Daily Archives: August 6, 2014

International Law and Gaza

I was interested to read Ben Saul’s article in the Age last week about international humanitarian law and its application to Gaza.  As anyone who has read this blog for any period of time will realize, I’m not a ‘resident judge’ at all and have no expertise in law of any kind.  I’ve often heard the term ‘humanitarian law’ being bandied around, but I wasn’t quite sure what it actually states.  So here, for future reference, are  the six principles of international humanitarian law.  Saul said:

How does humanitarian law apply to the Gaza conflict? The key rules are simple. First, civilians must not be deliberately targeted.

Second, indiscriminate attacks are prohibited, meaning those that do not, or cannot, differentiate between military targets and civilians.

Third, all feasible precautions must be taken to verify that a target is military not civilian before attacking it.

Fourth, an attack must not cause excessive or disproportionate civilian casualties in relation to the military advantage anticipated.

Fifth, it is prohibited to use civilians as human shields.

Finally, the humanitarian needs of the civilian population must always be respected and provided for.

Further, he says:

These are the bare rules of humanity. Israel’s right of self-defence, or the Palestinians’ right to self-determination and freedom from blockade and occupation, do not trump them. Self-defence must always be exercised in accordance with humanitarian law, regardless whose cause is just. Military forces must also follow the law even if their opponents do not.

So, on this basis Saul opines that both sides are committing war crimes.  Hamas’ rocket attacks are illegal because they either target civilians or are fired indiscriminately. Their use of tunnels is not illegal because infiltrating enemy territory, surprising enemy forces and capturing enemy solders are all permissible strategies of war.  The use of  human shields is illegal and by intermingling with civilians, Hamas is placing civilians in danger.
Israel may (he says- I would say ‘is’) also be committing war crimes.  Some strikes have killed only civilians while others have caused clearly excessive casualties.  The blockade of Gaza causes excessive civilian harm, and although Israel warns civilians to leave their homes, they are blockaded in Gaza, which is an unsafe territory.
No easy answers here.