gaza hospital bombing

Written by Ibrahim Tariq 9:44 pm Articles, Current Affairs, International Relations, Published Content

Gaza Hospital Bombing: A Positivist Legal Analysis of Israel’s Breach of International Law

The attack on the Al-Ahli Arab Hospital in Gaza on 17th October is the gravest violation of international law by Israel in recent history. Ibrahim Tariq takes a positivist legal perspective rather than a moral or natural law one to assess whether Israel’s actions constitute a violation of international law.
why submit to us?
About the Author(s)
+ posts

Mr Ibrahim Tariq is a final-year student of law, with a Bachelor of Science in Foreign Service (BSFS) degree in International Politics from Georgetown University in Qatar. Has written for various publications including Express Tribune and The News, and undertaken research-related roles at institutions including LUMS and Gallup Pakistan.

Physical conflicts among nations have been a reality ever since human civilization emerged. Taking lessons from the bitter realities of the Armenian genocide, the Holocaust, and Hiroshima and Nagasaki, nations came together to devise a framework of rules, norms, and standards – or simply, the “rules of the game” to avoid similar massacring of innocent human souls.

Although not binding per se, the gross violations of international law serve as stark reminders of how the League of Nations failed in its promise to prevent another catastrophic global conflict. Over the years, the state of Israel has faced consistent criticism for its perceived disregard of these international rules, particularly in its engagements with Hamas.

The recent bombing of the Al-Ahli Arab Hospital in Gaza stands out as not only Israel’s most egregious violation of international law but also as one of the most significant breaches by any UN member state since World War II. Many have decried such actions as immoral and unjustifiable.

Also Read:  Blue-Collar Employability: Building a Strong Foundation with Technical and Vocational Education

The decentralized and non-binding nature of international law necessitates an examination of whether the state in question has willingly subscribed to the rules in the first place. The International Court of Justice (ICJ) serves as the principal legal organ of the United Nations, and all member states are parties to the ICJ Statute, which identifies three sources of international law: international conventions, international customs, and general principles of law.

For the purposes of this discussion, we will focus on international conventions, as they provide a more clearly defined legal framework compared to the other two sources. First, let us consider whether Israel’s bombing of the hospital in Gaza violates the international conventions it has signed. The answer is a resounding yes. Despite avoiding signing most of the Geneva Convention protocols, Israel is a signatory to Geneva Conventions 1 to 4, and its recent action represents a clear breach of these conventions.

Israel has notably abstained from signing Protocol II, which pertains to the protection of victims in non-international armed conflicts. However, it may be noted that the reason for not signing the protocol was morally weak, as it used Oman’s declaration while signing the protocol (that its accession would not amount to recognition or establishment of any relations with Israel with respect to the application of the protocols) as a justification to not sign, as Israel declared, “In so far as the substance of the matter is concerned, the Government of Israel will adopt towards the Sultanate of Oman an attitude of complete reciprocity”.

As such, in the strict rational legal sense, it may seem, however, that it does absolve Israel from the duty to not engage in collective punishment, to provide limited protection to victims including collective punishment (Article 4), general protection of medical duties (Article 10), medical units and transports (Article 11), protection of civilian population (Article 13), and protection of objects indispensable to the survival of the civilian population (Article 14), among others.

Also Read:  [Video] American Decline Affects its War with China

Similarly, Israel has carefully refrained from signing Protocol 1 which deals extensively with the protection of the wounded and sick (Article 10) and medical units (Article 12), among others. Here again, Israel cited the Syrian Arab Republic’s declaration upon accession as a rationale for not signing the protocol. However, setting aside the supplementary protocols, it is essential to note that Israel is a signatory to all four Geneva Conventions.

Although interpretations vary regarding their applicability in the Israel-Palestine conflict, Section III of the Fourth Geneva Convention explicitly deals with occupied territory, which is relevant to the situation in Gaza. Although Hamas maintains significant control over administration, scholars as well as the UN agree that it indeed is occupied territory, given that Israel maintains control over its borders, airspace, and sea access. In this regard, as an occupying power, Article 53 of the Fourth Geneva Convention suggests that “any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or co-operative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.”

In hindsight, Israel has sought to take the view that the destruction was necessary by military operations since Hamas was operating from hospitals and using civilians as human shields. However, if we are to rely on a positivist legal approach to justify this action, the conventions outline the procedures to be followed, including providing a reasonable time frame for civilian evacuation, rather than arbitrary use of force.

Also Read:  Pro-Israel Media Coverage of the Israel-Palestine Conflict

Similarly, various articles of all the four conventions readily deal with the rights of the sick and prohibit the destruction of any healthcare facilities, such as Article 19 of the First Geneva Convention states that fixed medical facilities must not be attacked and respected by both parties to the conflict, and Article 18 of the Fourth Geneva Convention which states that civilian hospitals and other medical facilities must be protected whether permanent or temporary.

Collectively, it may be argued that even if one did not have to use a natural law perspective to know whether or not Israel’s actions are justifiable, even if the morality part of it is taken away, a positivist legal approach also makes us reach the same conclusion that these were legally unjustifiable and a clear-cut breach of the conventions which Israel itself is a signatory to.

It is unfortunate, however, that these conventions hold no value legally similar to domestic systems, as these are non-binding by virtue of it and various factors come into play when states are to be held responsible for their grave breaches. Given the unwavering support from the United States, a P5 member, it is unlikely that Israel will face immediate sanctions or punishment, similar to the case of Iran. Nevertheless, widespread discourse and activism addressing Israel’s actions may increase international pressure and lead to appropriate sanctions or penalties for a state that has, for decades, treated Palestinians as non-humans.

If you want to submit your articles, research papers, and book reviews, please check the Submissions page.

The views and opinions expressed in this article/paper are the author’s own and do not necessarily reflect the editorial position of Paradigm Shift.

(Visited 475 times, 1 visits today)
Click to access the login or register cheese