What Are “War Crimes” And What Does International Law Say About Decades-Old Conflict Between Israel and Palestinians
The horrific atrocity committed by Hamas in Israel last week has provoked worldwide condemnation. However, the retaliation by Israel, which has currently resulted in more Palestinian casualties than the original attacks, has also been denounced by many as a violation of multiple international laws and human rights rulings.
According to the United Nations, war crimes include "intentionally directing attacks against the civilian population" as well as "the forcible transfer" of civilians.
We take a look at the legal positions held by authorities around the world regarding the 75 years of intermittent violence and the long-running humanitarian crisis endured by those living in the Occupied Palestinian Territories (OPT).
United Nations Resolution 181
The Palestine-Israel conflict has its roots in the late nineteenth century, with the region becoming the subject of conflicting claims by Jewish and Arab national movements over the course of decades.
In April 1947 Britain, who had governed the region since 1922, referred the issue of Palestine to the United Nations (UN). It adopted Resolution 181, calling for the partition of Palestine into Arab and Jewish states, with the city of Jerusalem as a separately governed international entity.
1948 Arab-Israeli War and ‘The Nakba’
Palestinians carry their possessions on their heads as they flee from a village in Galilee about five months after the creation of the state of Israel in 1948 [File: Reuters]The resolution was embraced by the Jewish community as a 'legal' means to create a nation-state. However, it was rejected by the Arabs and led to immediate violence. Israel declared its independence. The Nakba, or catastrophe as it is called by the Palestinians, resulted in the mass displacement and dispossession of Palestinians during the 1948 Arab-Israeli war.
The Role of the Geneva Conventions
The Geneva Conventions consist of international treaties that define standards of international law for humanitarian treatment during times of war. These conventions also serve as the foundation for multiple UN resolutions addressing the plight of Palestinians in the occupied territories.
Article 3
This section of the 1949 Fourth Geneva Convention applies to armed conflicts "not of an international character" taking place within the territory of one of the High Contracting Parties.
The UN report determined that the clear majority of the 2,251 Palestinians killed were civilians, 551 of them children (AFP/Getty)It emphasizes humane treatment for individuals not actively participating in hostilities, such as civilians, including members of armed forces who have surrendered, and those incapacitated by sickness, injuries, detention, or other reasons.
Article 33 of the Fourth Geneva Convention prohibits collective punishment, penalties, and reprisals against protected persons and their property.
The Fourth Geneva Convention reaffirms its applicability to the occupied Palestinian territories, including East Jerusalem. In an Advisory Opinion issued in 2004, the International Court of Justice determined that Israel is legally obligated to comply with the Convention in those territories.
UN Resolutions Support Palestinian Rights
In December 1948, the UN General Assembly passed a resolution that called for refugee return, property restitution and compensation (Resolution 194 (II).
Demonstrators gather outside the Israeli embassy in Ballsbridge, DublinIt stated, “Palestinian refugees have the right to return to their homes in Israel. Refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.”
Despite countless UN resolutions, many of which have been vetoed by the U.S., according to the UN Relief and Works Agency for Palestine Refugees (UNRWA) more than 5 million Palestinian refugees are scattered throughout the Middle East.
In 1974, Resolution 3236 (XXIX) reaffirmed the inalienable rights of the Palestinian people to national independence and sovereignty, and the right of the Palestinians to return to their homes and property. It stated, “The General Assembly recognizes that the Palestinian people are entitled to self-determination in accordance with the Charter of the United Nations”.
In 2012, the Assembly granted Palestine non-member observer State status in the UN.
On December 15, 2022, it adopted a resolution on ‘The right of the Palestinian people to self-determination.’ The resolution stressed the urgency of ending the Israeli occupation of the OPT, which began in 1967, as well as a just, lasting peace settlement between the Palestinian and Israeli sides.” The resolution also urged all States and the United Nations to continue to support and assist the Palestinian people in the early realization of their right to independence.
In September 2023, the UN’s Human Rights Council adopted a resolution on "Right of Palestinian People to Self-determination. The resolution reaffirmed the inalienable rights of the Palestinian people to self-determination, national independence, and sovereignty, and called for the end of Israeli occupation of the OPT.
International Court of Justice Labels Israeli Barrier in Palestinian Territory as ‘Illegal’
Palestinian women walk by Israel's barrier near Ramallah in the West Bank.The building of the West Bank separation wall by Israel, much of it inside Palestinian territory, seizing land and restricting freedom of movement, has been deemed illegal by the International Court of Justice in 2004.
Responding to a request from the UN General Assembly, the Court's opinion said the Assembly and the Security Council should consider what steps to take "to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion.”
Observing that 80 percent of Israeli settlers in the occupied Palestinian territory now live between the barrier and the so-called Green Line marking the 1949 boundary of Israel, the Court said the structure's route could "prejudge the future frontier between Israel and Palestine."
Violations of Palestinian Rights
Soldiers detain a Palestinian boy during clashes in Hebron-Photo Credits: Reuters
International observers and human rights groups have long denounced the appalling situation for the Palestinians and cataloged the human rights violations they have endured:
Human Rights Watch Accuses Israel of Apartheid
Independent humanitarian non-profit, Human Rights Watch, published a damning report in 2021 called ‘A Threshold Crossed’ which condemns the abuses against those living in the OPT. It states:
“Israeli authorities methodically privilege Jewish Israelis and discriminate against Palestinians. Laws, policies, and statements by leading Israeli officials make plain that the objective of maintaining Jewish Israeli control over demographics, political power, and land has long guided government policy. In pursuit of this goal, authorities have dispossessed, confined, forcibly separated, and subjugated Palestinians by virtue of their identity to varying degrees of intensity. In certain areas, as described in this report, these deprivations are so severe that they amount to the crimes against humanity of apartheid and persecution.”
Amnesty International Reports on Abuses
In February last year, Amnesty International released a 280-page report showing how Israel was imposing an institutionalized regime of oppression and domination against the Palestinian people wherever it exercised control over their rights, fragmenting and segregating Palestinian citizens of Israel, residents of the OPT and Palestinian refugees denied the right of return.
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