The deadliest fighting in years between Israel and Hamas had by mid-May killed over 200 Palestinians in Gaza, including dozens of children, and at least 10 in Israel.
Thousands of Palestinians have been injured and many killed as a result of violence at Al-Aqsa mosque and Israeli airstrikes in Gaza. Despite Israel agreeing to a ceasefire, human rights violations against the Palestinian people continue. Israel is committing two crimes against humanity in the Occupied Palestinian Territories (OPT): apartheid and persecution. These findings are discussed in a 213-page report titled “A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution’” published in April 2021.
International humanitarian law encompasses a set of rules which govern armed conflict. They are enshrined in treaties, some of which both Israel and Palestine ratified. The most important of these agreements are the 1949 Geneva Conventions and their 1977 additional protocols.
Central to international humanitarian law are a core set of principles.
First is the principle of distinction, which obligates warring parties to distinguish between civilians and military targets. Each side can attack only those objects which by their nature, location, purpose or use would offer a definite military advantage if neutralized.
Second is the principle of proportionality, according to which any unavoidable “collateral damage” – such as civilian deaths – cannot be excessive in relation to the direct military advantage anticipated.
Finally, there’s the principle of precautions in attack, which reaffirms the obligation of warring parties do everything feasible to mitigate civilian harms. Israeli attacks on residential high-rises are for many in the international community a war crime, because they are disproportionate and do not offer a definite military advantage.
Israel disagrees, claiming those buildings were used by Hamas to advance its military campaign.
So what happens if Israel is alleged to have committed war crimes? That depends on the will of the international community. Most importantly it will be about their political will. We may see an International Criminal Court investigation, U.N. Security Council sanctions or fact-finding missions by the U.N. Human Rights Council.
These kinds of investigations have happened after every previous cycle of violence between Israel and Hamas. Prior reports such as the 2009 Goldstone report, issued by the U.N. Human Rights Council identified violations of human rights and humanitarian law by both parties. It called for Israel to provide monetary reparations to Palestinian victims or their survivors.
Enforcement, however, has proven largely ineffective. International law simply lacks the necessary tools to hold powerful countries to account.
To varying degrees. Israel in many of those cases did not accept the basic premise that its military practices violated international humanitarian law and therefore did not change course.But in a few rare occasions Israel did pay compensation. For example, in 2009 Israel paid US$10.5 million to the U.N. for property damage and injuries suffered by the organization during Israel’s attack on Gaza.
When Israel makes such payments, it is important to note that they are done via “ex gratia” – lump sum payments made to respond to international pressure without acknowledging any legal responsibility or creating legally binding norms that could be enforced in the future. Israel is not alone in this practice. Other countries, including the U.S., have made similar ex gratia payments to those harmed in war, without admitting fault or wrongdoing. Israel was already under International Criminal Court investigation for allegedly committing war crimes against Palestinians.
In March 2021, outgoing International Criminal Court prosecutor Fatou Bensouda opened an investigation into alleged disproportionate Israeli attacks in Gaza – exactly the same kind of attacks at issue now. The investigation also covers Israel’s settlements program in the West Bank.
In a recent interview, Bensouda said that the investigation remained open and that her office is monitoring the current situation very closely – essentially warning Israel to be heedful, because the criminal court could hold it to account. The ongoing violence shows that the threat didn’t dissuade the Israeli forces. Israeli leaders often refer to a “legal iron dome” to indicate the general umbrella of protection Israel offers its military personnel from any future criminal prosecution.
International law serves as an expressive function, setting a standard for how all countries should behave on the global stage. Over time, we’ve seen these norms play an increasing role in the way countries operate and what actions are deemed unacceptable. For example, following the 2009 Goldstone report, Israel make several changes to minimise civilian casualties, including restricting the use of white phosphorous munitions, which cause severe chemical burns. International humanitarian law is not a panacea for all of the world’s ills. But these rules are a good place to start, and certainly worth fighting for.
Meanwhile in Ireland, The Occupied Territories Bill (officially Control of Economic Activity (Occupied Territories) Bill 2018) is a proposed Irish law that would ban and criminalize “trade with and economic support for illegal settlements in territories deemed occupied under international law”, most notably Israeli settlements. This Bill entitled an Act to give effect to the State’s obligations arising under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and under customary international humanitarian law; and for that purpose to make it an offence for a person to import or sell goods or services originating in an occupied territory or to extract resources from an occupied territory in certain circumstances; and to provide for related matters.