The Israeli – Palestinian conflict and the rules of international law

José Zalaquett

José Zalaquett

Head of the Project at MOOC Chile
Lawyer, Universidad de Chile. Doctor Honoris Causa, by the Universities of Notre Dame and City University of New York.
José Zalaquett

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The international news tell us about the rockets launched from the Gaza Strip against the territory of Israel and the reprisal bombing by the government of Israel which has taken the lives of dozens of Gaza civilians. All commentators consider that the Oslo peace process, which was terminally ill, is now definitively dead.

The international law applicable to this case is that of international humanitarian law (IHL) or laws of armed conflict. Although IHL is Lex Specialls, unlike international human rights law, it forms part of the international systems for the protection of the human person.

It is clear that the rocket attacks conducted by Hamas against Israel are prohibited by international law – regardless of the damage to civilian goods or human casualties – as terrorist acts, or at any rate as indiscriminate attacks.

On the other hand, Protocol I, additional to the Geneva conventions of 1949, prohibits reprisal attacks against the civilian population (article 51.6). True, Israel is not part of the protocol. However, this specific rule is obligatory as a customary norm of international law (Red Cross compilation of customary rules of 2005). The same Protocol I establishes that in conducting military operations constant care must be taken to safeguard the civilian population. In addition, it prohibits the use of human shields. Both rules are also considered customary norms of international law. The Israeli military has declared that they give previous warning to the inhabitants of the area they plan to bomb. Yet, in at least one case such warning was not given in time and many Gaza civilians were killed as a result. On the other hand, Hamas has declared that the neighbors of an area that is about to be attacked congregate around it the manner of a human shield.

In sum, it may be concluded that both parts to the conflict have committed violations to the norms of international humanitarian law. Given the much greater military efficacy of Israel, its attacks have killed many civilians and captured the headlines of the world media.

The Israeli – Palestinian conflict has been going on for at least 66 years and no solution is expected in the foreseeable future. No doubt, if and when a solution is produced it would be political and diplomatic, rather than legal. In the meantime, the international community may only insist in that both parts must fulfill their obligations under international law.

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