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-UNRAVELLING ISRAEL-GAZA CRISIS: POLITICS & HUMANITARIAN CATASTROPHE-


Introduction

While the world awaits the ruling of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) by the International Court of Justice (“ICJ”), it is no secret that the situation in Gaza is not an open-and-shut case, in fact, it attracts violations of conventions and treaties that Israel and the state of Palestine are a Party to. Unarguably, these actions from both the countries oppose the core principles of humanity and principles of International Humanitarian Law which necessitates Gaza ceasefire more urgent than ever to end the horror that is unfolding. The violations of principles of humanity and customary international law such as the distinction between civilians and combatants, civilian objects and military objects, proportionality, precaution and military necessity and so on demand accountability from both these nations – which is why we see South Africa being globally applauded for filing a genocide case against Israel at the ICJ.

 

With the persistence of the war for 3 months, a divergence of perspectives and allegiances is globally evident with mass protests in various countries with major colleges becoming flash-point for protests over Israel-Hamas war, brands getting boycotted and this war changing the political dynamics of different nations. One faction criticizes Israel, deeming its actions disproportionate, while the other points to Hamas as the terrorist instigator of the conflict, citing the major attackon Israel on October 7, 2023. Hamas' refusal to halt the war and its own violations, such as the deliberate targeting of civilians, is intensifying the polarization. Hence, this blog attempts to dissect the actions of Israel and Hamas in light of the 1949 Geneva Convention and international war crimes tribunals, scrutinizing potential violations of core International Humanitarian Law, pinpointing incidents that may constitute international crimes. This analysis presents pragmatic recommendations for States to avert additional civilian casualties, in addition dissecting the situation in Gaza and Israel chronologically.

 

Oct. 7 – A Terrorist Attack or Resistance against years of occupation?

On 7 October 2023, the Islamic Resistance Movement (Hamas) initiated its biggest ever large-scale deadliest attack on Israel, launching thousands of missiles from Gaza into Israel. Concurrently, armed groups entered Israel from Gaza, attacked police stations and exchanged gunfire with Israeli forces. The armed groups also attacked the Supernova Festivalwhere, according to Israeli military forensic teams, eyewitness testimony, and reported photographic, documentary and video evidence, Hamas militants raped, assaulted, and mutilated Israeli women and girls. At the time of writing, Hamas continues to fire indiscriminately hundreds of rockets into Israel. The number of people killed in Israel reached 1,400 and at least 4,121 wounded, and counting. This surprise attack shook the world, garnering support from global superpowers such as the US, UK, Australia, France, Germany, India, etc. Even the UN condemned Hamas' assault, acknowledging the attackers' affiliations with Islamic Jihad and radical freelancers. The consensus was that Israel had the right to self-defence.

 

However, an opposing perspective emerged on the same day, advocating for the Palestinian cause and framing the incident as an assault by Israel. Critics contended that Israel, through its history of violence, genocide, and occupation in Palestine, was the true aggressor as on 7 October 2023, Hamas's Chief Commander Al-Qassam Brigades stated,

 

 

This rhetoric garnered backing from prominent Muslim League nations, with Iran emerging as a pivotal patron. Countries such as Egypt, Saudi Arabia, Afghanistan, Iraq, and Qatar resoundingly pointed the accusatory finger solely at Israel, holding it accountable for the devastating attack. This precipitated a swift and forceful response from Israel, declaring a war on Gaza, driven by the objective of quashing Hamas, which is a unequivocally a designated terrorist organization.

 

Hamas’ War Crimes, Terrorism or a Bloody Gambit to Create a Permanent War?

Prima facie, the Hamas Operation Al-Aqsa Storm killing 1400 Israeli civilians appears to constitute a significant violation of international law. It fails to align with any legitimate legal standards promoting peace, justice, or purposeful diplomacy. Instead, this recent outbreak of violence from the Palestinian side advocates a harshly visceral approach, posing a serious threat to Israeli civilians who are not actively engaged in hostilities. Major superpowers of the world have officially designated Hamas as a terrorist organization. Yet, many are seen challenging this characterization, asserting that Hamas should not be labelled as a terrorist entity. However, determining the applicability of laws of war to militant groups is a difficult question, notwithstanding, that both the International Committee of the Red Cross and the Council of Europeacknowledge that international law treats war and terrorism as separate legal categories.

 

Nevertheless, international law not only pertains to states, but also extends its applicability to insurgent and terrorist armed forces. Even if an insurgency is deemed lawful, contingent on meeting the criteria of "just cause," it must adhere to the principles of "just means." For Hamas, even if they purport a presumptive right to combat what they label as an "Israeli occupation," they remain bound by legal international humanitarian law constraints governing "discrimination," "proportionality," and "military necessity."

 

These principles encompass Common Art. 3 of the 1949 Geneva Convention, mandating humane treatment of civilians and non-combatants, Art. 51 of the conventions' Protocol I, shielding civilian populations from attacks, and numerous clauses on war crimes and crimes against humanity in Art. 7 and 8 of the Rome Statute of the International Criminal Court (“ICC”). These provisions, reflective of customary international law, are applicable to both Hamas leaders and its fighters. Recently, even Mexico City and Santiago have requested the International Criminal Court to examine events since October 7 to establish ‘potential criminal responsibility.’

 

As reported by Human Rights Watch and OHCHR, Hamas’ horrifying targeting of civilians, indiscriminate attacks, taking of hostages and use of human shields, without a doubt amount to violation of Art. 6 of the Rome Statute, given that it could be proved the perpetrators had "genocidal intent." Further, there is a clear violation of Art. 7 and Art. 8 of the Rome Statute since the attacks had been part of an organized “plan or policy” including wilful killings, taking of hostages, outrages upon personal dignity, and intentionally directing attacks against civilians and civilian objects; resulting in loss of civilian lives.

 

The murders, enforced disappearances, persecutions, and other inhumane acts, including against those hostages taken back to Gaza, result in clear violation of Art. 1(b) of Common Art. 3 of the Geneva Convention. Further, Hamas violates Art. 37 of the Rome Statute by posing as civilians and conducting military operations from civilian areas. These are the clear violations by Palestine; however, many staunchly argue that these actions by Hamas are not only justified but a desperate plea and counter-attack against Israel's relentless occupation and continuous warfare. For them, it remains a heart breaking struggle for survival against an oppressor, fuelling the flames of conflict.

 

Israel: The Original Sinner or Misjudging Proportionality?

In retaliation to Gaza attacks, IDF initiated "Operation Iron Swords." On October 13, 2023, the UN reported a 24-hour evacuation deadline for the northern Gaza Strip (home to 1.1 million people). Within the first week, 6,000 IDF airstrikes killed 3,300 and injured 12,000 civilians, causing extensive damage to vital infrastructure of water, food, shelter and healthcare. Airstrikes targeted civilian areas, markets, schools, hospitals, and convoys. Israel, in response to the horrors it endured, has arguably unleashed unimaginable atrocities on Palestine. Ongoing bombardment and siege led to at least 4,385 deaths, including 1,756 children and 967 women, with 13,561 injuries, surpassing twice the damage inflicted by Hamas on Israel.

 

The global stance, once staunchly behind Israel at the war's onset, now appears to be shifting dramatically. After a harrowing 100 days of unfathomable devastation wrought upon Palestine with Israel’s collective punishment, the world is undergoing a profound transformation, rallying in solidarity with the Palestinians. On 13 November 2023, the New York-based Center for Constitutional Rights has sued Joe Biden for allegedly failing in his duties, defined under national and international laws, to prevent Israel committing genocide in Gaza. To justify its actions, Israel asserts the use of "self-defense" and endeavors to eliminate the existential threat posed by Hamas militants. The liberation of approximately 136 hostages still held in the war-shattered enclave is cited as a primary motivation.

 

On the legal front, Israel claims the right to "inherent" self-defense, not limited to conventional armed forces under Art. 51 of the UN Charter. Even though the Israeli government aims to terminate Hamas, its use of force does not appear to align with self-defense under the UN Charter, the law of armed conflict, and international humanitarian law. There are violations under Art. 8 of the Rome Statute, including wilful killing, indiscriminate attacks on civilians, intentional attacks on humanitarian workers, property destruction unjustified by military necessity, and possible violations of the prohibition of collective punishment. Customary international law obliges all conflict parties to facilitate humanitarian relief. Further, Art. 49 of the Fourth Geneva Convention prohibits transferring an occupier's civilian population into the occupied territory. The Hague Regulations and Fourth Geneva Convention forbid property confiscation and destruction unless militarily necessary. Israel’s settlement policy also violates a special category of obligations entitled peremptory norms of international law (jus cogens) from which no derogation is permitted.

 

Who Bears more Responsibility?

In widespread discourse, the condemnation of Israel and its referral to the ICJ stem from perceived disproportionality and resulting perception of genocidal intent in its actions post the October 7 attack. However, the legal requirements of "proportionality" in international law, specifically the law of war or humanitarian international law, are precise. In international law, the term "proportionality" does not imply maintaining equivalence in the use of military force. It is a matter of Reason, integral to codified and customary international law, ensuring armed force is limited to what is "necessary" for law-based military objectives. This standard applies not only to states but also to insurgent and terrorist armed forces. In the case of Hamas and its combatants fighting against Israeli "occupation," their actions must respect these legal constraints. Therefore, truth is exculpatory. While this world may not be the best yet, it is the right time to make a refined start in that direction. Deliberate Hamas rocket attacks on Israeli civilians are always unlawful and never pardonable. Reciprocally, carefully measured Israeli bombings of Gaza structures housing Hamas terrorists or weapons are always lawful and law-enforcing. Meeting the legal obligation to gather evidence of Palestinian perfidy during ongoing belligerency is challenging but necessary. Dispensing with this obligation could leave Israel under a perpetual cloud of generalized suspicion and jurisprudential disbelief.

 

Recommendations & Conclusion

Hence, the war is not an open-and-shut case, clear-cut situation, making it legally intricate to assign complete fault to one nation, given the convoluted history between Israel and Palestine. However, the ongoing horror in Gaza remains undeniable and necessitates an immediate ceasefire. Both states must urgently adhere to UN Charter obligations, refraining from actions jeopardizing peace, and mediating an end to hostilities. Intensified pressure for adherence to humanitarian law, and protection responsibilities are imperative. Parties should eradicate discriminatory rhetoric, support humanitarian aid, and safeguard missions. Enhanced backing for the ICC's investigation and respecting human rights are vital to address this crisis. Ethically, Israel's justification for civilian casualties hinges on saving more lives in the future. The burden is on Israel to demonstrate it is acting in a way that secures more lives, a challenge it has not yet met. This is one of those cases in which ethics provide a clearer answer than the law.








Author: Anushka Rao

University and Year : 3rd Year, Jindal Global Law School

Programme: B.B.A., LL.B.


Co-Author: Aroha Kadyan

University and Year : 4rd Year, Jindal Global Law School

Programme: B.A., LL.B.

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