The enduring conflict between Israel and Palestine is deeply rooted in a territorial dispute. The Gaza Strip, home to approximately two million Palestinians, lies adjacent to Egypt and Israel, making it one of the most densely populated areas in the world. At the heart of this conflict is Israel’s military occupation of the West Bank, one of the Palestinian territories, and its blockade of the Gaza Strip. Although Israel withdrew from Gaza in 2005, it retains control over its airspace, territorial waters, and crossings, through which most goods are shipped. Consequently, the Israeli Army holds ultimate authority in the West Bank due to its effective control over the territory. The 3 million Palestinians in the West Bank and the 2.3 million in Gaza vehemently oppose Israeli occupation and blockade. The blockade has subjected Gazans to severe conditions, including a 50% unemployment rate, along with a decline in healthcare and infrastructure. Amid escalating frustrations, the Palestinian militant group Hamas emerged in the late 1980s.
The recent conflict started on 7th October 2023 when Hamas, the Palestinian militant group, launched an indiscriminate rocket barrage of over 5,000 missiles against Israeli targets, violating the core principles of international law, international human rights law, and humanitarian law. The attack killed 1,400 Israelis, including Israeli soldiers, civilians, women, and children. Many were taken hostage to the Gaza Strip. A day later, Israel declared war against Hamas and launched a retaliatory attack. This led to the deaths of around 2,700 Palestinians and the displacement of 1 million Palestinians. Furthermore, Israel attacked schools, hospitals, civilian buildings, and journalists and stopped the humanitarian aid supplied to Palestine by air and sea, claiming defense as military objects. This situation violates international humanitarian law regarding international armed conflict.
There is a debate about whether this situation constitutes an international armed conflict (IAC) or not. According to Common Article 2 of the 1949 Geneva Conventions, the conflict involves two high contracting parties: Israel and Palestine. Furthermore, Geneva Convention Additional Protocol 1 expanded the definition of IAC to include armed conflicts in which people fight against alien occupation to exercise their right to self-determination. In this case, Israel has occupied Palestinian territories and exercises effective control over them. Some argue that this situation is a non-international armed conflict (NIAC) under Common Article 3, as Hamas is a non-state actor, and its actions cannot be attributed to another state. However, IHL applies to both international and non-international armed conflicts. The purpose of applying IHL is to limit the effects of armed conflict, reduce unnecessary suffering, loss, and damage, and safeguard fundamental human rights to facilitate peace restoration. The Geneva Law provides provisions to protect persons who do not or no longer participate in hostile actions, and the Hague Law limits the choice of means and methods of conducting military operations.
The recent attacks launched by Israel have drawn strong condemnation from the international community as they violated the principles of IHL. The violation of IHL by one side cannot be justified by the violations of the other side. According to Amnesty International, on December 19th, 2023, 22 civilians were killed, including 11 children, and many were injured in western Rafah. It further mentioned that more than 28,000 Palestinians have been killed and over 60,000 injured due to Israel’s unlawful attacks in Gaza. IHL does not prohibit the use of force, but it should be within the limits set out by IHL. Furthermore, it recognizes that legitimate military targets can be attacked and enemy combatants killed for legitimate military purposes. Parties to the conflict must at all times distinguish between the civilian population and combatants, military objectives, and civilian objectives. Accordingly, they shall direct their operations only against military objectives (Article 48, Additional Protocol 1), although recent evidence shows that this did not happen in the Gaza Strip. The principle of proportionality should be applied when launching an attack on a military object to minimize harm to civilians.
The Geneva Convention IV pertains to the protection of civilian persons in times of war, and Article 50 of the 1977 Additional Protocol 1 defines civilians and provides general rules for all civilians regardless of nationality, as well as protections for civilians such as hospital zones and the evacuation of wounded and sick civilians. Furthermore, IHL prohibits the use of civilians as human shields. Although IHL states that hospitals, schools, and residential buildings cannot be targeted, if these places are used by terrorists for military purposes, then they can be targeted. For example, if a militant group’s headquarters is located in a school building, then that place can be targeted, but the potential gains of such an attack must be carefully considered. Moreover, adherence to the principle of proportionality is essential, and precautionary measures should be taken to minimize damage to civilians and civilian objectives. Article 57(2)(c) of the Additional Protocol 1 to the Geneva Convention mentions that effective advance warning shall be given of attacks that may affect the civilian population, unless circumstances do not permit. However, evidence shows that many attacks carried out by Israel in recent days were planned attacks launched without effective advance warning or with insufficient time for civilians to vacate.
IHL does not permit Israel to declare the entire Gaza Strip as a military object. Any attack must be directed at a specific location, and issuing warnings for civilians to vacate an entire area is not acceptable. If warnings are given but civilians remain, parties must assess the number of remaining civilians before proceeding with an attack, as outlined by IHL. In mid-November, Israel attacked Al-Shifa Hospital, the largest medical complex in Gaza, claiming it contained a Hamas command and control center beneath it. However, Hamas rejected this claim, and Israel has not provided evidence to support its assertion. The hospital housed about 650 patients, including 36 premature babies, and medical staff, many of whom were displaced. Such attacks are prohibited by IHL, and deliberately targeting civilians or civilian objects constitutes a severe war crime.
It has been reported that Palestinian women and girls in detention have been subjected to multiple forms of sexual assault and rape. Additionally, pregnant women have had to undergo cesarean surgeries without anesthesia due to the blockade of essential medical supplies by Israeli forces. Article 14 of the Third Geneva Convention mentions the special protection afforded to women by IHL, and almost half of the 1977 Additional Protocols deal with women in their roles as expectant or nursing mothers. Similarly, the other category of protection, specifically addressing the crime of sexual violence, is framed in terms of the chastity and modesty of women. Despite these provisions being included in IHL, numerous violations occur in the Gaza Strip conflict in practice.
Another incident involves Israel’s military imposing a “complete siege” on the Gaza Strip by cutting off food and water, electricity, and fuel, which constitutes war crimes and violates Article 23 of the IV Geneva Convention. IHL stipulates that humanitarian relief should be allowed, and essential supplies should be provided to the civilian population. Furthermore, there have been reports that Israeli forces used “White Phosphorus,” causing severe harm to the human body, damaging crops, and killing livestock, which violates the Hague Regulations regarding the means and methods of warfare and leads to war crimes. These incidents demonstrate serious violations of IHL by both parties to the conflict.
Each day, the Gaza Strip becomes more uninhabitable, with increasingly serious war crimes and grave breaches occurring. On December 29th, 2023, South Africa initiated proceedings against Israel before the International Court of Justice (ICJ) under the Genocide Convention (South Africa v Israel). South Africa stated that Israel’s military operations breached the 1948 Genocide Convention and exhibited genocidal intent against Palestinians. It further argued that there had been a high number of Palestinians killed and displaced, restrictions on aid, and attacks on healthcare workers and hospitals. Therefore, South Africa requested “provisional measures,” which are emergency orders for an immediate ceasefire. It emphasized the urgency of the orders, stating that there is an imminent risk of irreparable prejudice before the court decides the case.
The aforementioned incidents underscore the dire situation in the Gaza Strip and the blatant violations of international humanitarian law by both parties to the conflict. It is disheartening to witness the international community’s inability to halt the grave breaches and war crimes occurring in Gaza, with the looming threat of irreparable damage in the future. As the adage goes, “War is a defeat for humanity.” Despite the absence of signs indicating an imminent end to the conflict, we hope for a day when peace will triumph over conflict and bring about stability in the region.
Yasangi Handunge
[Yasangi Handunge is an enthusiastic law student with a keen interest in human rights and environmental law studies, as well as world affairs. She is pursuing a Master’s degree at South Asian University, having completed her Bachelor’s degree at the University of Jaffna. Previously, she served as a research intern at the Asian African Legal Consultative Organization (AALCO), focusing on fair and equitable benefit sharing under international law.]
Photo Credit – https://hub.jhu.edu/2023/10/20/humanitarian-health-effects-of-israel-hamas-war/
