States Response in Enforcing Violations of International Humanitarian Law by Israel

INFORADAR.ID - The term "International Humanitarian Law" originated from the term "Law of War," which later evolved into the "Law of Armed Conflict. International Humanitarian Law encompasses a set of rules established on humanitarian grounds to limit the impact of armed conflicts. Its purpose is to protect and preserve the fundamental rights of both combatants and non-combatants involved in armed conflicts.

A combatant is an individual who is directly engaged in warfare, while a non-combatant refers to individuals who are not directly involved in the conflict. Combatants may be members of the armed forces or civilians who take up arms in warfare, while non-combatants encompass civilians, medical or humanitarian personnel, journalists, and members of the armed forces who have attained the status of hors de combat or are otherwise incapable of combat due to injury, illness, or other reasons. Regardless of circumstances, non-combatants must be treated with humanity, without any adverse distinction based on race, skin colour, religion or belief, sex, birth, wealth, or any other similar criteria.

The primary sources of humanitarian law consist of the Hague Conventions and the Geneva Conventions. The Hague Conventions comprise the Hague Convention of 1899 and the Hague Convention of 1907 concerning the conduct and means of warfare. The Hague Convention of 1899 encompasses three conventions and three declarations, whereas the Hague Convention of 1907 comprises thirteen conventions.

Additionally, the Geneva Conventions, which govern the protection of war victims, comprise four conventions. The Geneva Convention of 1949 is supplemented by the Additional Protocol to the Geneva Convention of 12 August 1949, about the Protection of Victims of International Armed Conflict (Protocol I), and the Additional Protocol to the Geneva Convention of 12 August 1949, relating to the Protection of Victims of Non-International Armed Conflict (Protocol II).

The difference between the two conventions mentioned lies in the fact that the Hague Convention applies during times of war and regulates the rights and obligations of the disputing parties in conducting a military operation, limiting the means and infrastructure that can cause significant harm to the surrendered enemy. On the other hand, the Geneva Convention of 1949 applies during and after a war, placing greater emphasis on the protection of victims and the circumstances of war and armed conflict, including wounded or sick members of the armed forces, shipwrecked prisoners of war, and civilian populations. 

In the aforementioned convention, provisions are established prohibiting the targeting of civilian populations, medical teams or humanitarian personnel, journalists, and members of the armed forces who are hors de combat or incapacitated from combat due to injury, illness, or other reasons.

Additionally, the convention also stipulates the prohibition of attacks on civilian structures such as residential homes, hospitals, and places of worship, among others. Israel's brutal and unbridled actions resulting in civilian casualties, harm to medical or humanitarian personnel, and the destruction of civilian residences, places of worship, and hospitals are violations and crimes against International Humanitarian Law.

Furthermore, Israel's actions contravene the norm of non-use of force, wherein the use of violence for territorial acquisition has been prohibited. This prohibition has been in effect since the United Nations Charter and has been affirmed through the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States following the Charter of the United Nations (Declaration on Friendly Relations).

 In cases of violations of humanitarian law, three alternative enforcement mechanisms can be pursued for the prosecution of individuals responsible for war crimes, namely: 1) According to the Geneva Convention of 1949 and the Additional Protocol of 1977, under Article 49, Paragraph 1 of the Geneva Convention of 1949, a state that has ratified the Geneva Conventions must enact national legislation capable of imposing effective criminal sanctions on anyone who commits or orders the commission of serious violations of the Convention; 2) Through the United Nations Security Council, the establishment of ad hoc tribunals such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR); 3) Employing the International Criminal Court (ICC). The war crimes committed by Israel fall within the jurisdiction of the International Criminal Court, or ICC.

However, this mechanism is faced with constraints and cannot be applied. In the case of the first mechanism, it cannot be implemented as Israel has not ratified the agreement, and the Israeli government tends to justify its actions. As for the second mechanism, a resolution of the UN Security Council can be enforced if it obtains unanimous support from the five permanent members with veto power, namely China, Russia, France, the United Kingdom, and the United States. Such a resolution would not succeed, because United States always give the “VETO”.

Nonetheless, if the UN Security Council is unable to implement sanctions due to the veto power of permanent member states, it may refer this matter to the UN General Assembly as a residual responsibility. However, decisions of the UN General Assembly are not binding but rather of a recommendatory nature. The third mechanism also cannot be implemented, as the jurisdiction of the International Criminal Court (ICC) only applies to countries that have ratified the Rome Statute of 1998, which Israel has not yet done. 

Therefore, the enforcement of crimes and violations of international humanitarian law by Israel against Palestine proves challenging. To address this, the role of nations worldwide is crucial in voicing their condemnation of Israel's actions. Nations around the globe must set aside their interests for humanitarian reasons. They also bear the obligation to adhere to the principles of maintaining international peace and security as outlined in the United Nations Charter.

Furthermore, the involvement of international organizations such as the Organization of Islamic Cooperation, the Association of Southeast Asian Nations, the Arab League, African Unity, and others is imperative in exerting pressure on Israel, the UN, and veto-wielding parties to take action and reaffirm the principles outlined in the United Nations Charter. Countries must work together to stop all this, don't make things worse by helping each other send troops and military aid to both countries as is happening now. Failure to halt these actions raises concerns for international peace and security, potentially leading to a World War III.

In international law, the non-intervention principle applies, or you cannot interfere in the affairs of other countries, but this right can be exercised based on humanity reasons. So, based on humanity reasons, countries have the right to jointly condemn and stop Israel's actions. Leaders of countries around the world have criticized Israel's actions. The reaction of majority of countries currently shows persistent objection to Israel's actions, one of which is Indonesia. 

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