By- Mustafa Topiwala
The world is engaged in a tango of guns on a stage decorated with the skulls of women and children. Every part of the globe is engaged in violent conflicts, wherein no party is ready to hold accountability for extreme civilian casualties. More than nine-thousand Palestinians have been killed in the Israel-Hamas and the Russia-Ukraine wars. It has become exceedingly crucial to invoke the provisions of International Humanitarian Law (IHL) to understand the intricacies of illegal acts committed in the war, coupled with a system of accountability. This blog, while at instances examines certain wars as an example through a cursory lens, does not intend to skew in favor of any side. Rather, it strives to analyze concepts such as the principles of distinction, proportionality, and precautions.
The principle of distinction is one of the most fundamental principles of IHL. It states that parties to an armed conflict must clearly distinguish between civilians and combatants, and civilian objects and military objects at all times, and only then should they direct aggressive attacks against military personnel or objects. This implies that indiscriminate means of warfare are strictly prohibited. Practices by different States establishes this principle as customary international law. It was first laid down in the St. Petersburg Declaration (1868), stating “the only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of the enemy”. Additionally, the concept has also been etched into several other legal texts, such as the Additional Protocol I to the Hague Convention, as well as Protocol II of the Convention on Certain Conventional Weapons.
The Statute of the International Criminal Court lays down that “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” constitutes a war crime, in both international as well non-international armed conflicts. Therefore, all attacks on civilians during armed conflicts trickles down to the question of intent; it only counts as a violation of international law if the attack on civilians was supplemented by intent to do the same. However, if there is unintentional harm to civilians, then there is no transgression of the principle of distinction. This conclusion applies in relation to the principle of proportionality, which stipulates that the legality of acts of parties in an armed conflict shall be determined based on the balance between objective and means of the acts, and the consequences achieved. It has now become an accepted rule of customary international law, which essentially puts a burden on the State to weigh equally the advantages sought by military moves and the civilian losses caused.
After 1945, it was realized that wars have receded to have only an international nature, and have begun to include domestic dimensions as well. Thus, rules binding actors of non-international armed conflicts were codified in the Article 3 of the Geneva Conventions of 1949. Therefore, they have become established customary international norms under IHL, implying that all parties, both of domestic and international nature, are inherently bound by the rules of IHL. Although, there are certain differences in their application. For instance, in accordance with the First Additional Protocol to the Geneva Convention, States have the right to directly participate in hostilities, while the Second Additional Protocol does not explicitly grant the same authority to non-state actors to engage in arms with the State authority.
In the on-going Israel-Hamas war, Hamas could be considered as a non-state actor as it has not been established as a “legitimate government of a recognized state”. Hence, even it is bound by the norms laid down in the IHL. On October 7, 2023, Hamas launched several missiles from the Gaza strip towards Israel, without warning. This led to the loss of more than a thousand people, and injuring more than seven-hundred citizens. Post this act, Israel has also been retaliating with missile attacks and military endeavors, and the situation has escalated into an armed conflict. It is to be noted that the rules of IHL apply only in situations of armed conflicts, and thus now, both the sides to the conflict (i.e. Israel and Hamas) are obligated to adhere to the norms.
Further, the interplay of the principle of precaution also plays a critical role in this discussion. The principle, first laid down in Article 2(3) of the 1907 Hague Convention, states that parties to a conflict have the highest responsibility to reduce civilian casualties in situations of armed conflicts by taking all necessary precautions. Thus, both the parties have to take feasible precautions to ensure their adherence to the aforementioned principle. The feasibility of the precautions in this context refers to any practicable and possible measure implemented by a party attacking or intending to attack. This includes obtaining the best possible intelligence about civilian population, its location and density, and assessing the estimated impact of an attack on civilians as well the physical environment surrounding the area. In addition to this, it also means that if the parties have the means have the sufficient ability to warn or caution the opposite side of a potential attack, it must do the same.
In the present example of the Israel-Hamas war, Hamas issued no official precautionary warning before launching the attack against Israel, thus violating the principle of precaution. Further, as the war escalates and civilian toll ascends rapidly, it has become evident that neither party has shouldered the responsibility of dutifully adhering to the norms of IHL, whereby the most affected people are women and children, who constitute sixty-eight percent of the total toll.
Ultimately, the war has only reflected the despondent truth of the fragility of customary law. A petrifying disregard of human life simply depicts that even while legal mechanisms exist to keep transgressors in check, the accountability of parties always has an instrumental functionality only after the war has begun, after the damage has occurred. Thus, the pompous principles and grand international norms are bad law. The most apparent plausible measure seems to be an immediate end to the war, and ensuring maximum effective accountability of all parties to the armed conflict with such an expeditious implementation, to deter future violations by other parties.
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