De Israelische Terreur 591

'These questions and answers about International Humanitarian Law and the conflict in Gaza are a work in progress. However, due to the urgency of the situation, we have decided to post them as soon as we can. Further answers will be posted each few days, so please check back regularly. If you would like to ask a question, please email it to contact@lphr.org.uk.
If you would like an expert in International Humanitarian Law who is familiar with the situation in Israel and the Occupied Palestinian Territories to provide media comment, please contact contact@lphr.org.uk.
Last updated at 02:34 on 7 January 2008. Version 1.0.
Questions (click for Answers)
What is International Humanitarian Law?
Does International Humanitarian Law Apply to Israel and the Palestinians?
How is International Humanitarian Law Enforced?
Is the Conflict in Gaza an International Armed Conflict?
Is Gaza Still Occupied?
What is "Necessity"?
What is "Proportionality"?
What is "Distinction"?
Who is a Civilian?
Are All Hamas Members a Legitimate Target?
Was the Killing of members of the Hamas Police During their Graduation Ceremony Legal?
What is International Humanitarian Law?
International Humanitarian Law ("IHL") refers to a range of international legal provisions, arising from both customary law and treaties, which seek to ensure respect for the individual in armed conflict. It governs how armed conflict must be conducted. Its aim is to protect both combatants and civilians from unnecessary suffering. It is also known as the "law of war", the "law of armed conflict" or "jus in bello" (which is Latin for "law in war").
Treaties are agreements between states or groups of states. The most well known treaties are the Geneva Conventions. Treaties only apply to those States that have signed and ratified (agreed to implement) the treaty. Customary law is developed from state practice, that is, how States actually behave. For custom to arise which binds all states there must be "a constant and uniform usage, accepted as law." (Columbia v Peru, International Court of Justice, "The Asylum Case" (1950)).
Most relevant to the situation in Gaza is the Fourth Geneva Convention of 1949 ("Geneva Convention IV") that protects civilians, the First Additional Protocol to the Geneva Conventions of 1977 ("Additional Protocol I") that applies to international armed conflicts and the Hague Regulations of 1907 ("Hague Regulations") that regulate means and methods of warfare.

Does International Humanitarian Law Apply to Israel and the Palestinians?
Yes. Only Israel disputes that International Humanitarian Law ("IHL") applies to it. All other countries of the world take a common position that IHL binds Israel and the Palestinians.
The 1907 Hague Regulations, much of the 1949 Geneva Conventions and the Additional Protocols are treaties, but bodies such as the International Committee for the Red Cross ("ICRC") have confirmed that the most of the principles in them are now recognised as customary international law. This means that they apply even if the parties to the conflict have not signed and implemented (or "ratified") those treaties.
Israel has signed and ratified the Geneva Conventions but not the Additional Protocol I. The Occupied Palestinian Territories are not recognised as a state so the Palestinians cannot sign treaties. However, because of the status of these treaties as customary law, they bind both Israel and the Palestinians.
The International Court of Justice in 2004 confirmed that the Geneva Convention IV and Additional Protocol I applied in the Occupied Palestinian Territories of Gaza and the West Bank. UN Security Council Resolution 446 affirmed "once more that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem". The Israeli Supreme Court also applies IHL in considering the actions of the Israeli Military in the Occupied Palestinian Territories.

How is International Humanitarian Law Enforced?
International Humanitarian Law ("IHL") is enforced in three ways: (1) by the states involved in the conflict, (2) by other states not involved in the conflict, and (3) by international organisations such as the International Criminal Court ("ICC").
(1) Parties to the conflict are required both to respect IHL and also to enact criminal legislation to provide effective sanctions against those committing "grave breaches" of IHL (Geneva Convention IV Art 146, Additional Protocol I Art 85). "Grave breaches" are war crimes and include wilful killing, wanton destruction of property and attacking civilians.
However, in practice, parties to the conflict are generally very unwilling to investigate or prosecute their own citizens.
(2) All other countries not party to the conflict are obliged to take measures necessary for the suppression of all breaches of IHL (Geneva Convention IV Art 146).
There are also criminal law obligations. All countries are obliged to search for persons alleged to have committed war crimes and prosecute them before their own courts (or extradite them for trial abroad) (Geneva Convention IV Art 146). In the UK, this obligation is enshrined in the Geneva Conventions Act 1957. This process is known as the exercise of "universal jurisdiction". Most countries are also very unwilling to exercise universal jurisdiction over the citizens of another country.
(3) It is also theoretically possible for international bodies such as the ICC in The Hague to prosecute individuals who have committed war crimes or crimes against humanity. However, Israel has signed but not ratified the Rome Statute of the ICC. The Palestinian Authority is not a State, so cannot sign or ratify the Rome Statute. The UK has signed and ratified the Rome Statute and implemented it with the International Criminal Court Act 2001. This means that the ICC could prosecute UK citizens or residents but not Israeli or Palestinian citizens. Citizens of other countries who have ratified the Rome Statute could be prosecuted by the ICC if they commit crimes contrary to the Rome Statute such as to aid, abet or otherwise assist a crime contrary to the Rome Statute (Art 25(c) Rome Statute).
The only possibility for the ICC to be involved in the Gaza situation would be for the UN Security Council to refer the situation to the ICC. However, because the USA consistently vetoes any Security Council Resolution relating to Israel, this is not realistic.

Is the Conflict in Gaza an International Armed Conflict?
Yes. Geneva Convention IV and Additional Protocol I apply to all cases of conflict occurring between contracting states (Arts 1 and 2 Geneva Convention IV; Art 1 Additional Protocol 1) and to situations of occupation resulting from such conflict (Arts 1 and 2 Geneva Convention IV; Arts 3 and 4 Additional Protocol I). The Occupied Palestinian Territories are not part of Israel. Until 1967 Gaza was administered by Egypt and Israel has occupied Gaza since then. As Israel and Egypt were signatories to the Geneva Conventions in 1967, the fact of a war between them triggered the applicability of the Fourth Geneva Convention to the Israeli occupation of that territory and that Convention has applied to the occupation ever since (see further below).
The principles of IHL applied to Israel's actions in Gaza even before the start of the present military actions (International Court of Justice Advisory Opinion 2004 paras 96 to 101).

Is Gaza Still Occupied?
Yes. The fact that Israel removed all its illegal settlements in 2005 does not mean that it no longer occupies Gaza for the purposes of International Humanitarian Law ("IHL"). IHL applies until the end of a military occupation (Additional Protocol I Art 3).
Israel controls the borders, airspace and sea. It is able to control the supply of food, fuel, medicine and goods into Gaza and to prevent individuals from entering or leaving Gaza. Its complete control over Gaza has been demonstrated by its decision before it launched a military attack on Gaza to prevent essential supplies from reaching the Palestinians in Gaza.

What is "Necessity"?
Necessity under International Humanitarian Law requires a state fighting an armed conflict "to use only the that degree and kind of force ... that is required in order to achieve the legitimate purpose of the conflict, namely the complete or partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources" (UK Ministry of Defence Manual of the Law of Armed Conflict 2004). Furthermore "the use of force which is not necessary is unlawful since it involves wanton killing or destruction" (UK Ministry of Defence Manual of the Law of Armed Conflict 2004).
In the context of belligerent occupation, as is the case in Gaza, military necessity "does not permit the killing of innocent inhabitants for the purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of enemy forces... It does not admit the wanton destruction of a district or the wilful infliction of suffering upon its inhabitants for the sake of suffering alone." (United States v List and Others, The Hostages Case (1949)).

What is "Proportionality"?
Most of the ongoing debates on the legality of Israel"s actions centre on the question of whether they are proportionate.
Proportionality is the requirement that "the losses resulting from a military action should not be excessive in relation to the expected military advantage" (UK MoD Manual on the Law of Armed Conflict 2004). It is set out in Arts 51(5)(b), 52(2) and 57(2)(a)(iii) and (b) of Additional Protocol I, Articles 22, 23(g) and 25 of the Hague Regulations and Rule 14, ICRC Customary Law Study.
Israel launched its latest attack on Gaza in response to indiscriminate attacks by home made rockets that have caused a handful of fatalities among Israeli citizens. The purported objective is to stop these attacks. In the process, many hundreds of Palestinians have lost their lives. It seems likely that any cessation of rocket fire could only be for a limited time. This strongly indicates that the attack is disproportionate.

What is "Distinction"?
Distinction is the requirement to distinguish between armed forces and civilians or combatants and non-combatants and between objects that might be legitimately targeted and those that are protected from attack (Additional Protocol I Arts 48 and 49(3) and Rules 1 and 7 of the ICRC Customary Law Study).
Attacks by Hamas against Israel using weapons and home made rockets falls foul of the requirement of distinction because they do not distinguish between Israeli soldiers and civilians.

Who is a Civilian?
An individual is presumed to be a civilian until proved otherwise. A civilian is somebody who is not a combatant (Additional Protocol I Art 50). Civilians and combatants are the two main categories in International Humanitarian Law. They have very different rights.
It seems surprising, but all the Palestinians in Gaza are probably civilians under IHL. This includes members of Hamas. The meaning of civilian is often used inaccurately in the media to refer only to women and children. However, men of fighting age can equally be civilians.
In order to be combatants, Hamas members would need to fulfil some strict conditions. These are: to be commanded by a person responsible for his subordinates, have a fixed distinctive sign recognisable at a distance, carry arms openly and conduct their operations in accordance with the laws and customs of war. Because members of Hamas rarely, if ever, fulfil these criteria, they would normally be civilians. While this is surprising, this is in fact how Israel treats them. They are not accorded Prisoner of War status and do not have immunity from being prosecuted for fighting.
Equally, Israeli men of fighting age are civilians and are not a legitimate target until such time as they are called up to serve as soldiers. They thereby become combatants. Contrary to some belief, the fact that all Israeli citizens have to perform national service does not make them combatants. They will only be combatants while they are serving in the army. For the rest of the time they will be civilians.
However, if a Palestinian or Israeli civilian took a direct part in hostilities, he could be targeted during this time and would lose his civilian immunity from attack, but only for that time.

Are All Hamas Members a Legitimate Target?
No. It is important to distinguish between combatants and civilians. While combatants can be targeted at any time, civilians can be targeted only when they take a direct part in hostilities and for such time as they take a take a direct part in hostilities. (Geneva Convention IV Art 3, Additional Protocol I Art 51(3)).
Members of Hamas are civilians. However, a member of Hamas who is engaged in the launching of home made rockets towards Israel or directly engaging Israeli soldiers in combat is a legitimate target for such time as he is taking a direct part in hostilities. However, when he ceases taking a direct part in hostilities, he is no longer a legitimate target. Similarly, Israeli citizens who perform their military service are only a legitimate target while they are serving in the Israeli Army. When they return to their civilian life they are no longer legitimate targets. Targeting them would be a war crime (Geneva Convention IV Art 147).
It is the position of the UK government that civilians working in munitions factories or driving military transport vehicles are not legitimate military targets. However, they risk being harmed if a munitions factory or military vehicle is targeted as these are legitimate targets. (UK MoD Manual of the Law of Armed Conflict 2004).
However, Israel applies a "membership" approach to Hamas. If an individual is a member of Hamas (whether of their armed wing or not), Israel considers them to be taking a direct part in hostilities and a legitimate target at all times. This approach is not in accordance with the accepted meaning of direct participation in hostilities. Killing an individual for mere membership of Hamas would amount to the wilful killing of a civilian who is not taking a direct part in hostilities and would be a war crime (Geneva Convention IV Art 147).

Was the Killing of members of the Hamas Police During their Graduation Ceremony Legal?
No. Civilian police are not a legitimate target. The Hamas police would be civilians. They could only be targeted if they took a direct part in hostilities and for such a time as they took a direct part in hostilities. Participating in a graduation ceremony does not amount to taking a direct part in hostilities. Therefore the wilful killing of civilians would amount to a grave breach of Geneva Convention IV and a war crime.'