Although the ICRtoP does not make recommendations in country crises, the Coalition remains extremely concerned by the ongoing escalation of hostilities in Gaza. The ICRtoP would appreciate feedback from governments, organizations, and civil society on the analysis provided below, which has been written after extensive consultations with civil society and other experts. You can reach the Coalition Secretariat directly at firstname.lastname@example.org
Following the kidnapping and murder of three young Israeli
settlers in the West Bank and the kidnapping and murder of a Palestinian
teenager in Jerusalem, relations between Israeli and Palestinian communities and leadership have significantly deteriorated. The Israeli government has held Hamas responsible for the kidnapping of the three Israeli settlers and subsequently arrested
400 people in the West Bank. Hamas
has denied involvement in the kidnapping incident.
Although low-level rocket-fire from Gaza into Israeli territory has been ongoing, there was a sharp increase
in the number and range-capacity of the rockets following the mass arrests. In response, Israel launched military “Operation Protective Edge”
July which has, as of 15th
July, delivered more than 500 tons of explosives in missiles, aerial bombs, and artillery fire, and killed at least 194 Palestinians, 77%
of whom have been identified as civilians, and displaced 22,000 into UN-run schools and shelters. Palestinian armed groups have launched 1,500 rockets
which have killed
one Israeli, injured half-a dozen and resulted in hundreds seeking temporary shelter in underground bunkers. A five-hour humanitarian pause on 17 July only temporarily halted the violence, as Hamas and Israel immediately renewed
their respective rocket-firing and airstrikes upon the ceasefire’s expiration.
UN officials, including High Commissioner for Human Rights, Navi Pillay
, Secretary-General, Ban Ki-Moon
, and Special Representative of the Secretary-General for Children and Armed Conflict, Leila Zerrougui
, have voiced concern over the recent escalation of hostilities and highlighted the need for Israel, Hamas, and other armed groups in Gaza to protect civilian populations. Pillay has been particularly vocal in urging both sides to adhere to international law, stressing that reports of civilian casualties “raise serious doubt about whether Israeli strikes have been in accordance with international humanitarian law and international human rights law.”
As articulated by civil society organizations and UN officials, the high number of civilians killed raises concerns in regards to Hamas’ and Israel’s adherence to international humanitarian law. On 8 July 2014, Amnesty International expressed
that “the firing of indiscriminate rockets by Palestinian armed groups in Gaza is a war crime that endangers civilians on both sides,” and Human Rights Watch highlighted
the indiscriminate nature of the rocket attacks, in breach of international law. Given the high number of Palestinian civilian casualties, civil society organizations have also urged Israel to abide by the International Humanitarian Law (IHL) principles of proportionality and distinction. Human Rights Watch warned
that deliberate or reckless attacks violating the laws of war are war crimes, and that residential homes become lawful targets only when, and at the time in which, they are being used for military purposes. Al- Haq, a Palestinian human rights organization, expressed
its concern with the growing number of civilian deaths and urged Israel to adhere to international law and take feasible precautions to minimize civilian casualties on 10 July 2014. Namely, Al- Haq stressed
, “incidental loss of civilian life, injury to civilians or damage to civilian objects, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited. Failure to abide by these principles of international humanitarian law may result in the commission of war crimes,” a point echoed by Al Mezan Center for Human Rights in their statement
of 14 July.
The overarching principles of IHL specify
that all parties to a conflict must distinguish between civilians and combatants at all times, as well as between civilian objects and military objectives. Indiscriminate attacks, and attacks that are “excessive in relation to the concrete military advantage anticipated,” are prohibited.
While recognizing that many violations of IHL in this most recent crisis between Israel and Hamas could constitute war crimes, there is a question of the applicability of RtoP to this situation. Although Israel removed its civilian and military structures from Gaza in 2005 and arguably relinquished their control over the territory, most governments,
international organizations and human rights experts, including the UN Special Rapporteur on Occupied Palestinian Territory, continue to consider
Gaza as an occupied territory, as Israel retains authority over the borders, sea, and airspace. This question over whether Gaza is an Occupied Territory or an independent entity could be a determining factor, given RtoP’s applicability to atrocities committed within a state’s borders. (See paragraphs 138-139
from the World Summit Outcome, which outlines the scope of RtoP.)
If one accepts the status of Gaza as an occupied territory, the Responsibility to Protect the populations of Gaza would fall between both the Occupying Power, Israel, and the de facto
authority, Hamas. The degree
to which each has the responsibility to protect populations in Gaza would be determined by the test of ‘effective control;’ namely, the extent of the capacity of each party to implement a particular measure to protect civilians.
If one does not
accept that Gaza is an occupied territory, but rather is under the full governing control of the Palestinian Authority and/or de facto
by Hamas, then the present crisis must be viewed as an armed conflict between two State entities. While both governing bodies would have the obligation under the Responsibility to Protect to prevent the commission of atrocity crimes within their
borders, RtoP would not be applicable for the protection of civilians across
borders in the crisis. IHL and the protection of civilians framework would be applicable in this context, legally obligating all parties to the conflict to ensure that civilians are not indiscriminately targeted or impacted.
Gaza’s status notwithstanding, there remain continuing obligations of all parties to adhere to international humanitarian law and to ensure the protection of civilians. On 12 July 2014, the UN Security Council called for the de-escalation of the conflict, reinstitution of a ceasefire, and “respect for international humanitarian law, including the protection of civilians.” Human Rights Watch has urged
the UN Human Rights Council to mandate the UN Office of the High Commissioner for Human Rights to form a fact-finding mission into IHL violations by both sides. International Crisis Group, meanwhile, has listed a number of recommendations
for reducing hostilities, including implementing an immediate Egyptian-brokered ceasefire, though it acknowledges that "these steps will not be sufficient to achieve a permanent Israel-Gaza ceasefire, much less a lasting Israeli-Palestinian peace agreement, but without them, neither will be reached.”
Justice Matters: Reaffirming Support for Accountability for Mass Atrocities on International Justice Day
On International Justice Day (17 July 2014), marking the anniversary of the adoption of the Rome Statute of the International Criminal Court, the ICRtoP joins the call for civil society and governments worldwide to reaffirm their support for increased accountability for genocide, war crimes, and crimes against humanity. Ending impunity for these crimes functions both as a deterrent for future perpetrators and as a means to rebuild communities in the wake of atrocities, thus serving as a vital element of upholding the Responsibility to Protect. Learn more about International Justice Day here.