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The War Profiteers - War Crimes,
Kidnappings & Torture |
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March 24th,
2009 - Israeli War Crimes Allegations: What the Law Says |
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Israeli War Crimes
Allegations: What the Law Says Rules on who can be targeted and how in warfare derive from customary
law and international treaties and regulations By Afua Hirsch The Guardian March 24, 2009 The use of drones, targeting
of medical staff and facilities and use of human shields raise numerous
issues of international humanitarian law, the body of law concerned with the
treatment of individuals during international armed conflict. Some of these are
allegations of war crimes - defined as grave breaches of international
humanitarian law, including wilful killing, wanton destruction of property
and attacking civilians. Some of these rules derive from customary law -
generally recognised practices binding on all states. Others are contained in
international treaties including the fourth Geneva convention of 1949, the
first additional protocol to the Geneva convention of 1977, and the Hague
regulations of 1907 that regulate means and methods of warfare. Although Israel is only
party to the fourth Geneva convention, and Palestine has not been party to
any international agreements due to its lack of recognised sovereignty, many
of these principles have also become recognised as general principles of
customary law, extending to all international armed conflicts. Drones Lawyers say that the use of
drones in the Gaza Strip caused widespread destruction in violation of the
principles of necessity, distinction and proportionality. "Necessity"
requires a state fighting an armed conflict to use only the degree and kind
of force required to achieve the legitimate purpose of the conflict. This is
presumed to be the submission of the enemy at the earliest possible moment,
with minimum expenditure of life and resources. Causing death and the
destruction of property is only lawful where it complies with necessity and
where there is a reasonable connection between the actions and the military
objectives pursued. This principle is often closely linked with proportionality
- the requirement that "the losses resulting from a military action
should not be excessive in relation to the expected military advantage".
Under the principle of proportionality, when conducting hostilities in an
urban area, the combatants have an increased duty of diligence to spare
civilians from the effects of hostilities. Civilians and civilian buildings and infrastructure In addition, Israel is
accused of failing to distinguish between civilians and combatants, and also
between civilian buildings and infrastructure, and legitimate military
targets. A civilian is defined under
international humanitarian law as somebody who is not a combatant. The
practical application of this term is a major issue of contention between
Israel and Gaza. The Israeli Defence Forces are accused of applying a
"membership of Hamas" approach to defining combatants, whereas
lawyers say members of Hamas are not legitimate military targets unless they
are directly involved in hostilities at the time. Hamas is also accused of
violating the principle of "distinction" in its use of rockets
fired into Israel. However, one of the further claims against Israel is that
any response to Hamas under the right of self-defence in the UN charter - a
separate source of international law - has not been proportionate. Medics and hospitals Medics and medical workers
are not legitimate targets under international humanitarian law, and any
wilful killing of such people who are clearly identified is capable of
amounting to a war crime. Similarly, civilian property
and infrastructure, defined by international humanitarian law as those which
are not military targets, cannot be intentionally destroyed. Israel is
accused of regarding the general governmental infrastructure as a legitimate
military target, as well as targeting medical facilities and hospitals, in
contravention of this rule. Wherever any attacks may
affect the civilian population there are obligations under international
humanitarian law to provide "effective advance warning" and to take
steps to minimise incidental loss of civilian life, injury to civilians and
damage to civilian objects. Human shields The use of involuntary human
shields has already been declared unlawful by Israel's supreme court, which
said the practice was a violation of international humanitarian law. There
are specific rules against hostage-taking in international conflicts. The practice of
hostage-taking - usually defined as detaining someone illegally and putting
pressure on a third party as a condition of not harming the detainee - is
specifically prohibited by the Geneva conventions. White phosphorus The use of white phosphorus
is governed by protocol III of the convention on conventional weapons, which
Israel has not signed but which is regarded as binding under customary
international law. Israel is accused of using white phosphorus outside its
lawful limits - as an obscurant or smokescreen in open areas where combatants
are caught under fire in the open. Using white phosphorus in densely
populated areas where these conditions are not met is a violation of
international law. External link: http://www.guardian.co.uk/world/2009/mar/24/israel-war-crime-allegations-law |