Israel must follow international law in Gaza - we cannot see genocide
- First published in : Visit Website
- First published on: 20th Oct 2023
“The laws of war must guide Israel’s response to Hamas atrocity.” Not my words but those of a group of eminent Jewish lawyers in a letter to the Financial Times earlier this week. The group included former President of the UK Supreme court, Lord Neuberger, and Philippe Sands KC, one of the world’s foremost experts in international law. Their measured and scholarly letter is particularly impactful because they write as Jews with family and friends directly affected by the terrible crimes perpetrated by Hamas on 7 October.
Three important points are made in this letter. First, the crimes of Hamas are crimes against humanity. The barbarity inflicted by them and the taking of hostages are war crimes. Second, under international law Israel has the right to respond and to defend itself and its citizens. Third, that response must be in accordance with international law and in particular the laws of war. “These laws apply irrespective of the level of outrageous conduct of an enemy and no exceptions to these rules can be derived from the level of sufferings caused by Hamas actions.”
The importance of the international community acting to make sure the laws of war are obeyed, and our collective moral and legal responsibility to avoid another genocide has been at the forefront of my mind after I participated in a delegation to Srebrenica earlier this month. The visit was organised by Remembering Srebrenica Scotland. I hope to write about it in more detail soon but for now what is important is the message of Srebrenica. Never again must the world stand aside while innocent civilians are tortured, raped, and murdered, and never again must the world stand aside while populations are deported or forcibly transferred or have imposed upon them deliberately conditions of life calculated to bring about their physical destruction in whole or in part.
The lessons of Srebrenica demand a humanitarian response to the suffering of both Israelis and Palestinians. We must resist the idea that collective punishment should be visited upon the Palestinian people for the crimes of Hamas. Whether that collective punishment consists of seemingly indiscriminate bombing or the restriction of water, food, fuel and electricity to Gaza or the order to 1.1 million Palestinian civilians in northern Gaza to evacuate.
Amnesty International and the International Committee of the Red Cross have both stated that Israel’s evacuation order is not compatible with international humanitarian law. Under international humanitarian law a temporary evacuation of a given area may only be carried out if it is absolutely necessary for civilians’ security or for imperative military reasons. For an evacuation to be lawful, Israel is obligated to ensure, to the greatest extent practicable, that the evacuation it is calling for is effected with satisfactory conditions of hygiene, health, safety and nutrition and that members of the same family are not separated. Evacuees must be returned to their homes as soon as the hostilities cease.
Israel’s evacuation order, issued in the context of intense bombardment, and a tightening of its siege of Gaza including the cutting-off of electricity, water, and humanitarian assistance, is incompatible with these obligations. Amnesty International has therefore concluded that Gazans are being forcibly displaced. The Office of the High Commissioner for Human Rights has similarly stated that the evacuation order ‘combined with the imposition of a “complete siege” on Gaza may not be considered as lawful temporary evacuation and would therefore amount to a forcible transfer of civilians – in breach of international law.’
In relation to Israel’s restriction of food, fuel, water and electricity, the UN Human Rights Commissioner has said that ‘The imposition of sieges that endanger the lives of civilians by depriving them of goods essential for their survival is prohibited under international humanitarian law,’. Any restrictions on the movement of people and goods to implement a siege must be justified by military necessity or may otherwise amount to collective punishment.
Even before these intensified restrictions, Amnesty International identified that Israel’s existing 16 year long illegal blockade of Gaza already amounted to collective punishment, which is a war crime. As the occupying power, Israel has a clear obligation under international law to ensure the basic needs of Gaza’s civilian population are met. The statement of Israel’s Energy Minister Israel Katz, that no ‘electrical switch will be turned on, no water hydrant will be opened and no fuel truck will enter [until the] abductees’ are free’ appears to be explicit confirmation that the Israeli authorities are punishing civilians in Gaza for the actions of Hamas, which they took no part in and had no control over.
At the UN on Wednesday the USA vetoed a security council resolution that would have called for “humanitarian pauses” to deliver lifesaving aid to Gaza. The UK abstained along with Russia. The US veto is in no way offset by the fact that Biden has persuaded the Egyptians to open the Rafa border crossing to aid convoys, access should also be given through the Israeli border and for humanitarian aid it should be unfettered.
Russia is a strange bedfellow for the UK at the UN. The UK Government needs to remember that it has duties under international law including the obligation to prevent as well as punish acts of genocide under the UN Convention against Genocide. Genocide is defined as certain acts which are committed with intent to destroy in whole or in part a national, racial, or religious group. Acts of genocide include killings, causing serious bodily or mental harm, deliberately inflicting on the group conditions of life calculated to bring about physical destruction in whole or in part, birth prevention, or forcibly transferring children.
At Westminster on Tuesday, I chaired a briefing for MPs by representatives of humanitarian aid agencies on the ground. They are warning that we are in the era of atrocity prevention and currently have a short window of opportunity to prevent the ethnic cleansing of Palestinians in Gaza. Given that Yoav Gallant, the Israeli defence minister has said “Gaza won’t return to what it was before. We will eliminate everything”, this is not an overstated concern. The agencies also say there must be unfettered humanitarian aid access. Israel must rescind the evacuation order, restore food, water, and power, and there must be a ceasefire.
Finally, I have deliberately not commented on the deadly strike on the Al- Ahli hospital in this column. The jury is still out on who was responsible and there must be an independent investigation. Those who assumed at the outset that it was the responsibility of the IDF have come in for a lot of criticism. However, after days of seemingly indiscriminate bombing of densely populated civilian areas and the bombing of one of the civilian convoys heeding the Israeli warning to evacuate southwards, it is hardly surprising that people jumped to that conclusion. Moreover, the bombardment meant that about 1,000 people displaced by the Israeli government’s actions were sheltering in the hospital courtyard, hence the extent of the carnage. We need an immediate ceasefire, and the welfare of all innocent civilians must be the priority going forward. A land invasion in somewhere so densely populated would be an absolute massacre.