. 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)

Related:

Palestine-Israel conflict: Need to look beyond security paradigm

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