UN-THE LAWS OF WAR

17 Oct 2023 7 mins Download PDF

UN-THE LAWS OF WAR

Why in the News?

Hamas, a Palestine-based terrorist group launched a surprise attack on Israel, killing hundreds of civilians and taking many as hostage which witnessed retaliatory attack from Israel triggering a war.

What are the laws of war?

1. The UN Charter spells out
   1. under what conditions or when can countries use force in their international relations i.e., jus ad bellum
   2. permissible military actions or how a war is to be fought i.e., jus in bello
2. Assuming a country is justified under the UN Charter to use force, it has to satisfy jus in bello obligations.
3. ‘How’ to use force or the law of war is known as International Humanitarian Law (IHL) provides rules that must be followed during an armed conflict. 
4. Geneva Conventions of 1949 and the Additional Protocols of 1977 contains the customary international law i.e., international humanitarian law.
5. The international law aims to:
   1. Regulate the conduct of the parties or groups engaged in an armed conflict.
   2. Protect civilians and reduce the suffering caused by a war. 
6. Irrespective of how just the cause of war is, the warring parties must comply with IHL.

Do the laws of war apply to the ongoing military conflict?

1. the military conflict between Israel and Hamas being an armed conflict shall become obliged to follow the international laws governing war.
2. As per the International Criminal Tribunal, an armed conflict in international law exists when “there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State”.
3. The armed conflicts are categorised into two:
   1. International armed conflict (IAC)- This includes all cases of declared war or any other armed conflict between two or more countries.
   2. Non-international armed conflict (NIAC)- it includes non-governmental forces (Hamas) involved in battle with governmental forces (Israel). 
4. Common Article 3 of the Geneva Convention applies to NIAC and thus, Israel and Hamas are obliged to abide by IHL.
5. IHL prescribes that no person should be punished for actions they didn’t commit.
   1. Israel’s plan to block the supplies of food, electricity, water, and fuel in the Gaza Strip is a clear violation of this provision.
   2. Punishing all Gaza Strip residents for Hamas’s actions is illegal and a war crime
6. Similarly, effective advance warning with adequate time to civilians to evacuate before attacking have to be given.

 The matter of Civilian killings and hostage-taking: 

1. A distinction is always made between combatants and civilians in the IHL:
   1. War parties can only attack combatants and military targets and not civilians and civilian objects.
   2. Indiscriminate attacks failing to distinguish combatants and civilians are forbidden and thus illegal.
   3. Taking this into account, the killing of civilians by Hamas is illegal and provides no just basis citing Israel’s illegal and belligerent occupation of the Palestinian territory since 1967.
2. Any military attack that causes disproportionate harm to civilians, when weighed against the expected military benefit is forbidden.
   1. Israel’s act of dropping 6,000 bombs on Gaza, causing widespread destruction and death is a disproportionate use of force. 
   2. Hamas’s horrific attack on Israel doesn’t provide just ground for Israel to inflict disproportionate harm on the civilian population in Gaza. 
   3. These acts account for grave breaches of the 1949 Geneva Conventions and constitutes as war crimes.
3. Hostage-taking is specifically recognised as a war crime by Article 8 of the Rome Statute (the treaty establishing the International Criminal Court).
4. Article 1 of the International Convention Against the Taking of Hostages recognises hostage-taking as a crime.