Gabriel Helou

“Under international humanitarian law, Israel is obliged, in the current conditions of armed conflict, to maintain water supplies from Israel to the Gaza Strip at current level and of an electricity supply sufficient to meet the basic needs of the civilian population .”

Israeli officials claim that Palestinian factions in the Gaza Strip use civilians as  “human shields” . Needless to remind, this conduct, regardless of who carries it out, constitutes a war crime, according Article 8(2)(b)(xxiii) of the Rome Statute of the International Criminal Court. However, a number of reports from Gaza denied Israeli claims. But let’s presume that Israeli claims are not false. Does that mean Israel can still go ahead and bomb, despite civilians presence?  Absolutely not. Israel cannot bomb areas where civilians are known to be present. That’s prohibited and further constitutes a war crime. Consequently, the response to Israeli claims lies in Article 8(2)(b)(iv) of the ICC Rome Statute - in addition to other principles of international humanitarian law.  

It was reported that a French lawyer lodged a complaint with the International Criminal Court against Israel. This is interesting yet inadmissible. As a matter of fact, there are different reasons why the ICC would decline to “examine the complaint”. However, let’s mention only three of them.  Firstly, unlike national courts, the ICC - unfortunately -   doesn ’t  receive complaints from individuals. Secondly, the lawyer was acting “on behalf of the Palestinian Minister of Justice”. So it was the Minister ’ s initiative, and not the Government’s. Thirdly, any acceptance of the ICC’s jurisdiction, or referral to the ICC, must be signed by the President, which - obviously - wasn’t the case.

The ‘right to self-defence’ can only be invoked in the case of armed attack by one State against another.  Needless to say, Israel continues to exercise effective control over the Palestinian Territory, including the Gaza Strip.  Israel claims that it launched “Operation Protective Edge” in order to defend itself. However, the alleged “threat” originates from within, and not outside, the territory under Israeli full control. Accordingly, Israel cannot invoke the right to self-defence vis-à-vis the Gaza Strip, nor any part of the Occupied Palestinian Territory.