midlandatelier.com, Jakarta – Expert in International Humanitarian Law or IHL, University of Airlangga (Unair) Enny Narwati said the actions taken by Israel towards Palestine as crime against humanity. He said that until now it was not known for sure what Israel’s motivation was for doing this war crime in Gaza. However, he considered that this action was probably based on military interests and in response to previous Hamas attacks.
What is that crime against humanity?
The United Nations or UN explained crime against humanity or crimes against humanity have not been codified in a specific treaty of international law. However, despite this, the prohibition of crimes against humanity is considered an international legal norm peremptory. This means that no exceptions are allowed and this law applies to all countries.
An action is said to be crime against humanity if it includes any of the acts carried out as part of a systematic and direct attack against the civilian population. Below is the list of actions in question:
1. Murder
2. Destruction
3. Slavery
4. Deportation or forced transfer of residents
5. Imprisonment or serious deprivation of physical liberty in violation of fundamental norms of international law
6. Torture
7. Rape, sexual slavery, forced prostitution, forced pregnancy, forced driving or other forms of sexual violence
8. Persecution of an identifiable group or community for political, racial, national, ethnic, cultural, religious, gender or other reasons universally recognized as unacceptable under international law
9. Forced disappearances of people
10. The crime of apartheid
11. Other inhuman acts intentionally causing serious suffering or serious injury to body or mental or physical health.
Legal Considerations
Announcement
Enny Narwati explained that several basic principles are used in armed conflicts. These principles include: military necessity, distinction, humanity AND proportionality.
Enny highlights the aspects distinction, combatants and military objectives are parties that can be attacked in war. Meanwhile, civilians and civilian objects must be excluded from the targets of any attack.
Article 52 (1) of Additional Protocol I of 1977 states that all goods which are not military objectives are civil goods. The second paragraph explains that military objectives are objects that make an effective contribution to military action. This may be due to its nature, location, purpose or use.
“Meanwhile, objects that destroy all or part of them, as well as their control or neutralization in the current situation, provide significant military advantages,” Enny said, quoted on Unair’s official website on Saturday, November 4, 2023.
Furthermore, Enny pointed out that Israeli attacks could be presumed to violate international humanitarian law if they attacked civilian buildings. Israel must also pay attention to the other principles of international humanitarian law to which it refers military necessity, humanity and proportionality. In this case, Israel’s actions can be considered illegal and violate international humanitarian law if the military benefits obtained are disproportionate to the suffering of the civilian population.
Rules for the use of weapons
Enny said that the parties involved in the war can use weapons that are not prohibited by law and refer to humanitarian principles. However, the weapons used must not cause damage unnecessary suffering OR superfluous injury. As are the limits on the use of phosphorus on the battlefield.
“If it exceeds a certain threshold, it should not be used because it would cause excessive injury to the person struck by the weapon,” Enny said.
Numerous international conventions have also regulated the use of weapons only for combatants and only for military objectives. So, the weapons are not native indiscriminate attack which has the potential to affect civilians
Enny pointed out that the laws applicable in peacetime are different from those in wartime. In war, combatants have special rights, such as the right to attack and be attacked, the right to prisoner of war status if captured by the enemy. They cannot be blamed if they kill the enemy. It should be noted that civilians are excluded from being targeted by attacks and receive international protection during war. This is regulated by the Fourth Geneva Convention of 1949 relating to the protection of civilian populations.
Reconciliation and sanctions
According to Enny, Cease-fire can be a solution in an attempt to resolve the dispute between Israel and Palestine. Cease-fire it is a ceasefire agreed upon by the parties involved so that they are obliged to respect it. However, this is not permanent.
“If a ceasefire is agreed upon, then there must be a party that monitors and supervises its implementation. Perhaps it can be formed United Nations peacekeeping” Enny said.
Regarding sanctions, there is international law that can serve as a guide. For example, the 1949 Geneva Convention requires countries to adopt national laws and regulations to provide sanctions for those responsible for violations of international humanitarian law. “Beyond that, there are also International Criminal Court “which has jurisdiction to try war crimes and other international crimes,” Enny said.
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