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Israel’s International Humanitarian Conundrum

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Amy Price


Introduction

The recent spate of hostilities that swept through Gaza between 10th-21st May 2021 marked one of the deadliest conflicts in this region in decades (Forbes). Following the ‘Egyptian-brokered ceasefire’ on 21st May this year, this conflict has reignited questions of international humanitarian law (IHL), first sparked in the explosive round of the Israeli-Hamas war in 2014. A developing investigation in the International Criminal Court (ICC) suggest the potential war crime status of both parties’ actions is unlikely to leave the international legal agenda for the foreseeable future.



Conflict Context

The past few weeks’ torrent display of violence in Gaza and Israel has been considered the worst since 2014, which rendered over 20,000 homes uninhabitable in an Israel Defence Forces (IDF) airstrike aftermath, and left more than 2,200 people dead. The most recent violence was incited by weeks of rising Israeli-Palestinian tension in East Jerusalem, culminating in a series of clashes that coincided with Qadr Night, observed by Muslims, and Jerusalem Day, an Israeli national holiday. Israel’s refusal to withdraw from the Mount Temple complex and Sheikh Jarrah provoked the launch of rockets by the Hamas troops, which consequently incurred retaliatory airstrikes


The IDF’s political directive speaks to extracting a “significant price” from Hamas, which Prime Minister Benjamin Netanyahu did not consider fulfilled by the ceasefire. His preferred ‘mowing the lawn’ strategy sought to massively devastate administrative and military infrastructure reconstructed by Hamas in the wake of the previous round of Israeli-Hamas war in 2014. This openly declared strategy and the total comparative death toll means Israel is currently a likely candidate for international legal scrutiny, especially considering the IDF’s reputation as one of the most ‘technologically advanced militaries on the planet’.


Escalation

Such scrutiny was not merely the consideration of external legal forces. May’s rapidly escalated violence provoked immediate Israeli recognition of a serious risk of ICC investigation. This could lead to Israeli soldiers and politicians ingrained in the chain of command being investigated for war crimes. Preemptive moves were subsequently made by Israel, as the military was quickly prompted to launch investigations into some of the most controversial incidents in the course of the conflict. It has been suggested this move was designed to show Israel had in effect investigated ICC allegations, despite not being party to the court itself.


However, this window-dressing proved futile as the issue of Israeli war crimes was thrust under the international spotlight. Despite being met with significant Israeli protestation, on 5th February, the ICC announced its jurisdiction in Palestine. This cleared its chief prosecutor to investigate alleged atrocities regardless of any objections internally or externally. Such status achieved by Palestine rebutted any notion it was “not a fully-fledged state” and therefore could not petition to the court, whose justification extends broadly ‘to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including Easy Jerusalem’. 13th June 2014, almost exactly seven years ago, was listed by the ICC as the starting point for investigation.


International Humanitarian Law

In terms of IHL, this most recent round of fighting has fixated largely on the question of whether Israel’s attacks on ‘legitimate military targets’ violated the principle of proportionality under this law. These targets were deemed as such by the presence of Hamas officials or their occupation and usage of such buildings. This principle states an attack is illegal if it is expected to cause incidental loss of civilian life, their injury, damage to other civilian objects, or a combination of these incidences, which would be considered excessive in relation to Israel’s ‘concrete and direct military advantage’


Proportionality is inextricably interlinked with the principle of distinction. It was concluded that in regard to four different airstrikes examined, Israel presented no evidence suggesting it was attacking lawful military objectives, or that it acted to minimise civilian casualties. This further highlights the IHL obligation to take all feasible precautionary measures to avoid or minimise death, injury and damage to civilians.


These IHL fundamentals have opened the floodgates to widespread scholarly debate. The use of the intertwined principles has been criticised to a degree, IHL claimed to remove us from the ‘inevitable humanitarian crisis’ rather than helping it, deemed even more extreme as a ‘sterilised, vague and cold-blooded discussion’ of contemporary horrors of war. Extensive criticism of its framework highlights the limits of IHL in the ICC’s ongoing Israeli investigation, which raises the question of its probable success in finding its violation of it. Alongside criticism of IHL’s dispassionate removal from the heart of the humanitarian crisis, its analysis of war has also been described as ‘distanced and abstract’. It has been suggested so long as IHL is unable to acknowledge the ‘structural injustice’ of this situation, addressing the true horror and atrocities of war themselves, discussion of this case remains a ‘double-edged sword’.


Israeli investigation is still ongoing, and it therefore remains to be seen whether dispassionate dialect prevents the recognition of true atrocities from either side of the war from classification as war crimes. Retribution, therefore, remains a significant unknown.


 

Websites

BBC News, ‘Israel ‘Will Not Cooperate’ with ICC War Crimes Investigation’ (BBC, 9th April 2021) <https://www.google.co.uk/amp/s/www.bbc.com/news/world-middle-east-56687437.amp> accessed 10th June 2021


BBC News, ‘Israel intensifies attacks in Gaza as conflict enters fifth day’ (BBC, 14th May 2021) <https://www.bbc.co.uk/news/world-middle-east-57110368> accessed 9th June 2021


Dearden, L, ‘Israel-Gaza conflict: 50 day War by Numbers’ (The Independent, 27th August 2014) <https://www.google.co.uk/amp/s/www.independent.co.uk/news/world/middle-east/israel-gaza-conflict-50-day-war-numbers-9693310.html%3famp> accessed 10th June 2021


Deutsch, A, Van Den Berg, S, ‘ICC Prosecutor Warns Against Crimes in Escalating Israeli-Palestinian Violence’ (Reuters, 13th May 2021) <https://www.reuters.com/world/middle-east/icc-prosecutor-warns-against-crimes-escalating-israel-palestinian-violence-2021-05-13/> accessed 9th June 2021


Gross, A, ‘The 2021 Gaza War and the Limits of International Humanitarian Law’ (Just Security, 1st June 2021) <https://www.justsecurity.org/76737/the-2021-gaza-war-and-the-limits-of-international-humanitarian-law/> accessed 8th June 2021


Gurmendi, A, ‘The Rabbit Hole, from Antwerp to Gaza’ (OpinioJuris, 19th May 2021) <http://opiniojuris.org/2021/05/19/the-rabbit-hole-from-antwerp-to-gaza/> accessed 9th June 2021


Harel, A, ‘Senior Israeli Officials Want to End Gaza War, but Netanyahu Wants a Clear Victory’ (Haaretz, 19th May 2021) <https://www.haaretz.com/israel-news/.premium.HIGHLIGHT-politicians-want-to-end-gaza-war-but-netanyahu-wants-a-clear-victory-1.9820708> accessed 10th June 2021


Holmes, O, ‘ICC rules it can Investigate Alleged War Crimes in Palestine despite Israeli Objections’ (The Guardian, 5th February 2021) <https://www.theguardian.com/law/2021/feb/05/icc-rules-it-can-investigate-war-crimes-in-palestine-despite-israeli-objections> accessed 8th June 2021


Human Rights Watch, ‘Israel/Palestine: Unlawful Israeli Airstrikes Kill Civilians’ (Human Rights Watch, 15th July 2014) <https://www.hrw.org/news/2014/07/15/israel/palestine-unlawful-israeli-airstrikes-kill-civilian> accessed 9th June 2021


Roblin, S, ‘How Hamas’ Arsenal Shaped the Gaza War of May 2021’ (Forbes, 25th May 2021) <https://www.forbes.com/sites/sebastienroblin/2021/05/25/how-hamass-arsenal-shaped-the-gaza-war-of-may-2021/?sh=4c77b5d579df> accessed 10th June 2021


Roblin, S, ‘Mow the Lawn: Israel’s Strategy for Perpetual War with the Palestinians’ (The National Interest, 22nd May 2021) <https://nationalinterest.org/blog/buzz/mow-lawn-israel’s-strategy-perpetual-war-palestinians-185775> accessed 9th June 2021


Staff, T, ‘ICC may Probe Current Israel-Gaza round of Violence in War Crimes Investigation’ (Times of Israel, 14th May 2021) <https://www.google.co.uk/amp/s/www.timesofisrael.com/icc-may-probe-current-israel-gaza-round-of-violence-in-war-crimes-investigation/amp/> accessed 9th June 2021


Journals

Naz Modirzadeh, ‘Cut These Words: Passion and International Law of War Scholarship’ (2020) 61 Harvard International Law Journal 1


Legislation

Additional Protocol 1 to the Geneva Convention, (AP1), Aryicle 51(5)(b) and 57(2)(a)

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