OPINION - Collapse of International Humanitarian Law in Israel-Palestine conflict
In reality, in many conflicts, states failed to conform to IHL, same goes for Israel-Palestinian conflict
*The author is a senior lecturer at the Department of Strategic Studies, Faculty of Defense Studies and Management at National Defense University of Malaysia, Kuala Lumpur
**The co-author is an assistant researcher in strategic and international affairs and a Ph.D. candidate at the National Defense University of Malaysia, Kuala Lumpur UPNM
Discussion on ethics and morals in conflicts and wars were dated back to the ancient Greek, Roman, Indian, and Chinese civilizations. Besides that, ethics and morals preached to a greater extent in the Torah, Biblical, Quranic and Hadith traditions. After that, ethics and morals were enhanced in the Renaissance period and became an important value in western society. Hugo Grotius (1583-1645), a Dutch philosopher and author of De Jure Belli Ac Pacis (The Rights of War and Peace), wrote the conditions for a just war, widely accepted today. States started to realize that the use of force needs a certain level of control and regulations. International Humanitarian Law (IHL), or Law of Armed Conflict, or the Law of War, become a prominent aspect in the 20th century with Hague and Geneva Conventions. It was designed to regulate the excesses of armed conflict by limiting the means and methods of warfare and limiting the suffering caused by war.
Two functions of the IHL in the armed conflict performed by jus ad bellum and jus in bello. They pave the guidelines for states to follow before and after the war. Jus ad bellum refers to law towards war or justice in going to war. It discusses the objective of war, whether war is waged for self-defense or for protecting human rights. Justification of war is imminent. Jus in bello refers to justice in the conduct of war or law in the war. Jus in bello governs and seeks to moderate the actual conduct of hostilities. In this regard, the question arises about Israel's occupation of the Palestinian territories and prolonged injustices to the Palestinians in the Israel-Palestinian conflict for almost 72 years.
Article 2(4) and Chapter VII of the UN Charter are the major sources of jus ad bellum. Article 2(4) reads, "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purpose of the United Nations." Chapter VII of the UN Charter refers to "Actions with respect to threats to the peace, breaches of the peace, and acts of aggression." Chapter VII consists of article 39-51. In the case of the Israel-Palestinian conflict, we find many grey areas to apply the Chapter VII. Chapter VII provides no guidance to define the term "aggression." The Security Council is reluctant to provide the right definition of "aggression." The Israel-Palestinian conflict is dragged into the complexity of international law. Israel accused the Arab nations aggressed first against Israel as a newly born nation via the UN Resolution 181. The Arab nations who represented the Palestinians accused Israel of being an illegal force to establish a state in the Palestinian land. Israel has a conflictual understanding of "aggression." The question to ponder is who the first aggressor is?
In addition, Israel argues that Israel fought the war in self-defense, as articulated in jus ad bellum. In the same way, the Arab nations argue that the war launched against Israel to defend the Palestinian territory, as defined by jus ad bellum. Making matters worse, when the US and the western nations interpreted the Arab-Israel wars via the Cold War lenses. The term "aggression" swallowed in favor of Israel during the Cold War (1945-1990). Aggression remains a grey term in the Israel-Palestinian conflict until we are manipulated about the real aggressor. Chapter VII often ineffective in arresting Israel under the jus ad bellum. In reality, Chapter VII cannot be applied to the Security Council P5s (US, Russia, UK, France, and China). They are granted veto power through Article 27(3) of Chapter V. In most circumstances, Israel is protected by the US veto power, although Israel breaches the jus ad bellum constantly.
Obviously, asymmetry of power between big states and small states are really matters in imposing responsibility of jus ad bellum over states. Israel, as a powerful state backed by great power, tends to interpret jus ad bellum in line with its national interest and national security. In the process, jus ad bellum in the Palestinian case is usually sacrificed. Palestinians are not recognized by Israel to adopt the jus ad bellum. Palestinians fight for defending their territories (OPTs), often labeled as "terrorism." Scarcely real politics observe "self-defense" as a fundamental cause of the Palestinian uprisings. Palestinians' self-defense spirit is usually equalized with terrorism. "One man's terrorist is another man's freedom fighter" become a famous conception in world politics. In the Palestinian context, we cannot draw a fine line between the fight for freedom and self-defense. Hamas in Gaza is standing in this controversial status. For Palestinians, Hamas are the freedom fighters who are fighting for the self-defense of Palestine. But for Israel and other like-minded nations, Hamas are the terrorists. How to justify jus ad bellum in the conflict?
The second function of the IHL refers to jus in bello. Jus in bello is about state behavior during the war and after the war. Jus in bello was developed through the Geneva Law and the Hague Law. Hague conferences of 1899 and 1907 establish conventions to prohibit the use of expanding bullets, dropping of bombs from balloons, use of projectiles to diffuse gases, use of landmines and use of chemical weapons. Geneva conventions in 1864, 1929 and 1949 established guidance on how military combatants must be treated, treatment of non-combatants, codify rape in war as an international crime. Specifically, the Geneva Convention 1949 dealing with i) wounded and sick on land, ii) wounded, sick and shipwrecked at sea, and iii) prisoners of war and civilians.
In reality, in many conflicts, states failed to conform to the IHL. The same goes for the Israel-Palestinian conflict. Israel is prone to breach jus in bello in pursuit of its national interest and national security. Israel is unable to distinguish "non-combatants" from "combatants." Israel also often ignores "protected property" from "military objectives." Israel targets Palestinian civilians, their land, residences, houses, buildings, schools, historical monuments, hospitals, medical transports, water sources, water infrastructure, and olive cultivation in their war against Palestinians, which are deliberate breaches over jus in bello as coded in the Geneva Conventions. Israel signed the Geneva Conventions in December 1949 and ratified them in 1951. Article 1 of each convention states that the sponsors of the convention will "respect and ensure respect for the conventions in all circumstances".
On the contrary, Israel notoriously breaches the Geneva Conventions amid international condemnation. The CJPME (Canadian Justice and Peace in the Middle East, 2004) reports how Israel establish Jewish colonies (settlements), home demolitions, collective punishment, wanton killing, detention, inhumane treatment of civilians, forcible transfers, assaults, and harassment of medical units and personnel. Israel violated its responsibility as the occupying power in the West Bank, East Jerusalem and Gaza. Although Israel is under the condemnation of the UN and international community, no state could stop Israel's behavior in the Middle East. The western nations, who are for the most part responsible for creating the IHL, failed to convince Israel to comply with the IHL.
The limitation of liberal institutions in the Israel-Palestinian conflict is clear without further explanation. Liberal institutions are false promises in real politics. Power plays an important role in the conflict. The powerful states, like Israel, are able to bend all rules to achieve their national interest. International law is always secondary to Israel after the national interest. Possessing less power in the global system is a punishment for many weak and small states. They are forced to bow down to the powerful one. Palestinians are experiencing this humility for many decades. International Humanitarian Law exists only by name without sufficient power to press Israel to obey. In fact, jus ad bellum and jus in bello were prisoned by realism. Understandably, the anarchic condition of the international system is the main factor causing the collapse besides power. Sir Hersch Lauterpacht (1952) asserts, "If international law is …the vanishing point of law, the law of war is even more conspicuously the vanishing point of international law."
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