The armed attacks by militants from the Gaza Strip, an area controlled primarily by the Hamas group, into southern Israel in early October and the subsequent armed responses from Israel deserve to be put in a historical and political context. Gaza is one of the two parts of Palestinian territory, the other part being the West Bank, both of which are part of an age-old conflict which has not been resolved but regrettably has been left to fester.
The potential for conflagration was generated decades ago by imbalances caused by the international community. It is thus the international community which bears a great part of the responsibility for addressing the root causes and consequences of this scenario, and leverage well with various sides to solve their dispute peacefully.
The seeds of the conflict were sown even before the Second World War. The origins of Israel can be traced back to the Balfour Declaration in 1917 which called for the establishment of a Jewish homeland in Palestine.
Meanwhile, the plight of Palestinians was, however, neglected. After the Second World War, the international community helped to set up the state of Israel in 1948 but failed to establish a state for the Palestinian people. The need for a two-state solution should have been at the heart of the political architecture of the region there and then, but there was no traction for this compromise at the time.
After the formation of Israel, there followed a number of wars between Israel and Arab countries, resulting in Israeli occupation of various territories beyond the original boundaries of the Israeli state, particularly in regard to the occupied territory comprising the Golan Heights (originally Syrian), the Gaza strip, East Jerusalem and the West Bank, with large scale displacements of the Palestinian people. Therefore, there are several million Palestinian refugees in the Gaza Strip and the West Bank.
Israel has since then tried to annex the territories, even though there are many UN resolutions calling for its withdrawal from the Occupied Territory. More recently, Palestine was recognised internationally as a State and it now has non-member observer status in the UN. However, its territory is still under occupation.
This complicated issue, steeped in intransigence, has been a breeding ground for discontent, with extreme groups resorting to periodic violence, countered also by violence from the other side and internationalised by various constituencies behind the key protagonists. The recent spate of violence began on Oct 7 with attacks by Hamas, countered by armed responses from the other side, leading to thousands of victims dead and or injured. Some foreigners have also been killed and injured in the crossfire, and hostages have been taken by Hamas. The tension is heightened by forced displacements of people.
The pinnacle of the UN system responsible for settling the dispute is the UN Security Council, but it is often dysfunctional because any of the five permanent members of the council can use its veto to block action in regard to international peace and security, including on the Israel-Palestine issue. The most recent draft resolution was tabled but blocked by one veto on Oct 18. The draft resolution called for "humanitarian pauses" to let aid flow through to help the civilian population. However, it was vetoed; this was reportedly due to the failure of the draft resolution to mention Israel's right of self-defence against armed attacks.
It is thus important to advocate the middle ground especially to highlight the humanitarian side of international law so as to ensure fairness to all sides and most importantly to protect innocent people without discrimination. This spectrum is known as international humanitarian law and it establishes rules prohibiting various practices in times of war, whether it be an armed conflict of an international kind or of a non-international kind, alias civil war.
The rules are actually simple, although difficult to practice at times due to the vested interests which seep into the conflict. A key rule is that while the military can attack the military, they must not attack civilians. This is known as the principle of distinction. While the military can resort to some use of force and arms, they must be based on military necessity. They must abide by the principle of proportionality which forbids attacks against military objectives which might cause excessive loss of life and damage interfacing with the military advantage anticipated. Precautions should also be taken to minimise harm to civilians, such as to warn the civilian population of impending attacks.
This humanitarian imperative was at the heart of a call recently from a large number of UN human rights experts under the UN Human Rights Council on Oct 12. They urge "an immediate end to violations of IHL and human rights, in particular the right to life". A ceasefire, to be monitored by an independent, international body, is asserted. They also call for "the release of hostages taken by Hamas and Palestinians arbitrarily detained by Israel, particularly women, children, older persons, persons with disabilities and those who are gravely ill".
The establishment of an international protective presence in the occupied Palestinian territory is urged. There should also be financial and humanitarian aid and the creation of humanitarian corridors that allow people to leave Gaza and return as soon as the hostilities cease. Moreover, "the dignity of the dead from the latest violence [must] be respected and they are [to be] swiftly handed over to mourning relatives".
Interestingly, some of those elements resonate in the latest statement from Asean's joint statement with the Gulf Cooperation Council, dated Oct 20, covering the Gaza situation.
The two organisations condemn attacks on the civilian population, thus asserting a durable ceasefire and effective access for humanitarian aid in Gaza. They call for all sides to abide by IHL. They advocate the immediate release of civilian hostages and detainees, and urge all parties to work towards peaceful resolution of the conflict -- based on a two-state solution. Accordingly, they support the initiatives of key countries based on international law.
Where there is a (political) will, there is a (humane) way.
Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University. He has helped the UN as UN Special Rapporteur, UN Independent Expert and a member of UN Commissions of Inquiry on Human Rights.