On a plot of land smaller than the island of Montreal, more than 41,870 people (mostly civilians), including 14,000 children, lost their lives in one year. In the war between Hamas and Israel, extreme levels of violence have been reached — on both sides. How is it that in 2023-2024, we will not be able to stop such a tragedy?
According to Vladyslav Lanovoy, professor of public international law at Laval University who has worked with the International Court of Justice (ICJ), it is clear that since October 7, 2023, both Hamas and Israel “have committed serious violations of the international humanitarian law and international human rights law.
By crossing the Israeli border on October 7, 2023, the terrorist group committed abuses against soldiers and civilians, killing 1,205 people and taking 251 hostages. A year later, 97 of them are still in the hands of Hamas in Gaza, 64 of whom are alive.
In its response launched in the hours following this massive attack, Israel asserted its right to retaliate – its right to self-defense, in legal parlance. “There is a general ban on the use of force in international relations”, with this exception, explains Me Lanovoy.
However, it is not a question of carte blanche, he adds, specifying that this right to self-defense is limited by the principles of necessity and proportionality. Necessity can be invoked here for the release of the hostages, but “the scale of the coercive measures taken by Israel” and “the scale of the deaths” (more than 41,870, according to the Hamas government) ensure that the aspect proportionality is not respected, believes the lawyer. “The use of force is disproportionate to motivate the exercise of self-defense. »
In accordance with the principle of distinction enshrined in the law of armed conflict, belligerents also have the obligation to distinguish military targets from infrastructure or civilian persons. “We cannot attack a target without knowing whether it is a military or civilian object, or if we know that there may be civilian victims,” says M.e Lanovoy.
Without ruling on the merits of South Africa’s complaint against Israel for “genocide” in Gaza, the ICJ recognized last January that there was a “real and imminent risk that irreparable harm will be caused” to the Palestinians in the enclave. To prevent this genocidal risk, the ICJ – the main judicial body of the United Nations, which decides disputes between States – has decreed several precautionary measures, including the cessation of the military offensive in Rafah, in the south of the Gaza Strip. . However, it will be necessary to wait several years before the substantive case and the debate on compliance with the precautionary measures are heard.
As for the International Criminal Court, which judges the criminal responsibility of the individuals involved, it could soon issue international arrest warrants against a series of leaders of Hamas and Israel for war crimes and crimes against humanity.
This is in addition to an opinion produced last July in which the ICJ determined that Israel has illegally occupied the Gaza Strip, the West Bank and East Jerusalem since 1967. The court specified that Israel must “immediately cease all further settlement activities and evacuate all settlers” from the Palestinian territories.
Political will
Despite these legal foundations, how is it that the Gaza Strip continues to be shelled, that nearly a hundred hostages are still detained and that the toll of civilian victims continues to climb at an astonishing rate?
For Nizar Farsakh, professor of international negotiation at George Washington University, who led the Palestinian delegation in Washington from 2003 to 2008, it is clear that “the instruments [juridiques] are there, but [que] the political will is not there.” “There are countries and companies [entre autres d’armement] who have a lot of interests with Israel [et] who could change things, but who decide not to,” he laments.
The United States notably uses its right of veto in the United Nations Security Council to systematically defend its Israeli ally.
In the current context, there is no sign that the violence – with an “intention” on Israel’s part to kill civilians, according to Professor Farsakh – is about to stop. “What we are witnessing today is an attempt by Israel to reclaim its deterrent force [qui a été solidement ébranlée par le succès de l’attaque surprise du Hamas]. Israel needs to feel strong and to feel that its adversaries are weak, if not completely decimated. »
The analyst recalls that on October 7, 2023, militants from the Gaza Strip — “a territory under siege and subject to surveillance [par les services de renseignement israéliens] 24 hours a day, 7 days a week” — managed to do what no enemy of Israel had managed until then, namely occupy Hebrew territory.
Since then, according to a United Nations estimate, the strikes on the Gaza Strip have left more than 19,000 orphans. “They probably won’t be “seeds for peace.” The Israelis will have a little calm for the next few years, but it will come back stronger in a few years,” notes Nizar Farsakh.
An “imposed” war
For Avi Melamed, a former agent of the Israeli intelligence service, the Gazans also have a responsibility for the large number of victims on their territory. “I am very sorry to see what is happening in the Gaza Strip. I am not happy to see people and children dying,” he assures Duty. But the Israelis did not choose this war, he said.
“That’s not what I wanted […] As an Israeli, as someone who wants to live in peace with their neighbors, I tell those neighbors that they should take responsibility for their decisions and their actions and that until they do, it Don’t expect things to get better. »
In 2007, Gazans elected Hamas as head of their government, he recalls, and the group knew that “by launching this war, there would be repercussions.” Mr. Melamed adds that Hamas itself “sacrifices” “its own brothers and sisters by making them human shields”, specifying that, according to Israeli intelligence, the militia uses civilian installations such as hospitals and mosques to operate.
But despite the strength of the Israeli military response, the former intelligence agent does not believe that Israel will succeed in eradicating Hamas. “I think the talk about eliminating Hamas is completely irrelevant. Ultimately, the goal, from a practical standpoint, is to cripple Hamas to the point that it is no longer able to continue dictating its radical and violent agenda. »
The Israeli military campaign will most likely continue to further reduce the group’s military capabilities, he adds, “but not with the same power and volume.”
With the more than likely continuation of clashes, it is a safe bet that the big winner will ultimately be the radicalization of both camps. “Often in such situations the fanatics are the ones left, and the most critical [du régime au pouvoir] end up leaving,” notes Nizar Farsakh. With the consequence that the energy – sometimes existential – deployed by those wanting to destroy their enemy becomes stronger than the enthusiasm displayed by their fellow citizens campaigning for peace.