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International Humanitarian Law And The Israel Gaza War: A Conundrum

The ongoing war between Israel and Palestine has been a long standing global issue for a while now. However, it gained a lot of momentum and intensity in 2023, when there were multiple attacks and casualties recorded during the said war. It became one of the most spoken about issues globally because of the conduct of both the countries Under continuous strikes that were happening because of which the civilian population for largely affected.

There were many rules, conventions as well as international laws that were invoked because of the situation however, the tension continued and there was little to know effect of the law being in place. The United nations demanded other countries to take an action for the ongoing war to stop because of the extreme effects that it had on the general population ranging from Internet blackouts to wiping off cities completely from the map of the world, which is also considered as genocide and war against humans of a particular race.

The conflict between Israel and Palestine falls under the ambit of a very complex international system of justice that has been in place and emerged sunset time of World War 2 that primarily lead its focus to protect civilians. With the help of this paper, we will be analysing how international human rights have been the most affected as a result of the war and analyse the steps which were taken in furtherance of protecting these human rights by ultimately ordering a ceasefire.

We will also be making situational analysis and some concluding remarks as to what could have been done better to have this situation controlled in a smaller span of time compared to the ground reality.

The Fundamental Rules of War
Before a situational analysis is made of the war situation between Gaza and Israel, it is pertinent that one understands the very fundamental rule of international humanitarian law times of conflict and how the parties involved must be able to always make a difference between the civilians and the combatants[1].

The main target of any war should always be the combatants and the military as well as their objectives which have been set out in place, it should never include civilian or their associated objects as that violates the very rule laid down by international humanitarian law the grundnorm[2].

By simply stating that any war will not have an adverse effect on the civilian population does not count as an action taken and there has to be specific as well as transparent measures to be put in place which consciously ensure that feasible and all possible precautions were taken so that the civilian population is not affected in any manner possible. In case this does not happen as a mandate, there is a very high likelihood of harm being caused to the civilian population compared to any gain happening, which is also a prohibition as per the law[3].

The second most important aspect which has to be highlighted and understood in this context is the fact that as per the international humanitarian law, whoever has been taken into custody and categorised as a prisoner of war should be treated in a manner which is humane, and if this is not the case, where in such individuals are being used as barter, would again constitute a major violation of the law on wars[4].

This rule has been laid down to ensure the safety of those individuals who have been taken into custody and that there well-being is not being targeted at any cost, however, this rule is rarely followed whenever any war crime takes place.

The third important aspect which should be highlighted here is that whenever an attack is going to take place as a result of which the civilian population will be at the receiving end and there is an approximate chance of there being casualties, the international humanitarian law requires that there should be an effective advanced warning which has to be issued by the party whose planning such an attack and the only exception to this rule is when the situation does not permit for it, such a wondering will not be issued[5].

It is extremely important to here to point out that this exception is often used as a loophole for countries planning attacks do not issue advance warnings and cover it under the ambit of the set exception.

The ultimate decision lies in the hands of the International Court of Justice whenever they are required to judge upon such a matter that comes to the table. Another point stemming from this aspect of issuing warning is the fact that, only by providing a warning does not absolve the party from the requirement of ensuring that the civilian population and objects are being protected in a feasible manner has that also constitute specific requirement of the law of war[6].

There is yet another loophole which occurs while a warning is being issued to the jungle public about a prospective attack, and this is the one where the warning is not genuine in nature but a way threaten the public with violence earth spreading terror amongst the masses by forcing them to leave that particular area and their habitat[7].

Although, this may be issued as a warning, does not always translate to having the same effect that was desired when it was issued. This has to be done in a manner which is extremely thought after and in any war like situation, it is the very rare occurrence to witness a country not only providing a fair warning but also making conscious efforts to ensure the safety and security of the civilians of such a country which they are going against.

All the points which have been highlighted above that constitute important aspects of international humanitarian law, need to always be in effect and any non-compliance should not only be brought to light but also should be contested against.

The Warfare Situation: An Analysis from an IHL Perspective
Now, after having analysed the very basic aspects of international humanitarian law and how it applies to any conflict, the particular case Israel versus Gaza will be determined in line with international humanitarian law. From an international perspective, the rules of armed conflict emerged in the year 1949 through the Geneva Convention that was ratified by all of the member United Nations states and was later supplemented by international war crime rulings off tribunals[8].

The Concept
In the recent past, Israel has conducted multiple violent activities and air strikes on the Gaza Strip specifically targeting medical facilities in Gaza including the main hospital of Gaza City which was the Al Shifa hospital, because of which the acts of Israel were heavily condemned and criticised[9]. The major reason that Israel provided in their defence was that the Hamas used medical facilities to set up their command and control centres in order to avoid air strikes, but this is only a claim which is denied till date[10].

There have been multiple examples of attacks happening on health facilities but the latest jurisprudence is of the Balkan wars trial that happened in 1990s, wherein it was openly stated that the jurisprudence stresses on the need to balance the principles of military necessity and humanity, this is where we have to draw the line[11].

Moreover, it was also stated that the Geneva Convention expressly prohibits any attack taking place on medical units as well as hospitals and this sort of protection extends to all of the staff as well as the civilians who have been targeted and injured due to being a part of such establishments when the attack took place, such an act is an act of crime and should be explicitly stated as one[12].

One of the major aspects of the ongoing legal battle in the international humanitarian law arena is the fact as to how the term 'harmful to the enemy' shall be defined[13]. Moreover, the determination of whether a hospital's protection is being compromised will always be on the basis of evidence and if the same comes out to be positive which states that a hospital has become a military target, Israel has to check all the forceable collateral damage which would be excessive when compared to the military advantage that they gained as a result of such activities taking place[14].

It has been a clear case, that the Geneva Convention and its overarching goal is to protect civilians during the time of war and targeting civilians in a direct manner is specifically forbidden, in addition to intentional attack on a personal who is involved in a humanitarian assistance constitutes a separate war crime altogether which was committed by Israel on the Gaza Strip[15].

The Violations
There were many acts during the entire war which can be categorised as violations of the crimes law. Ranging from indiscriminately attacking through air strikes and rockets taking civilians as hostages and having more than 11,000 civilian casualties in Palestine which included children and women are some acts which can be categorically stated as banned explicitly by the Geneva Convention, subject to the response given by Israel in their defence[16].

Israel in their defence, have stated that the Hamas ran away from Gaza and entered southern Israel thereby killing over 1200 people and also taking some hostages because of which the powerful bombing activity was undertaking by Israel as a response which as a result led to Israeli forces annihilating the Hamas by way of the attack which was planted by them[17].

Time and again, Israel has blamed the Hamas for the death of civilians in Gaza stating that the Hamas use the civilians as Shields which is explicitly prohibited by the Geneva Convention and is a breach of the law which will ultimately result in repercussions being faced by the Hamas and Palestine[18].

It is very important to note here that the mere presence of human Shields does not mean that particular area can be categorised as a military target or not and the principle of proportionality should always be applicable in such situations wherein the military benefit should be weighed against the loss caused in terms of casualties of civilians.

There are several allegations against both the Israeli and Palestinian which have been levied by the International Criminal Court (ICC). These include but are not limited to, firstly the usage of military tactics by Israel where a lot of criticism has surmounted the fact that the very subject of the military tactics used by Israel for the civilian population to punish Gaza as a whole collective[19]. There are multiple reports which suggests that Israel operations have resulted including multiple casualties tatkal up to 10,000 and the question of proportionality pops up in such situation where the gain is not justified open pit is compared to the loss is being suffered.

The second issue is the occupation of settlement issues which has been a long standing issue in the international forum it has been observed that even after Israel has withdrawn from Gaza, there is always an effective control in that area which continues to remain and pump power to the Israeli forces which is not in line with what was decided in 2005[20].

The third issue which was highlighted are the measures of accountability that the International Criminal Court counts as the number one war crime due to several violations and genocide which happened in Palestine, no amount of evidence or defence can claim that the very act which was committed by the Israeli forces were on a proportionate level been looked at from the perspective of international humanitarian law as well as Geneva Convention that explicitly prohibit the same[21].

A very interesting point which has to be moved in here is that, although the International Criminal Court does not have proper jurisdiction to question Israel, they have managed to garner a huge number of support internationally to decide about this matter along with Palestine being a signatory to the ICC in 2015 which was basically done to conduct an investigation Israeli settlements I understand the gravity of the situation[22].

It cannot be said here after this detailed analysis, that there is a bias which is existing in the minds of the decision makers as well as the reports because there is clear breach which has taken place consistently by one nation that is associated but those laws which ultimately prohibit these activities from taking place.

The next two contentions which were taken up by the International Criminal Court was the human rights dimension and a call for collection. The duration of Israeli forces occupying The Gaza Strip has brought them under more scrutiny along with the allegations of genocide of Palestinians which was being launched by Israel that added multiple layers to the already existing conflict, along with this there was amount of evidence collected by human rights organizations and therefore call for legal action was made so that legal authorities can come into the picture I'm sort out as to what would be the applicability of international law be in the current situation along with determining admissibility of evidence and the weightage which has to be given to each of them[23].

The existence of multiple accusations which have been levied against both Israel and Palestine only indicate towards the very fact that there were multiple war crimes that were committed in this duration which could have been prevented with the correct plan of action being in place but since that was not the case, several activities took place which were against humanity altogether and not targeted only to a certain set of population and therefore taking cognizance of these actions becomes extremely necessary in order to set a precedent.

After having analysed understood the allegations which have been levied against both Israel and Palestine, we can draw a brief conclusion as to the very fact that, there were multiple war crimes which were committed by Israel excluding the justifications that they provided in favour of the acts committed by them.

There are fundamental international humanitarian law principles which have to be followed during the time of war and the adherence to these principles as well as conventions is necessary to ensure that there is no adverse effect which is being caused as a result of the war taking place. Some pointers will be discussed here as to what could have been done differently which would have been in compliance with international humanitarian law for which there is a legal obligation binding the country. In their campaign against Palestine there was certain acts which did not meet the standards which have been set in place.

The very first factor which should be taken into consideration here is the fact that starvation should not be used as a method of torture and campaigning against any country which was evidently done by Israel in Gaza on the civilian population[24]. The second important aspect is that, the target of any campaign should only be the terrorist organisations and militants, but the civilians should be excluded at all times and protected from any destruction, keeping in mind the proportionality that will automatically be applied to all states that are going against each other[25].

The third important aspect which should have been kept in mind is to allow the return of displaced civilians after the end of a conflict as a mandate, the very reason behind is to prevent unlawful displacement and permanent dislocation of homes, which will ultimately fall upon the civilian population and would make their readjustment into any new geography a very difficult job, not only is this a crime against humanity which is taking place but also is incomplete violation of the laws which have been in practice since very long time, the plight of the civilian population should be the most important consideration in any war scenario, their relocation and rehabilitation is another important aspect which should always be taken into consideration steps to mitigate their misery should be at the forefront one of the most important measures[26].

As a part of the obligation of returning the display civilians, Israel should also ensure that all the hostages who have been taken into custody during the time of the war should be rescued and sent back to their respective homes as they have been held hostage illegally against the law which is not permissible at any cost, although debated by multiple international lawyers, there are still exists a legal right which the states use to force the rescue of hostages from the situation which isn't place after a war has come to an end[27].

Time and again it has been established that the various powerful tools which have been made use of by the Israeli forces and the government agencies against the Hamas as well as Palestinians, has not been balanced well on the proportionality scale and has often been breached by Israel which is not at all acceptable situation for any country to reside in.

Therefore, after having a consensus amongst multiple stakeholders, it becomes extremely important not only for Israel but also for other countries to abide by the war rules you know very strict manner, and no implementation should be taken lightly in this arena. What happened in Israel and the crimes which are committed, are not only brutal but constantly violate those laws which have been set in stone for a very long period of time.

Therefore, overall analysing from the perspective of international humanitarian law, the Israel Palestine conflict should be taken as a lesson as to how a state should not conduct themselves when any such conflict arises and what actions should be prohibited completely. This will not only help in imparting a lot of knowledge as to the conduct of any state but also setting up precedent that any such acts automatically come under the violation.

Concluding Remarks
Observations and Opinions
It is extremely hard to take sides or defend any one country during the time of a war taking place as the war is not against arbitrary to countries but humanity altogether and therefore instead of taking sides and defending the actions of any particular country, the main focus should be how such acts should be prevented from being repeated in the future.

In the present case of Israel Gaza conflict, although multiple analysis and sources state the fact that Israel has committed with multiple war crimes, there is still no reason to completely support Palestine in this cause. The only side we should be picking for providing unending support at all times during any conflict is that of the civilians who are being affected even after not committing a single act of violation or crime.

The most affected parties in such war like situations are the civilians even after multiple loss being in place which have been designed in such a manner that ensure their safety and security. After having done a detailed analysis on this issue of war between Israel and Palestine, it has come to light that the countries when they go against another country often forget about following the law let alone abiding to it.

There should be one of the major focus points whenever the decision of the International Criminal Court surfaces and whatever decision is given by them as this is one aspect which is not only overlooked but if the most important out of everything which is being done.

Following the international humanitarian law is a pertinent step which should be followed by all countries in totality and no such situation should arise wherein a conflict converts to a genocide in modern times where countries are not only aware about their rights but have multiple means of getting it enforced as well. The future still remain uncertain as the ICC has yet to ponder over this entire situation and provide answers in the near future.

  1. How Does International Humanitarian Law Apply in Israel and Gaza?, Human Rights Watch, (last visited Feb. 28, 2024).
  2. Ibid
  3. Ibid
  4. Ibid
  5. Ibid
  6. Kunz, Josef L. "The Laws of War." The American Journal of International Law 50, no. 2 (1956): 313�37.
  7. Ibid
  8. What war crimes laws apply to the Israel-Palestinian conflict? (last visited Feb 25, 2024).
  9. Ibid
  10. Ibid
  11. Ibid
  12. Ibid
  13. What International Law Has to Say About the Israel-Hamas War, Council on Foreign Relations, (last visited Feb. 28, 2024).
  14. Ibid
  15. Ibid
  16. Alleged violations of International Humanitarian Law in the Israel-Palestine conflict: a simple explainer - occupied Palestinian territory, ReliefWeb, (last visited Feb. 28, 2024).
  17. Ibid
  18. Ibid
  19. Ibid
  20. Ibid
  21. Ibid
  22. Ibid
  23. Cohen, Amichai, and Stuart A. Cohen. "Israel and International Humanitarian Law: Between the Neo-Realism of State Security and the ''Soft Power'' of Legal Acceptability." Israel Studies 16, no. 2 (2011): 1�23.
  24. Ibid
  25. Ibid
  26. Ibid
  27. Ibid
Written By: Yukti Kumar, Assistant Professor - School of Law, RV University

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