Since Hamas orchestrated an unexpected but highly sophisticated attack on Israel on October 7 last year, which allegedly resulted in the deaths of at least 1,139 people and the capture of around 240 others, Israel has launched a relentless and indiscriminate military campaign with the stated goal of completely eliminating Hamas. The Hamas attack-the most substantial military assault on the Jewish population since the Holocaust, has indeed profoundly and fundamentally altered Israel's entire security paradigm-the iron domes, walls, occupation, and constant surveillance of Palestinians-all proven to be futile.
The consequent Israeli offensive-almost universally deemed as massive, brutal, and disproportionate-has swiftly yielded devastating consequences, with over 31,000 fatalities recorded in Gaza within a mere four-month span, a vast majority of whom are women and children. Additionally, the number of injuries exceeds twice that figure, and more than half of Gaza's 2.2 million inhabitants have been forcibly displaced multiple times. Relentless Israeli bombing campaigns have turned the entire Gaza strip into sprawling rubbles with numerous individuals trapped beneath.
Additionally, throughout the conflict, Israeli authorities have enforced a stringent blockade, severely limiting access to vital resources including food, fuel, medicine, and medical facilities for Gazans. Consequently, the Gaza population has been confronted with the harrowing realities of mass starvation and man-made famine, exacerbating the already dire humanitarian crisis unfolding in the region.
For decades, Israel has unjustly operated with complete impunity, perpetuating apartheid policies and occupying Palestinian territories. This prolonged situation may have obscured the understanding of many Israelis, preventing them from recognising the relentless bombings, indiscriminate killings of civilians, and the massive destruction of vital infrastructure including schools, hospitals, mosques, and churches, as blatant war crimes and acts of genocide. However, it is inconceivable for any civilised society to condone such atrocities. It is indeed horrific that the international community has allowed such horrific acts to continue largely unchecked and unrestrained defying the fundamental principles of human decency and civilised norms.
However, several nations, particularly those with limited geopolitical influence, have unequivocally condemned Israel's response as an undeniable case of war crimes and genocide, but a select few Western influential nations still contend that the death and devastation in Gaza have been unintended consequences of Israel's actions in self-defence. In the meantime, the International Court of Justice (ICJ), although its decisions are non-binding for Israel, has actively undertaken the examination of the conflict's legal dimensions, while the United Nations Security Council, due mainly to the staunch opposition of the United States, has thus far failed to pass any enforceable resolution for the cessation of hostilities.
In a stark juxtaposition, the same group of Western nations promptly condemned the Russian invasion of Ukraine in 2022 as constituting acts of war crimes and genocide. Even the latest report from the UN Human Rights Monitoring Mission placed the total death toll in Ukraine at 10,582, in more than two years. Moreover, while the conflict in Ukraine has resulted in substantial loss of life, there has been no widespread destruction of infrastructure, religious sites, or educational institutions. It is indeed striking that these same group of nations are now hesitant to acknowledge the occurrence of war crimes and genocide in Gaza, despite massive loss of civilian lives and extensive destruction of essential infrastructure.
Many Western nations have also vehemently condemned China's actions against Uyghur Muslims in Xinjiang, labeling the establishment of "reeducation" prisons, forced displacement, and crackdowns on Uyghur independence movements, as acts of genocide. It is indeed deceitful that these nations who readily classify these atrocities as genocide refrain themselves from applying the same designation to a much more grave situation unfolding in Gaza.
Following South Africa's presentation of the case before the ICJ, seeking a judicial determination on whether the extensive bloodshed and devastation resulting from Israel's relentless attacks on Gaza amount to war crimes and genocide, the world community heard arguments from various nations. Yet, the most fundamental question remains unanswered-while the ICJ's preliminary ruling hinted at the possibility of a genocide, no definitive conclusion has been reached yet.
The United Nations Genocide Convention of 1948 defines genocide as acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. It encompasses actions such as killing members of the group, causing serious bodily or mental harm, deliberately inflicting conditions aimed at physical destruction, imposing measures to prevent births, or forcibly transferring children of the group to another group.
To any reasonable observer, the indiscriminate Israeli bombings and shelling in Gaza appear to fulfill most, if not all, criteria outlined in the UN Genocide Convention. The significant civilian casualties, predominantly among women and children, resulting from these actions provide compelling evidence of intent to eradicate a specific group. Furthermore, open declarations by Israeli leaders vilifying Hamas and advocating for their elimination, along with the imposition of a blockade leading to widespread deprivation and deaths, provide clear evidence of intent to harm a specific group of people.
Second, Israel used its overwhelming military power against Gaza-against the people under its occupation who had very limited resources to confront such a disproportionate use of force against them, and this power asymmetry resulted in excessive harm to the civilian population, contributing to the destruction of the targeted group.
Third, Gaza has been under occupation and blockade for decades, which severely restricted the movement of Gazan people and goods. This prolonged blockade has often led to dire humanitarian conditions, including limited access to food, water, and medical supplies, indiscriminate arrests and searches, and systemic human rights violations. Such conditions can be considered as evidence for imposing measures intended to destroy a group in part.
Fourth, the long-standing history of violence and displacement against Palestinians has led many to perceive the ongoing Israeli military operations as part of a larger strategy aimed at their dispossession and marginalisation, adding to the perception of genocide. Even amidst the current conflict, numerous Israelis persist in establishing illegal settlements in the occupied West Bank, while forcibly displacing and causing harm to Palestinians, often with tacit or explicit support from Israeli authorities. Additionally, several Israeli leaders have advocated for the complete occupation of the Gaza Strip and expulsion of Gazans from the region.
Israel and its supporters, however, contest accusations of war crimes and genocide in Gaza, asserting that military actions are responses to security threats posed by militant groups, not systematic efforts to destroy a specific group. They argue that precautions are taken to minimise civilian casualties, targeting militants and issuing warnings before airstrikes. They view civilian deaths as unintended consequences, not genocide. Additionally, they accuse Hamas of indiscriminate rocket attacks on civilian areas, violating international law and endangering Israeli civilians.
Fortunately, a voluminous literature exists to examine the Israeli war on Gaza from the perspectives of international law, international human rights law, and international humanitarian law. International law provides a framework for assessing the conduct of states in armed conflicts, and the Geneva Conventions on human rights and humanitarian rights laws provide rules that govern the use of force, treatment of civilians, and obligations of occupying powers.
From an international law perspective, Israel's assertion of its right to self-defense under Article 51 of the United Nations Charter is plausible, viewing the attacks as threats to its sovereignty and existence. However, this right typically applies when a state is attacked by another state, not by the people under its occupation. Additionally, this right is subject to limitations, such as necessity and proportionality. Whether the war is necessary can be disputed, but there can be no dispute that Israel's military response was starkly disproportional-the Hamas's military capability is no match to Israel's military might, and Israel has already caused more than 31 thousand deaths, in response to a death toll of about one thousand Israelis by Hamas.
International human rights law imposes further obligations on states to respect, protect, and fulfill the human rights of individuals within their jurisdiction, including during armed conflicts. Israel, as an occupying power in Gaza, is bound by these obligations. The widespread violations of human rights, including denial of the right to life, freedom from detention, and freedom of movement constitute blatant violation of such rights. There can be no question that the blockade imposed by Israel has exacerbated the humanitarian crisis in Gaza, restricting access to essential services such as healthcare, education, and clean water. Additionally, the targeting of civilian infrastructure, including schools and hospitals, mosques, museums, churches, historical landmarks raises serious concerns about Israel's compliance with its human rights obligations.
International humanitarian law governs the conduct of parties to armed conflicts, with the aim of protecting civilians and minimising human suffering. Key principles such as distinction, proportionality, and the protection of civilians are central to this body of law. However, the conflict between Israel and Gaza has seen numerous violations of these principles, including indiscriminate attacks on civilian areas and disproportionate harm to civilians. The principle of distinction requires parties to distinguish between combatants and civilians and to refrain from targeting civilians and civilian objects. But numerous reports suggest that Israel has deliberately targeted civilian areas, resulting in significant civilian casualties.
The Israel-Gaza war indeed highlights the complex interplay between international law, international human rights law, and international humanitarian law. While these legal frameworks share common principles and objectives, they also have distinct areas of focus and application. International human rights law, for example, applies at all times, including during armed conflicts, and imposes obligations on states to respect human rights irrespective of the circumstances. International humanitarian law, on the other hand, applies specifically to armed conflicts and governs the conduct of parties to the conflict.
As the world awaits a verdict of the ICJ on whether Israel's indiscriminate military campaign against Gaza constitutes war-crimes and genocide, to any rational observer it should be clear enough that the widespread targeting of civilians and civilian infrastructure, exacerbated by stringent blockade and relentless military operations on a captive, occupied population, in bold-faced defiance of international law and all civilised norms, constitutes nothing less than war crimes and genocide.
Dr. CAF Dowlah, a former Economic Editor of The Financial Express, is now a professor of Economics and Law, settled in the United States. His latest book Economic and Financial Sanctions of the United States-Legal Perspectives being published by the Cambridge University Press.
© 2024 - All Rights with The Financial Express
