Grave breaches of humanitarian law in Gaza

The use of force in self-defence is subject to two conditions: necessity and proportionality

Niaz A Shah October 30, 2023
The writer is a Professor in Law at The University of Hull, UK and Barrister at Nexus Chambers, London


Article 51 of the Charter of the United Nations recognises the inherent right of states to self-defence. The use of force in self-defence, however, is subject to two conditions: necessity and proportionality. The necessity condition requires that the victim state must establish that there was an armed attack against it whereas the proportionality condition demands that the victim state does not need a sledgehammer to crack a nut. The victim state needs to immediately report the use of force to the United Nations Security Council. Once an armed conflict begins, international humanitarian law (IHL) applies in the battlefield regulating the conduct of hostilities.

On 7 October, Hamas attacked Israel killing around fourteen hundred people and took over two hundred as hostages. Israel, acting in self-defence, responded militarily aiming ‘to wipe out Hamas from the face of earth’. President Joe Biden of the US said that they got ‘Israel’s back’. Prime Minister Rishi Sunak of the UK said that he wanted ‘Israel to win’.

Israel must abide by the rules on the use of force and IHL. Israel’s use of force is clearly disproportionate and may have committed the most serious violations of IHL — grave breaches — for example indiscriminate killings of civilians, siege and blockage of humanitarian aid, genocide and attack on a hospital. Grave breaches are defined by the four Geneva Conventions 1949 (common Articles 50/51/130/147) as “wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” One of the cardinal principle of IHL is distinction between combatants and non-combatants. Israel is engaged in indiscriminate attacks on densely populated areas and has killed over seven thousands Palestinians, forty-one per cent of which are children. Hundreds are maimed. Most of the victims are women and children. These killing, suffering and injury are grave breaches. Israel has also targeted residential buildings, another grave breach.

Gaza is under siege. Water, power, food, medicines and other humanitarian aid are not allowed except a few trucks after the release of two American hostages. It seems the release of life-saving humanitarian aid is tied to the release of hostages. On 20 October 2023, the UN Secretary General, standing at the Rafah crossing from Egypt into Gaza, said: “These trucks are not just trucks — they are a lifeline, they are the difference between life and death to many people in Gaza.” The 11 September 2023 report of United Nations Conference on Trade and Development (UNCTAD) on Palestine states that a “chronic humanitarian crisis has evolved, fostering the dependency of 80 per cent of the population on international aid.” This was the case before the conflict. After the conflict, the dependency grew to a point where it may not only be a grave breach but may also amount to genocide. Article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part […].” All these conditions are met by the Israeli conduct of war in Gaza: the siege, relentless bombardment and blocking supply of water, food, medicines and life-saving humanitarian aid.

Hospitals are not military but protected objects. Attacking hospitals is a grave breach. On 17 October, Al-Ahli Arab Hospital in Gaza was struck resulting into the killing of around five hundred people. Israel blamed Hamas for the attack. John Kirby, Coordinator for Strategic Communications at the National Security Council in the White House, accepted the Israeli version. Prime Minister Sunak told Parliament that it was ‘likely’ that the hospital was hit by a failed rocket of Hamas. The governments of US and the UK are supporting Israel as the former got Israel’s back and the latter wants Israel to win. Their assessments are not independent and/or credible. Their views are not convincing either. There is no evidence that Hamas have rockets which would cause damage of such magnitude. Had Hamas possessed such rockets, they would have inflicted severe damage on Israel as they regularly fire a large number of rockets into Israel. Israel, on the other hand, had such capacity. Until it is independently established otherwise, the attack would seem to be the result of the indiscriminate and relentless bombing of Israel.

Published in The Express Tribune, October 30th, 2023.

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