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Last updated at 20:33 on 15 January 2008. Version
Questions (click for Answers)
What is International Humanitarian Law?
International Humanitarian Law (“IHL”) refers to a range of international legal
provisions, arising from both customary law and treaties, which seek to ensure
respect for the individual in armed conflict. It governs how armed conflict must
be conducted. Its aim is to protect both combatants and civilians from
unnecessary suffering. It is also known as the “law of war”, the “law of armed
conflict” or “jus in bello” (which is Latin for “law in war”).
Treaties are agreements between states or groups of states. The most well known treaties are the
Treaties only apply to those States that have signed and ratified (agreed to
implement) the treaty. Customary law is developed from state practice, that is,
how States actually behave. For custom to arise which binds all states there
must be “a constant and uniform usage, accepted as law.” (Columbia v
Peru, International Court of Justice, “The Asylum Case” (1950)).
Most relevant to the situation in Gaza is the
Fourth Geneva Convention of 1949 (“Geneva Convention IV”) that protects
First Additional Protocol to the Geneva Conventions of 1977
(“Additional Protocol I”) that applies to international armed conflicts and the
Hague Regulations of 1907 (“Hague Regulations”) that regulate means and methods
Does International Humanitarian Law Apply to
Israel and the Palestinians?
Yes. Only Israel disputes that International
Humanitarian Law (“IHL”) applies to it. All other countries of the world take a
common position that IHL binds Israel and the Palestinians.
1907 Hague Regulations, much of the
Geneva Conventions and the
Additional Protocols are treaties, but bodies such as
the International Committee for the Red Cross (“ICRC”) have confirmed that the
most of the principles in them are now recognised as customary international
law. This means that they apply even if the parties to the conflict have not
signed and implemented (or “ratified”) those treaties.
Israel has signed and ratified the
Conventions but not the
Additional Protocol I. The Occupied Palestinian
Territories are not recognised as a state so the Palestinians cannot sign
treaties. However, because of the status of these treaties as customary law,
they bind both Israel and the Palestinians.
International Court of Justice in 2004
confirmed that the
Geneva Convention IV and
Additional Protocol I applied in the
Occupied Palestinian Territories of Gaza and the West Bank.
UN Security Council
Resolution 446 affirmed “once more that the Fourth Geneva Convention relative to
the Protection of Civilian Persons in Time of War of 12 August 1949 is
applicable to the Arab territories occupied by Israel since 1967, including
Jerusalem”. The Israeli Supreme Court also applies IHL in considering the
actions of the Israeli Military in the Occupied Palestinian Territories.
How is International Humanitarian Law
International Humanitarian Law (“IHL”) is
enforced in three ways: (1) by the states involved in the conflict, (2) by other
states not involved in the conflict, and (3) by international organisations such
as the International Criminal Court (“ICC”).
(1) Parties to the conflict are required both to
respect IHL and also to enact criminal legislation to provide effective
sanctions against those committing “grave breaches” of IHL (Geneva Convention IV
Additional Protocol I Art 85). “Grave breaches” are war crimes and
include wilful killing, wanton destruction of property and attacking civilians.
However, in practice, parties to the conflict are
generally very unwilling to investigate or prosecute their own citizens.
(2) All other countries not party to the conflict
are obliged to take measures necessary for the suppression of all breaches of
IHL (Geneva Convention IV Art 146).
There are also criminal law obligations. All
countries are obliged to search for persons alleged to have committed war crimes
and prosecute them before their own courts (or extradite them for trial abroad)
(Geneva Convention IV Art 146). In the UK, this obligation is enshrined in the
Geneva Conventions Act 1957. This process is known as the exercise of “universal
jurisdiction”. Most countries are also very unwilling to exercise universal
jurisdiction over the citizens of another country.
(3) It is also theoretically possible for
international bodies such as the ICC in The Hague to prosecute individuals who
have committed war crimes or crimes against humanity. However, Israel has signed
but not ratified the Rome Statute of the ICC. The Palestinian Authority is not a
State, so cannot sign or ratify the Rome Statute. The UK has
the Rome Statute and implemented it with the
International Criminal Court Act
2001. This means that the ICC could prosecute UK citizens or residents but not
Israeli or Palestinian citizens. Citizens of other countries who have ratified
the Rome Statute could be prosecuted by the
ICC if they commit crimes contrary
to the Rome Statute such as to aid, abet or otherwise assist a crime contrary to
the Rome Statute (Art 25(c) Rome Statute).
The only possibility for the
ICC to be involved
in the Gaza situation would be for the UN Security Council to refer the
situation to the ICC. However, because the USA consistently vetoes any Security
Council Resolution relating to Israel, this is not realistic.
Is the Conflict in Gaza an International Armed
Geneva Convention IV and
I apply to all cases of conflict occurring between contracting states (Arts 1
and 2 Geneva Convention IV;
Art 1 Additional Protocol 1) and to situations of
occupation resulting from such conflict (Arts 1 and
2 Geneva Convention IV;
3 and 4 Additional Protocol I). The Occupied Palestinian Territories are not
part of Israel. Until 1967 Gaza was administered by Egypt and Israel has
occupied Gaza since then. As Israel and Egypt were signatories to the Geneva
Conventions in 1967, the fact of a war between them triggered the applicability
Fourth Geneva Convention to the Israeli occupation of that territory and that Convention has
applied to the occupation ever since (see further below).
The principles of IHL applied to Israel’s actions
in Gaza even before the start of the present military actions (International
Court of Justice Advisory Opinion 2004 paras 96 to 101).
Is Gaza Still Occupied?
Yes. The fact that Israel removed all its illegal
settlements in 2005 does not mean that it no longer occupies Gaza for the
purposes of International Humanitarian Law (“IHL”). IHL applies until the end of
a military occupation (Additional Protocol I Art 3).
Israel controls the borders, airspace and sea. It
is able to control the supply of food, fuel, medicine and goods into Gaza and to
prevent individuals from entering or leaving Gaza. Its complete control over
Gaza has been demonstrated by its decision before it launched a military attack
on Gaza to prevent essential supplies from reaching the Palestinians in Gaza.
What is “Necessity”?
Necessity under International Humanitarian Law requires a state fighting an
armed conflict “to use only the that degree and kind of force … that is required
in order to achieve the legitimate purpose of the conflict, namely the complete
or partial submission of the enemy at the earliest possible moment with the
minimum expenditure of life and resources” (UK
Ministry of Defence Manual of the Law of Armed Conflict 2004). Furthermore
“the use of force which is not necessary is unlawful since it involves wanton
killing or destruction” (UK
Ministry of Defence Manual of the Law of Armed Conflict 2004).
In the context of belligerent occupation, as is the case in Gaza, military
necessity “does not permit the killing of innocent inhabitants for the purposes
of revenge or the satisfaction of a lust to kill. The destruction of property to
be lawful must be imperatively demanded by the necessities of war. Destruction
as an end in itself is a violation of international law. There must be some
reasonable connection between the destruction of property and the overcoming of
enemy forces… It does not admit the wanton destruction of a district or the
wilful infliction of suffering upon its inhabitants for the sake of suffering
States v List and Others, The Hostages Case (1949)).
What is “Proportionality”?
Most of the ongoing debates
on the legality of Israel”s actions centre on the question of whether they are
Proportionality is the requirement that “the
losses resulting from a military action should not be excessive in relation to
the expected military advantage” (UK MoD Manual on the Law of Armed Conflict
2004). It is set out in
Additional Protocol I,
25 of the Hague Regulations and
Rule 14, ICRC Customary Law Study.
Israel claims to have launched its latest attack on Gaza in
response to indiscriminate attacks by home made rockets that have caused a
handful of fatalities among Israeli citizens. The purported objective is to
stop these attacks. In the process, many hundreds of Palestinians have lost
their lives. It seems likely that any cessation of rocket fire could only be for
a limited time. This strongly indicates that the attack is disproportionate.
What is “Distinction”?
Distinction is the requirement to distinguish
between armed forces and civilians or combatants and non-combatants and between
objects that might be legitimately targeted and those that are protected from
attack (Additional Protocol I
Arts 48 and
49(3) and Rules 1 and 7 of the
Customary Law Study).
Attacks by Hamas against Israel using weapons and
home made rockets falls foul of the requirement of distinction because they do
not distinguish between Israeli soldiers and civilians.
Who is a Civilian?
An individual is presumed to be a civilian until
proved otherwise. A civilian is somebody who is not a combatant (Additional
Protocol I Art 50). Civilians and combatants are the two main categories in
International Humanitarian Law. They have very different rights.
It seems surprising, but all the Palestinians in
Gaza are probably civilians under IHL. This includes members of Hamas. The
meaning of civilian is often used inaccurately in the media to refer only to
women and children. However, men of fighting age can equally be civilians.
In order to be combatants, Hamas members would
need to fulfil some strict conditions. These are: to be commanded by a person
responsible for his subordinates, have a fixed distinctive sign recognisable at
a distance, carry arms openly and conduct their operations in accordance with
the laws and customs of war. Because members of Hamas rarely, if ever, fulfil
these criteria, they would normally be civilians. While this is surprising, this
is in fact how Israel treats them. They are not accorded Prisoner of War status
and do not have immunity from being prosecuted for fighting.
Equally, Israeli men of fighting age are
civilians and are not a legitimate target until such time as they are called up
to serve as soldiers. They thereby become combatants. Contrary to some belief,
the fact that all Israeli citizens have to perform national service does not
make them combatants. They will only be combatants while they are serving in the
army. For the rest of the time they will be civilians.
However, if a Palestinian or Israeli civilian
took a direct part in hostilities, he could be targeted during this time and
would lose his civilian immunity from attack, but only for that time.
Are All Hamas Members a Legitimate Target?
No. It is important to distinguish between
combatants and civilians. While combatants can be targeted at any time,
civilians can be targeted only when they take a direct part in hostilities and
for such time as they take a take a direct part in hostilities.
(Geneva Convention IV Art 3,
Additional Protocol I Art 51(3)).
Members of Hamas are civilians. However, a member
of Hamas who is engaged in the launching of home made rockets towards Israel or
directly engaging Israeli soldiers in combat is a legitimate target for such
time as he is taking a direct part in hostilities. However, when he ceases
taking a direct part in hostilities, he is no longer a legitimate target.
Similarly, Israeli citizens who perform their military service are only a
legitimate target while they are serving in the Israeli Army. When they return
to their civilian life they are no longer legitimate targets. Targeting them
would be a war crime (Geneva Convention IV Art 147).
It is the position of the UK government that
civilians working in munitions factories or driving military transport vehicles
are not legitimate military targets. However, they risk being harmed if a
munitions factory or military vehicle is targeted as these are legitimate
targets. (UK MoD Manual of the Law of Armed Conflict 2004).
However, Israel applies a “membership” approach
to Hamas. If an individual is a member of Hamas (whether of their armed wing or
not), Israel considers them to be taking a direct part in hostilities and
a legitimate target at all times. This approach is not in accordance with the
accepted meaning of direct participation in hostilities. Killing an individual
for mere membership of Hamas would amount to the wilful killing of a civilian
who is not taking a direct part in hostilities and would be a war crime (Geneva
Convention IV Art 147).
Was the Killing of members of the Hamas Police
During their Graduation Ceremony Legal?
No. Civilian police are not a legitimate target.
The Hamas police would be civilians. They could only be targeted if they took a
direct part in hostilities and for such a time as they took a direct part in
hostilities. Participating in a graduation ceremony does not amount to taking a
direct part in hostilities. Therefore the wilful killing of civilians would
amount to a grave breach of
Geneva Convention IV and a war crime.
What Does the Right to Self-Defence Allow?
The right to self-defence is a limited right to use force (UN Charter Art 51). It is an exception to the general prohibition of the use of force by States (UN Charter Art 2(4)) and part of the area of international law setting out when it is lawful to start a conflict and known by the Latin phrase “jus ad bellum” which means “law of going to war”. The traditional definition of self-defence comes from the Caroline case (1837), where the US Secretary of State stated that there had to exist “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” The British accepted this as a principle and it has become customary international law.
Self-Defence only allows the use of force that is both necessary and proportionate. The International Court of Justice has confirmed: “self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law” (Nicaragua v United States (1986) para 176 and Legality of the Threat or Use of Nuclear Weapons (1996) para 41).
The condition of proportionality requires that there be some symmetry between the original force used and the amount of force used to counter it (Yoram Dinstein, War, Aggression and Self-Defence Fourth Edition, page 225). This means that self-defence cannot be used as an excuse to launch an all-out war unless the armed attack is of a sufficiently critical nature so as to seriously threaten the existence of the Member State. The use of force as a punitive measure or reprisal is not permitted (UN General Assembly Declaration on Friendly Relations and the Declaration on the Inadmissibility of Intervention and UN Security Council Resolution 188 of 1994).
Necessity and proportionality in self-defence are different and separate requirements to their equivalents under International Humanitarian Law. This is because self-defence is a part of the law of “jus ad bellum” which is Latin for “law of going to war”, the area of law that sets out when it is lawful to start a conflict.
Considering the limited threat posed by Hamas home made rockets towards Israel compared to the grossly disproportionate use of force by the Israeli military, it is clear that the measures taken by Israel are not necessary or proportionate and therefore do not amount to lawful self-defence.
Is the Use of White Phosphorus Illegal?
It is only legal to use White Phosphorous in limited circumstances. Its function can be as an “obscurant” (a smoke screen to cover military manoeuvres) due to the fact it creates a dense smoke when it burns, or to mark or illuminate targets. This alone is not illegal.
However, the use of White Phosphorus against people is illegal unless there is no less harmful weapon. It catches fire when exposed to Oxygen and will burn most substances intensely, including flesh down to the bone. It causes horrific injuries that are slow to heal.
The use of White Phosphorus against people is contrary to Protocol III of the Convention on Conventional Weapons. While Israel is not a party to this treaty, the treaty is now customary international law and therefore binds Israel (see ICRC Customary International Law Study rules 84 and 85).
There are credible reports that Israel has used White Phosphorus in Gaza. Because Gaza has large civilian population living in a very small area, it is difficult to see how Israel can use White Phosphorus in accordance with International Humanitarian Law. Therefore its use is will generally be illegal.