by Anna Violante
The appalling Hamas attacks on Israel and the Israeli military’s actions in Gaza have deeply alarmed the international community. The United Nations, human rights NGOs, and global leaders have urged compliance with international humanitarian law (IHL) and condemned the violations. We talked about it with Pierpaolo Petrelli, Professor of Transnational Terrorism and International Law at OP Jindal Global University (India).
In times of war, what concerns the international community the most?
As per international humanitarian law (IHL), ensuring the safety and well-being of the population is paramount. This involves conducting hostilities with humanity, minimising harm to civilians through precautions, and refraining from unlawful attacks or collective punishment.
Could global organisations’ recommendations ease the ongoing Israel-Gaza conflict?
The International Criminal Court (ICC) is of particular relevance to the situation in Palestine, especially in terms of deterrence. Under Article 12 of the Rome Statute, the ICC can prosecute crimes within its jurisdiction committed on the territory of a State Party or by a national of a State Party. The recent statement by the ICC Prosecutor, Karim El Khan, confirms the Court’s jurisdiction over potential war crimes committed by any Palestinian national (whether Hamas militants or Al Quds Brigades) in Israel and by Israelis in the Gaza Strip, even though Israel is not a State Party, as it has not ratified the ICC Treaty, while Palestine became a State Party on 1 April 2015. It is crucial that there is a clear and unequivocal condemnation of the indictment and a commitment to address the situation in Palestine using all available powers. It’s important to note that the ICC prosecutor is already investigating war crimes committed or being committed by both Palestinian and Israeli actors in the West Bank, including East Jerusalem, and Gaza. The current escalation of violence therefore falls within the mandate of the Court.
What types of crimes by both parties warrant investigation?
The ICC should investigate war crimes and crimes against humanity in the ongoing conflict. While terrorism isn’t a separate crime in the Rome Statute, there are war crimes that encompass similar unlawful acts. Key offences include the deliberate targeting of civilians, their abduction and indiscriminate bombing. In addition, there’s significant concern that certain planned actions by Israel may constitute collective punishment – a war crime under the Geneva Conventions – punishing the entire Palestinian population for Hamas’ atrocities.
What is the right to self-defence?
UN member states have the inherent right to self-defence until the UN Security Council acts for world peace. Self-defence should be guided by minimising harm in accordance with international law. The law requires the protection of civilians, distinguishes between military and civilian targets, and prohibits deliberate attacks on non-military sites. Under international humanitarian law, parties must always respect the core principles of distinction, proportionality and precaution, both during the attack and in its aftermath. Deliberate attacks on civilians or non-military locations are prohibited and considered war crimes, including places such as homes, health facilities, schools and government buildings that have no military purpose. Belligerents must provide early warning of attacks affecting civilians.
Israel has asserted its right to defend itself. How does it adhere to this right?
Israel has the right to self-defence, but must abide by international law. On 13 October the Israeli army ordered civilians in Gaza City to move to the south of Wadi Gaza for safety within 24 hours (the invasion hasn’t started yet, ed.) This order, which is causing fear and displacement, violates international humanitarian law. We must remember that civilians who remain in response to warnings are protected, and that attacking forces must prioritise the prevention of civilian casualties and property damage. Consequently, the designation of northern Gaza as a target zone on the basis of this order is not justified.
If military forces are targeted, what about civilian casualties?
Civilian casualties alone don’t constitute a ‘war crime’ if proportionality is respected. The critical aspect for international law is the assessment of proportionality, which requires a thorough analysis. A disproportionate response to aggression risks crimes against humanity. Direct targeting of soldiers and military installations is legal if precautions are taken to protect civilians. If civilian or military status is unclear, attackers must assume civilian status. International humanitarian law permits the targeting of military commanders, provided that laws protecting civilians and the principle of proportionality are observed. Political leaders not involved in military operations are considered civilians and are not legitimate targets.
Would Israel’s invasion of Gaza to eliminate the Hamas leaders violate the law?
Israeli armed groups must avoid targeting civilians and causing disproportionate harm. Leaders of Palestinian armed groups are valid targets, but being a political leader of Hamas doesn’t automatically justify military attacks. Militants aren’t immune in their homes or workplaces, but attacks should avoid harming civilian family members and maintain a clear distinction between combatants and civilians. Deliberately attacking empty militant homes or targeting their families constitutes collective punishment and is therefore prohibited.
Human Rights Watch has documented Israel’s use of white phosphorus bombs. Are they legal?
Although white phosphorus is triggered by a chemical reaction, it is classified as an incendiary weapon due to its highly reactive nature with oxygen, causing severe burns. Its use isn’t completely banned by international treaties, but it is severely restricted. The Third Protocol to the UN Convention on Certain Conventional Weapons, in force since 1983, regulates their use. Phosphorus bombs are permitted for specific purposes, such as illumination, concealing troops, creating a smoke screen, or targeting military sites without civilians or civilian structures, effectively banning their use in urban areas. Israel has not ratified this protocol, but remains bound by broader obligations under international humanitarian law. The use of white phosphorus in the Gaza conflict violates international humanitarian law by disregarding the obligation to minimise harm to civilians. Human Rights Watch and many states are calling for a stronger Protocol III to ban all incendiary weapons in civilian areas, and it is to be hoped that this call will be heeded.
The diplomatic process is moving at a fast pace, but what else can be done to prevent the conflict from escalating?
All states (especially major suppliers, such as the US to Israel) must suspend all transfers of arms, ammunition and other military equipment and technology to all parties as long as there is a significant risk that these supplies will be used to commit serious violations of international humanitarian law and gross violations of human rights. The suspension should include all indirect exports through third countries, transfers of military components and technology, and any brokering, financial or logistical activities that could facilitate such transfers. However, even if the war ends, civilians will continue to pay a heavy price until Israel dismantles its apartheid system against the Palestinians, including ending the illegal blockade of Gaza.
Cover photo by New Africa/Shutterstock.com