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What is IHL? -

International Humanitarian Law (IHL) consists of pragmatic rules to minimize destruction and death in times of war. But IHL does not prohibit neither armed combat nor the killing of civilians; it's instead intended to create limits to how war can be enacted.

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Case-by-case basis -

As with all sets of rules, IHL is subjected to interpretation and is typically analyzed by case and circumstances, rather than providing universal, blanket regulations.

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Using IHL to strategize -

Armed groups, whether states or non-state actors, may use the ambiguous nature of IHL to form strategies that may evade war crime accusations by limiting the suffering to human life.

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Rule of distinction -

The rule of distinction is an important measure in which armed groups bear the responsibility to distinguish themselves and their activities from civilians and civilian or public property.

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Identifiable combatants -

This principle is intended to provide a clear understanding of who and what is being targeted. This requires that combatants are identifiable to their ‘enemies.’

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Asymmetrical warfare -

This has posed a series of challenges in terms of war strategies in asymmetrical war contexts. Some armed conflicts occur between states and non-state actors.

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Non-state actors -

There is no explicit approach to these contexts, as signatories to IHL do not want to encourage the role of non-state actors to combat governmental forces.

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Certainty of non-involvement -

The principle of distinction points to how IHL can only be adhered to if civilians are with certainty not intending on engaging in armed conflict or involved in any such attacks.

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Civilianization of armed conflicts -

This is complicated in the increasing context of what the International Committee of the Red Cross (ICRC) refers to as the civilianization of armed conflicts.

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Civilians considered threats -

As with the previous example, in which a conflict does not occur between two state armies, the entire civilian population can be considered an armed group.

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Vague interpretation -

Any participation from civilians in combat, subject to vague interpretation of what participation could consist of, relinquishes their right to protection under IHL. International organizations have called for this gap to be defined.

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Israel-Palestine as case study -

The Israeli-Palestinian conflict offers an interesting case study to examine the complexities of this issue. The Palestinian territories are considered occupied by international law.

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Unrecognized citizens -

In many ways, Palestinians are under Israeli rule and can therefore be considered unrecognized citizens of the state of Israel.

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Residents of Jerusalem -

This is further complicated by the levels of citizenry that exist in Israeli law. For example, Palestinian that are residents of Jerusalem, which Israel considers to be part of the official Israeli state, have a special designation.

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Inhabitants vs. citizens -

Palestinians that are residents in Jerusalem are not considered full citizens, but rather inhabitants of Israel with certain privileges and conditions.

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Gaza -

In Gaza, this designation has another element to be considered. Although Gaza is still considered occupied territory, until the beginning of the war following the events of October 7, there had not been a permanent physical presence of the Israeli state in the Gaza Strip since 2005.

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Differentiation between territories -

Although Gaza is under blockade from Israel and Egypt, due to the lack of Israel’s permanent presence in the Strip it is not responsible for the same duties it has in the West Bank, for example.

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Not belligerent occupation -

Gaza is not under, what the ICRC refers to as belligerent occupation. But because of its unique conditions Israel does have certain duties that it is obligated to adhere to.

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Gazans as foreign parties -

Due to this differentiation, in the case of Gaza, international law may apply, as Gazans can be considered foreign parties.

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Limits of IHL -

The complexity of the designation of populations under occupation makes the application of international law equally complicated. This is because international law is not supposed to apply, rule, or otherwise dictate, the relationship between the state and its citizens.

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Protected civilian -

The concept of protected civilian points to the rights of someone who is not a citizen of the state that is either holding them in detention, as a prisoner of war, or has harmed them. 

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IHL not for local parties -

While the ICRC outlines the complexities in occupied contexts, they reiterate the principle that the purpose of international law is not its application to local parties.

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Dangers to state security -

This conclusion complicates legal measures for Palestinians that seek resolutions through international law, and for the Israeli state, which attempts to apply certain aspects of international law to those they consider dangers to state security.

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Private security -

The principle of distinction is also complicated with the involvement of private security entities, some of which are militarized. In these cases, the lines become further blurred in identifying who should be considered an actual combatant in an armed conflict.

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Principle of proportionality -

The principle of distinction in international law is closely followed by proportionality. The principle of proportionality means that even when there is a legitimate military target that may result in the deaths of civilians, the amount of civilian deaths cannot be excessive.

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Excessive deaths -

Determining what is an excessive amount of civilian deaths is, again, subject to interpretation. From a civilian perspective, one death may be too many. From a military perspective, civilian deaths may be a necessary consequence to weaken another entity.

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Balancing act -

Proportionality is, more or less, a principle that urges a balancing act. In some ways, it can allow for violent acts to be committed repeatedly through calculations that underline moderation.

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Abuse of IHL -

Eyal Weizman, director of research institute Forensic Architecture, notes how IHL, in addition to human rights and humanitarianism, can be abused by states and military actors.

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Justifying violence through IHL -

Weizman notes how IHL can offer mechanisms that allow violence to be calculated so it can be reduced and justified as the least possible evil.

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Rules of war -

In conclusion, while the rules of war and the legality of killing civilians under IHL may be shocking to some, it is the modus operandi that governs how contemporary conflict occurs.

Sources: (E-International Relations) (Oxford Academic) (ICRC) (Frontiers) (Human Rights Watch) (King’s College London) (ICC) (NPR) (UNRIC) (Theory, Culture & Society)

See also: One year of war in Gaza—The economic fallout for the region

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