Gaza and IHL

Published November 23, 2023
The writer is a lawyer.
The writer is a lawyer.

AT the end of World War II, the Allied Powers decided to set up an International Military Tribunal under the London Charter at Nuremberg and later Tokyo to try the war perpetrators of Nazi Germany and imperial Japan. At these trials, there were three primary categories of crimes under which the high-ranking perpetrators were to be tried: ‘crimes against peace’, ‘war crimes’ and ‘crimes against humanity’.

While conventional ‘war crimes’ were determined to be violations of the international laws of war existing at the time, ‘crimes against peace’ and ‘crimes against humanity’ were given greater meaning.

‘Crimes against peace’ in the London Charter categorised acts of “planning, preparation, initiation or waging of a war of aggression or war in violation of international treaties, agreements or assurances”.

Similarly, ‘crimes against humanity’ categorised acts of “murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds…”.

It was at this time that the developed world realised that the existing laws governing conflict were inadequate for catering to the horrors they had witnessed. Thus, numerous laws, one after the other, governing international conflict were introduced. They were commonly referred to as ‘International Humanitarian Law’.

The stated purpose of IHL is to determine, even in times of armed conflict, what can and cannot be done, with the primary emphasis on protecting civilians, paramedics, children and non-combatants.

These laws, meant to regulate international armed conflict, at least on paper, are applicable to the horrors being inflicted on the Palestinian people in Gaza. Israel, the aggressor in the conflict, is a signatory to or has ratified 21 laws forming part of the IHL.

Among these are the Geneva Convention on Civilians, the Convention on the Rights of the Child, the Geneva Convention on Prisoners of War, the Optional Protocol on the Involvement of Children in Armed Conflict, the Convention on Certain Conventional Weapons, the Chemical Weapons Convention, the Hague Protocol on the Protection of Cultural Property, and the Convention on Prevention and Punishment of Genocide.

The laws are applicable to the horrors being inflicted on Palestinians.

These laws make it mandatory for Israel to ensure protection of civilians, specifically children. They require countries en­­ga­­ging in armed conflict to ensure that paramedics are protected, hospitals are safeguarded against aggression and cultu­ral property preserved in the midst of war.

Contrast that with the images of death, destruction and despair coming out of Gaza. Reports from Gaza confirm that Israel has systematically bombed all of Gaza’s hospitals and put them out of order by killing hundreds of selfless doctors, nurses and paramedic staff.

It has also bombed one of the oldest churches in Gaza, killing tens of people seeking refuge in it. Add to that the long list of targeted, hostile and despicable killings of civilians, including innocent children, journalists and rescue workers, and we have a country deliberately violating IHL with impunity.

Israel has ratified the Convention on Prevention and Punishment of Genocide. This law defines ‘genocide’ as an attempt to kill, or cause serious physical or mental harm to members of a group, and inflict “conditions of life calculated to bring about [a group’s] physical destruction”, and “imposing measures intended to prevent births within a group”.

Now, apply the aforesaid definition to the events in Gaza. Have there not been numerous examples of Israeli politicians and media personalities calling for the extermination of Palestinians, followed by the brutal killing of thousands of Palestinians in their home?

Has Israel not forcibly, and with the intention of causing destruction, stopped basic amenities such as electricity, communication, clean drinking water and food in Gaza? Has there not been a campaign to destroy the olive and strawberry plantations in Gaza? All these instances, when read in conjunction with IHL, make it clear that Israel is committing genocide in Gaza, one which is being aided and abetted by powers that not too long ago championed IHL.

During the Nuremberg and Tokyo trials, it was hoped that ‘crimes against humanity’ would never again be committed. Yet, as fate would have it, a country claiming to represent a people whose plight led to the development of these laws, now stands guilty of violating almost all of them.

As such, it seems only fair that those in charge of the actions of the state of Israel be tried for ‘crimes against humanity’ and that justice be meted out to them by the International Court of Justice, while the wounds of the Palestinians are fresh.

The writer is a lawyer.

X: @sheheryarzaidi

Published in Dawn, November 23rd, 2023

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