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Navigating the Gaza Conflict through the Lens of International Law and Humanitarian Principles

Like all “critical issues,” whatever is written or said about the Hamas-Israel war, if it contradicts the thought patterns produced by religion and ideology, lynching is inevitable. I’ve said this before. Turkish-origin journalists, writers, and academics often avoid such “minefields.” Because they know what will happen to them. Most of them prefer to remain silent and “paddle with the current” to avoid jeopardizing their current positions. They apply self-censorship.

I have been writing for days, and there is a night-and-day difference between approaching such topics from an “analytical and critical” perspective and an “ideological and propagandist” perspective. Pay attention; they do not respond with an academic and analytical approach to those who write academically and analytically. They respond with an ideological and propagandist attitude. Therefore, they do not discuss the content of any issue. The easiest way to block thought is this. Undermine the credibility of the person in front of you, attack their personality, claim that they are an agent of someone, and assert that they publish what they write for money or other benefits!

Despite all these self-censorship pressures, it is necessary to maintain an analytical perspective using free and critical thinking methods. In this article, I will provide some objective (but understandable) analyses from the perspective of international law and international humanitarian law in the Hamas-Israel conflict.

Firstly, it is necessary to determine what international law and international humanitarian law are. I will try to summarize this in a way that everyone can understand without going into unnecessary details. After clarifying these concepts, I will analyze the Hamas-Israel conflict from the perspectives of international law and international humanitarian law.

In international law, the right to self-defense is a fundamental concept that grants states the right to protect themselves against armed attacks. This right is also enshrined in Article 51 of the United Nations Charter. To legitimately exercise the right to self-defense, a state must prove that it has been subjected to an armed attack. In other words, the burden of proof rests with the state that seeks to justify the use of force in self-defense. The fundamental elements and principles related to the right to self-defense include necessity and proportionality in the use of force, the urgency of the threat, the attribution of the attack to a state or non-state actor, and the obligation to promptly notify the Security Council.

International humanitarian law interprets and regulates issues related to war and conflicts. It can be understood as a set of rules aimed at limiting the effects of armed conflicts for humanitarian reasons. International humanitarian law protects individuals who do not take part in hostilities and restricts the means and methods of warfare. Also known as the law of armed conflict or the law of armed conflict, international humanitarian law is a subset of international law that regulates relations between states.

International law can be found in treaties (conventions or conventions), customary rules that states consider legally binding, and general principles. International humanitarian law applies to armed conflicts and does not regulate whether a state (or belligerent) can legitimately use force; this is governed by a separate part of international law as specified in the United Nations Charter.

Ensuring the rapid and unimpeded passage of humanitarian aid during armed conflicts is crucial to provide timely assistance to those in need. Also, the freedom of movement of humanitarian workers in conflict areas plays a significant role in facilitating the effective delivery of aid. The protection of civilians and the assurance of the safety of medical personnel are essential to minimize the impact of conflict on non-combatants. Additionally, protecting refugees, prisoners, and injured and sick persons is a critical need; this is often done to ensure their safety and well-being, especially in challenging and dangerous situations.

In summary, conventions prohibit arbitrary (unlawful) killing, torture, hostage-taking, and degrading and humiliating treatment, and require warring parties to treat the sick and wounded humanely.

With this background information, let me try to interpret the Hamas-Israel conflict from the perspectives of international law and international humanitarian law.

As the official government of Gaza, Hamas killed more than 1,400 civilians and took more than 200 hostages in its brutal attacks on Israel on October 7. According to Article 51 of the UN Charter, the right to self-defense and the right to respond to the attack emerged. There is no debate about this in the international community. However, this right is, of course, limited by international humanitarian law. Here, one of the most important principles is the obligation to distinguish between civilians and combatants, civilian objects and military targets.

The problem is that, due to Hamas’s strategy, they do not place their weapons (such as rocket launchers) and armed elements among civilian settlements (public buildings, civilian buildings, or residential areas), and Israel responds by attacking civilian settlements. According to international law, if Hamas places a missile launcher in a civilian neighborhood, Israel has the right to attack that missile launcher. However, according to international humanitarian law, this must be done without causing harm to civilians.

Gaza is one of the most densely populated and structured areas in the world. It is almost impossible to distinguish between civilian and military targets according to international humanitarian law. Moreover, Hamas uses this as a military advantage. It hides in schools, mosques, hospitals, and places of public interest, placing its command centers and rocket launchers, turning places where civilians are present into military targets. Furthermore, Hamas launches intensive rocket attacks from the civilian areas in Gaza.

In this context, both Israel and (as the official government of Gaza) Hamas are violating international humanitarian law. Israel constantly bombards these areas where civilians live. According to international humanitarian law, in military operations carried out by a state (or a belligerent) without targeting civilians, civilian casualties that occur may not technically be considered a violation of international humanitarian law. This is due to the presence of military assets and movements in the areas where civilian casualties occur. As I mentioned, this is exactly the strategy followed by Hamas. The Israeli government, albeit temporarily, chooses to act in the “playing field” determined by Hamas by not declaring a ceasefire. As a result, Israeli attacks effectively lead to mass civilian deaths.

Without both Israel and Hamas ceasing mutual attacks, it seems unlikely that the humanitarian drama will end.

Another criticism is Israel’s blockade of Gaza. Israel completely prevents electricity, water, food, and fuel supplies to Gaza. This is a collective punishment targeting the civilian population and is contrary to international humanitarian law, regardless of the strategic justifications. In other words, the mass blockade – food supplies, drinking water, fuel, medical supplies – is not in line with international humanitarian law. Not all Gazans are members of Hamas. However, the civilian population is equally affected by Israel’s blockade. The international community should oppose this practice.

In summary, both actors do not seem to give primary importance to not targeting civilians. Civilians should never be taken hostage or targeted. If they are, it constitutes a war crime. Hamas completely targeting civilians in the attack that triggered the war, killing people in their homes, an open-air concert, and on the streets or at bus stops, or continuously launching rockets from Gaza at civilian settlements in Israel, is contrary to international humanitarian law.

Similarly, Israel’s bombing of civilian settlements in Gaza, resulting in the killing of thousands of civilians, and cutting off electricity and water in Gaza are also in violation of international humanitarian law. While the argument that Israel, as a state, should behave more ethically than Hamas may have moral validity, it is not technically valid due to Hamas being the official government of Gaza. Israel’s strategy of air bombardment in Gaza after Hamas’s attack is indefensible in terms of civilian casualties. Furthermore, Israel’s cutting off electricity and water as a collective punishment is not ethically or legally justifiable.

However, it should not be forgotten that in terms of realpolitik, the nature of war is mass killing. In wartime, warring actors often violate legal, ethical, and humanitarian norms. Law, ethics, and humanitarian values try to limit these violations. They cannot entirely prevent them. The absence of a central authority in international relations hinders the enforcement of international law – its implementation – unlike domestic law. When international law is violated, the absence of a compelling force to use force (or its dependence on a UN Security Council decision, which is practically rarely implemented) is the main problem. This is a global problem.

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Dr. MEHMET EFE CAMAN
Dr. MEHMET EFE CAMAN
Dr. Mehmet Efe Caman is a Scholar of Politics at Memorial University of Newfoundland (MUN). Dr. Caman’s main research focuses on Democracy, democratization and human rights, Turkish politics, the Middle East, Eurasian politics and post-Soviet regions, the European Union. He has published a monograph on Turkish foreign policy, numerous book chapters and scholarly articles in English, German and Turkish about topics related to his research areas.
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