Article published in Agenda Pública of El País (16/10/2023)
The attack by Hamas – a terrorist group that de facto rules the Gaza Strip – on 7 October killed around 1,500 Israeli civilians. More than 150 hostages were kidnapped and taken to Gaza. The response of Israel – the occupying power in the Palestinian territory – has so far provoked the deaths of 1,200 Palestinian civilians. The numbers are evenly matched, but the tally of dead and wounded is not yet complete. There is no doubt that this is the bloodiest attack and response in decades of Israel’s history.
The Palestinian conflict began in 1947, when the United Nations proposed ending the United Kingdom’s Mandate over Palestine and dividing the territory into two independent states, one Arab Palestinian and one Jewish. Jerusalem would be placed under an international regime. This was in accordance with General Assembly Resolution 181 (II) of 29 November 1947. Since then, Israel has decided that the Palestinian territory would be a territory to occupy and has done so.
The conflict escalated in 1967 with the Six-Day War and intensified in 1973 in the Yom Kippur War. More recently, the Israel Defence Forces launched Operation “Mighty Cliff” over Gazan territory, and violence between the two sides resulted in the deaths of hundreds of civilians. On 26 August 2014, after 50 days of fighting, Israel, Hamas, and the other belligerents agreed to an indefinite truce brokered by Egypt. The ceasefire was supposed to entail the opening of all border crossings and the entry of humanitarian aid, but this did not happen.
Flagrant violations of international humanitarian law by both sides have become routine and should be explained. In 1862, Henry Dunant described the apocalyptic scenario he witnessed after the battle between the Austrian army and the armies of France and the Kingdom of Sardinia. In his book Un souvenir de Solferino, he drew attention to the lack of military medical personnel on both sides. He also drew attention to the lack of protection of medical personnel. In view of these shortcomings, he proposed the drawing up of an international convention to protect wounded soldiers and suggested the use of a distinctive sign, which would be the Red Cross, to which would later be added the Red Crescent and the Red Diamond.
On this basis, the Hague Peace Conferences of 1899 and 1907 codified the laws and customs of war on land. And among other international treaties, the Geneva Conventions of 1949 and the Additional Protocols of 1977 built up what is today known as international humanitarian law or the law of armed conflict (ius in bello). This whole set of rules is not only set down in writing but has also acquired the weight of international custom. Custom is as much a source of the international legal order as international treaties.
Over the centuries, international humanitarian law has been shaped by the dictates of two great needs: military and humanitarian. The first, the military necessity, was coined by US President Abraham Lincoln during the American Civil War through the Lieber Code. This Code limited the conduct of northern army soldiers: they could only carry out attacks that were “indispensable” to securing the ends of the war. Humanitarian necessities, on the other hand, were coined in the so-called Martens Clause, which provides that civilians and combatants are “under the protection and rule of the law of nations derived from established usages, from the principles of humanity, and from the dictates of public conscience”.
Two main principles emerge from the search for a balance between military and humanitarian needs: the principle of distinguishing between the civilian population and combatants, and the principle of proportionality. It is worth recalling the literal expression of both. On the one hand, “the Parties to the conflict shall distinguish between the civilian population and combatants and accordingly direct their operations only against military objectives” (Article 48 of Additional Protocol I of 1977). As regards the principle of proportionality, the rule requires consideration of whether the attack or defence is “excessive in relation to the advantage sought” (Article 51, also of Additional Protocol I). The indiscriminate targeting of young people attending a music festival in southern Israel does not distinguish between civilians and combatants, nor is it proportionate to the military advantage sought. Nor is the decision to cut off water, gas, and electricity to an entire civilian population. Nor is the decision to deny the population access to food and sanitation.
Even more. Depriving civilians of aid and jeopardising humanitarian actors’ access to conflict zones is to instrumentalise them and contravenes other foundational principles of humanitarian norms such as impartiality, neutrality, and humanity. Humanitarian aid is neither a weapon of war nor a means of political negotiation, and facilitating access is an obligation. This is expressed in Article 23 of the Fourth Geneva Convention: “Each Contracting Party shall permit the free passage of all consignments of medicine and medical supplies, […] intended solely for the benefit of the civilian population of any other Contracting Party, even if it is an enemy. It shall likewise permit the free passage of all essential supplies […]”.
Hamas’s response to decades of occupation is as illegitimate as Israel’s response to the terrorist attack. The chances of a cessation of the conflict are remote. In the meantime, the alternative is a permanent blow to international humanitarian law.