The ongoing Israeli-Palestinian war has seen a brutal, disproportionate and inhumane use of force. Many commentators have used terms like “war crime”, “genocide”, “crimes against humanity” or “crime of aggression” to describe the situation, especially the violence committed by Israel. But what do these terms mean and is there really a place for law when people are at war?
A war crime is a serious breach of the rules of war including torture, widespread destruction, taking hostages, targeting civilians and attacking hospitals or places of worship.[1]
A crime against humanity, refers to the widespread attacking of civilians including murder, removing people from their homeland and apartheid.[2]
The phrase “genocide” means taking steps to destroy a national, ethnical, racial or religious group including by killing, imposing conditions directed to their physical destruction, or causing serious mental harm.[3]
A crime of aggression refers to taking steps to take control of another country including military occupation or blockades.[4]
All these acts are crimes under the jurisdiction of the International Criminal Court (ICC), punishable with imprisonment of up to 30 year or imprisonment for life, in extreme situations,
The ICC will only exercise its jurisdiction over such crimes on:
- Referral by a signatory of the Rome Statute of the International Criminal Court (“Rome Statute”);
- Referral by the UN Security Council;
- The ICC Prosecutor’s own initiative.
Unfortunately, Malaysia is not able to make a referral to the ICC as we are not a signatory to the Rome Statute. Other countries that do not accept the ICC’s jurisdiction include China, North Korea, Myanmar and Rwanda.
Presently, Palestine accepts the ICC’s jurisdiction, as Palestine has signed the Rome Statute. On the other hand, Israel does not, as Israel withdrew after signing the Rome Statute in 2000.
As there has been significant violence and terror committed on Palestine, this opens the door for the ICC to exercise its jurisdiction and investigate these possible war crimes.
Apart from the crimes in war under the Rome Statute, the rules of war are largely set out in the Geneva Conventions. The Geneva Conventions serve to protect civilians by limiting the use of warfare. Its core principles are distinction (to recognize the difference between combatants and civilians), proportionality (to prohibit excessive harm to civilians in relation to a military advantage) and precaution (to take constant care to spare civilians from military operations).
Fortunately, Malaysia has signed the Geneva Conventions and has even gone so far as to make it a crime to breach the Geneva Conventions.[5]
On the Israeli-Palestinian war, the attacks by Hamas against Israeli civilians are illegal. In the same light, Israel, like the rest of the world, does not have an absolute right to the use of force. Hence, the denial of essential facilities, excessive use of force and disproportionate killing of civilians by Israel is illegal.
In the years to come, it may be possible for the perpetrators to be held accountable for their crimes, be it from Hamas or the Israel. Until then, we can only watch helplessly the horrific human tragedy unfold before our eyes in this senseless war.
[1] Art. 8, Rome Statute of the ICC
[2] Art. 7, Rome Statute of the ICC
[3] Art. 6, Rome Statute of the ICC
[4] Art. 8 bis, Rome Statute of the ICC
[5] S. 3, Geneva Conventions Act 1962
About the Author
Sahain is a Legal Associate of XK Law. He graduated with Honours from the National University of Malaysia. Sahain believes that the legal fraternity plays an integral part in the operation of the rule of law in Malaysia and is keen to utilise his legal education towards the betterment of society and the country.
