Assessing the Israeli-Palestinian Conflict in Gaza
Assessing the Israeli-Palestinian Conflict in Gaza: A Legal Perspective on Humanitarian Law and International Jurisdiction
By Anna Sarkisyan
Introduction
The Israeli-Palestinian conflict, with its deep historical roots and complex geopolitical implications, has long been a focal point of international attention and debate. The recent escalation of tensions, particularly the events that transpired starting on the 7th of October 2023[1], has once again brought the conflict to the forefront of international humanitarian law (IHL) discussions. This article aims to provide a detailed legal analysis of these events, examining the actions of both Hamas and Israel through the lens of IHL.
Historical Context
The Roots of the Conflict
The Israeli-Palestinian conflict dates back to the early 20th century, with the dissolution of the Ottoman Empire and the subsequent British mandate in Palestine. The 1948 Arab-Israeli War[2], following the United Nations partition plan, marked a significant turning point, leading to the establishment of the state of Israel and the first major displacement of Palestinian people, referred to as Al-Nakba[3] or "The Catastrophe" in Arabic.
The Emergence of Hamas
Hamas, an acronym for Harakat al-Muqāwamat al-Islāmiyyah (Islamic Resistance Movement), emerged in 1987, during the First Intifada, as an offshoot of the Muslim Brotherhood[4]. It quickly rose to prominence due to its strong stance against Israeli occupation and its blend of militant and political strategies. Hamas' charter, its political victories, and its role in the Gaza Strip have made it a central figure in the conflict.
International Humanitarian Law Framework
The Geneva Conventions and Protocols
At the heart of IHL are the four Geneva Conventions of 1949 and their Additional Protocols[5]. These treaties, ratified by a majority of states globally, including Israel, set out the rules that apply in times of armed conflict. They primarily focus on the protection of persons who are not or are no longer participating in hostilities and the restrictions on means and methods of warfare.
International Customary Law
Customary international law, derived from the consistent practice of States accompanied by opinio juris (the belief that the practice is required by law), plays a significant role in IHL[6]. Notably, it binds all states, regardless of whether they have ratified specific treaties.
Humanitarian Principles and Warfare
Central to IHL are the principles of distinction, proportionality, and necessity. These principles mandate that parties to a conflict must distinguish between combatants and non-combatants, ensure that military actions are proportional to the military advantage anticipated, and only employ methods and means of warfare that are necessary to achieve a legitimate military objective.
Analysis of October 2023 Events
The Actions of Hamas on 7th October 2023
On 7th October 2023, Hamas initiated a series of actions that escalated tensions in the region. These actions, reportedly including rocket fire into Israeli territories, must be scrutinized under the principles of distinction, proportionality, and necessity as established in IHL[7]. The use of indiscriminate weapons in civilian areas is a critical point of analysis here.
Israel's Response and the Siege of Gaza
In response, the Israeli military enacted a complete siege of the Gaza Strip. This action, characterized by restrictions on movement and the blockade of essential supplies, raises significant concerns under IHL. The concept of collective punishment, prohibited under the Fourth Geneva Convention, is particularly relevant in this context[8]. The effects of such a siege on the civilian population of Gaza, including access to medical care, food, and basic necessities, must be carefully examined.
The Role of the United Nations
UN Secretary-General's Statement
The United Nations, through its Secretary-General Antonio Guterres, has expressed concerns about the potential violations of IHL in this conflict[9]. The statement specifically mentions the prohibition of collective punishment and the need for all parties to adhere to the principles of international law. This perspective adds a layer of international scrutiny and calls for accountability.
International Criminal Court (ICC) Jurisdiction
Investigating Violations of International Humanitarian Law
The ICC's mandate to investigate war crimes, crimes against humanity, and genocide places it at the center of this discussion[10]. The Court's jurisdiction over the territories, including Gaza, and the legal thresholds for initiating an investigation into the alleged violations by both Hamas and Israel are crucial aspects to explore. The Rome Statute[11], which established the ICC, grants the Court jurisdiction over war crimes, crimes against humanity, and genocide committed on the territory of a state party or by a national of a state party. Although Israel is not a party to the Rome Statute, the State of Palestine, which acceded to the Statute in 2015, includes Gaza within its claimed territories[12]. This accession provides the ICC with a legal basis to exercise its jurisdiction over alleged crimes committed in Gaza. The legal thresholds for initiating an investigation include a reasonable basis to believe that a crime within the Court's jurisdiction has been achieved. In the context of the Israeli-Palestinian conflict, this involves an intricate analysis of actions by both Hamas and Israeli forces, evaluating the evidence against the standards of international law, particularly focusing on the principles of distinction, proportionality, and necessity in warfare. The ICC's potential involvement highlights the complexity of applying international law in a highly contested geopolitical landscape and raises questions about the practical challenges of pursuing justice during the ongoing conflict.
Challenges and Precedents
The ICC has faced challenges in asserting its jurisdiction in complex geopolitical conflicts. The Court's efforts to enforce IHL are frequently complicated by issues of state sovereignty, political interests, and the non-universality of the Rome Statute. In the context of the Israeli-Palestinian conflict, the ICC has to navigate a highly contested legal and political terrain, further illustrating the complexities of applying IHL in situations where the international community is deeply divided. A comparative analysis of these situations sheds light on the Court's role in the global justice system and highlights the inherent difficulties in upholding international law amidst the diverse and often conflicting interests of the international community.
Comparative Analysis: Israeli-Palestinian Conflict and the Ukraine-Russia Conflict
Double Standards in International Response
The international community's differing responses to the Israeli-Palestinian conflict and the conflict between Ukraine and Russia highlight potential double standards. While both conflicts involve significant humanitarian concerns and potential violations of international law, the intensity and nature of the international reactions, including sanctions, diplomatic pressure, and media coverage, appear to diverge considerably. Moreover, the international community's differing responses to the Israeli-Palestinian and Ukraine-Russia conflicts suggest potential double standards influenced by geopolitical interests and historical alliances[13].
Implications for International Law
While the international community has reacted swiftly and robustly to Russia's actions in Ukraine, the response to the long-standing Israeli-Palestinian conflict has been markedly more complex and muted. This divergence in reactions is not merely a matter of diplomatic preference but speaks to deeper inconsistencies in how international laws and principles are applied in different geopolitical contexts. Such disparities can be attributed to a variety of factors, including political alliances, economic interests, and strategic considerations. The resulting perception of double standards in international law enforcement not only undermines the credibility of key international institutions but also raises doubts about the effectiveness of existing legal frameworks in resolving conflicts. This inconsistency poses a significant challenge to the international legal order, potentially eroding trust in these institutions and diminishing their capacity to mediate and resolve future conflicts effectively. The need for a more uniform and unbiased application of international law is imperative to ensure its legitimacy and efficacy in the global arena.
Proposed Solutions and Conclusion
Enhancing International Legal Mechanisms
The need for robust and impartial international legal mechanisms is paramount. Strengthening the ICC and ensuring its ability to act independently of political influences could enhance its effectiveness in upholding international humanitarian law.
Fostering Dialogue and Diplomacy
Increased diplomatic efforts and dialogue between conflicting parties, facilitated by neutral international entities, could pave the way for peaceful resolutions. Engaging in comprehensive peace talks, with a focus on addressing underlying issues, is essential.
Addressing Double Standards
The international community must strive for consistency in its response to conflicts. Acknowledging and addressing perceived double standards is crucial for the legitimacy and effectiveness of international law.
Conclusion
The Israeli-Palestinian conflict, particularly the events of October 2023, presents complex challenges under international humanitarian law. The actions of both Hamas and Israel warrant thorough legal scrutiny. The comparative analysis of the Ukraine-Russia conflict reveals concerning disparities in international responses, highlighting the need for a more consistent and impartial application of international law. Enhancing legal mechanisms, fostering dialogue, and addressing double standards are vital steps towards resolving such conflicts and upholding the principles of international law.
[1] Article URL: https://www.idf.il/en/mini-sites/hamas-israel-war-23/all-articles/what-happened-in-the-october-7th-massacre/#:~:text=On%20October%207th%2C%202023%2C%20thousands,thousands%20of%20rockets%20toward%20Israel. [2] Margolick, David (2008-05-04) "Endless War". The New York Times. ISSN 0362-4331. [3] Abu-Laban, Yasmeen; Bakan, Abigail B. (July 2022). "Anti‐Palestinian Racism and Racial Gaslighting". The Political Quarterly. 93 (3): 508–516 [4] Mishal, S., & Sela, A. (2006). "The Palestinian Hamas: Vision, Violence, and Coexistence." Columbia University Press. [5] International Committee of the Red Cross (ICRC), 1949 [6] Henckaerts, J. M., & Doswald-Beck, L. (2009). "Customary International Humanitarian Law." Cambridge University Press. [7] Schmitt, M. N. (Ed.). (2013). "International Law and Armed Conflict: Exploring the Faultlines." Brill Nijhoff. [8] Ben-Naftali, O., Michaeli, K. R., & Sfard, M. (2005). "Illegal Occupation: Framing the Occupied Palestinian Territory." Berkeley Journal of International Law. [9] United Nations. (2023). Statements by the Secretary-General on the Israeli-Palestinian conflict; United Nations (2023). Secretary-General’s remarks to the Security Council – on the Middle East [as delivered] URL: https://www.un.org/sg/en/content/sg/statement/2023-11-29/secretary-generals-remarks-the-security-council-the-middle-east-delivered [10] (Kersten, M. (2016). "Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace." Oxford University Press [11] The Rome Statute, published by the International Criminal Court, URL: https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf [12] State of Palestine; International Criminal Court, URL: https://www.icc-cpi.int/palestine [13] Tsygankov, A. P. (2020). "Russia and America: The Asymmetric Rivalry." Polity
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