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Israel Under Fire – The War in Gaza: Can Contemporary International Law Cope with Today’s Terror?

 
Filed under: International Law
Publication: Israel Under Fire

Israel Under Fire – The War in Gaza: Can Contemporary International Law Cope with Today’s Terror?
Two elderly Israeli women, Nurit Cooper, 79, and Yocheved Lifshitz, 85, in the clutches of Hamas terrorists before their “humanitarian” release. (Hamas)

The war between Israel, Hamas, and other terror organizations has heightened the awareness of the question of whether today’s international law is capable of addressing armed conflict between a state and terror organizations.

Simply put, the question is how a sovereign state, obligated by the customary and conventional rules of international humanitarian law and the laws of armed conflict, is expected to engage in asymmetrical war with terror organizations that distinctly, and by definition, do not consider themselves as bound by such rules. Openly, they deliberately and even proudly consider themselves to be entitled, as terror organizations, to flout all accepted humanitarian norms and rules of international law to advance their aims. All this knowing that the international community lacks practical and legal means, as well as the basic desire and capability of obliging such terror groups to abide by the rules.

Today’s international community is riven with a severe dichotomy because what is currently known and acknowledged to be “the law of armed conflict,” by which states and their armed forces have operated, was developed over the years. The law was set out in clear terms in the late 1800s and early 1900s;1 the laws of armed conflict have, from time to time, been updated and amended, whether immediately following the Second World War (1949)2 and between 1974-73 following the Vietnam War. Apart from specific instruments to reflect the need for the protection of cultural property in times of war4 and instruments reflecting technological developments in conventional and non-conventional warfare,5 the fundamental norms and principles have not been substantially updated since then.

It is questionable whether the law of armed conflict as it exists today, incorporating as it does international humanitarian law, is capable of providing legal as well as operative answers to the practical issues arising out of today’s struggle against terror, directed not necessarily against a defined and identifiable armed force of a state, but rather against terror groups purposely embedded within the civilian population. The conflicts today may not necessarily be confined to the territory of a particular state and, by its very definition, are not necessarily directed against the military forces of a state but against civilians.

This dilemma is not new. It has existed since the late ‘60s of the twentieth century when the phenomenon of terror, plane hijacking, and hostage-taking became prevalent as an effective and brutal tool to use against states and their populations.

More recently, terror organizations, under the guise of “national liberation movements” or “freedom fighters,” and with the political, legal, and financial support of some states and groupings of states, as well as international and regional organizations, have gained international recognition and standing as semi-legitimate actors in the international community. Despite the inherent illegitimacy of their modus operandi, terrorist organizations can mobilize those states that politically sponsor and support their cause through manipulation of the international community. They give them recognition, standing, financial, diplomatic, and political backing.

The modes and tactics of terror develop and change concomitant with the technological advances in the means and techniques of combat and use of weaponry. As has been demonstrated in this recent war, Hizbullah, Hamas, and the Houthi terror regime in Yemen are equipped, principally by the terror regime in Iran, with unmanned aerial vehicles, drones, and long-range rockets, some equipped with precision-guided capabilities.

International law attempts to address such developments as they occur in a somewhat piecemeal manner, periodically adopting treaties and other instruments to cope with such phenomena as aviation and maritime terror, hostage-taking, nuclear and cyber terror, conventional and non-conventional weaponry, land mines, and the like. 6

Over the years, the international community has updated international law by adopting several counter-terror conventions aimed at addressing contemporary issues of terror, whether this be terror against and aboard aircraft, airports, and maritime navigation, terror against diplomats and internationally protected persons, terror involving the taking of hostages, nuclear terror, and state-funded terror.7

However, these instruments, as forward-looking as they may be, do not address the immediate legal, moral, and practical dilemmas inherent in the actual confrontation with terror on the battlefield and in facing terror organizations that openly violate international humanitarian norms.

This lacuna amplifies the need to adapt international humanitarian law to the conflict scenarios of today’s world realities.

In light of the long Vietnam War (1955-1975), the international community, under the auspices of the International Red Cross Movement, negotiated and adopted the 1977 Protocols Additional to the Geneva Conventions relating to the protection of victims of international and non-international armed conflicts.8 With these instruments, current international humanitarian law attempted to modernize itself by acknowledging that wars are not just between states but within states and between states and involve non-state entities and groups.

As such, the 1977 Additional Protocols recognized and granted belligerent status to “armed conflicts in which peoples are fighting against colonial domination, alien occupation, and racist régimes in the exercise of their right of self-determination.9

Does Asymmetrical Warfare Have Asymmetrical Rules of War?

Terror groups defining themselves as “national liberation movements” or “freedom fighters” have thus been acknowledged as legitimate belligerents with an element of international status, acceptability, and protection within the permissible framework of international law. As such, under the guise of international legitimacy, they can abuse such legitimacy granted to them by the 1977 Additional Protocols to the Geneva Conventions by glibly and openly violating the accepted humanitarian norms. They proudly consider themselves to be immune and absolved from internationally accepted obligations. They celebrate and delight in the fact they continue to enjoy impunity and need not abide by accepted rules of warfare.

They can operate underneath and outside the accepted norms of armed conflict. They have been free from the restrictions and international standards of accountability under which normal states and even recognized liberation groups are obliged to function in conducting their military campaign.

To a considerable extent, this modernization of international humanitarian law has enabled states and organizations within the international community that sponsor, encourage, and support such groups to give them respectability and acceptance.

In any normal legal system—both civil and international, the individual components within the system can live and conduct themselves within the orderly parameters of the system on the assumption that the other elements of the system will comport themselves in the same way. Departure from such parameters and behavior in violation of such a normative system undermines and threatens the system’s very existence and raises the question of the need to review the system, adjust the norms, or adapt them to meet the new realities or developments.

While the 1998 Rome Statute establishing the International Criminal Court10 provided the international community with a vehicle for preventing impunity by individuals – including terrorists accused of committing the most serious and grave crimes – the extent to which this court is capable or willing to exact justice against such terrorists has yet to be proven.

Nowhere is this factor more evident than in the recent conflict between Israel and Hamas in the Gaza Strip, the Iranian-supported Hizbullah terror organization in Lebanon and Syria, and the Houthi terror regime in Yemen.

These terror entities, together with others such as the Islamic Jihad terror organization and an Iranian terror offshoot in Iraq, have openly and blatantly abused, violated, and continue to violate all accepted humanitarian norms. Nevertheless, through skillful manipulation of information and propaganda, they appear to enjoy support within the international community, in the international media, and, sadly, among large population groups on campuses and the streets of capital cities in North America and Europe.

The brutal massacre committed on October 7, 2023, against Israeli and foreign civilians in the towns and villages close to the Gaza Strip saw multiple crimes of rape, murder, torture, and kidnapping – all of which, in and of themselves, not only violate basic norms of humanity but also violate accepted principles of international law and specific international conventions prohibiting such acts and guaranteeing the rights of women, children, and the elderly.

The mass targeting of Israel’s towns and villages by more than 10,000 missiles and rockets violates principles of international humanitarian law set out in the Geneva Conventions and the Additional Protocols to it, requiring the protection of civilian populations not involved in fighting. In clearly willful and open violation of international humanitarian law, as well as the customary principles enunciated in the laws and principles of armed conflict set out in the 1907 Hague Rules, the terrorists indiscriminately targeted civilians in a distinct, deliberate, and concerted means to demoralize and terrorize the civil population and to pressure organized governments and society. This is their tactical modus operandi.

The use by both Hamas and Hizbullah of their own civilian population and public facilities – whether this be mosques, churches, schools, hospitals, private homes, office blocks, and even premises of international organizations – as human and civilian shields to protect their weapons storage, command facilities, and their operatives, and imprison hostages, constitutes a blatant violation of international humanitarian law.

The burrowing of hundreds of kilometers of tactical underground tunnels under homes, public thoroughfares, population centers, and hospitals for use solely for their fighters and not for the protection of the general public is no less a violation of international humanitarian law.

The use by terrorists of civil­ian ambulances adorned with recognized humanitarian emblems for carrying arms and terrorists; the use of civilian vehicles for transporting terror operatives accompanied by children and family to approach and attack roadblocks; the standard use of hospitals, mosques, churches, and schools as storage space for weapons and explosives, the location of militia offices and tactical headquarters in dense residential areas, are illustrative examples of the abuse and violation of humanitarian norms by Hamas.

Above all, the cruel, cynical use of hostages, including babies, women, children, and the elderly, parading them in the streets of Gaza, abusing their dignity, holding them in inhumane conditions underground, and sexual abuse are all violations of international conventions.11

Through misleading media reporting, circulation of falsified statistics, and cynical use of video footage of casualties, Hamas assumes correctly that a naïve international community will quickly accuse Israel of using disproportionate military force against groups of apparently unorganized civilians.

The irony is that the accepted rationales of terms such as “combatant,” “legitimate target,” “defended locality,” and “human shield,” as well as the situation of “military necessity,” have become blurred in the context of a war on terror.

Despite this, the international community is still geared to somewhat anachronistic conceptions of armed conflict between States and presumes to judge those fighting terror by such anachronistic criteria and standards rather than adapting itself to the new situations and challenges that they bring.

This is particularly evident in the response of the international community to Israel’s engagement in combat with such terror organizations. The tendency is to view combat against the terrorists as if they are actions of conventional warfare against states. In so doing, the international community overlooks the criminal nature of the terrorist acts that gave rise to the critical need for response.

This dilemma is compounded by a situation in the UN and other international political fora in which automatic majority resolutions are adopted condemning those that fight terror while naively or deliberately giving encouragement and carte-blanche to those supporting and perpetrating the terror. This instills in them confidence that their actions are indeed achieving their intended political ends and have the sanction of the international community.

Conclusion

In light of the biased and partisan reaction of the international community and its automatic accusations against Israel of committing war crimes and even genocide, it is high time that responsible states come to terms with the fact that modern-day terror undermines and abuses accepted humanitarian norms and standards. This must be dealt with both militarily and legally. To do so requires addressing several unique issues that characterize the various components of terror, including:

  • Religious ideology and motivation driving and glorifying terror, whether this be in the form of incitement by religious leaders or educational materials aimed at children and students encouraging hatred.

  • The tendency of the Western world to view such fanatic religious glorification of terror through spectacles of “political correctness” or to overlook it out of fear of incitement, threats, violent reaction, or accusations of Islamophobia.

  • Media and social networking often cynically and deliberately manipulate the public through false reporting and circulation of false and inaccurate video footage and statistics.

  • Transfer by states of weaponry, ammunition, technology, and funding enable terror despite international conventions prohibiting and criminalizing such transfer.

  • Terror groups and their state sponsors manipulate and abuse the United Nations, its related organs, human rights, and international humanitarian law bodies. Such organizations serve to give respectability and acceptance to the terror groups, which in turn is interpreted by them as a green light and carte blanche for continued terror.

The essential question still remains as to whether today’s highly politically polarized international community has the capability and will to overcome its limitations, ignorance, naivete, and misguided political correctness to adapt international humanitarian law to the urgent and vital needs of today in dealing with modern terror.

Time will tell….

* * *

Notes

  1. Hague Convention No. II of 1899, and No. IV of 1907, Respecting the Laws and Customs of War on Land, and Annexed Regulations. Handbook of the International Red Cross and Red Crescent Movement, 13th ed. 1994↩︎

  2. bid – 1949 Geneva Conventions↩︎

  3. Ibid – Protocols Additional to the Geneva Conventions↩︎

  4. Ibid – 1954 Hague Convention for the Protection of Cultural Property↩︎

  5. 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects as amended in 2001 https://disarmament.unoda.org/the-convention-on-certain-conventional-weapons/ and Conventions on Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons 1971 https://disarmament.unoda.org/biological-weapons/ and Convention on the Prohibition of the Development, Production, Stockpiling and the Use of Chemical weapons 1993 https://www.opcw.org/chemical-weapons-convention↩︎

  6. See 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects, Protocol on Non-Detectable Fragments (Protocol I), Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II), Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), 1979 Resolution on Small-Caliber Weapon Systems https://ihl-databases.icrc.org/en/ihl-treaties/ccw-finact-1980↩︎

  7. See the following international instruments detailed in the UN publication “International Instruments Related to the Prevention and Suppression of International Terrorism” (United Nations publication, Sales No. E.01.V.3) www.un.org/terrorism/:

    1. Convention on Offences and Certain Other Acts Committed on Board Aircraft (1963);
    2. Convention for the Suppression of Unlawful Seizure of Aircraft (1970);
    3. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971);
    4. Convention on the Prevention and Punishment of Offences against Internationally Protected Persons, Including Diplomatic Agents (1973)
    5. International Convention against the Taking of Hostages (1979)
    6. Convention on the Physical Protection of Nuclear Material (1980)
    7. Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (1988)
    8. Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988)
    9. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (1988)
    10. Convention on the Marking of Plastic Explosives for the Purpose of Detection (1991)
    11. International Convention for the Suppression of Terrorist Bombings (1997)
    12. International Convention for the Suppression of the Financing of Terrorism (1999)

    ↩︎

  8. Protocols Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts https://www.icrc.org/en/document/geneva-conventions-1949-additional-protocols#:~:text=The%20Additional%20Protocols%20to%20the%20Geneva%20Conventions&text=In%20response%2C%20two%20Protocols%20Additional,the%20way%20wars%20are%20fought.
    ↩︎

  9. Article 1(4) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. https://ihl-databases.icrc.org/en/ihl-treaties/api-1977
    ↩︎

  10. https://www.icc-cpi.int/sites/default/files/Publications/Rome-Statute.pdf↩︎

  11. International Convention against the Taking of Hostages 1979 https://treaties.un.org/doc/db/terrorism/english-18-5.pdf, UYN Convention on the Rights of the Child 1989 https://www.unicef.org.uk/wp-content/uploads/2016/08/unicef-convention-rights-child-uncrc.pdf , Convention on the Elimination of all Forms of Discrimination against Women 1979 https://www.un.org/womenwatch/daw/cedaw/cedaw.htm, UN Principles for Older Persons 1991 https://www.ohchr.org/en/instruments-mechanisms/instruments/united-nations-principles-older-persons↩︎