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Any Indiscriminate Targeting of Civilians is a War Crime, Say UN Experts. Here’s Why.

Three aspects of international humanitarian law apply apply to the current conflict: the protection of civilians, the right to self-defence and the rule of proportionality.

New Delhi: Before Israel gave just a day’s notice to 1.1 million Gazans to move out or face bombing, 48 UN human rights independent experts asserted that any violence that indiscriminately targets civilians would amount to a war crime, highlighting that international law has clear rules that define the conduct of any armed conflict.

At around midnight Israel time, the United Nations was notified by Israel that it had 24 hours to evacuate more than a million civilians from the northern half of Gaza. 

It has described the demand as “impossible” and carrying “devastating humanitarian consequences”.

The announcement came six days after Hamas fired rockets towards Israel, breached the border and targeted military personnel and civilians, including at a music festival. 

More than 1,300 Israelis and foreign citizens were killed and around 150 people have been taken hostage into Gaza by Hamas.

The UN experts condemned the “horrific crimes” by Hamas, which included the “deliberate and widespread killing and hostage-taking of innocent civilians, including older persons and children”.

They described the actions, including the hostage-taking, as “heinous violations of international law and international crimes, for which there must be urgent accountability”.

In a counter-attack, Israel immediately started bombing Gaza, killing 1,537 Palestinians and displacing more than 300,000.

The statement, released with the signatures of 48 UN independent experts, said that the airstrikes on Gaza amounted to “collective punishment”. “There is no justification for violence that indiscriminately targets innocent civilians, whether by Hamas or Israeli forces. This is absolutely prohibited under international law and amounts to a war crime”.

The experts noted that Gaza has “lived under unlawful blockade for 16 years, and already gone through five major brutal wars, which remain unaccounted for”.

They also expressed concern about reports that journalists and media workers reporting on the conflict had been targeted, with seven Palestinian journalists and media workers reportedly killed in Israeli airstrikes.

Their statement asserted that “indiscriminately killing civilians in the context of hostilities, with no regard for the principles of distinction, precaution and proportionality, is a war crime”.

The experts had also expressed their shock at the language of the Israeli defence minister in cutting off essential supplies to Gaza, who had stated that the authorities are fighting “human animals”.

“Besides this appalling language that dehumanises the Palestinian people, especially those who have been unlawfully “imprisoned” in Gaza for 16 years, we condemn the withholding of essential supplies such as food, water, electricity and medicines. Such actions will precipitate a severe humanitarian crisis in Gaza, where its population is now at inescapable risk of starvation. Intentional starvation is a crime against humanity,” the experts said.

India on Thursday had nuanced its initial response to the terror attack on Saturday by adding that Tel Aviv also had an obligation to follow international humanitarian law.

Also Read: Six Takeaways from the Israel-Palestine Conflict

What is international humanitarian law?

As per the Red Cross, international humanitarian law (IHL) is a “defined set of rules that seeks, for humanitarian reasons, to limit the effects of armed conflict”. The concept of modern humanitarian law is more than 150 years old, with experts stating that it began with the Geneva Convention of 1864. The key treaties that form the foundation of IHL are the 1949 Geneva Convention and its additional protocol signed in 1977.

In contrast to the UN charter, which talks about whether a state can resort to armed force, IHL regulates the conduct of parties in an armed conflict or jus in bello.

What international humanitarian law applies to the current conflict?

Protection of civilians

The key underlying theme of IHL is that civilians should not be targeted in any conflict and must be distinguished from fighters.

Under the rules of waging war, “effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit”.

Israel gave a notice of 24 hours to remove more than a million people from north Gaza.

Human Rights Watch stated that the definition of “effective” depends on the circumstances.

“Such an assessment would take into account the timing of the warning and the ability of civilians to leave the area. A warning that does not give civilians adequate time to leave for a safer area would not be considered “effective,” it said.

Further, the provision of the Additional Protocol makes it clear that even after an “effective advance warning”, civilians should not be targeted. 

“No provision of this Article may be construed as authorizing any attacks against the civilian population, civilians or civilian objects,” says Additional Protocol I’s Article 57 on Precautions in Attack.

Besides, Article 55 (b) also notes that an attack is prohibited in law if it “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.

Right to self-defence

The UN charter prohibits all kinds of armed conflict, except in “self-defence”. Israel’s argument when it invaded Gaza in the past also relied upon the rules for going to war or jus ad bellum. Chapter 7 of the charter lists the “actions with respect to threats to the peace, breaches of the peace, and acts of aggression”.

As per a 2021 paper published in the Columbia Law School Undergraduate Review, there is no formal definition in international law doctrine for the term “aggression”, which gives states leeway in justifying war.

Further, the paper said that “Israel’s repeated use of the self-defence argument also directly threatens the distinction between jus ad bellum and jus in bello”.

Law of proportionality 

The rule of proportionality in relation to the protection of civilians and civilian property was codified first in Additional Protocol’s Article 51 (5) (b), which states that an attack would be considered “indiscriminate” if it may be “expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.

The 2009 report of the United Nations fact-finding mission on the Gaza conflict found that “in the framing of Israeli military objectives with regard to the Gaza operations, the concept of Hamas’ “supporting infrastructure” is particularly worrying as it appears to transform civilians and civilian objects into legitimate targets”.

“Statements by Israeli political and military leaders prior to and during the military operations in Gaza indicate that the Israeli military conception of what was necessary in a war with Hamas viewed disproportionate destruction and creating the maximum disruption in the lives of many people as a legitimate means to achieve not only military but also political goals,” said the report.

About two years later, the chair of the fact-finding mission claimed that he would have written the report differently

However, the other three members of the mission disagreed strongly, stating there was “no justification for any demand or expectation for reconsideration of the report as nothing of substance has appeared that would in any way change the context, findings or conclusions of that report with respect to any of the parties to the Gaza conflict”.