Shalom Life | August 31, 2014

Analysis: Applying International Law to the Israel-Hamas Conflict

How should a scrupulous application of international law treat Israel’s Operation Protective Edge and Hamas’s actions in the conflict?

By: Eli Wishnivetski

Published: August 28th, 2014 in News » Israel

Now that the latest Israel-Hamas conflict has come to a close—should the 12th attempted cease-fire hold—the battlefield moves from Gaza to the court of public opinion.

Although both sides are invoking violations of international law in the conflict, the United Nations—by virtue of its stature—is the main vehicle propelling such allegations. A full month before the conflict ended, the U.N. in late July had already announced an investigation into alleged Israeli “war crimes” in Gaza, and in mid-August the international body named the members of a three-person panel that will conduct the probe.

How should a scrupulous application of international law treat Israel’s Operation Protective Edge and Hamas’s actions in the conflict? That is no small question, because the outcome of the U.N. investigation will be the commonly accepted verdict on the matter.

The international humanitarian laws regulating conduct of armed conflicts are the 1949 Geneva Conventions, along with their official commentaries. Three additional Protocols that purport to clarify and add various provisions were instituted in 1977. Since not all nations have ratified the Protocols—notably including the U.S., Israel, and the U.N. non-member observer state “Palestine”—the protocols’ application falls outside the scope of the investigative committee.

As the issue at hand pertains to the protection of civilians in wartime, the Fourth Geneva Convention and its derivative commentaries are predominantly pertinent.

Procedural considerations

Article 149 of the Fourth Geneva Convention institutes a procedure by which an inquiry into a violation of the Convention is to be carried out. Any investigation into an alleged violation must be conducted through an agreement between the parties—either via negotiated procedures or an appointment of a mutually agreed-upon umpire. The process to appoint an investigative three-person panel is palpably specific.

The panel’s members must be drawn from a list of eight “neutral” and “qualified” nominees—four from each opponent. Each side appoints one member to the panel. The third, should the parties disagree, is appointed by the International Court of Justice. The Convention certainly prohibits one party to the conflict, or even a third party, to unilaterally determine the members of an investigative panel.

Severe doubt is cast on the neutrality of the Gaza probe’s nominees. Commission head and Canadian academic William Schabas, for example, has publicly stated that Israeli Prime Minister Benjamin Netanyahu should be indicted on the basis of the Goldstone Report, an investigation into the 2008-9 Gaza war that was eventually retracted by its author. Inconveniently, Ehud Olmert—not Netanyahu—was calling the shots as Israel’s prime minister during that conflict.

The three-member panel, as currently constructed, fails to comply with most procedural requirements of the Fourth Geneva Convention.

Legal considerations

Despite the procedural failings, it is worthwhile to ask whether the U.N.’s case against Israel works on its merits. The shelling of Gaza hospitals, the most damning of allegations, is also the most instructive. Hospitals are explicitly off-limits, according to Article 18 of the Convention, and are recommended to be “situated as far as possible from [military] objectives.” A hospital encapsulates all claims of civilian harm—it may board women, children, and the sick or wounded.

The Convention’s Articles, however, also explicitly mention the positive obligation of all parties in the conflict to “respect” and “protect” the hospitals. The Convention makes clear that “the presence of a protected person may not be used to render certain points or areas immune from military operations.” Acts of “belligerents” that compel “civilians to remain… to serve as a protective screen for the fighting troops” are considered “shocking.” These acts are condemned as “cruel and barbaric” and are deemed to fall outside the “ruses of war.”

Particularly instructive is Article 19, which overtly discontinues the protection afforded to hospitals in the event that “they are used to commit… acts harmful to the enemy.” Examples of harmful acts include utilizing a hospital as a military observation post, to harbor able-bodied combatants, to store arms or ammunitions or as a center from which to coordinate fighting troops.

Although cessation of protection must be mitigated with warnings and reasonable time to evacuate, perpetuation of acts harmful to the enemy from a hospital is condemned because “such acts may lessen the protective value of the Convention,” causing the “life and security of the patients” to be “very seriously affected by its consequences.”

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