The atrocities of Hamas, the bombings of Israel. The protection of civilians who serve as human shields. These are days of fear, but also of heated discussions about the limits of war established by international law.
1 What are the reference standards?
The starting point is the “Charter of the United Nations”, which was published on October 24, 1945 and signed by the 193 UN member states. It should be noted that Palestine, which declared itself a state in 1988, has been present as a permanent observer since 2012, along with Taiwan and the Vatican. However, “humanitarian law” is summarized in the four Geneva Conventions, developed on August 12, 1949, with the addition of the 1977 Protocols. Israel entered the conventions on July 6, 1951; Palestine on April 2, 2014. Finally, of great importance is the “Rome Statute” (July 17, 1998), which establishes the International Criminal Court with its headquarters in The Hague. Note this passage: Israel never signed the statute, as did the US, while Palestine joined on April 1, 2105.
2 When is the use of military force legitimate?
The United Nations Charter excludes the use of force in international relations. With only one exception: the “natural right to self-defense” enshrined in Article 51. Postwar lawmakers tasked the UN Security Council with maintaining order and resorted to the military only as a last resort. The problem is that the governing body of the United Nations is paralyzed by mutual vetoes by the five permanent members: the United States, Russia, China, the United Kingdom and France. It happened with Putin’s aggression against Ukraine; This is what is happening now with the Hamas attack and Israel’s response.
3 Can international law punish Hamas’ crimes committed on October 7?
The size of Hamas is controversial. For the United States, the European Union and other countries, it is a terrorist organization; for others it is an expression of the Palestinian government, at least in the Gaza Strip. But regardless of their legal status, on October 7, Hamas militiamen violated the Geneva Conventions and the Rome Statute en masse by attacking, torturing and “deliberately” killing defenseless civilians. The prevailing thesis is that the International Criminal Court could be activated, as Philippe Sands, novelist and professor of international criminal law at University College London, explains: “Hamas’ actions are criminal.” There is no doubt about that. “The Prosecutor of the International Court of Justice has full jurisdiction (as we have seen, Palestine is a signatory to the Rome Statute, editor’s note) to identify those responsible for the crimes of October 7.”
4 Is Israel’s response disproportionate?
The Netanyahu government invokes the right to self-defense enshrined in the United Nations Charter. But the response, warns Professor Sands, “must respect the limits of the law”. The Fourth Geneva Convention requires “the protection of the civilian population in time of war.” The first step is to create safe areas for non-combatants. Furthermore, the “expulsion of children, wounded and sick people from a besieged area” is prescribed. It would therefore be the responsibility of the Israeli government to at least get the children and the most vulnerable people out of Gaza. There should be no reason to put pressure on Egypt. Finally, acts of war must spare non-military targets. And it’s really difficult to include drinking water pipes or power lines. The point is: Will the Hague Public Prosecutor’s Office also be able to investigate the actions of the Israeli army? And with what consequences? This is perhaps the most controversial aspect, as Israel does not recognize the International Criminal Court.
5 Is it permitted to use civilians as “human shields” in war?
The International Criminal Court has made it clear that “it is a war crime to use the presence of civilians to protect certain points, certain areas or certain forces from attack. Taking hostages is itself a war crime.”
6 Is it allowed to attack hospitals?
Here too we find the answer in the Fourth Convention. But this time there is room for interpretation. Or rather: Article 18 prohibits any attack on hospitals, even if soldiers were hospitalized there. However, Article 19 provides an exception: a nursing home can only be targeted “if it is used to commit acts outside humanitarian duties that are harmful to the enemy.” And one of the 1977 protocols states: “Under no circumstances may medical units be used to inspect military infrastructure.” Israeli intelligence claims that Hamas camouflaged command bases at Gaza’s Shifa Hospital.