CIVICUS speaks about the erosion of international humanitarian law in the context of war in Gaza and other conflicts with Marco Sassòli, Professor of International Law at the Geneva University in Switzerland.
What’s international humanitarian law?
International humanitarian law is the part of international law aimed at reducing the extent of violence that unfolds during armed conflicts and providing some level of protection for those not directly participating in hostilities. It applies to both international and non-international conflicts. Its rules are outlined in the 1949 Geneva Conventions and their 1977 Additional Protocols and supplemented by customary law.
Even if international humanitarian law were perfectly respected, many people – both combatants and civilians – would still die in conflict. International humanitarian law seeks to minimise human suffering to the highest extent possible.
Are the principles of international humanitarian law being upheld in Gaza?
International humanitarian law is not being sufficiently respected in Gaza – but neither is it in other conflicts that receive less attention, such as in the Democratic Republic of the Congo, Ethiopia and Sudan. Both Israel and Hamas are committing violations. And the fact that one party in conflict commits violations in no way justifies the other one doing the same.
Humanitarian law must apply regardless of who is right or wrong. Palestinians have the right to self-determination and Israel has the right to self-defence, but both must adhere to humanitarian law. Unfortunately, neither side is respecting it. Hamas is indiscriminately attacking Israeli towns, killing, raping and taking hostages. Israel violates international humanitarian law by establishing settlements in the West Bank, restricting the International Committee of the Red Cross from visiting Palestinian prisoners and through attacks on Gaza that have already caused over 30,000 Palestinian deaths.
Compared to the 1,200 Israelis who have died in conflict, the disproportionality is striking. But what counts for international humanitarian law is that in any attack, impact on civilians should not be excessive in relation to the expected military advantage, and we often don’t know how important that advantage is. Still, it’s not plausible that there are so many military objectives in Gaza that are so important as to justify the killing of so many civilians, which is to be expected in such a densely populated area.
The Israeli government is doing everything possible to avoid what I believe is the only viable solution to the conflict, namely the two-state solution. Hamas, on the other hand, declares its mission to eliminate Israel, the very existence of which it views as an injustice. As long as these positions persist, armed conflict will continue.
What’s the proportionality rule?
According to international humanitarian law, there should be a proportional relationship between the military advantage gained from targeting a military objective and the risk posed to civilians. Before striking, it should be confirmed that a site is being used for military purposes, and the benefits of eliminating the target should be assessed against the costs.
While we lack sufficient information to confirm violations of international humanitarian law, the number of times the Israelis have justified their attacks on the grounds that the sites were being used for military operations is striking. And even if this were true, the question remains as to how important these centres were to Israel – that is, whether the rule of proportionality was respected. It is not plausible that each time they were so important that so many civilian casualties were justified.
Israel also claims Hamas hides its fighters among civilians, using civilians as human shields, which is a clear violation of international humanitarian law. But this is also complicated by the fact that Gaza is one of the most densely populated places in the world.
Are humanitarian workers protected under international humanitarian law?
The main concern of humanitarian law is not to protect humanitarian workers, but to ensure the safety and wellbeing of the civilian population, which often needs the help of humanitarian workers who provide basic assistance.
Israel insists, in conformity with international humanitarian law, that humanitarian assistance in Gaza must exclusively benefit civilians, not Hamas fighters. But this is impossible to control, and this is where the proportionality principle comes in again. If people are on the brink of starvation, the costs of the suspension of aid for millions of civilians are much higher than the benefit Hamas could gain from accessing such aid.
Then there’s the problem of distributing aid. Under heavy bombing, no humanitarian organisation is willing to put their workers in danger. I don’t think Israel is deliberately targeting humanitarian workers, but it isn’t taking adequate precautions either, and indiscriminate bombings put humanitarian workers at high risk. We’ve seen similar situations in Ukraine.
How has the international community responded to violations of international humanitarian law?
The only body that would be able to take binding decisions, the United Nations Security Council (UNSC), has been unable to act on Gaza, mostly because of the USA’s use of its veto power. The UNSC issued resolutions to ensure the entry of humanitarian assistance but was unable to produce a binding resolution calling for a ceasefire.
Under the Geneva Conventions, states have an obligation to not only respect international law but also to ensure others respect it. Even if the end is just, silence shouldn’t be an option when the means violate international law. States should exert pressure on Israel to adhere to international laws of conflict, even if they support Israel’s right to exist. Similarly, states with influence over Hamas and that support an independent Palestinian state must condemn Hamas’ methods for achieving it. Arab states should have firmly condemned the events of 7 October, because criticism coming from allies would have been more likely to affect Hamas’ behaviour.
What are the broader implications of the conflict in Gaza?
It’s not just about Gaza. There’s a lot more media coverage of Gaza than other current conflicts nobody seems to care much about. And this uneven treatment of violations of international norms is dangerous. Double standards erode the principles of international humanitarian law and undermine its credibility.
To sustain the legitimacy of these principles, western states that vehemently criticised Russia’s use of cluster munitions in Ukraine should do the same when similar actions are committed by Israel. And violations of international humanitarian law in Sudan should result in the same kind of condemnation embodied in the ongoing student mobilisations for Palestine.
I think the real challenge of international norms started with Ukraine. True, in 2022, 20 times more people died in armed conflict in Ethiopia than in Ukraine. What made Ukraine so relevant for the situation of international humanitarian law is that in this neutrality seemed to be no longer accepted by public opinion.
A crucial aspect of humanitarian law is that both sides must adhere to the same rules. This principle used to be accepted by European and North American public opinion and governments – until Ukraine. Everyone criticised Russia, and rightfully so, but very few criticised Ukraine. Ukraine is undoubtedly the victim of an aggression and has the right to defend itself, but how it does it should matter.
This has been exacerbated in Gaza. Many believe that international humanitarian law is a European construction and the international community only cares about it when the victims are white westerners. Even if in my view this is not justified, the comparison between Ukraine and Gaza is embarrassing. While everyone agrees that the Russian siege of Mariupol was completely unacceptable, the same rules seem not to apply in Gaza.
Supporters of Israel often overlook its violations, and the same goes for supporters of Palestine. For the public, the overall impression is that international humanitarian law serves no purpose as in conflict and anything goes. In reality, there are fortunately many instances of respect, but this is the impression we get from media and civil society reports, which understandably focus on violations.
What needs to be done to strengthen the international legal framework?
Although there’s room for improvement, the substance of existing rules is quite good. The main problem is lack of enforcement. While the International Criminal Court acted very quickly on Russia, they’ve been working on Palestine since 2015 and we still haven’t seen any progress. Enforcement mechanisms don’t seem to be applied consistently.
States are reluctant to create a more efficient system because they worry that one day it could be used against them. For an enforcement mechanism to be effective, we need those who conduct war to accept it. There’s no use in having an efficient system if it is only accepted by a few countries that never engage in war.
Even so, there’s still hope that looking back at the horrors and atrocities committed in Gaza and Ukraine, states will have a similar reaction as they did in the aftermath of the Second World War, when they agreed to adopt the Geneva Conventions. The horrors we are now witnessing in real time that are amplified by the media may result in a turning point.
International humanitarian law can and should also be strengthened through education. We need to educate young people that even in war there are rules that apply to everyone, everywhere, regardless of whether they’re in the right or not. If the public accepted and absorbed this message, there’s hope that atrocities such as the ones we are seeing today wouldn’t be allowed to happen.
Civic space in Palestine is rated ‘repressed’ by the CIVICUS Monitor.
Civic space in Israel is rated ‘obstructed’ by the CIVICUS Monitor.
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The opinions expressed in this interview are those of the interviewee and do not necessarily reflect the views of CIVICUS.
This interview was conducted as part of the ENSURED Horizon research project funded by the European Union. Views and opinions expressed in this interview are those of the interviewee only and do not necessarily reflect those of the European Union. Neither the European Union nor the granting authority can be held responsible for them.