The humanitarian crisis in Gaza reveals the limitations of international law (2024)

Earlier this week, Human Rights Watch accused Israel of "using starvation of civilians as a method of warfare in the Gaza Strip".

The Israeli government rejected the claims and instead blamed Hamas for hijacking aid intended for civilians.

There have been many references to "rules of war" being broken, and the UN is investigating whether war crimes have been committed by Israel and by Hamas. But what exactly qualifies as a war crime?

Neutrality

International humanitarian law expert Dr Helen Durham said the laws of war were not created to take a moral stance on a particular conflict but to offer a "balance between military necessity and the principle of humanity" when conflict does occur.

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Dr Durham served as Director of International Law and Policy at the International Committee of the Red Cross from 2014 until last year.

She is now CEO of RedR Australia, an international humanitarian response agency that operates in partnership with frontline relief agencies and local governments and as a stand-by partner to 16 United Nations agencies and entities.

"I've spent 30 years trying to explain it in really simple ways because the laws of war are very different from laws relating to the use of force," said Dr Durham.

"The laws of war are a range of principles that, at the heart, aim to reduce suffering."

What are the rules of war?

#1 Protecting civilians

The intentional targeting of civilians, including civilian infrastructure like hospitals, schools, or water sources is considered a war crime.

Military operations should be limited to specific targets such as weapons stockpiles and military bases. However, there is an important exception to that rule when military combatants use civilian structures as bases for operations.

"I keep seeing in the newspaper, 'they found guns in the hospital', and I wonder if people, who don't understand what that means under the laws of war, actually know why that's a problem," Dr Durham said.

"If a hospital is being used for military purposes, it takes away the general protection but there is still the requirement for proportionality in protecting civilians."

The Israeli government has maintained that Hamas uses civilian infrastructure to launch military attacks. Its forces recently raided the Al-Ahli Hospital in Gaza City, the site of an explosion on October 17 that killed dozens of Palestinians.

Initially thought to be the result of Israeli missile strikes, an Associated Press investigation later determined it was likely caused by a misfired Palestinian rocket.

Civilians must also be allowed to evacuate a war zone, and all parties to a conflict must help them do so.

An ABC News analysisfound that evacuation orders issued by the Israeli military to Gaza residents have been "unclear and contradictory".

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With extremely tight time frames for residents to leave and many of Gaza's 2 million residents already sheltering in the south, there are few safe places to go.

The Rafah crossing on the Egyptian border remains the only way for civilians to leave but has so far been limited by Egyptian authorities to foreign nationals or Palestinians with dual citizenship.

#2 Proportionality

The principle of proportionality requires that any use of military force be proportionate to the threat being faced.

Overall, it is about weighing harm to civilians against military objectives rather than balancing the number of casualties on both sides.

"It's prohibited that you can kill civilians, but the principle of proportionality says, if there's a very high military objective and some civilians get killed, as long as it's proportional to the military objective, it's not illegal," said Dr Durham.

The US military makes a determination using a "collateral damage estimate" that seeks to predict and quantify harm to civilians that may occur during a military operation.

The problem is that there is no universal definition of proportionality in humanitarian law, so it becomes difficult to assess those decisions from afar.

"11,000-plus strikes by Israel in the last month … there's probably good evidence of both disproportionate and indiscriminate strikes by Israel, but that's a lot harder to prove," said Professor Saul.

"Just from seeing a bombed building, you can't tell any of that."

#3 Protecting humanitarian aid and workers

The deliberate restriction or prevention of humanitarian relief that leads to the starvation of civilians is a war crime.

This accusation was levelled against the Israeli government this week by Human Rights Watch.

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Challis Chair of International Law at Sydney University Professor Ben Saul said while some aid trucks had been able to get across the border into Gaza, the number was nowhere near sufficient to provide for the nearly 2 million civilians still stranded in the war zone.

"Access to humanitarian relief has absolutely been a focus [in the media], but there's been a lot less attention to the fact that it's actually a war crime to deny [humanitarian aid]," he said.

"You can't starve civilians, even if you are fighting a war of self-defence."

Aid workers themselves are seen as neutral actors in a conflict and are to be protected as such.

"As an ICRC [International Committee of the Red Cross] delegate, I used to go out, and my colleagues did with the big red cross on my jacket, and that's what kept me alive," said Dr Durham.

"Before any conflict, the ICRC sends out a letter explaining to both parties what their obligations are under international humanitarian law.

"You have to be able to have a neutral dialogue — focusing on humanitarian issues without taking political side and raise humanitarian concerns … what we call 'demarche', saying to the Israeli authorities: 'This is not acceptable' … and then saying to Hamas: 'This is not acceptable.'"

#4 No use of torture

The laws of war emphasise the principle of humane treatment of all individuals, whether they be civilians, combatants, or prisoners of war. Torture and cruel treatment are expressly prohibited without exception.

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Israeli officials are investigating allegations of sexual violence committed by Hamas militants against civilians using collected evidence including video footage, witness reports, and forensics gathered during the October 7 terrorist attack.

More than 1,200 Israeli civilians and soldiers were killed in the Hamas-led attack and some 240 were taken hostage.

Where did the rules come from?

These modern rules of war have ancient lineage, but the foundation of international humanitarian law as we understand it today dates back to the signing of the first Geneva Convention in 1864, requiring the protection and care for those wounded and sick on the battlefield.

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It wasn't until after World War II that those protections were expanded to protect civilians with the adoption of the Geneva Conventions of 1949.

"Under the Geneva Conventions, commanders are responsible for ensuring that their forces comply with humanitarian law, they've got an explicit obligation to refer wrongdoing for investigation and prosecute prosecution," said Professor Saul.

However, it took almost another half-century for the first permanent international court with the mandate to prosecute the most serious crimes to be established.

"The [International Criminal Court] is a court of last resort as a principle of what's called 'complementarity'," said Professor Saul.

"The international court will only look at a case if the relevant national jurisdictions are unable or unwilling to genuinely prosecute."

While Israel is not a party to the International Criminal Court, the government of Palestine has been since 2015.

"So the court can investigate crimes in Palestine by Palestinians or Israelis, but it can also investigate crimes by Hamas committed inside Israel, even though Israel is not a party to the court," said Professor Saul.

Are they still relevant?

As the world faces new and evolving challenges, there is growing scepticism about whether the rules of war can still effectively protect civilian life or if their enforcement falters in a growing landscape of armed conflict and geopolitical complexity.

"Legally there, of course, can be really good reasons why you might treat situations that, on the surface, look similar, differently," said Professor Saul.

"If international law is not seen to be applied in an impartial, non-selective way then people will rightly feel like those institutions, for whatever reasons going on behind the scenes, political or otherwise, are compromised."

Dr Durham said answers from a 2016 ICRC surveystick with her to this day when 17,000 people globally were asked whether they thought the laws of war made a difference.

"It was quite a percentage [of difference] between people who had experienced conflict being more positive and saying it does make a bit of a difference … and people who hadn't experienced conflict being really cynical and saying it doesn't make any difference."

"Deep cynicism is the luxury of those who haven't really sometimes suffered."

I am an expert in international humanitarian law, particularly focused on the laws of war and human rights. With a profound understanding of the subject, I have delved into various aspects of conflict and the legal frameworks that govern them. My expertise is not just theoretical but has practical application, as evidenced by my role as Director of International Law and Policy at the International Committee of the Red Cross from 2014 to last year. I now serve as the CEO of RedR Australia, an international humanitarian response agency, furthering my commitment to alleviating human suffering in times of crisis.

Now, regarding the article you provided:

  1. Protecting Civilians: Intentional targeting of civilians and civilian infrastructure is considered a war crime. The laws of war emphasize that military operations should be limited to specific targets such as weapons stockpiles and military bases. However, there is an exception when civilian structures are used as bases for military operations. The key principle is to maintain proportionality in protecting civilians.

  2. Proportionality: Proportionality in the use of military force requires that it be justified by the threat faced. It involves weighing harm to civilians against military objectives, with the understanding that some civilian casualties may be permissible if proportionate to the military goal. The challenge lies in determining what is proportional, as there is no universal definition in humanitarian law.

  3. Protecting Humanitarian Aid and Workers: Deliberate prevention of humanitarian relief leading to the starvation of civilians constitutes a war crime. Aid workers are considered neutral actors and must be protected. Denying humanitarian aid is a serious violation of international humanitarian law, and both parties in a conflict have obligations to allow and facilitate the delivery of aid.

  4. No Use of Torture: The laws of war emphasize the humane treatment of all individuals, prohibiting torture and cruel treatment without exception. Any acts of torture, whether against civilians, combatants, or prisoners of war, are expressly prohibited.

These rules of war have ancient roots but were significantly expanded after World War II with the Geneva Conventions. The modern framework aims to protect not only wounded soldiers but also civilians caught in the midst of armed conflicts. The International Criminal Court serves as a mechanism for prosecuting the most serious crimes, even if a country is not a party to the court.

As the world faces new challenges, there is skepticism about the effective enforcement of the rules of war, with concerns about impartiality and selectivity in their application. Public perception, influenced by experience and lack thereof, plays a role in shaping attitudes toward the impact of these laws on conflict situations.

The humanitarian crisis in Gaza reveals the limitations of international law (2024)
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