MIA SWART: No place to hide — the Gaza war through the lens of occupation

Both Israel and Palestine have used the language of international law to justify their actions since the conflict broke out on “Black Saturday”.

By doing so, both sides acknowledge the weight and authority of the law. But international law, clear as it is in certain respects, also has severe shortcomings when it comes to the unique and complex context of Gaza.

As a fundamental starting point, article 2 of the UN Charter prohibits the waging of aggressive war. This means that Hamas’ actions on October 7, including its kidnapping of civilians, was a violation of international law and must be condemned in the strongest terms. In contrast to the past three wars between Israel and Palestine since the second intifada, the current war was initiated by Hamas. Its actions were not the result of a direct military provocation from Israel, in which case their actions might have been regarded as self-defence.

But it is not enough to consider only the “who started it?” question. Whereas Israel has the right to self-defence, there are clear limits. These are contained in humanitarian law, a body of law that has a crucial role to play in constraining the way in which wars are fought. Crucially, the war should be considered against the background of Israel’s prolonged occupation of Palestine.

Since the acquisition of territory by force is a violation of international law, a permanent or indefinite occupation is manifestly illegal. The human rights violations emanating from the Israeli occupation of Palestine are too varied and numerous to consider in the scope of this article, but Dutch law professor André Nollkaemper has questioned whether “self-defence”, as relied upon by Israel, is appropriate in the context of a prolonged occupation. 

The rules of humanitarian law are contained in the 1949 Geneva Conventions and in the 1998 Rome Statute of the International Criminal Court. These instruments are powerful because they have been widely ratified by states. Though Israel has not ratified the Rome Statute, it is bound by the Geneva Conventions.

The principle of distinction is one of the key pillars of humanitarian law. This principle requires that a strict distinction be made between civilians and combatants. This principle goes hand in hand with the principle of proportionality, which requires that attacks that cause incidental harm to civilians that exceeds the direct military advantage anticipated from the attack, are prohibited. 

Since the start of the war the crimes that caused the most outrage were attacks on civilians. Israel has stated that it intends to only target Hamas. But having engineered the conditions in Gaza, Israel is intensely aware that Gaza is small and overcrowded, and that its population is trapped between the Mediterranean and the wall erected by Israel.

This means there is nowhere for the population to flee to, and an attack on any part of Gaza essentially amounts to an attack on the civilian population. By October 22 more that 4,600 Palestinians had been killed, while the number of Israeli casualties has remained consistent since October 7 at just more than 1,400. In light of Israel’s aggressive rhetoric and the experience of past wars, this gap is almost certain to keep increasing in the days and weeks ahead.

In the 2014 Gaza conflict more than 2,200 Palestinians were killed, as opposed to 74 people dead on the Israeli side. This is typical of the great disproportion in all wars against Palestine. It is also the reason many have commented that to the West, and certainly Israel, Palestinian lives are considered to be worth less than Israeli lives.

The geographical realities of Gaza also make nonsense of any claim that Hamas is using human shields. The terms human shields can simply not apply in a context such as Gaza, where there is nowhere to flee or hide. Having visited Gaza more than once, I have seen the dismal overpopulated state of the territory, the lack of open spaces for children to play.

By showing unwavering support for Israel, as US President Joe Biden and Britain’s Rishi Sunak did last week, Western governments are showing a measure of complicity in the war crimes Israel is committing by its unrelenting bombing of Gaza. 

The prolonged occupation, which violates the Palestinians’ right to self-determination, the dismal humanitarian conditions and the specific and unusual territorial specificities of Gaza, call for a rethink of some of the rules of international law.

The question of the Palestinians’ right to resist an ongoing, dehumanising and suffocating occupation is ultimately a moral question, one South Africans are uniquely positioned to consider. We should be able to relate to the words of Francesca Albanese, UN special rapporteur for the occupied Palestinian territories: “The militarised, settler-colonial occupation that Israel maintains traps both people.” 

• Swart is a visiting professor at Wits Law School specialising in human rights, international relations and international law.