License to Kill: Third States Disregard their International Responsibility to Act to Prevent Israel’s Violation of Jus Cogens Norms
License to
Kill: Third States Disregard their International Responsibility to Act to
Prevent Israel’s Violation of Jus Cogens Norms
Date:
12 October 2023
Over
the past 6 days, the Israeli Occupation Forces (“IOF”) have employed indiscriminate, excessive and
disproportionate force in densely populated residential areas in the Gaza
Strip, resulting in at least 1200 Palestinians killed and 5000 injured, as of
10:00 p.m., on 11 October 2023. Israel, the Occupying Power is continuing
illegal occupation and aggression on the occupied Palestinian territory (OPT),
imposing a settler colonial apartheid regime to both subjugate and force the
transfer of the Palestinian population, having annexed Jerusalem and large
swathes of the West Bank comprising ‘Area C’. In Gaza, Israel’s suffocating
16-year siege and closure of the territory, crippling the economy and
infrastructure of the Gaza Strip has been condemned as collective punishment.
Notwithstanding, on 9 October 2023, Yoav Gallant, Israel’s Minister of Defense,
declaring total warfare stated: “We are imposing a
complete siege on [Gaza]. No electricity, no food, no water, no fuel –
everything is closed. We are fighting human animals, and we act accordingly”.
This
decades long international armed conflict to colonise Palestine is clearly
asymmetrical in that Israel’s military capabilities far exceed those of Hamas
and other armed groups operating in the Gaza Strip. In particular, Israel is
protected against Hamas’ rockets by the Iron Dome. The asymmetry is further
exemplified in the alarming disparity in causalities over the decade between
2010 and 2019, where the UN Office for the Coordination of Humanitarian Affairs
(OCHA) recorded 3,624
Palestinians and 203 Israelis killed, and 103,207 Palestinians and 4,642
Israelis injured.
The
intention of Israel’s officials to continue to maximize the damage and
casualties to Palestinians can be inferred from their statements: for instance,
Prime Minister Netanyahu promised to reduce Gaza to “rubble”, while Maj. Gen. Ghassan,
the Coordinator of the Government in the Territories (COGAT), announced Israel’s
total blockade of the Gaza Strip stating “you wanted hell, you will
get hell…no electricity, no water, just damage”.
Despite
the gravity and enormity of the situation and Israel’s marked genocidal statements of intent,
well implemented so far, as Israel turns back food trucks and cuts the water
supply to Gaza, we are alarmed at the
one-sided rhetoric and double standard that we have seen among Western
countries: supporting Israel and highlighting Israel’s casualties but omitting
to mention the dire plight of Palestinian civilians, killed and maimed in
Israel’s indiscriminate military reprisals.
Meanwhile
on 9 October 2023, the US, Britain, Germany, Italy and France issued a Joint Statement publicly condemning
the Hamas attacks and pledging to “ensure Israel is able to defend itself”,
effectively granting Israel, the Occupying Power a carte blanche to use widescale aggressive force across the Gaza
Strip, with half its 2.2 million population comprising of children.
Other
alarming and unprecedented pledges followed. Denmark and Austria decided to
suspend their aid to Palestine. Sweden and Germany are considering suspending
their funding. In particular, the German Development Minister Svenja Schulze stated that these attacks on Israel mark a “terrible fracture” and
that her government “will now review our entire engagement for the Palestinian
territories”. Another German official asserted that the EU “must now say: we need a new start
and we will no longer finance terrorists”. Similarly, the European Commission, a major donor
for development aid, considered suspending its financial assistance for
Palestine.
Astonishingly,
almost none of these statements allude to Palestinians’ human rights and to
norms of international law other than a far-reaching and preposterous extension
of the right to self-defence beyond its legal boundaries. The aforementioned
Joint Statement briefly indicates “the legitimate Palestinians’ aspirations”
and the support for “equal measures of justice and freedom for Israelis and
Palestinians alike”. However, these considerations, from the perspective of
these States, are clearly negated by
deference to Israel, the Occupying power’s so-called security concerns, and
complicity in maintaining and prolonging the illegal occupation of Palestinian
territory.
This
Joint Statement is flawed on two major levels. First, it completely ignores the
root causes of the conflict. Hamas and other Palestinian resistance movements
are the product of Israel’s aggressive occupation that started in 1967, in
breach of the UN Charter, an unlawful use of force that continues today. These
movements did not exist prior to that. All the more, Israel has de facto and de jure annexed
the Palestinian territory, in violation of peremptory norms of international
law, including the prohibition of the use of force and in denial of the right
of the Palestinian people to exercise self-determination. Moreover, the Gaza
Strip is densely populated by refugees who were in fact expelled from their
homes by Israel forces in 1948 in what is commonly known as the Nakba (the
catastrophe) and who have been denied their right of return as refugees ever
since.
Second,
presenting Israeli military attack as an exercise of its right to self-defence
denies the reality: Israel is already occupying the Palestinian territory in
the course of an ongoing international armed conflict. Israel is advancing its
settler colonial apartheid regime in the OPT, attempting to forcibly transfer
Palestinians from Gaza, including through coercive environments, in order to
appropriate step by step more and more parts of historic Palestine. These acts
breach jus cogens norms international
law and may amount to war crimes of forcible transfer and the crimes against
humanity of displacement, persecution and apartheid.
In
light of the above, we urge Third States to cooperate towards ending the
situation arising from Israel’s continued violation of peremptory norms of
international law.[1] The
Third State’s obligations further include the obligation to refrain from
assisting in maintaining such an illegal situation,[2] which
occurs at the moment when some of the States who took part in the joint
statement are sending military equipment to Israel. States further have an
obligation to cooperate to bring the illegal conduct to an end, rather than
perpetuating and greenlighting protracted illegal occupation and aggressive force
under the guise of “self-defence”.
Further,
Third States may be providing military equipment for use in Israeli war crimes,
including “wilful killings”,[3]
“wilfully causing great suffering or serious injury to body and health”,[4]
“extensive destruction and appropriation of property, not justified by military
necessity, and carried out unlawfully and wantonly”[5] and
“intentionally using starvation of civilians as a method of warfare by
depriving them of objects indispensable to their survival”.[6] These crimes
have already been established in some detail by the Prosecutor of the
International Criminal Court, who opened an investigation on the basis of “significant evidence” of crimes
committed by the Israeli forces and Israeli authorities therein.
Furthermore,
the criminal acts committed by the IOF constitute prohibited collective
punishment as they target Palestinian innocent civilians for prior acts
attributed to Hamas. Wilful killings and collective punishment violate the
Fourth Geneva Convention. By failing to stop the current attack against the
Gaza Strip, Third States also violate their obligation to respect and ensure
respect for international humanitarian law, and perpetuating an aggressive war,
denying the Palestinian people their collective right to exercise external
self-determination and independence from Israel’s occupation and settler
colonial apartheid rule.
CS organizations:
|
Faisal |
The |
Women’s |
|
Filastiniyat |
Coalition |
A.M. |
|
Women’s |
The |
Sharek |
|
MUSAWA- |
The |
Human |
|
Jerusalem |
Center |
Palestinian |
|
The Cultural |
Union |
The |
|
PYALARA |
Bisan |
Addameer |
|
Palestinian |
Al-Mezan |
Al-Haq- |
|
Union |
Arab |
|
[1] Draft Articles on
Responsibility of States for Internationally Wrongful Acts, International Law
Commission (2001), Article 41(1).
[2] Draft Articles on
Responsibility of States for Internationally Wrongful Acts, International Law
Commission (2001), Article 41(2).
[3] Rome Statute of the
International Criminal Court (1998), Article 8(2)(a)(i).
[4] Rome Statute of the
International Criminal Court (1998), Article 8(2)(a)(iii).
[5] Rome Statute of the
International Criminal Court (1998), Article 8(2)(a)(iv).
[6] Rome Statute of the
International Criminal Court (1998), Article 8(2)(b)(xxv).