MANILA, Philippines – The term “rules of war” may be confusing to some who’d ask: why are we allowing wars, anyway, much less have rules for them? The latest Hamas attack on Israel, and Israel’s retaliation in Gaza, is a case study for the rules of war, or what is formally called the International Humanitarian Law (IHL).

The important context here is that central to international law is the universal struggle for self-determination.

It is a right fought for by peoples who were colonized over time. Think of a local example: the armed conflict in Mindanao was fought over the Moro peoples’ assertion of self-determination against Christian colonizers. The Palestinians’ struggle is the same: hundreds of thousands of Palestinians, mostly Arabs, were driven out of their homes as Israel took over to create a Jewish state. Gaza, the strip of land, being attacked is called the world’s largest open-air prison for the continuing blockades. This is why Palestinians and their supporters do not call it a war, but an Israeli occupation.

Why rules of war apply

Struggles for self-determination tend to develop into an armed conflict, which is why the rules of war, or the IHL, applies to such situations.

The law applies only to some classifications depending on facts, one of which is if it’s an international armed conflict where peoples are fighting colonial dominations, occupation, or for self-determination. “International humanitarian law recognizes the Israeli occupation of the West Bank and Gaza as an ongoing armed conflict,” says the Human Rights Watch (HRW).

The most common rules of war under the Geneva Convention, the heart of the IHL, is that civilians cannot be targeted. You may notice that most coverage of war by journalists focuses on answering this question: were the targets of a military attack a combat zone, or were the inhabitants mostly civilians?

The rules of war also prohibit an attack where damage against a civilian population would be so severe and disproportionate to the military gain of the attacker.

They forbid taking a civilian hostage, or a combatant who has surrendered. The rules also prohibit torture, mutilation, medical experiment, and other forms of brutality.

Incendiary weapon

HRW alleged on Thursday, October 12, that Israel used  white phosphorus in military operations in Gaza and Lebanon. But the Israel military told Reuters it was “currently not aware of the use of weapons containing white phosphorus in Gaza.” 

Using incendiary weapon is prohibited by the Geneva Convention, which defines it as any weapon or munition that could set fire or burn subjects and objects through flame or heat. White phosphorus though can be regulated in wartime if it’s just to be used to mark targets or to spread smoke. However, Israel is not a party to the protocol that bans incendiary weapons.

International law’s main flaw is that it operates on consent: a state must ratify it and accede to it to be bound by it.

But there is a legal principle called customary international law or jus cogens, where the law has taken on a universal character that practically binds anyone or everyone whether they like it or not.

Article 51 of the United Nations (UN) Charter also allows self-defense “if an armed attack occurs.” Israel can claim it is attacking Gaza out of self-defense.

Two courts

The question of whether some provisions are customary international law that bind all states, even without their ratification, can sometimes be in dispute.

Who decides? International courts mostly, two of them in The Hague. Both are currently handling cases against Israel’s occupation of Palestine.

There’s the UN court or the International Court of Justice (ICJ), where states take on each other. It also has another, softer function: provide advisory opinions on questions of international law.

Last year, the UN General Assembly voted 87-26 to seek the ICJ’s advisory opinion on Israel’s occupation of Palestine. What will happen should the ICJ declare that Israel’s occupation of Palestine is illegal? Hard to say, because the opinion will be non-binding. In February 2019, ICJ, in an advisory opinion, ruled that Britain must leave the Chagos Archipelago “as rapidly as possible” – yet the United Kingdom has not done so.

The other court in The Hague is the International Criminal Court (ICC) where individuals can be held accountable, usually heads of states or top officials. The ICC Prosecutor has opened investigation into Palestine in 2021, covering allegations by the state of Palestine that Israel committed war crimes there since June 2014. The start date is June 2014 because that’s when Palestine referred the situation, which is one way to bring an issue to the court. Palestine became a member of ICC the following year, in 2015.

Because of a dispute in self-determination, former ICC prosecutor Fatou Bensouda did not go directly into opening an investigation without asking the pre-trial chamber first if it had jurisdiction. The chamber ruled that it had jurisdiction, but made it clear that it was not ruling on Palestine’s statehood – nor were they competent to do so.

Journalist’s killing

News network Al Jazeera also brought to the ICC the killing of its journalist, Palestinian American Shireen Abu Akleh, who, according to a Washington Post investigation, was likely killed by a bullet fired by an Israeli soldier.

The ICC has acknowledged receipt but has not confirmed if the killing has become part of the Palestine investigation. There have been calls for new prosecutor Karim Khan to take a more proactive action on Palestine given the recent developments, with some drawing comparisons to how fast he’s been acting on Ukraine.

Once again, international law, international courts, and their very essence, will be tested on how far they can go to accomplish what they are supposed to do, which is to bring order in a world of chaos.

Or will all these institutions and mechanisms be held hostage by politics and the interests of the more powerful states? – Rappler.com