A few days ago, I was approached by a journalist who wanted me to comment on recent violence in Israel, specifically the killing of 60 Palestinians along Israel’s border with the Gaza Strip on Monday 14 May. This was latest in a series of protests organised by the Strip’s Hamas rulers which intensified after the US officially opened its embassy in Jerusalem. The journalist was especially interested how this relates to international law and the question of proportionality. I decided not to comment because I did not want my views on this complicated and intricate subject to be reduced to a half sentence. Nevertheless, I have an opinion which I would like to share.
I get very suspicious when “experts” or politicians refer to international law without mentioning specific articles or conventions. Even when they are specific, sometimes the treaties and articles they refer to do not make a clear-cut case against Israeli actions in this instance.
For example, the 1966 International Covenant on Civil and Political Rights stipulates, among many other things, that individuals have the right to life and not be arbitrarily killed (Article 6). I mention this because in one article I read the “expert” refers to this treaty. However, leaving aside the possible counter that the deaths of the protesters in Gaza on Monday may not have been arbitrary, the context of Article 6 is also not necessarily relevant to the recent events because the broader context of the article is the death penalty within a society rather than loss of life during battle or conflict.
Another treaty which is often referred to when discussing alleged Israeli violations of international law is the Fourth Geneva Convention. But much of this document is about the responsibilities of an occupying power. This is more relevant to Israeli settlement policy than recent events in the Gaza Strip. To make it relevant to the Gaza protests, one has to first posit that Israel is the occupying power of Gaza, which is debateable and even doubtful since its withdrawal in 2005. If, for the sake of argument, we grant that Israel is the occupying power, it is still unclear under which article Israel is supposedly in violation in relation to Monday’s events. It would appear Article 147 which considers “wilful killing” a breach of the treaty. This is one of the documents that Amnesty International was assumedly referring to when it condemned the Israeli use of excessive force and “wilful killing”. However, Article 147 is not about protests, demonstrations or attempts to breach border security, but rather the detention and trial of prisoners of war or those accused of criminal offences in wartime.
The other treaty Amnesty International could have been referring to was the Rome Statute of the International Criminal Court. The Rome Statute describes what constitutes a crime against humanity, which, among other important things, includes an action which is “part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” including the use of “murder” and “extermination” to name but a few of the horrific acts described in the treaty (article 7). In addition, Article 8 of the same statute is concerned with war crimes and states that “wilful killing” constitutes such an offence, and, in a follow on passage, namely Article 2b, this includes “Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” as well as “Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life… which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”.
Aha, there we have it! Now let’s take a look and see if Israel is in breach of this piece of international law.
60 Palestinians were killed during the most recent protests on 14 May. If, having examined the facts, it emerges that these protesters were entirely peaceful and sought to stage a non-violent protest by the border, under the terms of the Rome Statute, Israel would have committed a violation of international law.
However, one may counter, didn’t Israel drop leaflets warning protesters not to approach the border area? Wasn’t this corroborated by news reports which can verify this was the case? And there was also the precedent of previous incidents by the border. In other words, surely the Palestinian protesters knew that they were risking their lives by approaching the border? Sure, but it still remains the case that if the intension of the protesters was fully peaceful, Israel’s actions would to be both disproportionate and in breach of the Rome Statute.
But what if Israel’s claims that some Palestinians, including many of those who were fatally shot, were indeed trying to sabotage the fence prove to be true? In such a case, when the potential sovereignty of a state is at risk, it is reasonable to expect that force will be used. Nevertheless, 60 deaths still appears excessive, especially if other measures could have been used. Israel still has some serious answering to do and may still be in breach of the Rome Statute.
However, Israel not only claims that Hamas militants were trying to breach the fence, but Hamas operatives were also making an attempt to enter Israel to attack Israeli civilians. If this turns out to be the case, Israel, I think, would undoubtable be in its right to use lethal force. Those attempting to breach the border would also now be deemed combatants - a Hamas leader recently stated that the majority of those killed were members of Hamas. In this context, it would be difficult to state that Israel was acting disproportionately to the threat, and making the case that Israel violated the Rome Statute would be a stretch.
Whether or not Israel is in violation of international law does not absolve Hamas for its use of civilian protesters as human shields. This is a factor that must be considered regardless of whether Hamas was trying to breach the border to murder Israelis or just using protesters for PR purposes. They were still fully aware that civilians were being put in harm’s way. The use of human shield is a violation of Article 8 of the Rome Statute as well as Article 23 of the Third Geneva Convention and article 28 of the Fourth Geneva Convention. Let us also not forget that children were brought to a protest where violence and death are the norm and that there were cases of gruesome Hamas incitement to violence ahead of the demonstrations.
As you can tell from this entry, international law and the Israel-Gaza conflict is neither simple nor clear-cut. When you hear people talk about violations of international law, know that the reality may be a lot more complicated and unclear.
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