For the past two weeks we have been witnessing the daily massacre of Palestinian civilians trapped in Gaza. Nothing has been spared. Schools, public buildings, homes, mosques, UN convoys, humanitarian missions – all bear the brunt of the highly militarized State of Israel. And with ‘smart’ weapons that will continue to destroy long after hostilities end. The latest UN report says that Israeli forces evacuated a large number of Palestinians into a single-residence house in Zeitun, warning them to stay indoors, and soon after shelled the home repeatedly killing some 30 people.
A UN official has asked that Israel be charged for humanitarian crimes in the ongoing war on Gaza.
Can it be charged? And on what basis? This article explores the applicability of international law to this ‘War on Gaza’.
International law consists of multilateral agreements – such as treaties and conventions - made between states; as well as what is accepted by States customarily. International law regulates wars in 2 ways. Initially, it restricts the justifications for starting a war. Then when war erupts, it has rules for the conduct of a ‘humane’ war. One such set of rules provides protection for civilians. It is Chapter IV of the Geneva Conventions of 1949. Virtually the whole world, including Israel and the US, are parties to this Convention.
All parties must respect the rules ‘under all circumstances’. This means that there can be no excuse of any kind for not obeying it. Not the necessity defence (‘I had no choice but to take this action’). Nor the self-defence reason (‘I had to do it to protect myself’). Even if the other party does not stick to the rules, a Party to the Convention must still follow it. In other words, no reason or excuse of any kind can justify targeting the civilian population by any one at war. This reflects the values of Common Humanity, deep rooted in cultures and civilisations - whether Hindu, Buddhist, Chinese, Christian, Islamic or traditional African. Indeed, this is the basis of international humanitarian law, as the International Court of Justice declared in an Advisory Opinion in 1966.
These rules outlaw many acts. Such as: killings, causing suffering or serious injury, destroying property – including schools, hospitals, places of worship, intentionally targeting the civilian population or objects or humanitarian assistance personnel, launching an attack deliberately to cause loss of life or injury to civilians, attacking towns, villages, refugee camps which are undefended and are not military objects. In short, the attacker must distinguish between the civilian population and combatants and between civilian objects and military objects.
Weapons are banned if their use has an indiscriminate effect between civilians and combatants; or are used out of all proportion to military objectives; or adversely affect the environment; or cause superfluous injury and unnecessary suffering. Genocidal and omnicidal radioactive depleted uranium weapons, in common use now, are outlawed. They have a life of 4.5 billion years. Their blast accumulates in organs. Their deadly effects linger on in the soil, air and water for a life time and more.
These rules must not be violated in an armed conflict of any sort. If they are, the State or organization can be charged for a humanitarian crime. If they are breached in an armed conflict of an ‘international’ character, then a ‘war crime’ is committed.
Israel argued at the International Court of Justice (‘the ICJ’), in a case in 2004, that this particular Geneva Convention did not apply because Palestine has never been a sovereign territory. It is merely an occupied territory. The Convention, it said, applies only to State parties. Israel is really saying that the Palestine Liberation Movement (PLO), the governing authority in the West Bank, is not acting for a sovereign State because there is no such State.
The International Court rejected this argument. It said that the Convention guaranteed the protection of civilians in time of war even in the occupied territories of Palestine. And that this had been affirmed several times by the countries who are Parties to the Convention, the UN General Assembly and the Security Council. Even the Supreme Court of Israel said in 2004 that the Israel military must respect civilian populations under the rules established by the Convention.
The upshot then is that Israel can be charged for the war crime of violating the relevant Geneva Convention.
It is instructive to recall Israel’s 2006 attack against Lebanon in 2006. Much the same reasons were given (‘abduction of soldiers, rocket attacks, using civilians as human shields’). The independent Human Rights Commission investigating that war concluded that Israel was guilty of using indiscriminate force against civilians and civilian objects and had punished civilians collectively.
As for the initiation of the war on Gaza, the UN Charter prohibits members to use force unless it is in self-defence. The threat must be imminent. More importantly, the recourse to war must be necessary and proportional to the armed attack. Even then, before any such action is taken, it is mandatory to negotiate, conciliate, mediate, arbitrate and seek judicial settlement. In short, war is only as a very last resort. Even then the war measures must be temporary until the Security Council can take measures. If none of these conditions are met, the war is illegal. It is unjustified aggression – a war crime. It is instructive that the US termed the Soviet presence in Afghanistan at the request of the then Government in 1979 as ‘military aggression’. On the face of it, Israel stands charged for the crime of aggression, sometimes called the crime against peace.
The UN Security Council is tasked with the obligation to initiate action for the war crime. The US is clearly resolute to prevent any such prosecution. For acts against humanity, States have a duty to act against their citizens who breach the rules. Israel cannot possibly prosecute itself!
In either case the rules of international law are being flagrantly and openly defied. Is it not time for the world community to act beyond making pious and empty rhetorical statements?
The civilian men and women of Gaza await as they carry the corpses of their dead children for yet another round of burials.
THE GAZA ATTACK: A WAR CRIME? - By Prof. Gurdial Singh Nijar (LATEST UPDATE - 20/1/09)
19th January, 2009 , Law faculty, University of MalayaFor the past two weeks we have been witnessing the daily massacre of Palestinian civilians trapped in Gaza. Nothing has been spared. Schools, public buildings, homes, mosques, UN convoys, humanitarian missions – all bear the brunt of the highly militarized State of Israel. And with ‘smart’ weapons that will continue to destroy long after hostilities end. The latest UN report says that Israeli forces evacuated a large number of Palestinians into a single-residence house in Zeitun, warning them to stay indoors, and soon after shelled the home repeatedly killing some 30 people.
A UN official has asked that Israel be charged for humanitarian crimes in the ongoing war on Gaza.
Can it be charged? And on what basis? This article explores the applicability of international law to this ‘War on Gaza’.
International law consists of multilateral agreements – such as treaties and conventions - made between states; as well as what is accepted by States customarily. International law regulates wars in 2 ways. Initially, it restricts the justifications for starting a war. Then when war erupts, it has rules for the conduct of a ‘humane’ war. One such set of rules provides protection for civilians. It is Chapter IV of the Geneva Conventions of 1949. Virtually the whole world, including Israel and the US, are parties to this Convention.
All parties must respect the rules ‘under all circumstances’. This means that there can be no excuse of any kind for not obeying it. Not the necessity defence (‘I had no choice but to take this action’). Nor the self-defence reason (‘I had to do it to protect myself’). Even if the other party does not stick to the rules, a Party to the Convention must still follow it. In other words, no reason or excuse of any kind can justify targeting the civilian population by any one at war. This reflects the values of Common Humanity, deep rooted in cultures and civilisations - whether Hindu, Buddhist, Chinese, Christian, Islamic or traditional African. Indeed, this is the basis of international humanitarian law, as the International Court of Justice declared in an Advisory Opinion in 1966.
These rules outlaw many acts. Such as: killings, causing suffering or serious injury, destroying property – including schools, hospitals, places of worship, intentionally targeting the civilian population or objects or humanitarian assistance personnel, launching an attack deliberately to cause loss of life or injury to civilians, attacking towns, villages, refugee camps which are undefended and are not military objects. In short, the attacker must distinguish between the civilian population and combatants and between civilian objects and military objects.
Weapons are banned if their use has an indiscriminate effect between civilians and combatants; or are used out of all proportion to military objectives; or adversely affect the environment; or cause superfluous injury and unnecessary suffering. Genocidal and omnicidal radioactive depleted uranium weapons, in common use now, are outlawed. They have a life of 4.5 billion years. Their blast accumulates in organs. Their deadly effects linger on in the soil, air and water for a life time and more.
These rules must not be violated in an armed conflict of any sort. If they are, the State or organization can be charged for a humanitarian crime. If they are breached in an armed conflict of an ‘international’ character, then a ‘war crime’ is committed.
Israel argued at the International Court of Justice (‘the ICJ’), in a case in 2004, that this particular Geneva Convention did not apply because Palestine has never been a sovereign territory. It is merely an occupied territory. The Convention, it said, applies only to State parties. Israel is really saying that the Palestine Liberation Movement (PLO), the governing authority in the West Bank, is not acting for a sovereign State because there is no such State.
The International Court rejected this argument. It said that the Convention guaranteed the protection of civilians in time of war even in the occupied territories of Palestine. And that this had been affirmed several times by the countries who are Parties to the Convention, the UN General Assembly and the Security Council. Even the Supreme Court of Israel said in 2004 that the Israel military must respect civilian populations under the rules established by the Convention.
The upshot then is that Israel can be charged for the war crime of violating the relevant Geneva Convention.
It is instructive to recall Israel’s 2006 attack against Lebanon in 2006. Much the same reasons were given (‘abduction of soldiers, rocket attacks, using civilians as human shields’). The independent Human Rights Commission investigating that war concluded that Israel was guilty of using indiscriminate force against civilians and civilian objects and had punished civilians collectively.
As for the initiation of the war on Gaza, the UN Charter prohibits members to use force unless it is in self-defence. The threat must be imminent. More importantly, the recourse to war must be necessary and proportional to the armed attack. Even then, before any such action is taken, it is mandatory to negotiate, conciliate, mediate, arbitrate and seek judicial settlement. In short, war is only as a very last resort. Even then the war measures must be temporary until the Security Council can take measures. If none of these conditions are met, the war is illegal. It is unjustified aggression – a war crime. It is instructive that the US termed the Soviet presence in Afghanistan at the request of the then Government in 1979 as ‘military aggression’. On the face of it, Israel stands charged for the crime of aggression, sometimes called the crime against peace.
The UN Security Council is tasked with the obligation to initiate action for the war crime. The US is clearly resolute to prevent any such prosecution. For acts against humanity, States have a duty to act against their citizens who breach the rules. Israel cannot possibly prosecute itself!
In either case the rules of international law are being flagrantly and openly defied. Is it not time for the world community to act beyond making pious and empty rhetorical statements?
The civilian men and women of Gaza await as they carry the corpses of their dead children for yet another round of burials.
Di pos oleh Arbain Muhayat pada 22 January 2009