20 Nov What Does International Law Have to Say About the Conditions of Life in Gaza Today?
[Mona Rishmawi is an international human rights lawyer and a former UN official with a focus on the rule of law and equality. She worked in Syria, Sri Lanka, Iraq and the Occupied Palestinian Territory, was the Executive Director of the UN International Commission of Inquiry on Darfur, and the UN Independent Expert on Human Rights in Somalia.]
On 15 November 2023, the UN Security Council adopted resolution 2712 demanding “that all parties comply with their obligations under international law, including international humanitarian law, notably with regard to the protection of civilians, especially children”. It also calls for “urgent and extended humanitarian pauses and corridors” in Gaza for “a sufficient number of days” to allow full, rapid, safe and unhindered access for UN agencies and partners. The resolution inter alia also calls on all parties to refrain from depriving the civilian population in Gaza of basic services and aid indispensable to their survival, consistent with international humanitarian law. Twelve members voted in favour. No member voted against the resolution but Russia, United Kingdom, United States abstained for different reasons.
Resolution 2712 is certainly a step in the right direction, as it appears to aim at alleviating some of the harshest conditions of life for civilians in Gaza through measures that would facilitate the provision of humanitarian assistance. What is in resolution 2712, however, is far from sufficient, as it provides a temporary solution stopping short of demanding a ceasefire. Beyond demanding compliance with international law, its “calls” leave key matters in the hands of the parties rather than making firm demands that could be enforced by the Council if the parties do not abide by its requests.
The conditions of life in Gaza have been on our screens for us all to see. They raise matters of interest for international law, particularly human rights law, international humanitarian law and international criminal law. In its consideration of the right not to be arbitrarily deprived of one’s life, the UN Human Rights Committee told us that this right encompasses not only our right to survive and exist but also the right to enjoy life with dignity (para3). The survival dimension of the right concerns the entitlement of individuals to be free from acts and omissions that are intended, or may be expected to cause, their unnatural or premature death. The dignity dimension concerns the obligation to “take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity.” It is now fully settled by both the International Court of Justice and the Committee (para 64) that the right not to be arbitrarily deprived of one’s life continues to apply in situations of armed conflict including to the conduct of hostilities.
Creating conditions that cause unnatural or premature death may also violate international humanitarian law and may give rise to individual criminal responsibility. Take for instance the war crime of using starvation of civilians as a method of warfare in international armed conflict by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies. There is the also the crime of intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not military objectives that is applicable in both international and non-international armed conflict. Crimes such as apartheid and extermination as crimes against humanity, and genocide also relate to the conditions of life.
The above framing is highly relevant to the situation in Gaza where conditions of life have become dire and humanitarian assistance allowed to enter Gaza is woefully insufficient. Speaking from Gaza, Sebastian Rhodes Stampa, a UN humanitarian official, warned on 13 November 2023: “The number of trucks is simply not enough. We cannot operate without fuel. Municipal waste management systems are breaking down. Conditions are rife for waterborne disease. We would go from an already desperate situation into an absolute catastrophe. The scene is being set for apocalyptic impact on the population of Gaza. And if we do not act now, we will be too late. It is a matter of days not weeks. Everything is shutting down. The time to act is now. We do not have a minute to spare.”
The above description evokes the survival and dignity paradigms of the right to life in their individual and group dimensions. To protect the right to life with dignity, the UN Human Rights Committee indicates that there is a need for measures “to ensure access without delay by individuals to essential goods and services such as food, water, shelter, health care, electricity and sanitation, and other measures designed to promote and facilitate adequate general conditions, such as the bolstering of effective emergency health services, emergency response operations (including firefighters, ambulance services and police forces) …” (para 26) The list echoes what are known as the minimum core obligations elaborated by the Committee on Economic, Social and Cultural Rights.
The cumulative denial of the goods and services essential for survival with dignity to the people of Gaza is by now well-known. Some will argue that there are legitimate justifications for these policies including that attacks have been directed at combatants and military objectives while considering the imperatives of protecting the civilian population. They would cite the 7 October 2023 surprise attack by Hamas carrying out acts prohibited by international humanitarian law and the associated international criminal law including murder, hostage-taking and possible outrages against personal dignity, resulting in the reported killing of at least 1200 and injuring 5431 Israelis and some foreign nationals, and the taking of 239 persons as hostage.
With regard to Palestinian casualties as a result of the Israeli military response, the latest UN update was provided on 10 November at 14:00. In Gaza alone, at least 11,078 Palestinians were reported killed and 27,490 more reported injured, 41,000 housing units destroyed and 1.6 million displaced. In addition, according to the Israeli human rights group, B’Tselem, by the end of June 2023, the Israel Prison Service (IPS) was holding 4,499 Palestinians in detention or in prison on what it defined as “security” grounds, including 183 from the Gaza Strip. These figures include 1117 individuals held under administrative detention without any charge or trial. At that time, the IPS was also holding 850 Palestinians, 3 of them from the Gaza Strip, for being in Israel illegally. Hundreds more have been detained in the both the West Bank and Gaza since 7 October.
The legality of the Israeli response to the 7 October attack, particularly its proportionality, will undoubtedly be much debated by lawyers and politicians. Grappling with this issue will also be those conducting an independent and impartial investigations such as the UN Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, the Prosecutor of the International Criminal Court (ICC) who has visited Rafah and is already investigating the situation, UN human rights mechanisms, particularly the UN Special Rapporteur on the situation in Palestine, as well as professional human rights groups.
The two questions before International Court of Justice as a result of the 30 December 2022 General Assembly’s request for an advisory opinion are also highly relevant. This request will provide the Court with an opportunity to address the context in which the events of 7 October and their aftermath have taken place. By 19 February 2024, the date when the ICJ’s public hearings are set to open, some the investigations into the devastation in Gaza and beyond may have been concluded. National courts may also have the chance to have their say with at least two cases already filed in the United States and the Netherlands.
Legal action may result in some individuals being held accountable through prosecution not only by the ICC, but also domestically through use of universal and other forms of extraterritorial jurisdiction. There is also the possibility of individualized sanctions. Legal initiatives may also lead to some restraints on action by some states for instance regarding supplying arms, or even reparations being ordered, in terms of restitution, compensation, rehabilitation and satisfaction. But all this will take time.
What is essential now is to stop the fighting and prevent possible additional international crimes from being committed. Here, the wise words of the UN Human Rights Committee are also instructive. As it told us, all States have a responsibility as members of the international community to protect lives and to oppose widespread or systematic attacks on the right to life, including acts of genocide, crimes against humanity and war crimes. Also, “States parties that fail to take all reasonable measures to settle their international disputes by peaceful means might fall short of complying with their positive obligation to ensure the right to life.”
A ceasefire now will go a long way to protecting life and dignity and in preventing further crimes. Members of the UN Security Council must act more decisively.