<\/span><\/h2>\nPublic international law<\/b> (PIL) is the body of rules that regulates the behaviour of states and other international subjects (international organisations, belligerent communities, national liberation movements and\/or individuals). PIL is composed of or has as its sources:<\/p>\n\n- Agreements between states<\/b>, such as international treaties, with different denominations depending on the case, such as treaties, pacts, conventions, letters, memorandum, joint declarations, exchanges of notes, etc.;<\/li>\n
- International custom<\/b>, which in turn consists of the practice of states, which they recognise as binding;<\/li>\n
- General principles of law<\/b>.<\/li>\n<\/ol>\n
The main international body is the United Nations (UN)<\/b>\u00a0which came into being on 24 October 1945 (24\/10\/1945). It is the successor to the League of Nations (LoN<\/b>) which existed between 1919 and 1946. It is governed by the UN Charter. It is made up of six organs<\/b>, the first five of which are based in New York (United States, USA) and the sixth, the ICJ, in The Hague (Netherlands), and they are:<\/p>\n
1.<\/strong> The United Nations General Assembly<\/b> (UNGA<\/b>) is the main deliberative body and brings together 193 member states, to which Palestine and the Holy See are added as non-member states. It is the only one of the six organs in which all member states are on an absolutely equal footing in terms of rights and obligations. Its powers include overseeing the UN budget; appointing non-permanent members to the Security Council; receiving reports from other UN bodies; and making recommendations in the form of UN General Assembly resolutions<\/b>. It meets in regular plenary sessions; in special plenary sessions; and in committees. The main committees are:<\/p>\n\n- First Committee: Disarmament and International Security (DISEC).<\/li>\n
- Second Committee: Economic and Financial Affairs (ECOSOC).<\/li>\n
- Third Committee: Social, Humanitarian and Cultural Affairs (SOCHUM).<\/li>\n
- Fourth Committee: Special Policy and Decolonisation<\/b> (SPECPOL).<\/li>\n
- Fifth committee: Administrative and budgetary matters.<\/li>\n
- Sixth committee: Legal.<\/li>\n<\/ul>\n
2.<\/strong> The United Nations Security <\/b>Council (UNSC<\/b>) is the body charged with maintaining peace and security in the world. Unlike other UN institutions that can only make recommendations to governments, the Security Council can make binding decisions (<\/b>governed by Article 25 of the UN Charter) and oblige members to comply with them<\/b>. The Council is composed of fifteen states, five permanent members with veto power <\/b>(US, UK, France, Russia and China) and ten non-permanent members, which are elected for a two-year term. The presidency of the Council rotates monthly in alphabetical order.<\/p>\n3.<\/strong> The Economic and Social Council <\/b>(ECOSOC) assists the General Assembly in promoting economic, social and international cooperation and development. It has a total of 54 members who are elected by the General Assembly for three-year terms. It holds a four-week substantive session in July each year, one year in New York and one in Geneva. It is responsible for coordinating the work of the fifteen specialised agencies, the ten functional commissions and the five regional commissions of the UN, and issues policy recommendations to the UN system and member states.<\/p>\n4.<\/strong> The United Nations Secretariat<\/b> (UNSG<\/strong>)\u00a0 is the administrative body whose head is the highest diplomatic representation of the United Nations. He\/she is appointed by the UNGA on the recommendation of the UNSC. Its powers include convening the UNSC, the UNGA, ECOSOC and other UN bodies. In 2021 the Portuguese Ant\u00f3nio Guterres was re-elected as UN Secretary-General for a second and final five-year term: 2022-2026.<\/p>\n5.<\/strong> The Trusteeship Council of the United Nations was established in Chapter XIII of the UN Charter to oversee the administration of trust territories placed under trusteeship and their progressive development towards self-government or independence. It was the successor to the League of Nations mandates. It was dissolved in 1994 by the UNSC after it had completed its function.<\/p>\n6.<\/strong> The International Court of Justice (ICJ)<\/b>\u00a0is the principal judicial organ of the UN. It is the successor to the Permanent Court of International Justice (PCIJ<\/b>) which existed from 1921 to 1946. It is composed of 15 judges with a 9-year term of office. Only states may be parties to cases brought before the ICJ. The ICJ is governed by its Statute, article 38 of which establishes that the ICJ must apply the three sources of law mentioned above in all its proceedings, to which it adds a fourth, case law, which is not a source of law, but an auxiliary method. There are two types of<\/b> ICJ proceedings<\/b>:<\/p>\n6.1. <\/b>The contentious<\/b> (for disputes between states) which concludes with a judgment<\/strong>. As far as judgments are concerned, an ICJ judgment is binding<\/strong>, final and without possibility of appeal, since, as a consequence of signing the UN Charter, each Member State automatically undertakes to obey any ICJ judgment in matters to which it is a party. However, in practice: (1.1.)<\/strong> the ICJ’s powers have been limited by the fact that it lacks the power to enforce the judgement <\/b>rendered, usually resorting, in the event of non-compliance, simply to sanctions or fines; (1.2.)<\/strong> the ICJ also lacks the competence<\/b> to verify the effective enforcement of its judgements <\/b>by States, but it is up to the parties to the dispute to fulfil their international obligations by giving effect to the judgement in accordance with the terms laid down by the ICJ; (1. 3.)<\/strong> and, in the event that a state fails to comply with an ICJ ruling, the other party to the dispute has the right to appeal to the United Nations Security<\/b> Council (UNSC),<\/b> although this route has never been successful in helping to enforce the ruling, as the ruling always goes against the interests of one of the five member countries of the Security Council, which have veto power over any decision taken.<\/p>\n6.2. <\/b>The advisory<\/b> (for legal clarifications to UN bodies) which concludes with an opinion<\/strong>. Unless it has been agreed that the ruling is binding, ICJ rulings are in principle advisory<\/strong> and therefore not binding on the parties requesting them. However, certain rules or instruments may give the parties advance notice that the resulting opinion will be binding.<\/p>\nSouth Africa initiated a case against Israel for genocide on 29\/12\/2023 over the war in Gaza<\/b>, the 192nd case in the history of the ICJ, which will issue a judgement in a few years. If we extrapolate the timelines of a similar Genocide Convention enforcement case brought by The Gambia against Myanmar over the Rohingya, the Gaza judgement could be seeing the light of day in 2029 or 2030.<\/p>\n
The ICJ is not the only means of peaceful dispute resolution available to states. Article 33 of the UN Charter lists others, such as \u2018negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or any other peaceful means of their own choice\u2019.<\/p>\n
Nor is the ICJ the only international tribunal. There are others, including the International Criminal Court<\/b> (ICC)\u00a0 which is a permanent international court of justice whose mission is to try individuals (not states) accused of committing crimes of genocide, war, aggression and crimes against humanity. It has its own legal personality. It does not belong to the UN system, although it is related to it under the terms of its Statute, the Rome Statute of 1998. It is\u00a0 also based in The Hague.<\/p>\n
On 2\/01\/2015 Palestine applied to become a party to the Rome Statute of the ICC; and the Rome Statute entered into force for Palestine on 1\/04\/2015. On 22\/05\/2018, Palestine referred crimes committed in the Occupied Territories since 13\/06\/2014 to the ICC Office of the Prosecutor. The Office of the Prosecutor initiated an investigation, in the framework of which it asked Pre-Trial Chamber I for an opinion on the ICC’s \u2018territorial jurisdiction\u2019 and this Chamber, in its decision of 5\/02\/2021, concluded, by majority, that yes, the ICC’s \u2018territorial jurisdiction\u2019 extends to the West Bank, including East Jerusalem, and Gaza. On 3\/03\/2021 the Office of the Prosecutor announced the opening of investigations. On 17\/11\/2023, five countries led by South Africa submitted a request to the Office of the Prosecutor to extend its investigations into Gaza from 7\/10\/2023, similar to what Chile and Mexico did on 18\/01\/2024.<\/p>\n
On 20\/05\/2024, ICC Chief Prosecutor Karim Khan requested the issuance of arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his Defence Minister Yoav Gallant, as well as for three Hamas leaders: Yahya Sinwar, Mohamed Diab Ibrahim Al-Masri and Ismail Haniyah.<\/p>\n
In addition to the above, the UN has several funds, programmes and other entities<\/b> attached to it, including UNRWA<\/b> (United Nations Relief and Works Agency for Palestine Refugees in the Near East). The Palestinian population also has a specific committee, unique in the UN universe, which is the Committee for the Inalienable Rights of the Palestinian People<\/b>.<\/p>\n
Finally, within the UN, the UNISPAL <\/b>information portal brings together all the information related to the Israeli-Palestinian conflict (https:\/\/www.un.org\/unispal\/<\/a>)<\/a>.<\/p>\n<\/span>1.2. Law of war<\/b><\/span><\/h2>\nThe law of war is considered an aspect of public international law (PIL) that regulates the conditions: (1)<\/strong> for initiating a war (ius ad bellum<\/i><\/b>); (2)<\/strong> for conducting the fighting (ius in bello<\/i><\/b>); and (3)<\/strong> for ending a war including the obligation to rebuild (ius post bellum<\/b>).<\/p>\nThe modern laws of war derive from two main sources:<\/p>\n
\n- international treaties on the laws of war.<\/li>\n
- International custom.<\/li>\n<\/ol>\n
Some of the central principles underlying the laws of war are:<\/p>\n
\n- Wars must be limited to the pursuit of the political objectives that initiated the war and must not include unnecessary destruction.<\/li>\n
- Wars must be brought to an end as quickly as possible.<\/li>\n
- Persons and property that do not contribute to the war effort must be protected against unnecessary destruction and hardship.<\/li>\n<\/ol>\n
<\/span>1.2.1. Law of War or Ius ad bellum<\/i><\/b><\/span><\/h3>\nThe main legal remedy of ius ad bellum<\/i> (Latin locution meaning justice for war<\/i>) derives from the UN Charter<\/b>, which states in its:<\/p>\n\n- Art. 2.4<\/b> that: \u2018The Members of the Organisation shall refrain<\/b> in their international relations from the threat or use of force<\/b> against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.\u2019, i.e. that, strictly speaking, states should not resort to war.<\/li>\n
- And in Article 51<\/b> that \u2018Nothing in the present Charter shall impair the inherent right of individual or collective self-defence<\/b> if an armed attack occurs against a Member of the United Nations (…)\u2019. However, this Article 51 cannot be invoked by Israel in relation to the Occupied Palestinian Territories, precisely because of that situation of occupation since 1967, as confirmed by the ICJ in its advisory opinion of 9 July 2004, when it concluded that the wall built by Israel on occupied Palestinian territory in the West Bank was illegal. And while Israel has invoked its right to war against Hamas on the basis of Article 51 repeatedly throughout its incursions into Gaza since 2008, not only the ICJ but most scholars in the field agree that Israel has no legal basis to invoke Article 51 in its armed confrontations with Hamas.<\/li>\n<\/ol>\n
In moral theory<\/b> (one of the pillars of natural law) there are at least three approaches to the question of war:<\/p>\n\n- Pacifism, according to which all war is unjustified and therefore immoral.<\/li>\n
- The approach of political realism or realpolitik<\/i>, whose fundamental premise was laid down by the German military historian Carl von Clausewitz, when he said that war is just another form of politics.<\/li>\n
- And finally, there is the just war<\/b> tradition, which originated in the Middle Ages and is characterised by the defence that some warfare is justified and moral.<\/li>\n<\/ol>\n
<\/span>1.2.2. International humanitarian law or Ius in bello<\/i><\/b><\/span><\/h3>\nInternational humanitarian law<\/b> (IHL) is a branch of public international law (PIL) that seeks to mitigate and limit the effects of armed conflict<\/b> by protecting persons who do not take part in hostilities or who have chosen not to take part in the fighting; it restricts and regulates the means and methods of warfare available to combatants; and it regulates conduct in armed conflict (ius in bello: <\/i>Latin for justice in war<\/i>).<\/p>\n
IHL is essentially contained in the Geneva Conventions (GC)<\/b> of 12 August 1949<\/b>, the so-called \u2018Geneva law<\/i><\/b>\u2019, to which almost all UN Member States are party, and which is composed of four conventions:<\/p>\n\n- The First<\/b> Geneva Convention, comprising the Geneva Convention for the Amelioration of the Condition of the Wounded<\/b> in Armies in the Field of 1864, updated in the subsequent conventions of 1906, 1929 and 1949.<\/li>\n
- \u00a0The Second<\/b> Geneva Convention, comprising the Geneva Convention for the Amelioration of the Condition of Servicemen Wounded<\/b>, Sick or Shipwrecked in Armed Forces at<\/b> Sea of 1906, as updated by the following conventions of 1929 and 1949.<\/li>\n
- The Third<\/b> Geneva Convention, comprising the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies<\/b> in the Field and the Geneva Convention relative to the Treatment of Prisoners of War<\/b>, both 1929, updated in the following 1949 convention.<\/li>\n
- The Fourth<\/b> Geneva Convention, comprising the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War<\/b>.<\/li>\n<\/ol>\n
Both Israel and Palestine have ratified all four Geneva Conventions.<\/p>\n
These Conventions were supplemented by two further treaties, two Additional Protocols (I and II) of 1977<\/b>, concerning the protection of victims of armed conflict; and an Additional Protocol (III) of 2005<\/b> concerning emblems. Palestine acceded to all three Protocols and Israel only to Protocol III.<\/p>\n
Alongside the four GCs would be the two Hague Conventions<\/b> of 1899<\/b> and 1907<\/b>, known as \u2018Hague law<\/i><\/b>\u2019, and their Regulations, which are essentially practical law applicable to soldiers in combat and which: set the rules for conducting operations; set out how operations should be conducted, specifying, for example, what may be attacked and how it should be attacked; give rules limiting the destructive effects of combat so as not to exceed what is actually necessary to achieve the objective or military mission.<\/p>\n
Modern laws of war in relation to the conduct of war (ius in bello<\/i>), such as the Geneva Conventions of 1949, provide, among other things, that:<\/p>\n\n- The prohibition of attacking medics, ambulances or hospital ships<\/b> displaying a Red Cross, Red Crescent, Magen David Adom or other emblems related to the International Red Cross.<\/li>\n
- Shooting at persons or vehicles carrying a white flag<\/b> is also prohibited, as it indicates an intention to surrender or a desire to communicate.<\/li>\n
- Soldiers who violate specific provisions of the laws of war lose the protection and status they offer as prisoners of war, but only after facing a competent tribunal (Third Geneva Convention Art. 5). At that point they become unlawful combatants, but they must still be treated humanely and, in case of trial, they will not be deprived of the rights to a fair and impartial trial, because they are still covered by the Fourth Geneva Convention Art. 5.<\/li>\n
- After the conflict is over, persons who have committed or ordered<\/b> the breaking of the laws of war, especially <\/span>atrocities<\/b>, can be held <\/span>personally responsible for war crimes<\/b> through the process of law. In addition, nations that have signed the Geneva Conventions have an obligation to seek out, and then prosecute and punish, anyone who has committed or ordered certain \u2018grave breaches\u2019 of the laws of war (see GC III, art 129 and art 130).<\/span><\/li>\n<\/ul>\n
Spies and terrorists<\/b> may be subject to civilian law or military tribunals for their acts and in practice have been subjected to torture and\/or execution. The laws of war neither condone nor condemn such acts, which are outside their scope. However, nations that have signed the 1984 UN Convention against Torture<\/b> have pledged not to use torture on any person for any reason whatsoever. Israel is a State party to this Convention. In any case, the 18 Human Rights Conventions, of which this one is a part, will be discussed in more detail in section 1.3 below.<\/p>\n
There are also other texts that protect certain categories of persons<\/b> or property:<\/b><\/p>\n\n- The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two Protocols;<\/li>\n
- The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.<\/li>\n<\/ul>\n
Finally, there would be a number of multilateral treaties and instruments within the field of disarmament, which aim to regulate and restrict the use of certain weapons<\/b>, or eliminate them altogether, and in the gestation of which the UN has played an important role. These include:<\/p>\n\n- 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT).<\/li>\n
- 1975 Bacteriological (biological) Weapons Convention.<\/li>\n
- 1980 Convention on Certain Conventional Weapons and its five Protocols:<\/li>\n<\/ul>\n
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