AS an expert in International Humanitarian Law (IHL) from the Geneva Academy which is known for years of research and development of this law, I feel obliged to comment on the current crises and the application of IHL principles. There is much discussion yet a lot of confusion regarding the law applicable on occupied Palestine and the obligations of Israel in the current situation. It is essential to understand the legal definition of what is an ‘occupied territory’ and what are ‘war crimes’ under intentional humanitarian law. An understanding of the Geneva Conventions 1949 to which almost 196 States are signatories including Israel, will be sufficient to comprehend who is the victim and who are the oppressors.
IHL has existed since a thousand years and has been codified in many forms, however, a major part of IHL exists in the Geneva Conventions 1949. IHL is a essentially a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict. IHL binds states and non-state actors all across the world, meaning that it is equally applicable on Israel as it is on Hamas. It is also important to understand that IHL is a non-reciprocal law, it is thus obligatory on each side regardless of whether the other is abiding by it.
What are the laws of war or IHL and when does it apply? The laws of war apply in situations of armed conflict and occupation. In the case of Israel and Palestine, it is not in reality a conflict but is in actuality an occupation and thus rules of IHL are applicable and enforceable. International humanitarian law governs the conduct of hostilities and is distinct from the law that governs the decision to use force. Whatever the legality of a decision to use force, all parties must comply with IHL. It is essential to understand what actually is an occupation under IHL and what are the rules of IHL that an occupier must respect?
Article 42 of the 1907 Hague Regulations (HR) states that a ” territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised. “The legality of any particular occupation is regulated by the UN Charter and the law known as jus ad bellum. Once a situation exists which factually amounts to an occupation the law of occupation applies – whether or not the occupation is considered lawful.
Therefore, for the applicability of the law of occupation, it makes no difference whether an occupation has received Security Council approval, what its aim is, or indeed whether it is called an “invasion”, “liberation”, “administration” or “occupation”. As the law of occupation is primarily motivated by humanitarian considerations, it is solely the facts on the ground that determine its application.
The duties of the occupying power are spelled out primarily in the 1907 Hague Regulations (arts 42-56) and the Fourth Geneva Convention (GC IV, art. 27-34 and 47-78), as well as in certain provisions of Additional Protocol I and customary international humanitarian law. These include prohibition on collective punishment and the requirement to ensure there is public law and order and protection of civilian lives. None of which are being respected by the occupier Israel in the context of its occupation of Gaza.
Israel has been occupying the West Bank, including East Jerusalem, and Gaza, which collectively constitute the Occupied Palestinian Territory (OPT), since 1967. Ever since, Israel has maintained effective control over Gaza, including its territorial waters and airspace, the movement of people and goods, except at Gaza’s border with Egypt, and the infrastructure upon which Gaza relies, it has rendered the Strip an open-air prison. Under IHL, Israel is the occupier and has the obligation of ensuring that the basic needs of the population of Gaza, such as food and water, are met. As occupier the duties, obligations under international law are not being met by Israel in fact there is blatant disrespect of the rights of the occupied territory.
War crimes under IHL and the basic principles of IHL, broadly include the strict prohibition of deliberately attacking civilians, taking hostages and collective punishment. Deliberate killing of civilians, women and children, the bombardment of hospitals, schools and civilian objects, blocking humanitarian relief, subjecting to collective punishment and using chemical weapons are all the most heinous kinds of war crimes strictly prohibited under IHL. Human Rights Watch and other rights organizations have also found that Israeli authorities are committing the crimes against humanity of apartheid and persecution against millions of Palestinians. The systematic oppression of the population of Gaza forms part of these ongoing crimes.
International humanitarian law is meant to strike a balance between military necessity and humanitarian considerations. It does not allow military endeavours that aim to make permanent changes to occupied territory; to force people to leave their homes; or to unlawfully attack civilian targets and restrict resources from communities. Humanitarian law is and will remain a tool for the protection of the life and dignity of civilians and combatants alike.
The recent events are a nightmare under IHL and a ruthless violation of what the Geneva and Hague Conventions stand for. With each passing day we keep witnessing the killing of thousands of civilians and especially women and children in Gaza; we see the worst kind of breach of IHL and the existence of the entire regime of this law is placed in doubt. Was it this easy to strike down this long standing law of armed conflict? Israel’s blatant disregard for its obligations under international law has placed in doubt the entire machinery of international laws and international organizations which have taken pains and years to promulgate, promote and uphold these laws. Was the international legal system this weak? Does it really take nothing for a State to blatantly refute its international obligations and the custodians of these international laws just sit and watch while rules and laws are breached, trampled and violated with complete disregard? Gaza has lifted the veil over the façade of international law and its so-called protections! International lawmakers need to rethink and re-strategize to formulate international humanitarian laws that can stand the test of ruthless human conflict and occupation.
—The Author is a Legal Expert qualified from Switzerland. Advocate of the High Courts of Pakistan and Senior Partner of S&S Law Associates. Sibah has served as Senior Advisor Legal to the Federal Ombudsman and Legal Advisor to the UKAID, UN & ICRC.
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