Prof. Gurdial Singh Nijar

For the past two weeks we have been witnessing the daily massacre of Palestinian civilians trapped in Gaza. The latest United Nations report says that Israeli forces evacuated a large number of Palestinians into a single-residence house in Zeitun, warning them to stay indoors, and soon after they shelled the home repeatedly killing some 30 people.

A UN official has asked that Israel be charged for humanitarian crimes in the ongoing war on Gaza.

Can it be charged? And on what basis? International law consists of multilateral agreements - such as treaties and conventions - made between states; as well as what is accepted by states customarily. It regulates wars in two ways. Initially, it restricts the justifications for starting a war. Then when war erupts, it has rules for the conduct of a "humane" war.

One such set of rules provides protection for civilians. It is Chapter IV of the Geneva Conventions of 1949. Virtually the whole world, including Israel and the United States, are parties to this Convention.There can be no excuse of any kind for not obeying it. Not the necessity defence (I had no choice but to take this action) nor the self-defence reason (I had to do it to protect myself).

Even if the other party does not stick to the rules, a Party to the Convention must still follow it. In other words, no reason or excuse of any kind can justify targeting the civilian population.

Indeed, this is the basis of international humanitarian law, as the International Court of Justice (ICJ) declared in an Advisory Opinion in 1966.These rules outlaw many acts such as killings, causing suffering or serious injury, destroying property, and intentionally targeting the civilian population or objects.Weapons are banned if their use has an indiscriminate effect between civilians and combatants; or are used out of all proportion to military objectives.

These rules must not be violated in an armed conflict of any sort. If they are, the state or organisation can be charged for a humanitarian crime.If they are breached in an armed conflict of an "international" character, then a "war crime" is committed.Israel argued at the ICJ in a case in 2004, that this particular Geneva Convention did not apply because Palestine has never been a sovereign territory, it is merely an occupied territory.

The Convention, it said, applies only to state parties. Israel is really saying that the Palestine Liberation Movement (PLO), the governing authority in the West Bank, is not acting for a sovereign state because there is no such State.The ICJ rejected this argument. It said that the Convention guaranteed the protection of civilians in time of war even in Palestine. And that this had been affirmed several times by the countries who are Parties to the Convention, the UN General Assembly and the Security Council.

Even the Supreme Court of Israel said in 2004 that the Israel military must respect civilian populations under the rules established by the Convention. The upshot then is that Israel can be charged for the war crime of violating the relevant Geneva Convention. It is instructive to recall Israel's 2006 attack against Lebanon in 2006. Much of the same reasons were given - abduction of soldiers, rocket attacks, using civilians as human shields.

The independent Human Rights Com­mission investigating that war concluded that Israel was guilty of using indiscriminate force against civilians and civilian objects and had punished civilians collectively.As for the war on Gaza, the UN Charter prohibits members to use force unless it is in self-defence. The threat must be imminent. More importantly, the recourse to war must be necessary and proportional to the armed attack. Even then, before any such action is taken, it is mandatory to negotiate, conciliate, mediate, arbitrate and seek judicial settlement. In short, war is only as a very last resort.

Even then the war measures must be temporary until the Security Council can take measures. If none of these conditions are met, the war is illegal. It is unjustified aggression - a war crime. It is instructive that the United States termed the Soviet presence in Afghanistan at the request of the then Government in 1979 as "military aggression." On the face of it, Israel stands charged for the crime of aggression, sometimes called the crime against peace.

The UN Security Council is tasked with the obligation to initiate action for the war crime. The United States is clearly resolute to prevent any such prosecution. For acts against humanity, states have a duty to act against their citizens who breach the rules.

Israel cannot possibly prosecute itself! In either case the rules of international law are being flagrantly and openly defied. Is it not time for the world community to act beyond making pious and empty rhetorical statements?

Prof Gurdial Singh is with the Law Faculty, University Malaya.