International law, the Gaza war, and Palestine's state of exception
Israel's latest assault on Gaza has no legal basis as an occupying power and constitutes a set of war crimes.
Israel also advances novel interpretations of IHL in order to project the legitimacy of dubiously legal or patently unlawful practices in its fight against Palestinian resistance to occupation in all its manifestations. Israel's consistent position over the decades that Palestinian resistance is "terrorism" and that they have no right to fight for freedom extends to the interpretation that Israel's own conduct is not tightly regulated by IHL when engaged in a war against terrorists. However, the Geneva Conventions are considered customary international law, and therefore apply any time and place and on any parties who use armed force to wage war on enemies.
Although Hamas' indiscriminate rocket attacks against civilians violate international law, Israel as a de facto occupying power has special obligations in regards to the Gaza Strip and West Bank [GALLO/GETTY]
The large-scale military assault launched by Israel on Gaza, and the manner in which both Israeli and Palestinian forces are fighting this war, raise numerous red flags regarding large scale violations of human rights and international humanitarian law (IHL). Such violations have long characterised the Israeli-Palestinian conflict; yet despite post-Cold War improvements in the enforceability of international criminal law, in the Israeli-Palestinian context those who perpetrate human rights violations and war crimes seem largely immune to legal accountability.
Certainly, international law offers no panacea for the death and destruction of war; nor does most media coverage of the Israeli-Palestinian conflict devote more than the scantiest attention to the human rights implications of such violence. International law does, however, provide the most important standard against which the conduct of opposing sides can be judged. Such judgments have political currency, if not during the heat of battle then later. As Gaza-based human rights campaigner Raji Sourani described it in the midst of the current violence, human rights is the "skin" to protect civilians from the all-out aggression of those who attack them.
International law impacts the present war in Gaza in two key ways. One pertains to whether the violence deployed by each side complies with or violates IHL, in particular the Geneva Conventions of 1949 and their Additional Protocol I of 1977. The other, more complicated issue pertains to the legal status of Gaza and its relationship to Israel, which profoundly affects what kind of violence Israel can deploy there.
Since the 1967 conquest of Gaza and the West Bank, Israel has asserted that the Geneva Conventions do not apply to these areas or govern Israel's conduct toward Palestinian inhabitants on several grounds, including that Palestinians are not a High Contracting Party (state signatory). However, the International Committee of the Red Cross, the official guardian and authoritative interpreter of IHL, has consistently maintained that the Fourth Geneva Convention, which governs militarily captured territories and their civilian population, is applicable. This view is endorsed by a vast preponderance of international legal opinion, including United Nations resolutions and the opinion of the International Court of Justice.