This post has been contributed by Professor Urfan Khaliq, Module Convenor for International Protection of Human Rights.
There is an almost unfortunate inevitability that every so often there will be a significant upturn in violence in the Middle East by that meaning, in particular, between the Israelis and Palestinians. Although the violence has been sporadic and ongoing for over a century, it has in recent years taken on a different dimension. Events in that part of the world have the capacity to spiral and bring to the fore other pre-existing wider tensions; with many of those often simmering just below the surface. The rise of social media and 24-hour rolling global news channels means that the world now witnesses the atrocities being committed and, as importantly, the sheer scale of the human suffering for all of those unfortunate
enough to be affected by events there. Passions and emotions run deep for many but equally some individuals publicly note that they do not have a view on what is happening because it is too complicated. Indeed, it is complicated and there are long histories and strongly contested and competing narratives. Notwithstanding the complexity, many facts are simply indisputable. It is not possible in a Blog post of whatever length to set out and explain the conflict and the issues of contention when it comes to Israel and Palestine. It is, however, possible to set out a few key issues relating to international law and human rights which might help to explain the role they have to play and also the limitations they suffer from.
The first indisputable fact is that Israel is a State and is recognised as such by the vast majority of other States. That entails the full panoply of obligations and rights – both under treaties to which Israel is party and also customary international law. Some, predominantly Arab, States have historically refused to recognise Israel as a State but that is a political as opposed to a legal determination. Israel is a State and a refusal to accept that flies in the face of facts and is now nothing other than meaningless political gesturing. Moreover, most if not all of those States who in the past have refused to recognise Israel, now have some sort of diplomatic relations with it – be they amicable or otherwise.
Palestine, by contrast, is a State for some purposes only and is recognised as a State by some
international organisations and by some, indeed many, other States. It is not recognised as a State, however, by Israel, United States of America, Canada, France, Germany, United Kingdom, and a host of others. Further it is not a Member State of the United Nations although it is a ‘non-Member-State’, which rather suggests it is indeed a ‘State’ just not a ‘Member State’ of the United Nations. The non membership (as a State) of the United Nations is not fatal to Palestine’s claim for statehood at all but it does highlight the relationship between legal and political considerations in this sphere. Palestine is, however, recognised as a state party to the International Criminal Court (ICC) which Israel is not. Not because the latter is not a State but because Israel like a number of other states, such as the USA and Russia, refuses to accept the ICC’s jurisdiction, Indeed the International Criminal Court has an ongoing investigation into the “situation” in the Palestinian territories. Palestine’s application to become a state party to the ICC was controversial and prolonged but the matter is now incontrovertibly settled. This means that members of groups such as Hamas, Islamic Jihad, the Al-Aqsa Martyrs Brigade and others who operate from within the Palestinian territories are within the remit of the court (no matter where the effects and impacts of their actions) and may at some point in time or other be accountable before it. That also means that any Israelis, both private individuals (settlers – those who settle in Palestinian lands illegally occupied by Israel and thus part of Palestinian jurisdiction for the ICC ) and members of the armed forces (the Israeli Defence Force, known as the IDF) who engage in activities prohibited under the Statute of the International Criminal Court may also be liable, in particular, but not only for activities carried out in the Palestinian territories. On that, the Palestinian territories are not contiguous and encompass both Gaza – on the Mediterranean Sea – and the land to the West of the River Jordan (hence the name, the West Bank – of the River Jordan) with the Jordanian state on the other side of the river. Israel and its territory thus dissect the territories of Palestine.
More broadly, many of the actions of the protagonists that we have witnessed since the middle of October 2023 are prohibited under customary international law and numerous multilateral treaties, most importantly the Four Geneva Conventions of 1949 and the First Additional Protocol of 1977. There is universal agreement that these treaties, which form a large corpus of International Humanitarian Law, are also reflective of customary international law. The taking of civilians as hostages or executing some of them for no reason other than their faith or nationality are heinous and egregious violations of international human rights law, international humanitarian law and international law more broadly. The three do not exist in hermetically sealed vacuums; there is a spectrum, and they overlap. Equating civilians to legitimate military targets is always impermissible, and thus attacking civilians because they are civilians as a part of any conflict is a war crime entailing individual responsibility. There is no doubt about any aspect of this; International Humanitarian Law draws a very clear distinction between those who can be legitimately killed (belligerents or those actively fighting) and those not (civilians or those
belligerents who have clearly laid down their arms). If civilians are killed as a consequence of the
attacking of a legitimate military target, then that may not entail responsibility but there is a
proportionality test: is the destruction of the ‘legitimate military target’ important enough a military objective to justify the death of some civilians? International Humanitarian Law does not prohibit conflict – it introduces limits to the permissibility of the conduct during that conflict. The targeted bombing and destruction of a hospital (not a legitimate military target) and killing dozens of patients, for example, cannot be justified unless the status of the hospital as a location of respite and sanctuary is being abused and thus used to store weapons or shelter active combatants. In such a case a hospital can lose its protected status. But the question of proportionality becomes key. How may civilian lived are worth the military advantage? Could killing hundreds of civilians be justified if there was a military commander hiding out in the hospital? Probably not, but dozens of civilians if there was a complete military command
seeking shelter in the hospital due to its protected status? These are difficult legal and factual
determinations, but the imperative is to always absolutely minimise the loss of civilian lives.
With the rise of social media footage shared globally, innumerable television interviews, statements and documents disseminated, and the battles of disinformation, persuasion and lobbying also being fought, there is no lack of evidence in terms of accountability and responsibility. But there is the question of how realistic that is and moreover what that will achieve in the upholding of human dignity for all those affected by not only the most recent outbreak of hostilities but also a situation ongoing for several generations now. We will pick some of these issues up in the next part of the Blog.