Soaring Gaza civilian toll casts doubt on Israeli claims of compliance with law of war

LONDON: In August 1949, just 15 months after its founding, the State of Israel signed UN Treaty No. 973.

On the same day, UN member states ratified three more conventions to update and strengthen international agreements aimed at protecting sick, wounded and captured combatants in times of war.

But it was the still vivid memory of the many horrors that millions of civilians had to endure during the long Second World War. More than 60 percent of all deaths were civilians. What made the need for the new convention crucial, however, was the fact that this convention was signed by the USA, China and the USA itself.

Never before in the history of modern war had so many civilians fallen victim to such barbarism, not even during the German Nazi occupation of large parts of Europe between 1939 and 1945.

In 1949, there was hardly a state better placed to support the adoption of the so-called Fourth Geneva Convention than Israel. Since the war, the country had become home to tens of thousands of European Jews who had survived the Holocaust, but who would forever carry with them the memory of the six million members of their community who could not escape the Nazis’ “Final Solution.”

No wonder, then, that Dr. Menahem Kahany, Israel’s delegate in Geneva, readily signed Treaty No. 973, the “Geneva Convention relative to the Protection of Civilian Persons in Time of War,” on August 12, 1949.

The Convention is extremely comprehensive; its 159 articles describe and prohibit almost every conceivable act of humanitarian violence that an armed force could commit against defenceless civilians.

To avoid any doubt about the humanitarian responsibility of the armies in occupied territories, an amendment was later added. This was “Protocol 1”, which explicitly prohibited “indiscriminate attacks”. It defined attacks as “incidental loss of civilian life, injury to civilians, damage to civilian objects, or any combination thereof, which is disproportionate to the concrete and direct military advantage expected.”

Fast forward 75 years to 2024. Even the United States, Israel’s most loyal supporter, considers the level of destruction and loss of civilian life in the Gaza Strip by the Israeli army to be unacceptable.

Since the start of Israel’s retaliatory ground offensive in the Gaza Strip on October 27, there have been numerous incidents in which Israel’s brutal warmongering has claimed civilian casualties.

One of the most publicized incidents was the attack on a World Central Kitchen aid convoy on April 1 – perhaps ironic, considering that six of the seven victims were Westerners and only 25-year-old Saifeddin Abutaha was Palestinian.

Aware that the eyes of the world were on them, the Israeli army conducted a hasty internal investigation. Its report concluded that the drone team responsible had mistaken a bag for a weapon. However, it also managed to blame the victims by claiming that the large markings on the roofs of the vehicles were not visible at night.

The army admitted that the attack was a “serious accident” and dismissed a colonel and a major whom it blamed for the attack.

Barely a month later, on May 27, a week after the UN International Court of Justice ordered Israel to halt its offensive in Rafah, an airstrike on a refugee camp in the city set tents on fire, killing at least 45 people, including women and children, and injuring dozens more.

In the face of worldwide outrage, Israeli Prime Minister Benjamin Netanyahu described the airstrike as a “tragic accident.”

But as shocking as such individual incidents are, it is the sheer scale of death and destruction in Gaza and among the civilian population that would tip the scales in favor of justice should the International Criminal Court get its way and Israel’s leadership end up in the dock in The Hague.

According to the latest figures from the Palestinian Health Ministry on Sunday, June 2, more than 36,000 Palestinians have been killed in Gaza since October 7, including over 15,000 children. More than 10,000 people are missing and presumed buried under rubble. More than 80,000 have been injured.

Even if the war were to end tomorrow, Gaza is largely in ruins due to Israel’s systematic campaign of destruction. More than half of the houses, over 200 mosques and most schools and hospitals have been damaged or destroyed.

On May 20, Karim Khan, the prosecutor of the International Criminal Court, issued arrest warrants for five people on war crimes charges. The first three were Yahya Sinwar, the head of Hamas in the Gaza Strip, Mohammed Diab Ibrahim Al-Masri (also known as Deif), the commander-in-chief of Hamas’ military wing, and Ismail Haniyeh, the head of Hamas’ political bureau.

But in a move that outraged the Israeli government but surprised few even among the country’s friends, Khan accused Netanyahu and his Defense Minister Yoav Gallant of “war crimes and crimes against humanity committed in the territory of the State of Palestine (in the Gaza Strip) since at least October 8, 2023.”

The charges were brought under several articles of the Rome Statute of the International Criminal Court, which Israel signed in 2000 but later declared that it would not ratify.

This section contains relevant reference points, placed in the (opinion field)

Announcing the arrest warrants and revealing the vast amount of evidence the court’s investigators had gathered, Khan said Israel’s crimes against humanity were committed “as part of a large-scale and systematic attack on the Palestinian civilian population as part of state policy.”

Israel has “deliberately and systematically deprived the civilian population in all parts of Gaza of items essential to human survival.”

Like all states, he added, Israel has the right to take measures to protect its population. But this right “does not release Israel or other states from their obligation to comply with international humanitarian law.”

“Regardless of its military objectives, the means Israel chooses to achieve them in Gaza – namely, intentionally causing death, starvation, great suffering and serious physical and health harm to the civilian population – are criminal.”

The Israeli government strongly rejects any comparison between its actions and those of Hamas.

Of course, according to the ICC, Hamas leaders are also guilty of war crimes. The rapes, murders and kidnappings during the attack on Israel on October 7 shocked reasonable people around the world, including in the Middle East.

But Israel is not a militant group. It is a state, a member of the UN and, according to its founding president, David Ben-Gurion, committed to the historic moral mission of being “a light to the nations.”

Therefore, critics say, we must adhere to higher moral standards – including ourselves.

“Yes, Hamas’s behavior is a threat, but that does not give us the right to do what Israel is doing in Gaza,” says Yossi Mekelberg, professor of international relations and associate fellow of the Middle East and North Africa program at London’s Chatham House political institute.

INPAY

• According to the local health ministry, more than 36,470 Palestinians have been killed in Gaza since the Israeli attack.

• 120 hostages taken by Hamas and its allies whose whereabouts are still unknown.

• 1,200 people were killed in Hamas-led attacks on southern Israel on October 7.

“I don’t think that’s morally right and that it’s counterproductive to Israel’s survival and well-being in the long run.”

The “horrific atrocities that have taken place,” he added, are a violation of the written – and unwritten – rules of civilized behavior.

“Israel benefits from being a so-called liberal democracy, with all the support, trade deals, military support, etc. that comes with it,” he said.

“It’s like being part of an exclusive club – you have to follow certain rules of conduct.

“But Israel, especially after Netanyahu, wants the best of both worlds, and it will take years to restore Israel’s reputation.”

Many Israelis and their supporters are torn about the ICC’s allegations.

“I think the decision is unjustified,” said U.S.-based Shaiel Ben-Ephraim, host of the podcasts “Israel Explained” and “History of the Land of Israel.”

“The ICC is designed to deal with the most blatant violations of international law, such as targeted attacks on civilians as a political measure. Meanwhile, Israel is waging a war whose objectives are military in nature.

“Don’t get me wrong,” added Ben-Ephraim, who describes himself as a “liberal Zionist.”

“The Israel Defense Forces (IDF) have not always complied with international humanitarian law. Terrible mistakes have been made. In particular, soldiers have not always been disciplined and civilians have been killed when this could have been prevented.”

“But I am convinced that Israeli policy as a whole remains geared towards avoiding disproportionate harm to the civilian population, and many of us believe that the ICC is unfairly singling out Israel.”

However, he added: “Israel could have avoided this if it had been more cautious. Netanyahu has always preferred to put his domestic interests above his international ones. Especially since his government was overthrown by the right in 1999, this is a mistake he never wants to repeat.

“But he neglected foreign interests far too much in this war and is now paying the price. In fact, he is said to be completely obsessed with these arrest warrants and wishes he had done more to prevent them.”

Daniel Seidemann, an Israeli lawyer and peace negotiator whose nongovernmental organization Terrestrial Jerusalem works to expose illegal Jewish settlement activity in East Jerusalem, believes Israel is “fully within its rights to respond militarily to October 7, and there can be no military action without inevitable civilian casualties.”

But “Israeli actions in Gaza have often gone far beyond any reasonable interpretation of an appropriate response. The prime minister and the defense minister, who were repeatedly warned, should be held accountable under international law.”

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