Distinction, Proportionality and Precaution
There are three main branches of international law that apply to Israel and Palestine respecting conflict and occupation. The first is international humanitarian law, found principally in the 1907 Hague Regulations, the four Geneva Conventions of 1949, the Protocols Additional of 1977 and customary international humanitarian law. The second is international human rights law, found in the nine principal human rights treaties and covenants adopted by the international community since 1948. The third is international criminal law, found principally in the 1998 Rome Statute, which created the International Criminal Court.
The core governing principle of international humanitarian law is the protection of civilians. Military operations must not be directed toward them. This is expressed through three key principles of distinction, proportionality and precaution. At all times, parties to a conflict must distinguish between civilians and combatants, and between civilian areas (i.e., housing, hospitals, etc.) and military objectives (i.e., headquarters, military bases), directing their attacks only against combatants and military sites.
Even with a clear military objective in mind to attack, military leaders must still act with proportionality. They are forbidden under international humanitarian law to initiate an attack if it would be expected to cause excessive incidental civilian deaths and injuries and/or damage to civilian sites, or a combination of the two. Defining “excessive” is not a science, but it cannot have an elastic meaning.
And finally, a military must take all reasonable precautionary measures to minimize civilian casualties and damages. This includes employing the most accurate available weapons; giving effective warning to civilians of an imminent attack unless the situation does not permit it; and cancelling or suspending an attack if it becomes apparent that the objective is not a military target or the impact of the attack on civilians will be disproportionate.
Any violation of these strict prohibitions against attacks on civilians can amount to a war crime or, if widespread and systemic, a crime against humanity.
A Culture of Impunity
Israel evacuated its military and its 8,000 settlers from Gaza in 2005, and claimed that its occupation had ended. It subsequently defined Gaza as an “enemy entity,” a concept unknown in law. However, the United Nations continues to consider Gaza to be territory occupied by Israel, and therefore governed by international humanitarian law. This is because Israel has maintained a comprehensive air, sea and land blockade that has been in place since 2007. Under international law, an occupation does not depend on whether a foreign power has a direct ground troop presence in a territory, but whether it asserts “effective control.” In 2009, the United Nations Security Council affirmed the status of Gaza in Resolution 1860, which stated that “the Gaza Strip constitutes an integral part of the territory occupied in 1967.” As a result, the Palestinians of Gaza are still “protected persons” under the Fourth Geneva Convention and entitled to the extensive protections guaranteed to them under the laws of war.
The use of collective punishment, defined as the imposition of sanctions or deprivations on a particular group—political, ethnic, religious or otherwise—for acts committed by individual members of that group, is strictly prohibited by Article 33 of the Fourth Geneva Convention. This comports with the modern legal principle that individuals alone are responsible for their acts, not the groups to which they belong.
In 2010, the International Committee of the Red Cross stated that the closure of Gaza by Israel constituted a collective punishment imposed in clear violation of international humanitarian law. “The closure of Gaza suffocates its people, stifles its economy and impedes reconstruction efforts,” then-U.N. Secretary General Ban Ki-moon declared in 2016. “It is a collective punishment for which there must be accountability.” In 2017, the United Nations Country Team for Gaza issued a report that predicted that Gaza would be “unlivable” by 2020. In 2020, as the U.N. Special Rapporteur on human rights in the occupied Palestinian territory, I concluded in my report to the U.N Human Rights Council that “the actions of Israel towards the protected population of Gaza amount to collective punishment under international law.”
Since 2009, the U.N. Human Rights Council has commissioned three comprehensive reports on the conduct of Israel and Hamas during the Israeli assaults on Gaza in 2008-09 and 2014, as well as on Israel’s conduct in Gaza during mass Palestinian protests in 2018, known as the Great March of Return. The sum of these three reports is that Israel was identified in all three, and Hamas in the first two reports, as having likely committed war crimes in its conduct of its military operations.
As the 2009 report concluded:
From the facts gathered, the Mission found that the following grave breaches of the Fourth Geneva Convention were committed by the Israeli armed forces in Gaza: willful killing, torture or inhuman treatment, willfully causing great suffering or serious injury to body or health, and extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly. As grave breaches these acts give rise to individual criminal responsibility. The Mission notes that the use of human shields also constitutes a war crime under the Rome Statute of the International Criminal Court.
The 2015 report to the U.N. Human Rights Council concluded:
In relation to this latest round of violence, which resulted in an unprecedented number of casualties, the commission was able to gather substantial information pointing to serious violations of international humanitarian law and international human rights law by Israel and by Palestinian armed groups. In some cases, these violations may amount to war crimes. The commission urges all those concerned to take immediate steps to ensure accountability, including the right to an effective remedy for victims.
The 2019 report to the U.N. Human Rights Council stated:
The Israeli security forces killed and maimed Palestinian demonstrators who did not pose an imminent threat of death or serious injury to others when they were shot, nor were they directly participating in hostilities…The commission therefore found reasonable grounds to believe that demonstrators were shot in violation of their right to life or of the principle of distinction under international humanitarian law.
All three reports of the commissions of inquiry noted that there was a prevailing culture of impunity enjoyed by both Israel and Hamas. “Justice and respect for the rule of the law are the indispensable basis for peace,” the 2009 report noted. “The prolonged situation of impunity has created a justice crisis in the Occupied Palestinian Territory that warrants action.” As the 2019 report on the Israeli military’s killings of Palestinian protesters in 2018, along the Gaza border, concluded, “to date, the Government of Israel has consistently failed to meaningfully investigate and prosecute commanders and soldiers for crimes and violations.”
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