Human Rights Watch alleges Israel is breaching the rules of war in Gaza — what are they?
23 December 2023, ABC News, by Olivia Ralph
Earlier this week, Human Rights Watch accused Israel of “using starvation of civilians as a method of warfare in the Gaza Strip”.
The Israeli government rejected the claims and instead blamed Hamas for hijacking aid intended for civilians.
There have been many references to “rules of war” being broken, and the UN is investigating whether war crimes have been committed by Israel and by Hamas. But what exactly qualifies as a war crime?
International humanitarian law expert Dr Helen Durham said the laws of war were not created to take a moral stance on a particular conflict but to offer a “balance between military necessity and the principle of humanity” when conflict does occur.
Dr Durham served as Director of International Law and Policy at the International Committee of the Red Cross from 2014 until last year.
She is now CEO of RedR Australia, an international humanitarian response agency that operates in partnership with frontline relief agencies and local governments and as a stand-by partner to 16 United Nations agencies and entities.
“I’ve spent 30 years trying to explain it in really simple ways because the laws of war are very different from laws relating to the use of force,” said Dr Durham.
“The laws of war are a range of principles that, at the heart, aim to reduce suffering.”
What are the rules of war?
#1 Protecting civilians
The intentional targeting of civilians, including civilian infrastructure like hospitals, schools, or water sources is considered a war crime.
Military operations should be limited to specific targets such as weapons stockpiles and military bases. However, there is an important exception to that rule when military combatants use civilian structures as bases for operations.
“I keep seeing in the newspaper, ‘they found guns in the hospital’, and I wonder if people, who don’t understand what that means under the laws of war, actually know why that’s a problem,” Dr Durham said.
“If a hospital is being used for military purposes, it takes away the general protection but there is still the requirement for proportionality in protecting civilians.”
The Israeli government has maintained that Hamas uses civilian infrastructure to launch military attacks. Its forces recently raided the Al-Ahli Hospital in Gaza City, the site of an explosion on October 17 that killed dozens of Palestinians.
Initially thought to be the result of Israeli missile strikes, an Associated Press investigation later determined it was likely caused by a misfired Palestinian rocket.
Civilians must also be allowed to evacuate a war zone, and all parties to a conflict must help them do so.
An ABC News analysis found that evacuation orders issued by the Israeli military to Gaza residents have been “unclear and contradictory”.
With extremely tight time frames for residents to leave and many of Gaza’s 2 million residents already sheltering in the south, there are few safe places to go.
The Rafah crossing on the Egyptian border remains the only way for civilians to leave but has so far been limited by Egyptian authorities to foreign nationals or Palestinians with dual citizenship.
The principle of proportionality requires that any use of military force be proportionate to the threat being faced.
Overall, it is about weighing harm to civilians against military objectives rather than balancing the number of casualties on both sides.
“It’s prohibited that you can kill civilians, but the principle of proportionality says, if there’s a very high military objective and some civilians get killed, as long as it’s proportional to the military objective, it’s not illegal,” said Dr Durham.
The US military makes a determination using a “collateral damage estimate” that seeks to predict and quantify harm to civilians that may occur during a military operation.
The problem is that there is no universal definition of proportionality in humanitarian law, so it becomes difficult to assess those decisions from afar.
“11,000-plus strikes by Israel in the last month … there’s probably good evidence of both disproportionate and indiscriminate strikes by Israel, but that’s a lot harder to prove,” said Professor Saul.
“Just from seeing a bombed building, you can’t tell any of that.”
#3 Protecting humanitarian aid and workers
The deliberate restriction or prevention of humanitarian relief that leads to the starvation of civilians is a war crime.
This accusation was levelled against the Israeli government this week by Human Rights Watch.
Human Rights Watch accuses Israel of weaponising starvation in Gaza.
Challis Chair of International Law at Sydney University Professor Ben Saul said while some aid trucks had been able to get across the border into Gaza, the number was nowhere near sufficient to provide for the nearly 2 million civilians still stranded in the war zone.
“Access to humanitarian relief has absolutely been a focus [in the media], but there’s been a lot less attention to the fact that it’s actually a war crime to deny [humanitarian aid],” he said.
“You can’t starve civilians, even if you are fighting a war of self-defence.”
Aid workers themselves are seen as neutral actors in a conflict and are to be protected as such.
“As an ICRC [International Committee of the Red Cross] delegate, I used to go out, and my colleagues did with the big red cross on my jacket, and that’s what kept me alive,” said Dr Durham
“Before any conflict, the ICRC sends out a letter explaining to both parties what their obligations are under international humanitarian law.
“You have to be able to have a neutral dialogue — focusing on humanitarian issues without taking political side and raise humanitarian concerns … what we call ‘demarche’, saying to the Israeli authorities: ‘This is not acceptable’ … and then saying to Hamas: ‘This is not acceptable.'”
#4 No use of torture
The laws of war emphasise the principle of humane treatment of all individuals, whether they be civilians, combatants, or prisoners of war. Torture and cruel treatment are expressly prohibited without exception.
Israeli officials are investigating allegations of sexual violence committed by Hamas militants against civilians using collected evidence including video footage, witness reports, and forensics gathered during the October 7 terrorist attack.
More than 1,200 Israeli civilians and soldiers were killed in the Hamas-led attack and some 240 were taken hostage.
Where did the rules come from?
These modern rules of war have ancient lineage, but the foundation of international humanitarian law as we understand it today dates back to the signing of the first Geneva Convention in 1864, requiring the protection and care for those wounded and sick on the battlefield.
Image of the first Geneva Convention on display at the Red Cross museum in Geneva.
It wasn’t until after World War II that those protections were expanded to protect civilians with the adoption of the Geneva Conventions of 1949.
“Under the Geneva Conventions, commanders are responsible for ensuring that their forces comply with humanitarian law, they’ve got an explicit obligation to refer wrongdoing for investigation and prosecute prosecution,” said Professor Saul.
However, it took almost another half-century for the first permanent international court with the mandate to prosecute the most serious crimes to be established.
“The [International Criminal Court] is a court of last resort as a principle of what’s called ‘complementarity’,” said Professor Saul.
“The international court will only look at a case if the relevant national jurisdictions are unable or unwilling to genuinely prosecute.”
While Israel is not a party to the International Criminal Court, the government of Palestine has been since 2015.
“So the court can investigate crimes in Palestine by Palestinians or Israelis, but it can also investigate crimes by Hamas committed inside Israel, even though Israel is not a party to the court,” said Professor Saul.
Are they still relevant?
As the world faces new and evolving challenges, there is growing scepticism about whether the rules of war can still effectively protect civilian life or if their enforcement falters in a growing landscape of armed conflict and geopolitical complexity.
“Legally there, of course, can be really good reasons why you might treat situations that, on the surface, look similar, differently,” said Professor Saul.
“If international law is not seen to be applied in an impartial, non-selective way then people will rightly feel like those institutions, for whatever reasons going on behind the scenes, political or otherwise, are compromised.”
Dr Durham said answers from a 2016 ICRC survey stick with her to this day when 17,000 people globally were asked whether they thought the laws of war made a difference.
“It was quite a percentage [of difference] between people who had experienced conflict being more positive and saying it does make a bit of a difference … and people who hadn’t experienced conflict being really cynical and saying it doesn’t make any difference.”
“Deep cynicism is the luxury of those who haven’t really sometimes suffered.”Article link: https://www.abc.net.au/news/2023-12-23/human-rights-watch-alleges-israel-breach-rules-war/103255298
Article source: ABC News/Olivia Ralph 23.12.2023