US says Israel is complying with international law. 'Complete nonsense’, experts say
As has been the case for the past several months, White House National Security Council spokesperson John Kirby took to the podium for a press conference on Tuesday and got into a heated exchange with a reporter.
This time, the back-and-forth was regarding whether or not Israel's targeting of an international aid convoy violated international law.
"Your - your question presumes, at this very early hour, that it was a deliberate strike, that they knew exactly what they were hitting, that they were hitting aid workers and did it on purpose. And there’s no evidence of that," Kirby told the reporter.
"I would also remind you, sir, that we continue to look at incidents as they occur. The State Department has a process in place. And to date, as you and I are speaking, they have not found any incidents where the Israelis have violated international humanitarian law."
The reporter responded, asking for clarity: "They (Israel) have never violated international humanitarian law ever in the past five to six months?"
"I’m telling you the State Department has looked at incidents in the past and has yet to determine that any of those incidents violate international humanitarian law," Kirby said.
A day later, Kirby doubled down, saying that while the State Department is continuing to investigate, "they haven’t found an incident yet that has pointed to a violation of international humanitarian law".
Legal experts, however, say that claims there isn't sufficient evidence that Israel has violated international law are "complete nonsense".
'It is both incredible and incredibly cynical for Mr Kirby to assert that Israel has not violated international law'
- Ardi Imseis, Queen's University
"No, Israel is not complying with international law in Gaza. Israel has unlawfully impeded humanitarian relief, and there is substantial evidence that it has unlawfully used starvation of civilians as a method of warfare," said Adil Haque, a professor of law at Rutgers University in the US.
That Washington considered itself unable to assess whether Israel has violated international law in Gaza was equally implausible, other experts said.
"It is both incredible and incredibly cynical for Mr Kirby to assert that Israel has not violated international law in its war on Gaza since 8 October," Ardi Imseis, a professor of international law at Queen's University in Canada, told Middle East Eye.
"The public record, including that established through the UN, is clear that Israel has and is continuing to violate all manner of its international legal obligations in the Gaza Strip."
Another expert, Janina Dill, a professor at the University of Oxford's Blavatnik School of Government, said that while assessing transgressions of international law was a complicated process requiring a high level of certainty, it was inconceivable the US was unaware of Israel's violations of international law in Gaza.
"In short, it is plausible neither that Israel’s operations in Gaza are in full compliance with IHL (international humanitarian law), nor that the US government is unaware of the serious and credible allegations of legal violations."
"In short, it is plausible neither that Israel’s operations in Gaza are in full compliance with IHL (international humanitarian law), nor that the US government is unaware of the serious and credible allegations of legal violations."
What does international humanitarian law say?
Israel's war on Gaza began in response to the 7 October attacks led by Hamas, which killed 1,200 people in southern Israel. Armed Palestinian groups which entered Israel also returned to Gaza with more than 240 Israeli captives. More than 100 hostages are still being held in the besieged territory.
Israel responded with a declaration of war and launched a devastating aerial bombardment of Gaza. It cut the water and food supply and went on to block communications and electricity. The bombardments were followed by a ground invasion.
The war on Gaza has been ongoing for nearly six months, and so far, Israeli forces have killed more than 33,000 Palestinians, most of whom are women and children, according to the Palestinian health ministry in Gaza.
Israeli forces have laid siege to hospitals, targeted and bombed civilian infrastructure, and levelled entire neighbourhoods in the enclave.
Its justification for using force on Gaza was that Israel had the right to defend itself under Article 51 of the UN Charter.
Saeed Bagheri, a professor of international law at Reading Law School in the UK, told MEE that the justification of "self-defence" would need to be examined under the laws governing the use of force under international law.
International humanitarian law, Bagheri said, would focus instead on the conduct of the Israeli army in Gaza.
"The question of Israel’s compliance with international law is mainly about the serious violations of international humanitarian law (IHL), which is a different branch of international law regulating the conduct of hostiles as to how they can fight, and what means and methods of warfare they are allowed to use during the war," Bagheri said.
Under this category of the law, one of the key principles to test is the question of proportionality. According to Bagheri, all parties to the current conflict are barred from deliberately targeting civilians. Moreover, any attack that may cause civilian harm similarly cannot be excessive compared to the military gains achieved by the attack.
"Well, the violation of this principle is now explicitly evident from what is going on in Gaza," said Bagheri.
The law professor pointed to a litany of examples, from the current death toll of Palestinians at more than 33,000 - most of them are women and children - to the wanton destruction of civilian infrastructure including schools, hospitals, and UN shelters.
"Although the United States and Israel keep saying that this was actually an ‘incidental’ loss of life, there is profound evidence documented now that Israel has been deliberately targeting civilian objects, including hospitals, schools, universities, and aid centres," he said.
"Therefore, I can definitely argue that this is a direct violation of proportionality in IHL."
Impeding aid to Gaza
Another violation of international humanitarian law that experts pointed to was the blocking of humanitarian aid into Gaza.
Israel has denied it is impeding aid access into Gaza. Aid agencies, international charities, and the International Court of Justice, however, have said that Israel is blocking humanitarian supplies from entering the enclave.
The United Nations has said that famine is looming in Gaza. At least 27 Palestinians have already died from malnutrition and dehydration, according to the NGO, Care International.
Israeli forces have on several occasions fired upon crowds of Palestinians awaiting the distribution of food aid, in what Palestinians have dubbed the "flour massacres".
At last count, Israel had killed more than 400 Palestinians trying to access aid.
Then, there have been the killings of aid workers. Even prior to this week's killing of seven aid workers, including foreigners, 196 aid workers have been killed by the Israeli military since October.
The international charity Refugees International travelled to Egypt, Jordan, and Israel in January, and concluded that Israel was "routinely and arbitrarily" obstructing aid to Gaza.
"Israel has used the starvation of Palestinians (civilians) as a method of warfare which is prohibited under IHL (international humanitarian law)," Bagheri said.
It was only after a purportedly heated conversation between US President Joe Biden and Israeli Prime Minister Benjamin Netanyahu on Thursday, that Israel announced it would reopen the Erez crossing to allow more aid to enter Gaza.
US inconsistency on Israel's war on Gaza
Since the war in Gaza began, Biden has pledged his full support to the war effort in Gaza. His administration has provided Netanyahu with a diplomatic shield at the United Nations while simultaneously fast-tracking arms shipments to replenish Israel's military supplies.
The Biden administration has also publicly defended Israel's actions in Gaza on multiple occasions, asserting that Israel has a right to defend itself.
'The United States keeps ensuring IHL violations instead of ‘ensuring respect for IHL’ by Israel'
- Saeed Bagheri, Reading Law School
When South Africa submitted a case to the International Court of Justice accusing Israel of genocide in Gaza, Kirby called the case "meritless, counterproductive, and completely without any basis in fact whatsoever".
The court ultimately ruled that there was a plausible case that Israel was committing genocide, moving the case forward.
"It often sounds like Kirby is saying that Israel is fully complying with international law," said Adil Haque, a professor of law at Rutgers University.
"But Kirby sometimes hedges his remarks by saying that the State Department is currently reviewing [Israeli military] conduct pursuant to a recent Presidential National Security Memo, and that so far it has not concluded that the IDF is violating international law in Gaza."
Bagheri said that Kirby's suggestion earlier this week that the US hadn't found any instances of Israel violating international law was simply "baseless from a legal perspective".
"Worse still, the United States keeps ensuring IHL violations instead of 'ensuring respect for IHL' by Israel," said Bagheri.
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