How the ambiguous status forced upon Palestine by the world community is used to justify war crimes of the worst kind against its citizens.
—
The latest flare-up in the Israel–Palestine conflict has entered its twenty-fourth day.
In these 24 days, more Palestinian children have been killed during the indiscriminate bombardment of Gaza by Israel than the total killed in conflicts around the world since 2019.
So far, more than 8,000 Palestinians have been killed and more than 25,000 have been injured.
The majority of the people killed and injured are considered as a protected category (read: women and children) under international law.
Israel declared a “state of war” against Hamas after the de facto administrator of the Gaza Strip launched a deadly attack on southern Israel on October 7, killing around 700 people and taking scores as hostages.
This operation, titled Al-Aqsa Flood, was statedly in retaliation for the multiple storming of Al Aqsa mosque earlier this year by right-wing Zionists supported by Israel Defence Forces (IDF) and the continued daily occupation and oppression of Palestinians in Gaza as well as West Bank.
On October 9, 2023, Israel’s minister of defence announced a “complete siege” of the Gaza Strip. Water, food and electricity for the two million population of the region, whom he described as “human animals”, was cut off. Access to internet has also been restricted every now and then over these 24 days.
Since then, the international community (read: Western nations) has extended unwavering support to Israel.
While the US imposed sanctions on ten key Hamas “terrorist” group members, operatives and financial facilitators in Gaza and elsewhere, the European Parliament passed a resolution condemning the “despicable terrorist attack by Hamas”.
The European Parliament’s resolution states that it “condemns, in the strongest possible terms, the despicable terrorist attacks committed by the terrorist group Hamas against Israel and expresses its support for the State of Israel and its people; reiterates that the terrorist organisation Hamas needs to be eliminated.”
No definition of terrorism under international law
Since media organisations and government officials all over the world have been describing the attack by Hamas as a terrorist attack, and Hamas itself as a terrorist organisation ad nauseam, it engenders questions of what “terrorism” is and who can be categorised as a terrorist under international law.
There is no universal definition of terrorism under international law. Although what constitutes ‘terrorist activities’ is defined under various sectoral international treaties, there is no unanimity over a definition.
For instance, the International Convention for the Suppression of the Financing of Terrorism, 1999, defines an act of terrorism as: “Any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population or to compel a government or an international organisation to do or to abstain from doing any act.”
In 1996, India proposed the Draft Comprehensive Convention on International Terrorism in the United Nations General Assembly. A consensus on the draft could not be reached.
Article 2 of the draft convention, while defining terrorism, states, “Any person commits an offence within the meaning of this Convention if that person, by any means, unlawfully and intentionally, does an act intended to cause:
(a) Death or serious bodily injury to any person; or (b) Serious damage to a State or government facility, a public transportation system, communication system or infrastructure facility with the intent to cause extensive destruction of such a place, facility or system, or where such destruction results or is likely to result in major economic loss; when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government or an international organisation to do or abstain from doing any act.”
The 2004 resolution of the United Nations Security Council widens the definition of terrorist acts to include “taking of hostages” with the purpose of provoking a state of terror in the general public or in a group of persons or particular persons, intimate a population or compel a government or an international organisations to do or to abstain from any act.
The resolution recalls that such acts “are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature, and calls upon all States to prevent such acts and, if not prevented, to ensure that such acts are punished by penalties consistent with their grave nature”.
Can Israel declare war against Hamas?
Generally speaking, acts of terrorism have so far been understood as involving non-State entities only.
After the 9/11 attack, when the US declared a global war on terror against Al-Qaeda and other allied forces, it invaded Afghanistan where the Taliban was the de facto government.
As a consequence of the War on Terror, members of Al-Qaeda and Taliban who were captured by the North Atlantic Treaty Organisation (NATO) forces were detained in Guantanamo Bay in Cuba.
When it came to the treatment of these people, the US said that the four Geneva Conventions would not apply to the War on Terror.
However, after much criticism, the US reluctantly applied the Third Geneva Convention to the Taliban prisoners despite it claiming that the US does not recognise the Taliban as the legitimate government.
As per Article 4 of the Third Geneva Convention, the legitimacy of a government is not relevant for the determination of prisoner of war status.
This meant two things. The US was in a war with Afghanistan and those who were caught during the war were to be treated humanely and repatriated once the war was over. It is a different case that they ultimately refused to give prisoner of war status to Taliban prisoners in Guantanamo Bay.
This consideration is extremely important because the US refused to extend the Geneva Conventions to Al-Qaeda fighters.
They were categorised as foreign terrorists or illegal combatants.
What emerged from this distinction is the fact that while under the Geneva Conventions, rights are more carefully spelt out, that is not the case in the absence of its application.
It was only the President of the US who had the authority to establish a military tribunal to deal with such cases individually.
Most importantly, not extending any protection to Al-Qaeda under international law allowed the US to treat its members in whatever way it wanted. That way, the US eventually got away with the allegations of the worst forms of torture.
If this reasoning is applied in the present case, it is clear that Israel does not have to extend any international law protection to the captives of Hamas.
But then what justifies Israel’s right to self-defence?
As per the United Nations Charter and the customary international law, all States have the inherent right to self-defence against armed attack.
However, under Article 51 of the United Nations Charter, the defence must be proportional and it does not extend to measures against non-State entities.
If Palestine was recognised as a State, and Hamas as its ‘government’, even if of a province, Israel’s right to self-defence would be regulated by the Four Geneva Conventions of 1949. This would have ensured monitoring attacks on both sides based on proportionality, necessity and distinction between the combatants and civilians.
The manner in which Israel responded to the Hamas attack is unfortunately not covered under any category of international law.
The Fourth Geneva Convention prohibits any attacks on civilians, civilian areas and establishments. However, Israel’s indiscriminate attacks have no accountability.
This is unfortunately a grey area under international law.
Significantly, the non-recognition of Palestinian Statehood also makes it impossible to categorise Israel’s actions as state terrorism. State terrorism was recognised by a United Nations General Assembly resolution in 1984.
The resolution “condemns policies and practices of terrorism in relation between States as a method of dealing with other States and peoples”.
According to the resolution, actions aimed at military intervention and occupation, forcible change in or undermining of the socio-political system of States, destabilisation and overthrow of the government or initiating military action to that end under any pretext cannot be taken by States.
State terrorism aims at undermining the socio-political system in other States and hampers the realisation of the right of self-determination of peoples.
Conclusion
The Israel–Palestine conflict presents many frustrating and confusing binaries.
For example, the claim to the right to self defence, which is claimed by Israel every time Palestinians respond to the constant occupation and violence committed by Israel against Palestinians. How far are we allowed to go to establish who has a right to self defence against whom? Abraham Accords? Oslo Accords? 1973? 1967? 1948?
Similarly, Palestinians have been denied the status of a State by the international community for 70 years, which has allowed the same international community to dismiss them as (non-State) terrorists when they try to defend their land and people against a State (Israel)’s aggression.
IDF may be killing innocent citizens, children including, in Gaza Strip every day, but the real responsibility of the genocide lies with the so-called international community and world order.
