Children of Palestine Questioning Humanitarian Law

75 years ago, the Diplomatic Conference met in Geneva from 21-4-1949 to 12-8-1949, adopting four significant conventions for the historic codification of “jus in bello” principles. The resulting international humanitarian law (“IHL” hereinafter) regime comprising of the Geneva Conventions of 1949 and the two Additional Protocols of 1977 was aimed to set the limits on how military operations be carried out (Principles on the Conduct of Hostilities) regulates the treatment of people situated in a conflict setting.

Although children have been at the forefront of war throughout history, today’s conflicts seemingly reach new levels of suffering. The 7-10-2023 escalation of violence in the Gaza Strip, is a case in point.¹ While the violence in the region escalated with the advance of Palestinian armed groups,² primarily Hamas — the robust response by Israel after declaring an official war³ against Hamas — it resulted in escalations of air, naval, and ground operations, creating a catastrophe in the strip and forcibly displacing 1.7 million people.⁴

The notable mass atrocities of people that had nothing to do with the war including many children and babies — constant bombing and destruction of designated safe areas such as schools and refugee camps in neglect of the Geneva Principles were made explicit.⁵ Reports continued of attacks on ambulances, medical aid convoys, and hospitals completely decimating Gaza’s health system impeding access to healthcare for 1.1 million Gaza children at the time they need it most.⁶

This raises questions on the validity of these retaliations being conducive to the legal parameters for a State’s (Israel) right to defend itself. The jus ad bellum legality of these attacks is beyond the scope of this article, rather it aims to address the level of compliance measures taken by Israel vis-à-vis IHL in the conduct of these attacks, particularly in relation to children, and accountability for these rules within the international community.

Children of Gaza, what do figures say?

The data collected by United Nations experts under the special procedures (independent fact-finding and monitoring mechanism) of the Human Rights Council suggest that — 14,500 children have been killed in Gaza, with over 17,000 becoming orphans.⁷

United Nations International Children’s Emergency Fund (Unicef) reported at least 1000 children have had one or both legs amputated.⁸ This is more than the number of children killed or injured in 4 years of conflict around the world.⁹ The numbers are increasing with the growing restrictions on humanitarian blockades, including Israel’s direct control over all entry and exit points of the Rafah crossing and the Kerem Shalom (Karem Abu Salem) necessitating its approval for the goods coming in and out of Gaza, including basic amenities and medical equipment.

Many international responses cleared the air about the on-ground situation in Gaza with Unicef spokesperson James Elder calling it the world’s most dangerous place to be a child¹⁰, and the United Nations (UN) Secretary General himself said that Gaza is becoming a graveyard for thousands of children.¹¹ These are not exaggerated statements in themselves. The figures of children being destroyed by Israeli Forces have reached unprecedented heights, and the actual atrocities could be much worse than presented.

How does international humanitarian law protect children?

There is no standard definition of the term “child” or “children” under IHL treaties. While some rules apply to “children”, others specify their respective categories, particularly those under 15, under 12, or newborns. Several rules extend protections specifically to persons under the age of 18. From a generic point of view, and for uniformity of approach, the most standard definition for this purpose is taken from Article 1 of the United Nation’s Convention on the Rights of the Child, 1989 (“UNCRC” hereinafter) which defines a “child” to mean every human being below the age of eighteen years.¹² Thus, international practice generally — and the UNCRC specifically — recognises that persons under 18 are children unless otherwise stipulated.

Protection for children as civilians

It has already been sufficiently established that children form part of the civilian population in an armed conflict and are entitled to fundamental protection relating to the treatment of people not taking part in direct hostilities. The distinction principle of IHL places an obligation on warring parties to differentiate between combatants and civilians, civilian objectives and military objectives at all times, and to only direct operations against military objectives, as says Article 48 of the Additional Protocols I (AP-I).¹³

Israeli forces’ continuous bombardment and indiscriminate airstrikes on the densely populated areas including residential buildings, refugee camps, places of worship, schools, supermarkets, hospitals, and humanitarian corridors fail any claim for such distinction. The destruction these attacks have inflicted upon children is unparalleled.¹⁴

Another fundamental principle of IHL is jus in bello proportionality, codified by Article 57 of the AP-I, which is also a recognised customary international law, that prohibits attacks that are — “expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”. Thus, for any attack to be legitimate has to ensure minimal incidental loss to civilian life.¹⁵

Israel’s objective to completely eradicate Hamas has led it to attack protected areas like schools, designated shelters, and hospitals, claiming reports of underground Hamas operatives functioning there, discounting the lives of hundreds of civilians sheltering within them.¹⁶ Additionally, the “concrete” and “direct” elements under the article suggest that the military aim must be relatively close and parkash from the face of the earth because such a far-sighted objective can never outweigh the present excessive civilian harm.

Special protection provided to children

During armed conflict and other situations of violence, children are especially vulnerable to a myriad of risks that deprive them of the opportunity to fully experience childhood. Given their particular vulnerability they are extended further protection under IHL. Article 77 of the AP-I states that — “children shall be the object of special respect and shall be protected against indecent assault. The parties to the conflict shall provide them with the care and aid they require whether because of their age or any other reason”.¹⁷

Further, Article 4 of the AP-I makes a somewhat similar provision regarding non-international armed conflicts, “Children shall be provided with the care and aid they require.” This special protection now forms a part of an established customary international law practice.¹⁸

Additionally, IHL makes special provisions for evacuation of children to special zones, assistance and care, identification, family reunification, education, and cultural environment, and also lays grounds for the protection of unaccompanied, arrested, and detained children during armed conflicts. These protective measures are halted substantially with reports suggesting that approximately half of the total number of children killed in the conflict are yet to be identified and designated safe zones and evacuated areas in which the civilian population seek refuge are continuously bombarded. Save the children estimate approximately 21,000 Gazan children to be missing¹⁹, including the 17,000 unaccompanied and separated children.²⁰

Criminal responsibility in the case of Palestine

Israel has been criticised heavily for its tactics to subject the civilian population of Gaza to collective punishment. The protracted blockade and recurrent airstrikes, which have led to high civilian casualties, especially of children, have prompted calls for investigations of IHL violations by international organisations.²¹

On 20-5-2024, the International Criminal Court prosecutor Karim A.A. Khan KC filed the applications for arrest warrants against Israel’s Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, as well as two other top Hamas leaders — Mohammed Diab Ibrahim al-Masri, the leader of the Al-Qassam Brigades, and Ismail Haniyeh, Hamas’ political leader. The charges against the two top leaders of Israel are war crimes of “intentionally using starvation of civilians as a method of warfare”, “wilfully causing great suffering, or serious injury to body or health or cruel treatment”, “wilful killing or murder”, and “intentionally directing attacks against the civilian population including children”.²²

Israel is not a member of the International Criminal Court (ICC). However, the ICC claims to have jurisdiction over Gaza, East Jerusalem, and the West Bank after Palestinian leaders formally agreed to be bound by the Court’s founding principles in 2015.²³

Uphold commitments to protect children

For grave violations against children to be halted and accounted for and protective measures to follow, the consensus on an immediate ceasefire must be urgently reached by both parties. All attacks initiated by Israel must be conducive to the distinction, precaution, and proportionality principle so long as they concern the civilian population including children. UN Security Council Resolution 2735 in this regard should be implemented and Israel must immediately act on all provisional measures’ orders issued by the International Court of Justice.²⁴ The parties complicit in the conflict, covertly aiding and supplying arms to either Israel or Hamas should acknowledge their stance and stop further supplies unless IHL norms and standards for the conflict are abided.

The common Article 1 of the four Geneva Conventions obligates member States to ensure respect for IHL Rules. This respect, to the extent of practicality, stems from international responsibility — voluntary or forced.²⁵ Israel as an occupying power exercising effective control on the territory of Gaza should make sure that the basic needs of its population, such as food and water, are met. The United Nations Security Council (UNSC) and parallel enforceable measures running through the system of the United Nations must take necessary action against Israel to take feasible steps to protect the civilian population of Gaza, prevent further violations against its children, and ensure there are complete and impartial investigations to bring those responsible to justice of IHL violations.