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Israel, Gaza and the laws of war

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Israeli military with artillery teams this October 14, 2023 (EFE/ Martin Divisek)

It can be difficult to cling to reason amid the fog of grief that is the natural response to what has happened in recent days in Israel and Gaza.

But international law offers us a context to analyze what is happening, even as the atrocities and deaths caused by the incursion of Hamas and the consequences of the siege and bombings by the Israel in the crowded Gaza Strip, home to millions of civilians. Every day we receive new information. It will take time to verify the details, misinformation is already widespread, and it can be easy to get bogged down in debates about unconfirmed claims. The laws of war offer a guide to what is most important and what should happen next.

There are two especially useful principles. The first is that the “why” and “how” of war are two different legal questions. The justice or injustice of the reason for a war does not modify the obligation to fight in accordance with the rules of international humanitarian law.

The second related principle, from which much of international humanitarian law is derived, is that civilians have the right to protection. Armies and other armed groups cannot attack them directly. Nor can they disproportionately harm them in the pursuit of legitimate military objectives. And those obligations still apply, even if the other side violates them by attacking civilians.

The origins of the laws of war date back centuries. But its modern version was a reaction to the world wars of the 20th century. In 1928, the Pact of Paris, an international treaty, banned almost all types of war. It was followed by the United Nations Charter of 1949 and 1977 and then by the further development of international criminal law in the second half of the 20th century, which gave rise to the establishment of the International Criminal Court in 2002.

The legislation that governs when states can use military force is known as “ius ad bellum,” a Latin term referring to law that regulates the use of force in the international framework.

Currently, this law is very strict and prohibits, in short, countries from using force against each other other than in self-defense, said Oona Hathaway, a professor at Yale Law School and co-author of “ The Internationalists: How a Radical Plan to Outlaw War Remade the World.”

“In the past, countries could go to war for almost any reason,” Hathaway said. “They could go to war to collect a debt or in response to wife theft. Also because the other side was intervening in their commercial relations. But that’s no longer true”.

However, regardless of whether there are legitimate reasons to use force, all parties to the conflict are still expected to follow the humanitarian law that governs the conduct of the war itselfknown as “ius in bello”: the law that governs the conduct of hostilities, commented the jurist.

The road to southern Gaza with thousands of displaced families on Friday (Photo for The Washington Post by Loay Ayyoub)

Anyone who has spent a lot of time on social media recently will have seen people conflating the fairness of the conflict itself with the fairness of the way it is being carried out. Some people appear to justify the killing of Israeli civilians on the basis that Israel’s occupation of Palestinian territories is wrong, while others appear to downplay the killing of Palestinian civilians in bombings on the grounds that Israel has the right to defend itself from attack. .

Treating motives and behavior as two different aspects, as the law does, is a way to clearly focus attention on the complexity of the war and the political aspects behind itwithout losing sight of the humanitarianism shared on all sides.

That same objective guided the development of the laws of war. “International law has traditionally separated the two in an attempt to protect populations at war, regardless of the justification for the initial use of force,” said Monica Hakimi, a law professor at Columbia University. “They wanted to make sure that both sides were equally protected in the war to make it as cruel as possible.”

The fundamental principle of “ius in bello” is that Civilians cannot be targeted by military objectives nor be disproportionately injured as a means of achieving a military objective. That is true regardless of the legality of the underlying conflict and whether the opposing side has violated humanitarian law.

“The simplest way to think about it is just that guarantees are guarantees for human beings,” explained Tom Dannenbaum, a professor at Tufts University’s Fletcher School specializing in International Humanitarian Law.

“Many of these human beings have nothing to do with the violations of the State or the non-state armed groups with which they are related in some way,” commented Dannenbaum, who also pointed out that It would make no sense to reduce or eliminate civil rights in reaction to the behavior of armed groups that they do not control.

This is how Hamas terrorists broke into a house in Israel

According to the Israeli government, Hamas has killed more than 1,200 Israelis, of whom 222 were soldiers. Among the dead civilians are some young people who were attending a music festival, children, babies and the elderly.

“There is no doubt,” said Dannenbaum, that Hamas attack “involves many war crimes against humanity”, some of which are ongoing. “It’s not something terrible that almost didn’t happen.”

The attackers also took about 150 people hostage. Volker Türk, the UN high commissioner for human rights, said in a statement on Tuesday that hostage taking is prohibited by international law and called on Palestinian armed groups to immediately and unconditionally release all captured civilians.

“Hamas is subject to the basic provisions of international humanitarian law, but often violates them”Hakimi pointed out. Acts such as systematic murder and hostage-taking are serious violations of the Geneva Conventions, as are crimes committed under international criminal law.

Hamas could not be reached for comment, but Moussa Abu Marzouk, a senior Hamas political official, said in an interview with The Economist on October 10, three days after the attack on Israel, that this group “obeys all international and moral laws.”

An Israeli soldier walks past bullet holes, following a massive infiltration of Hamas gunmen from the Gaza Strip, in Kibbutz Beeri, southern Israel, on October 14, 2023 (REUTERS/Violeta Santos Moura)

In that same statement condemning the hostage taking, Türk, the UN official, raised serious concerns about Israel’s actions in Gaza. On Monday, Israeli Defense Minister Yoav Gallant announced a total siege of that territory, saying that they would not authorize “electricity, food, water, or fuel” in that 40-kilometer-long strip that is home to more than two million of people, approximately half of whom are under 18 years of age.

“The imposition of sieges that endanger the lives of civilians by depriving them of what is necessary for their survival is prohibited under international humanitarian law,” Türk said.

Ophir Falk, foreign policy advisor to Israeli Prime Minister Benjamin Netanyahu, told The New York Times on Thursday that “Israel is acting in full compliance with international law, and always has done so.”

In recent days, Israel has intensively bombed the Gaza Strip as part of a campaign against Hamas that, according to an Army spokesperson, would be “stronger and more intense” than previous actions in that territory.

Under international law, even attacks on legitimate military targets are illegal if there is a disproportionate injury to civilians, Hakimi said.

And because Gaza is under siege and under heavy bombardment, civilians have few means of escape, even if they are alerted.

“There can be disagreements about whether something is disproportionate or not because you can have disagreements about the value of military objectives,” Hakimi said. However, there are limits to such arguments, she said, and she added that it would not be permissible to justify mass civilian casualties by saying, for example, that their death would reduce the overall conflict.

The issue of what is proportionate is a balancing test that has to be evaluated on a case-by-case basis, Hakimi said.

© The New York Times 2023



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