Law for ONE but not for ALL

Israel & the Fourth Geneva Convention

1/  What is often presented as an absolute legal rule is usually hedged with conditions that make it far less certain and absolute.  Military requirements of a party to a conflict or occupation are offset by the humanitarian requirements of an opposing party, and vice versa.  As a result, ‘balancing’ these quite different rights by any exact calculation is inherently impossible.  This hedging leaves a great deal of leeway for legitimate and illegitimate controversy.  

2/  This tension between different rights for different purposes is explicitly acknowledged by the ICRC ‘Commentary’ on Protocol 2 to the Fourth Geneva Convention.  This states that it is the result of a compromise between humanitarian requirements and those of state security (para 4436, 1987).  For this reason, a rights trade-off rarely permits an unlimited or absolute right – as can be seen throughout the Fourth Geneva Convention and its additional Protocols.

Civilians & war: Distinction and Proportionality

3/   The major aim of the Convention and its additional Protocols is to protect civilians and minimize civilian casualties in military conflicts and occupations.  For this purpose, the principle of distinction is a core concept.  This says that only enemy soldiers may be targeted and not civilians.  Unfortunately, while appearing clear, the practicalities of exercising this distinction may not always be easy or even possible.  

4/   For example, when fighting an enemy that deliberately, routinely, and illegally makes itself indistinguishable from its own civilians and uses them as human shields, the principle of distinction is not always available. The legal question this introduces is that if civilians are exposed in this way and killed as a result, does this effectively make war against such an enemy illegal?  

5/   Many would answer ‘yes’ to this question.  It would be as if the laws of war declared that no civilian deaths at all were permitted.   But there is no such law.   Nor would any state formally agree to such a law as it would deny a legal way to implement the right of self-defense by making it a war-crime.  

6/   Yet this is a common accusation against Israel.  If adhered to by the ‘international community’, the inevitable result would be the opposite of its supposed intention.  This is because in order to take advantage of this type of legal ruling more wars would be fought where distinction was made impossible.  As no state will relinquish its right to self-defense, more civilian casualties would be the result, not fewer.

7/   Therefore, as a method to ‘balance’ or modify the rights of civilians and the military rights of states, a further principle is employed: that of proportionality.  This requires that force may not be used when civilian casualties could be expected to be excessive compared to the attainment of a legitimate military objective  (Article 51/5b Protocol 1 to Fourth Geneva Convention).   

8/   It is generally impossible to measure with exactitude either the degree of force needed to pursue a legitimate military target or the amount of civilian casualties that will result.  Nor is there a legal ruling or agreement on determining what is an ‘excessive’ number of civilian casualties.

9/  Thus, this ‘principle’ is inherently imprecise.  Further, it has the built-in modification that judgment of whether excessive force has been used is based on the knowledge available at the time of the military operation, as indicated by the use of the word expected, and not in hindsight when the result is known. 

10/  In sum, although targeting civilians is forbidden, there is no absolute prohibition against civilian casualties in war.  This is the trade-off compromise between humanitarian requirements and those of state security.  Therefore, Protocol 1 to the Convention lists a series of precautions to be taken by combatants to minimize civilian casualties (Art 57, para 2ii).  

When is property destruction legal? 

11/  With particular relevance to the war against Hamas in the Gaza Strip, the destruction of property can be controversial and said to be illegal.  Yet once again this is not an absolute requirement. 

12/  In fact, according to Article 53 of the Convention, the destruction of a wide range of private, state and institutional properties is indeed prohibited – except where such destruction is rendered absolutely necessary by military operations.

Hospitals in war: conditional protection

13/  For the purposes of protecting civilians, structures such as schools and hospitals are legally protected from attack.  But again this is not an unlimited or unconditional protection.  For example, Article 19 of the Convention specifically states that the protection enjoyed by hospitals shall cease if they are used to commit, outside their humanitarian duties, acts harmful to the enemy.

14/  Article 28 makes this far more general by stating that the presence of protected persons may not be used to render certain points or areas immune from military operations.  

Can civilians be interned?

15/  In addition to forbidding deliberate attacks on civilians in war and occupation, the Fourth Geneva Convention and the additional Protocols endeavor to protect civilians in other ways.  As a result, civilians have the right not to be abused or penalized for offences which they did not commit.  

16/  But states retain their right to self-defense and security.  As before, balancing the rights of both parties is an inexact and uneasy mix.  States may have very good reason to arrest and detain ‘protected persons’ (civilians) in cases of armed conflict.  Israel is no exception.  However, this is widely condemned by opponents as unjustified and illegal. 

17/  Whether internment is justified may be a matter of opinion and circumstance, but its legality is not.  Articles 42 and 78 of the Convention clearly state that if necessary for imperative reasons of security the Occupying Power may take safety measures against ‘protected persons’ and subject them to assigned residence or internment.   

Must Israel supply enemy civilians?

18/  During the current war with Hamas in the Gaza Strip, a common claim is that Israel is legally obliged to supply food, water, fuel, medicine and other vital materials.  But this is not what the Fourth Geneva Convention says.  

19/  Article 23 states that in military conflicts and occupations each High Contracting Party (HCP) to the Convention shall allow (not supply):

1. free passage of medicines and objects for religious worship,
2. essential foodstuffs, clothing and tonics intended for children under 15 and expectant mothers.

20/  The latter obligation is stated to be only applicable to civilians of another HCP.  Israel is an HCP but Hamas is not.  However, Article 3 of the Convention briefly mentioned that humanitarian provisions of the Convention towards persons taking no active part in the hostilities not only applied to conflicts between HCP states but also to conflicts in the territory of an HCP.

21/  In 1977, this aim was clarified and developed by Protocol 2  which specified that conflicts between an HCP and dissident armed forces or other organized armed groups were also bound by the Convention (Article 1, para 1, Protocol 2).  The intended aim was to broaden the scope of humanitarian rights and obligations in all armed conflicts.  

22/  This would seem to make the above humanitarian obligations applicable to Gaza.  However, once again these legal obligations are not unconditional.  Clearly stated in Article 23, they are conditional on the party permitting the supply of the items being satisfied that there are no serious grounds for believing that: 

• consignments may be diverted from their destination,
• consignments would confer a definite advantage to the military efforts or economy of the enemy.

Does Israel have self-defense rights?

23/  A particularly disturbing example of an attempt to distort rights comes from the principal judicial organ of the UN: the International Court of Justice.  In 2004, its Advisory Opinion specifically denied that Israel had any right to self-defense under Article 51 of the UN Charter against attacks from what the Court viewed as occupied Palestinian territory (para 139).  

24/  Leaving aside the issue of whether Israel occupies Palestinian Territory (see Questioning the Occupation), it is scarcely believable that with the resources at its disposal, the Court failed to note that Article 64 of the Fourth Geneva Convention explicitly grants the right of an Occupying Power to maintain orderly government, to ensure the security of the Occupying Power and of the members and property of the occupying forces or administration?  

Is the UN upholding its Charter?

25/  Article 1 of the UN Charter clearly states its first purpose:

To maintain international peace and security, and to that end to take effective collective measures for the prevention and removal of threats to peace (added emphasis).

26/  Instead of this, for decades the UN has done nothing about the threats to peace from those who aim to eradicate Israel.  This may be called the 3-Noes of the UN:

1. No solidarity with Israel threatened with destruction by the PA, Hamas, Hezbollah, Iran, and others.
2. No criticism or condemnation of this illegal aim or of those who openly and explicitly assert it.
3. No UN demand or pressure on these states and organizations to immediately abandon their illegal aim. 

Is the UN twisting its own rules? 

27/  Further, the UN (and EU, ICJ, ICC and others), take a narrow and harsh interpretation of legal guidelines when it comes to Israel.  By contrast, they take a gentle and accommodating view in relation to Palestinian intentions and actions. 

28/  For example, a recent General Assembly resolution (ES-10/23 of May 2023), declared that: 

… the state of Palestine is fully qualified for membership of the United Nations in accordance with Article 4 of the Charter of the United Nations and should therefore be admitted to the United Nations.

29/  Leaving aside that Palestine is not a state, Article 4 of the UN Charter actually says:

 Membership of the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter.

30/  As can be seen from its manifesto, the Palestinian National Charter, the PA daily Al-Hayat Al Jadida, and a host of other sources, the PA lives, breathes and dreams for the destruction of Israel.  It cannot by any stretch of the imagination be described as ‘peace-loving’ (see  The Palestinian Intention to Destroy Israel).

What should Israel do now?

31/ The composition of the UN has become so democratically degraded by non-democratic regimes that for many of these states, and those they influence, the termination of Jewish self-determination is a desirable outcome and not a moral or legal problem.  As a result, the UN offers no criticism, no opposition and no demands that those states and entities immediately end their eliminationist aims.

32/  In sum, the UN is a threat to Israel.  This will be demonstrated yet again in early June with the UN Conference to force a Palestinian state onto Israel.  Following the Conference, it’s not hard to envisage that pressure on Israel will continue to mount.