Gaza and Israel – A Case for International Humanitarian Law, Not R2P

This is the fourth contribution in our symposium on Palestine, Israel and the Responsibility to Protect. The first three can be found here, here and hereJames P. Rudolph is an attorney in Washington, D.C. and California where his work focuses on international law. He is a regular contributor to JiC. 

(Photo: IDF / Creative Commons 2.0)

(Photo: IDF / Creative Commons 2.0)

The Responsibility to Protect (R2P) initially appeared in the Report of the International Commission on Intervention and State Sovereignty. The goal was, and remains, the reconciliation of the traditional concept of sovereignty, which involves exclusive control and supremacy over a defined territory, and the more modern notion that the sovereignty of a state includes the primary responsibility to protect its own people.

This notion of sovereignty has, by and large, been adopted by the international community, and is now enshrined in the so-called “three pillars” of R2P. First, the State carries the primary responsibility for protecting populations from genocide, war crimes, crimes against humanity and ethnic cleansing; second, the international community has a responsibility to encourage and assist States in fulfilling this responsibility; and finally, the international community has a responsibility to use appropriate diplomatic, humanitarian and other means to protect populations from these crimes. If a State is manifestly failing to protect its populations, the international community must be prepared to take collective action in accordance with the Charter of the United Nations.

With respect to the ongoing conflict in Israel and Gaza and applying the first pillar, the issue is whether any of this is dispositive. Are we, in other words, witnessing genocide, war crimes, crimes against humanity or ethnic cleansing? If we are not, R2P does not apply. Notwithstanding comments from Turkish Prime Minister Recep Erdogan that Israel is “committing genocide”, most people would likely conclude that Israel is not engaged in any kind of genocidal behavior. In the same vein, it appears doubtful that anybody would seriously claim that ethnic cleansing is occurring. Thus, the question is whether Israel is (or has) engaged in war crimes or crimes against humanity, the two remaining crimes recognised under the R2P rubric.

A crime against humanity requires that certain acts — murder, enslavement, deportation, imprisonment, torture, rape — must be directed against a civilian population, and that they be part of a widespread or systematic attack.  Widespread means massive, large-scale action, whereas systematic means part of a preconceived policy. Israel’s response to the rockets from Gaza certainly has had consequences for Palestinian civilians, many of whom have been children. But none of these acts are occurring in Israel itself (if, indeed, they are occurring at all). R2P means that Israel has a responsibility to protect its own population from crimes against humanity. We are thus left with war crimes.

There may be a convincing argument that Israel’s self-defense has become excessive, and this would have ramifications under the laws of war (Geneva Conventions and customary international law). But, if anything, this is being directed at Hamas and Gaza.  Stated differently, neither Israel nor Gaza is engaging in excessive force against its own population, so R2P, while an attractive prism through which to view the conflict, seems not to apply.

With respect to pillar two, moreover, the international community has been assisting both Israel and the Palestinians to fulfill their obligations under R2P,as evidenced by the recent Egyptian-sponsored cease-fire that was rejected by Hamas. Interestingly, this assistance has included diplomatic, humanitarian and other means to protect populations from these crimes. Accordingly, the use of force, which is contemplated under pillar three, is altogether inappropriate at this juncture, as it is to be used as a last resort after the state has manifestly failed to protect its own population. This is all to say that R2P has not, and likely will not, be triggered by this recent conflict.

Who has the responsibility to protect civilians in this ongoing war?

Civilians are, of course, protected by R2P. Indeed, the raison d’être of R2P is the protection of civilians. But, as noted above, R2P probably does not apply to the current conflict in Israel and Gaza. This is not to say, however, that civilians are devoid of any protection. International humanitarian law, the purpose of which is the protection of those who do not or cannot take part in armed hostilities, is considered the human rights component of the law of war, and it is codified in the four Geneva Conventions of 1949 and the two 1977 Protocols Additional to these treaties. (These conventions are also considered customary international law). The Fourth Geneva Convention, to which Israel is a party, deals with the protection of civilians during war.  In each of the four Geneva Conventions, the High Contracting Parties assume a large number of obligations for the benefit of the protected persons. Article 33 of the Fourth Geneva Convention, for example, outlaws collective punishment, defined as mass punishment without an individual assessment of guilt. The Fourth Geneva Convention also imposes on signatories various due process requirements for trials and sentencing.  Furthermore, the Geneva Conventions provide for a system of supervision administered by the so-called Protecting Powers, which, by and large, means the International Committee of the Red Cross. In the current conflict, civilians in Gaza are bearing the brunt of the hostilities. The UN Office for the Coordination of Humanitarian Affairs has reported that 77 percent of the people killed in Gaza have been civilians. And UN High Commissioner for Human Rights, Navi Pillay, has stressed Israel’s obligation to “ensure full respect for the principles of distinction, proportionality and precautions in attack.” Israel must, Ms Pillay said, avoid targeting civilians. By implication, though, Ms Pillay surely meant to encourage Hamas to fulfill its obligations as well. To date, two Israeli civilians have died, but this low number is mostly because of Israel’s sophisticated anti-missile system, not because Hamas has shown restraint. On the contrary, Hamas has fired into Israel thousands of indiscriminately targeted rockets.

It is clear that Israel, as a signatory to the Fourth Geneva Convention and the party with the “smartest” technological weaponry, has the primary responsibility for the protection of civilians, especially in light of Israel’s plans to send troops and tanks into Gaza itself. But if, as suggested by the Washington Post, Hamas “calculates that more deaths will prompt Western governments to pressure Israel to grant Hamas’s demands,” Hamas will have to answer for its transgressions. Having said this, it is also obvious that the Security Council, and the UN more broadly, has a duty to offer more than just platitudinous pronouncements.

Does the asymmetrical loss of life matter?

For the purpose of R2P, the quantitative loss of life does seem to matter. It has been stressed, for instance, that R2P applies only to large-scale loss of life or to massive, widespread atrocities. But the locus of the atrocities, as highlighted above, matters as well. Russia’s invocation of R2P to justify its invasion of Georgia, for example, was viewed as illegitimate, as the “Russians” being protected by Moscow were actually in Georgia. On the other hand, one might argue that Israel actually occupies Gaza and therefore is, for all intents and purposes, the “state” in which the human rights violations are occurring. Israel vehemently denies that it occupies Gaza, as it “disengaged” in 2005. Most international law scholars, however, would argue that the test for determining whether an occupation exists is effective control by a hostile army. Resolving this is beyond the bounds of this article; thus, it will be assumed, arguendo, that Gaza is not occupied and thus R2P does not apply.

Is R2P Even a Useful Framing for the Conflict?

R2P has shifted forever and fundamentally the debate about sovereignty and intervention. This is a positive development. Humanitarian intervention, after all, focused too intently on the right of the state to intervene, whereas R2P gives pride of place to civilians. In this respect, then, R2P is a helpful frame through which to view the conflict in Gaza. Hundreds of civilians, let us not forget, have perished in the past fortnight; yet R2P’s application to the conflict is tenuous. Therefore, the frame should more appropriately be international humanitarian law. The Security Council should, and theoretically could, offer a more robust response, but the chance of a U.S. veto vis-à-vis Israel is an ever-present reality and one which also means that a referral to the ICC would be dead on arrival. But defeat in the Security Council would nevertheless be a useful exercise, drawing international attention and condemnation on any party found to be in violation of the laws of war.

In conclusion, then, R2P is viscerally attractive as a theoretical framework. But given that it might not even apply to this conflict, international humanitarian law, including the prohibition on collective punishment and the mutually obligatory requirements vis-à-vis civilians, is the more practical and appropriate paradigm.

*****

Other contributions to this symposium, include:

R2P Isn’t a Useful Framework for Gaza – Or Anything, by David Rieff

In Palestine, R2P Isn’t Dead. It Could Never Have Existed, by Michael Kearney

The Israeli-Gaza Crisis and the Responsibility to Protect: Does the Norm Apply?, by Megan Schmidt

Is Gaza in Israel? R2P and Inter-State Crises, by Aidan Hehir 

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About Mark Kersten

Mark Kersten is the the Deputy Director of the Wayamo Foundation and a Fellow based at the Munk School of Global Affairs, University of Toronto. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016). The views posted on this blog do not necessarily represent those of the Wayamo Foundation.
This entry was posted in Israel, Palestine, Palestine and R2P Symposium, Responsibiltiy to Protect (R2P) and tagged , , . Bookmark the permalink.

4 Responses to Gaza and Israel – A Case for International Humanitarian Law, Not R2P

  1. Julia Moffatt says:

    Forgive me, I may have misread what your intention was with this comment

    “It is clear that Israel, as a signatory to the Fourth Geneva Convention and the party with the “smartest” technological weaponry, has the primary responsibility for the protection of civilians”.

    but are you saying that the applicability of IHL is determined by the technological fire power of a State? Surely all parties to a conflict, regardless of their available weaponry, are equally responsible for the protection of civilians under IHL? The deployment, by Israel, of the “smartest” techonological weaponry is more likely to go Israel’s greater culpability for any war crimes given they have the military capability to be more disciminating in their target selection.

  2. Pingback: Friday links: Gaza and R2P | Critical Securities

  3. Pingback: R2P Where? | complexly

  4. Dan Morrison says:

    You say that ‘it appears doubtful that anybody would seriously claim that ethnic cleansing is occurring.’
    One example of ethnic cleansing; Jewish settlement expansion does not just involve illegally housing Jews on the land, it also involves expelling Arabs from their homes and from the land. If imposing one ethnicity/race/religion on the land whilst removing a different one from the land is not ethnic cleansing, then what is?

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