Before reading these 7 points on International Humanitarian Law (IHL) please remember that IHL is not ‘best practice’ in a war zone, nor a reflection of my aspirations. It is merely a set of legal minimum standards that warring parties must abide by, nothing more, nothing less.
1. Hamas’ rockets attacks are often, by their very nature, violations of IHL.
The rockets fired by Palestinian armed groups such as the military wing of Hamas or Palestinian Islamic Jihad are often Russian-designed “Grad” rockets. These are widely considered to be so inaccurate that they are incapable of being targeted enough to distinguish between military and civilians. Combine this with the fact that they often launched toward highly populated areas means that they are often, by their very nature, violations of IHL.
2. Neither Israel nor Hamas are prohibited by IHL in fighting in Gaza but the density of the civilian population and infrastructure does impose extra responsibilities on them.
IHL demands that all parties in the conflict “take all feasible precautions” of loss of civilian life and damage to civilian objects (houses, hospitals, mosques etc – I will come onto this more later). Fighting in such an area undeniably makes it harder for the warring factions to distinguish between civilian and military targets but it does nothing to reduce the obligation of the parties to make these checks. Where there is doubt, the assumption has to be that it is civilian and thus protected.
In the Gaza/Israel example, Hamas has a responsibility to ensure that it avoids locating potential military targets in close vicinity to civilians. It also prohibits the use of human shields – something which has been seen in previous conflicts but so far there has been no confirmed evidence that this has happened in the latest fighting.
However, even if Hamas is keeping weapons within civilian areas or buildings, this does not remove any of the obligations imposed on Israel under IHL to take into account the risk to civilians when seeking out these otherwise legitimate military targets.
3. Although Israel normally sends warnings while Hamas doesn’t, this doesn’t impact on their responsibilities to civilian populations.
Israel has widely publicised in this latest round of fighting that it sends ‘knock on the roof’ explosions as warnings that larger attacks are soon to be happening while Hamas rarely if ever sends warning of rocket fire.
IHL requires that warring parties give “effective advance warning” of attacks that may effect civilian populations. Because of the density of the civilian population in Gaza this means in practice that virtually all attacks should have such warnings. The idea is that the warnings would allow for civilians populations to leave the area.
However, if the civilian population refuses to leave, they are still protected persons under IHL. In short, even after delivering an effective warning, Israel must still take all measures to ensure civilian life is protected.
4. It is not just people who are protected but also civilian infrastructure such as hospitals, schools and yes, even the homes of Hamas officials.
Israel has openly stated that in this latest round of fighting they have targeted the homes of Hamas officials. While IHL allows for the targeting of military leaders who are ‘in action’ it does not allow for the targeting of leaders at any time. Attacking the home of a Hamas official who was not present at the time would be an unlawful attack on a civilian object that if carried out intentionally would constitute a war crime.
Something similar applies for schools or religious buildings such as Mosques. However, if any of the above are being used for military purposes, such as a military headquarters or an arms store, then they become legitimate military targets.
The exception to this simple ‘it’s civilian unless you show it is being used for a military purpose’ rule are medical facilities that hold a special place status under IHL.
Like all the above they are considered civilian targets unless they are used for a military purpose. However, Israel then has a further obligation of showing that they were being used to cause them actual harm before they can become a legitimate target.
5. Collective punishment is a war crime
Undertaking actions that aim to punish a population as a whole for things that they have not personally done is a war crime.
6. Why the is no Israeli or Palestinian being dragged to the International Criminal Court (ICC) for these violations of IHL?
The ICC has a mandate to investigate, charge, and try people suspected of genocide, crimes against humanity, and war crimes committed after July 1, 2002.
Quite a few Israelis and Palestinians fit this description. However, the court can only exercise jurisdiction over these crimes if: The crimes occurred in the territory of a state that is a party to the ICC treaty; The person accused of the crimes is a citizen of a state that is a party to the ICC treaty; A country that is not a state to the ICC treaty accepts the court’s authority for the crimes in question by submitting a formal declaration to the court; or The UN Security Council refers the situation to the ICC prosecutor.
At the time of writing neither Israel nor Palestine are a party to the Rome Statute, the treaty establishing the ICC. Israel has signed the statute but not ratified it. Palestine submitted a declaration in 2009 to accept the courts mandate but this was rejected at the time over the ambiguous nature of whether or not it was/is a state. Since then, Palestine has been voted in to the UN has a non-voting member state (confirming in the eyes of the international community that it is a state). However, since that has happened Palestine has not sought the court’s jurisdiction or signed and ratified the Rome Statute.
Thus, in short, the court’s jurisdiction does not cover Israel/Gaza.
7. There are lots of people and organisations who have written, researched and published on this issue that are a lot better sources than me.
And I suggest you read them. For more on IHL, human rights and the Gaza/Israel conflict:
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How you can help the unaccompanied child refugees in Calais
On our doorstep, just two dozen miles from the British coast, is a refugee camp that is being demolished leaving people in the most desperate conditions. There are hundreds of children in these camps, many of whom have a legal right to be in the UK. Due to feet dragging, legal technicalities and lack of political will, their temporary shelters are being demolished and they are being left exposed having to fight not just for their rights, but their very survival.
In the next week or two this camp will be fully demolished. Unless our government acts, unless we act, many of these accompanied children will more than likely just go missing and disappear. This happened before, it is likely to happen again. The thought of the exploitation they will likely face should this happen should be enough to inspire us all into action.
Last week I went with the MEP, Molly Scott Cato, who I work with and visited the camp and met with some of the refugees and volunteers. What I saw was the end result of an uncaring and uninterested government. It was simply awful. A policy to do nothing left vulnerable people with nothing. I saw no government representation, no officials offering support, only volunteers where government agencies should have been.
It is worth noting, that the refugee camp in Calais is not, and never was, actually a refugee camp but just a makeshift camp with refugees in. This distinction is important. The former implies order and support and the latter implies disorder and little sufficient support.
Our government’s limited response to this is in the last few days is shameful. At the last minute they generously offer to accept a fraction of the children they are obliged to support. Too little too late. For too long they have been focusing on building a hugely expensive “security wall”. Perhaps a wall fits better with this governments fortress Britain mentality, but does little to support the children living in the camp. This whole time, rather than resorting too counterproductive Trump-esque style tactics, the British Government could have been registering the children identified to them by NGOs in the camps, to stop them risking their lives trying to get to the UK illegally.
We now face a ticking clock while the camp is demolished. To stop children disappearing, the UK government must step up and process all children with a legal right to be here. This is either through the Dublin III Regulation which entitles them to be reunited with family members living in the UK or under the Alf Dubs amendment which is supposed to bring the most vulnerable unaccompanied children in Europe to safety in the UK.
There are of course children there who don’t have a legal right to be in the UK and for some it may not be in their best interests to come here anyway. For those the UK government needs to be pushing the French authorities to do more in providing reception facilities to these children so they can go through the appropriate asylum process in France.
Whilst in the camp I heard reports of children being turned away by French authorities when they tried to register to claim asylum. Worse still, I also heard numerous reports of excessive use of violence from the French police. Volunteers talked to me about rubber bullets and tear gas being fired directly into groups leaving some minors with serious injuries.
History will judge our own and the French government’s actions and inaction poorly.
This government behaviour has, to some extent, been mitigated against by an army of volunteers that should be highly commended. Until government steps up to its legal and moral reasonability the goodwill of you, I and volunteers is all some have at the moment. If you have not already I urge you to write to your local MP urging government to act urgently. This cannot wait. There is a sample letter here but more powerfully, you can explain why this is important to you in your own words. Secondly, if you can afford to, please send phone credit to the refugees in the camps. This is crucial all the time but even more so during the up-coming demolition. Lastly, if you have time, volunteer either in the UK or the camps yourself.
This is a moral crisis. Primarily a crisis of government but one that touches on each of us. As Dr Seuss said, “Unless someone like you cares a whole awful lot, nothing is going to get better, it’s not.”
I doubt many in government have read Dr Seuss. But you have, so please act.
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Tagged as Calais, How can I help, Refugees, The Jungle, unaccompanied children