The principle of distinction

On 7 October 2023, Hamas, the Palestinian Islamist political and military organization (which the European Union and several states consider terrorist) which effectively controls the "Strip" of Gaza, launched a devastating attack against the State of Israel, with at least 1,400 dead, over 3,000 injured and 200 people taken hostage. Israel reacted with a plurality of armed actions in the "Strip", a territory of 360 square kilometers with a population of over two million people, of which one million four hundred thousand with the status of refugees, causing a large and still growing number of victims (a few thousand in the first few days).

In the subsequent flood of reactions, political evaluations and the world of information, international law was often referred to. I therefore try to present in these two pages "the reasons for the law", often neglected in conflict situations where the logic of war, violence and oppression prevail. The legal system of the international community presents two areas of rules applicable in dramatic situations such as the one experienced in the Middle East in recent weeks.

International law has two areas of rules applicable in this type of conflict situations: the jus ad bellum and the jus in bello.

The first area consists of the principles and rules which follow from the affirmation of the general prohibition of the use of force in international relations, accompanied by two exceptions. The first is self-defense and the second is the use of force in the collective security system centered on the United Nations Security Council.

The second area is the set of rules of international humanitarian law relating to the conduct of hostilities and the protection of certain categories of subjects, the wounded, the sick, the shipwrecked, the prisoners of war and the population civil.

From the first point of view, the actions of Hamas on 7 October determined Israel's military response, which reacted in self-defense according to customary law codified in the art. 51 of the UN Charter, which allows a state subject to an armed attack to react with force. The conditions for the legitimacy of a military response are respect for the principles of necessity and proportionality. There is no doubt that Israel had the right to self-defense in the face of the attacks it suffered.

The second profile is made up of the very broad set of rules of international humanitarian law which are recalled as applicable in this tragedy, the jus in bello. This area is very rich, being made up of customary law and the large corpus of the Geneva and Hague Conventions. Serious breaches of the Geneva Conventions and serious violations of the laws and customs of war are "war crimes" and entail international criminal responsibility for those who commit them. The first additional protocol to the Geneva Conventions (1977) establishes a "fundamental rule" (as art. 48 is entitled), the principle of distinction, which obliges the parties in conflict to "make, at all times, a distinction between the civilian population and combatants, as well as between civilian assets and military objectives, and, consequently, direct operations only against military objectives≫.

This is the milestone, the essential and mandatory reference. Attacks against civilians are prohibited, they are - in fact - "war crimes". Attacks can and should only be directed against combatants and military objectives. In this conflict, both sides declared that they would not launch attacks against civilians. The precautionary principle also requires that the so-called (bad expression indeed!) "side effects" be avoided.

Humanitarian law also prohibits the taking of hostages. This also constitutes a "war crime". Likewise, the deprivation of food, water, electricity and, in general, of goods essential to the survival of the civilian population constitutes a "war crime". In short, the launching of thousands of rockets on Israeli cities, the killing of civilians, the taking of hostages, the use of civilians as human shields to protect militia fighters and military installations are war crimes.

Likewise, the Israeli bombing of Palestinian population centers, the siege and the deprivation of food, medicines, water and electricity from an entire population are war crimes. Generally speaking, the statement by Israeli Defense Minister Gallant who, announcing a ≪siege on Gaza≫, declared that ≪we are fighting human animals, and we will act accordingly≫ aroused indignation. Aside from unacceptable language that dehumanizes the adversary, the “why” and “how” of war are two separate legal questions. The justice or injustice of a cause of war does not change the obligation to fight it in compliance with the rules of international humanitarian law.

Cardinal Pierbattista Pizzaballa commented on the tragic events of recent days. ≪Today it doesn't make much more sense to dig into what led to this situation. We are in a new, dramatic phase. After this war it will be difficult to rebuild a minimum of trust between the two sides. But this is a necessity because Israelis and Palestinians will remain here. The question is "how" and "when": it will take a lot of time, patience and the work of many people of good will≫.


Edoardo Greppi
NP November 2023