Akshay Sharma, a 4th year law student at the Institute of Law, Nirma University in India, analyzes how the recent attacks on Palestine by Israel may constitute war crimes under international law...
According to the United Nations High Commissioner Michelle Bachelet, Israel’s recent deadly air strikes, and the atrocities that the Palestinians had to endure due to the operations of Israel, may constitute war crimes under international law. While addressing a special session of the United Nations Human Rights Council on May 27, Michelle Bachelet voiced a deep concern about the “high level of civilian fatalities and injuries” from the attacks on Gaza. She stated that if the military operations of Israel are found to be indiscriminate and disproportionate to the right of self-defense, the acts of the state may constitute war crimes.
The Israeli government and the Islamist Palestinian group, Hamas, agreed to a ceasefire last week after eleven days of relentless bombardment and air strikes, which began on May 10th . This 11-day war caused a widespread destruction in the Gaza strip claiming the lives of 248 Palestinians, including 66 children, and 12 Israelis. The Israeli airstrikes caused large-scale damage in Gaza. While Israel claims that it bombed sites that were a part of Hamas’s infrastructure and warned civilians beforehand, that does not justify the fatalities and mass destruction to buildings, homes, and the barging of Israeli police at the Al-Aqsa Mosque. Hamas also fired thousands of rockets on Israeli cities—an act which is, in itself, condemnable. Israeli lives were saved because of the presence of the anti-missile iron dome defense system.
However, international law on war crimes is quite clear. War crimes are those violations of international humanitarian law (treaty or customary law) that incur individual criminal responsibility under international law. According to Article 8 of Rome Statute of International Criminal Court, war crimes include intentionally killing civilians or prisoners, torturing, destroying civilian property, taking hostages, performing a perfidy, raping, using child soldiers, pillaging, declaring that no quarter will be given, and seriously violating the principles of distinction, proportionality, and military necessity.
Military operations in color of self-defense, like the killing of Palestinians including children, bombarding the buildings of Gaza, storming by soldiers at al-Aqsa mosque during the final Friday prayers of Ramadan, spraying worshippers with rubber-coated steel bullets, tear gas and flash bang grenades, leaving hundreds injured and dozens hospitalized, are evidence of war crimes that include torture, intentional killing of civilians, and attacks on religious buildings.
Moreover, the claim that Israel has a right to self-defense weakens when one observes that the prerequisite of self-defense is proportionality and military necessity. Article 8 Rome Statute of International Criminal Court clearly states that any act in derogation of the principles of distinction, proportionality, and military necessity shall constitute a war crime. To evaluate the prerequisite of military necessity in the case of Israeli counter-attacks, it is important to keep in mind that on the footing of self-defense, Israeli Iron Dome saved thousands of civilian lives from the indiscriminate acts of Hamas. This shows that on the aspect of self-defense, Israeli defense system was efficient and proportionate to the acts of the armed group. However, the Iron Dome’s success in no way mitigates Hamas’s culpability, which is strictly a function of the latter’s actions and intentions. Any kind of retaliation, such as those mentioned in the above paragraph, does not qualify the criteria of military necessity and principles of proportionality. Such acts go beyond the nature of self-defense. Hamas rocket firing the 11 days war killed 12 people, including two children. However, in Gaza, without a similar defense, the toll has been far greater: At least 213 people have been killed by Israeli airstrikes, including 61 children, according to the Health Ministry in Gaza.
The Fourth Geneva Convention deals with the protection of civilians in the regions affected by wars. Article 3 of the Convention states that even where there is not a conflict of international character, the parties must, at a minimum, protect the non-combatants, members of armed forces who have laid down their arms, and combatants who are hors de combat (out of the fight) due to wounds, detention, or any other cause. Protected parties shall in all circumstances be treated humanely, and violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture are prohibited. The use of disproportionate force by Israeli forces, which led to the killing of innocent civilians who posed no threat, is clearly a violation of Article 3 of the Fourth Geneva Convention.
International law relating to war crimes also includes those customs and practices of the international characteristics that are associated with armed conflicts of non-international nature. They are those conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups. Such war crimes are mentioned under Article 2 paragraph 2(e). For instance, Paragraph 2 (e) (i) of the Rome Statute notes intentionally directing attacks against the civilian population or against individual civilians not taking direct part in hostilities. As Hamas was fighting from a densely populated area, Israel had the duty to avoid civilian casualties.
Palestine has been occupied by Israel since 1967. According to the occupation laws that are given under the Fourth Geneva Convention of 1949, The Hague Regulations of 1907, and Additional Protocol I of 1977, the occupying power does not acquire sovereignty over the occupied territory, and is required to respect the existing laws and institutions of the occupied territory as much as possible. It aims to ensure the protection and welfare of the civilians living in occupied territories. The occupying power’s responsibilities include, inter alia, ensuring humane treatment of the local population and meeting their needs, respect for private property, management of public properties, educational establishments, ensuring the existence and functioning of medical services, allowing relief operations, and allowing impartial human rights monitoring organizations such as the ICRC to carry out their activities
As a result, where an occupation is already in place, the occupying state’s right to use militarized force in response to an armed attack, rather than police force to restore order, is not a viable option. Israel can only use the police powers, or the exceptional use of militarized force vested in it by IHL, to achieve its security goals. This is not to say that Israel cannot defend itself—it just can’t be in the form of warfare, and it cannot be justified as self-defense in international law.
In this regard, it is critical to remember that the International Court of Justice, in its 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall, clearly established the non-applicability and irrelevance of the so-called “self-defense” argument to the territory occupied by Israel.
Israeli officials are committing grave and serious violations against a besieged population in full view of the entire world, and yet they choose to justify their actions as “self-defense.” Israel’s willful violations of the protected population, and unjustified destruction of civilian property are war crimes, not self-defense. They violate Israel’s obligations under international humanitarian law, including the Fourth Geneva Convention and international human rights law as an occupying power. Israel, the occupying power, must be held accountable for all these war crimes, acts of state terrorism, and systematic human rights violations committed against the Palestinian people, and the perpetrators must be brought to justice.
Akshay Sharma is a penultimate B. Com. LL. B. (Hons.) student at the Institute of Law, Nirma University.
Suggested citation: Akshay Sharma, Israel-Palestine Conflict: Viewing Israel’s Military Operations as War Crimes, JURIST – Student Commentary, June 15, 2021, https://www.jurist.org/commentary/2021/06/akshay-sharma-israel-palestine-conflict/.
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