The Obligation to Ensure Respect: A Role for All States to Play in Palestine

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Introduction

International humanitarian law (IHL) does not only oblige States who are directly engaged in an armed conflict to fulfil their obligation to respect its rules and principles during the conduct of hostilities and take measures to stop violations. IHL also places an obligation on all State Members to the Geneva Conventions to ensure respect and take measures to stop violations. The unfolding events in the Palestinian territory, occupied by Israel, specifically after Hamas’ attack on Israel, have clearly attracted the attention of many international law researchers and scholars. Some tried to defend Israeli bombing campaigns on Gaza, the starvation of its 2.3 million people and the imposing – rather tightening – of a total siege, justifying such actions under the principles of proportionality, distinction and the obligation to warn (see here and here). Importantly, the discussions went on to look at self-defence (here and here), humanitarian access of relief aid (see here) and the classification of the conflict (see here).

Yet none of the authors of these posts discuss obligations on their own countries, particularly those who are recognizing the right of and even aiding Israel’s assault on Palestinians and their mass killings. The discussion, as of yet, has not brought the matter of States’ obligations to ensure respect for international humanitarian law in connection to Palestine. This post seeks to contribute to the discussion by considering the position of non-belligerents under Common Article 1 of the four Geneva Conventions. It starts with an overall view on the situation and moves to analyse and apply Common Article 1 on the unfolding events in Palestine. This post finally ends with a description of the needed urgent actions.

Signs, Events and Violations   

Israel’s Prime Minister Netanyahu, with diplomatic and military support of Western countries, vowed revenge. The Israeli Defence Minister Gallant has ordered a total siege/blockade, “there will be no electricity, no food, no fuel, everything is closed. We are fighting human animals and we are acting accordingly”. For those who have doubted the media translation from Hebrew to English, the word ‘animals’ was clearly used.  Later, he said that “Gaza won’t return to what it was before. We will eliminate everything.” In an interview, the former Israeli Prime Minister Bennett blasted when he was asked about children in Gaza, saying “are you seriously asking about Palestinian civilians”. The Israeli Heritage Minister Eliyahu suggested to drop a nuclear bomb on Gaza. The Military Forces spokesperson R Adm Daniel Hagari made the astonishing admission that “hundreds of tons of bombs” had already been dropped on the tiny strip, adding that “the emphasis is on damage and not on accuracy”.

At the time of writing this piece, Israel dropped more than 40’000 tons of explosives on Gaza. It attacked schools, UNRWA buildings, hospitals, housing units, communication infrastructure, civilian objects, civilians, churches and mosques. The civilian deaths and damages are excessive. As of 5 December 2023, Israel killed more than 15,900 Palestinians in Gaza, including more than 6,600 children and 4,000 women, whereas tens of thousands of people have been injured (approx. 50’000). It is unknown how many Palestinians are still under the rubble. An acronym WCNSF: Wounded Child No Surviving Family was created in Gaza’s hospitals, which reflects the horrific events unfolding in the Strip. With the complete siege/blockade, Israel is placing 2.3 million Palestinians in starvation and catastrophic conditions without drinking water, health system or sanitary. The World Health Organization stated that diseases emerging in the Strip would kill thousands of people. More than 1.9 million people are internally displaced. Although Israel ordered civilians to evacuate the north to the south of Gaza, it attacked and killed civilians in southern areas that it has verified as safe. Yet, Israel again orders civilians to evacuate the south to the unknown. These events in the Gaza Strip are not disconnected from the Israeli killings – by settlers and military forces – of at least 237 Palestinians, including children, and arresting more than 3’000 civilian Palestinians in the West Bank, including East Jerusalem. All these numbers reflect the period since October 2023 and keep rising. As Israel is using the Gaza events to overshadow its actions in the West Bank, this particular conduct needs a separate assessment and is not treated in this post. The focus rather remains on the Gaza Strip.

The Western countries, including USA, UK, France, The Netherlands, Germany and Italy, rushed to express their steadfast support to Israel, some of which increased their military support and weapons’ exports. As Israeli bombardment intensified and wiped out entire families in Gaza (see here), France’s Macron called on Israel to stop killing women and babies. While some remain silent, others, including Sweden, defend Israel’s actions as proportionate and expanded their military cooperation with Israeli arms companies (see here). This comes as many UN current and former officials, including the UN Special Rapporteur on Palestine, Francisca Albanese, and The UN Former Chief Craig Mokhiber and human rights organizations, including Human Rights Watch and Amnesty International, voiced their concerns that Israel is manufacturing war crimes and genocide. UN Special Rapporteurs stated that grave violations committed by Israel against Palestinians must not be ignored and that they are “profoundly concerned about the support of certain governments for Israel’s strategy of warfare against the besieged population of Gaza.” These grave violations raise the question of the obligation of non-belligerents. This question is dealt with under the Common Article 1 of the four Geneva Conventions.

Common Article 1 of the Four Geneva Conventions

The first article of the four Geneva Conventions of 1949 provides that the High Contracting Parties “undertake to respect and to ensure respect for the present Convention in all circumstances”. This simply entails that not only States directly involved in a conflict must undertake to respect and ensure to respect IHL, but all other States must also ensure to take measures to prevent and stop violations on IHL. The International Court of Justice, in Nicaragua v. USA, recognized this principle as a customary norm and thus it is applied to both NIAC and IAC.  States must not encourage or assist violations and must do everything in their power to prevent and bring violations to an end.

The International Committee of Red Cross (ICRC), in its commentary, states that this provision “sets a clear standard, as ‘ensuring’ means ‘to make certain that something will occur or be so’ or inversely ‘make sure that (a problem) does not occur”. This is to emphasize that States are legally required to fulfil their obligation to take appropriate measures to prevent violations before they occur and stop violations when they (or are suspected to) have occurred. There is also a duty of due diligence to prevent and stop breaches of the said conventions. Israeli officials have given signs that their aim is to indiscriminately kill everyone in Gaza and pronounced their intent to disregard IHL provisions. The claimed incidental civilian death or tragic ‘collateral damage’ does not correspond to the obvious intent of the Israeli government nor with the excessive killing of and damage to civilians. Luigi Daniele argues that incidental damages must never be excessive. This must suffice to trigger measures from all States and obliges them to fulfil their international obligation prescribed in Common Article 1.

The ICRC continues to question the nature of these measures. States have a level of liberty to decide what specific measures to take, but these specific measures are limited. The most relevant measure to stop Israeli war on Gaza is “suppression of breaches… [where States] are required to search for, prosecute or extradite alleged perpetrators of grave breaches ‘regardless of their nationality’ and to enact any necessary legislation in this respect. They are further required to suppress all other breaches of the Conventions” (Ibid para 146). The rules adopted on these measures are also related to the law of state responsibility, and that “all States have the right [and the obligation] to demand its cessation and, if necessary, guarantees of non-repetition, as well as reparation in the interest of the beneficiaries of the obligation breached” (see here section V and here). It is important to note that States can take these measures individually or collectively.

Urgent Actions to Prevent and Stop International Violations

The gravity of Israeli actions necessitates that all countries, specifically States Members to the European Union to take urgent actions. This is with the emphasis that the EU has adopted the Union Guidelines on promoting compliance with IHL(2009/C 303/06), creating an internal obligation on the matter. It looks as only five countries have properly understood their obligation to ensure respect under the four Geneva Conventions. More specifically, South Africa has led the effort to refer the Israeli government to the International Criminal Court (ICC). The South African President stated that “we have accordingly, together with many other countries across the world, referred this whole Israeli government action to the [ICC].” Additionally, South Africa, Bolivia and Belize shut down Israeli embassies and cut all their diplomatic ties with Israel over its actions in Gaza. Other countries withdrew their diplomats from Israel, including Bahrain, Chad, Chile, Colombia, Honduras, Jordan and Turkey. It is worth noting that human rights organizations, Amnesty International and Oxfam, in The Netherlands have filed a case against the Dutch Government for its complicity and contribution to wide scale and serious violations of IHL. The case argues that The Netherlands “must immediately stop its deliveries of F-35 parts to Israel. That is its obligation under Common Article 1 of the Geneva Conventions [and] the Genocide Treaty.”  

All States have the obligation to immediately mobilize their efforts and take necessary measures to meet their obligation to ensure respect. This includes the use of their position of influence to  i) call for a permanent ceasefire, ii) take steps to ensure the lifting of the land siege and naval blockade on Gaza, iii) prevent and stop the killing and the displacement of Palestinians inside and outside the Gaza Strip, iv) suspend their diplomatic and military support for and weapons’ exports to Israel, v) call on the competent judicial and non-judicial organs, namely the United Nations, the ICC and ICJ to take urgent action under the UN Charter and the Geneva Conventions to prevent and suppress  any violations of IHL in Gaza and the West Bank, including East Jerusalem, vi) ensure reparation for all victims and their family members, including guarantee of non-repetition and vii) restore the Palestinians’ right to self-determination, an erga omnes obligation. All States who fail to meet such obligations, are themselves in violation of their international law obligations under the four Geneva Conventions and thus should be held accountable for such violations. States who are militarily and diplomatically supporting war crimes are ‘complicit’ and bear a criminal responsibility under international law. 

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Comments

Sangeeta Taak says

December 13, 2023

Very rightly mentioned. It is a time to introspect and not to misuse the INTERNATIONAL HUMANITARIAN LAW under the shield of proportionality.
Need to understand the law ans not to take revenge through civilians.

Nicolas Boeglin says

December 13, 2023

Dear Professor Qandeel

Many thaks for this extremely well documented post.

If you (or one of our EJIL Talk colleague) have access to a study on the different States exporting weapons to Israel and electronical components used by IDF, please feel free to share it if it is online on the web.

It should be noted that recently a French expert and former French military specialist in the effects of aerial bombardments heard in France indicated that the death toll in Gaza could be much higher, stating in one of his latest blog (see his full article entitled "Netanyahou, meilleur "ennemi" du Hamas"?) that:

"Avec une marge d’incertitude raisonnable, le bilan global de cette offensive décidée par le gouvernement Netanyahou contre la bande de Gaza s’élève par conséquent à 56 jours x 450 tués en moyenne basse, soit au minimum entre 20 et 30 000 tués, auxquels il convient de rajouter 3 à 4 fois plus de blessés, soit plus de 100 000 victimes, tuées et blessées. Un carnage".

Source: https://nepassubir.fr/2023/12/10/netanyahou-meilleur-ennemi-du-hamas/

Yours sincerely

Nicolas Boeglin

Note: please find a short note (in Spanish, sorry) on the vote yesterday at UNGA of a resolution asking for a humanitarian ceasefire in Gaza, where, for the very first time in years, Canada voted in favour, while Israel and United States only obtain 8 others voting against with them. Argentina decided to abstain, showing that recent political changes have immediate impact on its foreign policy:

https://derechointernacionalcr.blogspot.com/2023/12/gaza-israel-nuevo-voto-en-asamblea.html

Brian L. Cox says

December 13, 2023

A brief note re: source selection and authority to establish customary law.

The selection of authorities cited above (in the "Common Article 1 of the Four Geneva Conventions" section) in support of the assertion that the "respect and ensure respect" requirement is customary - and as such applies even to parties not directly involved in hostilities and even in a NIAC - are as follows:

1) A single ICJ opinion that isn't precisely on point (for example, para. 73 does address general principles of international law as customary requirements...but not this specific claimed requirement). By definition, given the source, this reference does not qualify as direct evidence of state practice.

2) ICRC commentary, which, by definition, is a subsidiary source of CIL.

3) A blog post from this site.

Setting aside the decisive requirement of engaging in a doctrinal assessment in order to conclusively determine whether violations of international law have been committed, I am interested in learning whether there is extensive and virtually uniform state practice with an accompanying opinio juris to support the "respect and ensure respect" requirement as it applies to states not directly engaged in hostilities as a belligerent in the context of a NIAC.

If accumulating evidence of general state practice in this regard is a challenge, this may explain why previous contributors to the discussion have not addressed the issue of "respect and ensure respect" as it relates to their own countries.

Nicolas Boeglin says

December 14, 2023

Dear Professor Qandeel

May I add to my previous commentary to your very valuable post what is published today by CNN:

"Nearly half of the air-to-ground munitions that Israel has used in Gaza in its war with Hamas since October 7 have been unguided, otherwise known as “dumb bombs,” according to a new US intelligence assessment.

The assessment, compiled by the Office of the Director of National Intelligence and described to CNN by three sources who have seen it, says that about 40-45% of the 29,000 air-to-ground munitions Israel has used have been unguided. The rest have been precision-guided munitions, the assessment says".

Source:
https://edition.cnn.com/2023/12/13/politics/intelligence-assessment-dumb-bombs-israel-gaza

Yours sincerely

Nicolas Boeglin

Nicolas Boeglin says

December 19, 2023

Dear Professor Qandeel

May I refer you to this very modest note I wrote on (again) US´s deep solitude at UNSC when it feels obliged to protect Israel´s interests:

https://derechointernacionalcr.blogspot.com/2023/12/gaza-israel-inminente-voto-de-una-nueva.html

Sincerely yours

Nicolas Boeglin

Nicolas Boeglin says

December 23, 2023

Dear Professor Qandeel

May I add to my previous comment a short note on resolution 2720 adopted by UNSC on Dec.22, after long days of pressures and manoeuvres of United States ´delegates in order to guarantee to Israel no mention in the final resolution to UN Charter, to "Occupying Power", and of course,to give Israel full leeway in its military offensive in Gaza:

https://derechointernacionalcr.blogspot.com/2023/12/gaza-israel-nueva-resolucion-del.html

Sincerely yours

Nicolas Boeglin

Fillip Krawczyk says

December 27, 2023

I consider this blogpost to be not only legally superficial or even unfounded, but also obviously deliberate.

It places a lot of emphasis on the narrative embedding of the thesis, but does not even begin to substantiate it.

In this respect, the blogpost does not contribute to a fruitful academic discussion of the events. Something whose necessity is at least implicitly criticized with regard to the quoted ”other“ blog posts.

I refer you to a blogpost on this topic by a German author: https://verfassungsblog.de/can-germany-remain-silent/