The headlines continue to focus on the war in Gaza, a conflict so horrific that it has overshadowed the war in Ukraine. While the war in Ukraine has reached a stalemate, it continues to simmer. Elsewhere in NagornoKarabakh, the conflict is erupting again.
There are other lingering conflicts, in Syria, Yemen and Sudan, which have produced years of violence, and countless deaths. Emerging conflicts in Tigray, Sahel and Myanmar are other potential hotspots. All these conflicts have one thing in common, that these have been triggered by recent shifts in world order. Even if they were not, these conflicts reflect on the prevailing global tensions, which have helped accentuate them.
While wars are inevitable, the moral compact to prevent or contain these conflicts is waning. Two aspects are worrisome. The international order is fraying over who will intervene to prevent or resolve ongoing conflicts. And the laws of armed conflict are proving to be ineffective and fragile. What can be lawfully targeted, or what cannot, and whether targeting civic infrastructure like hospitals and schools is lawful military action have become issues of moral and international concern.
Following the end of the Cold War, the international response to prevent conflicts was to intervene, using peacekeeping as a tool to contain escalation. Far from being a solution to prevent conflicts, there were many wars during this period which the international community was unable to restrain.
But the international effort was always there to prevent conflicts, and if they did break out, to minimize collateral damage and escalation. Whether in Ukraine, or Nagorno-Karabakh, or Sahel where the UN has been asked to leave, or Sudan where the civil war rages on, and now in Gaza, the `peace` paradigm is breaking down.
The international community is not only split, but ill-prepared to deal with modern day conflicts. With fewer tools to prevent conflicts, the warring sides are becoming more and more inclined to resolve these by use of force and unilateral action. What could explain this drift?
First, the UN Security Council which played an important role in preventing conflicts seems less enthusiastic now. Second, any attempts to re-think peacekeeping operations continue to flounder for myriad reasons, to include poorly resourced missions.
And third, several efforts to keep peace by regional organisations, including the African Union, have not been as impactful and often come at a cost. When conflict prevention and international peacekeeping efforts are weak, the laws of war must work. These laws provide a set of guidelines for military restraint. They distinguish between just or unjust wars.
But then these laws often become tools of political rhetoric, rather than tools to contain conflict. The Hague Convention of 1907 lays out the rules of conduct in armed conflict. The Geneva Conventions of 1949 and their additional protocols address the rights of civilians and prisoners in war. And the Rome Statue of 1998 lists out the war crimes as accepted by the international community.
Not all states are parties to these treaties also referred to as international humanitarian law (IHL), but many provisions are regarded as customary international law, which is binding on all states. Israel’s offensive in Gaza raises two questions about the laws of war. First, is Israel intentionally targeting civilians, as Hamas did in its attack?
And second, if these casualties are not intentional, then are these strikes proportionate to the military objectives it wishes to achieve? Israel’s actions have raised a global hue and cry on its indiscriminate use of force and methods of attack. And even if the deaths are proportionate, how do the laws of war explain the human suffering and losses to the wider world?
These rules on immunity to target civilians in armed conflict are paradoxical. Under the laws of war, one must not mean to harm any civilians, which is demonstrated by the choice of targets and methods of attack. The rules outlaw targeting of the civilian population, schools and hospitals. The only exception is if civic infrastructure is being used by belligerents in combat.
Even if such targeting is legitimate, the rules of war require belligerents to exercise diligence to minimize civilian casualties by providing clear and useable avenues for civilians to move out of harm’s way. Whether Israel’s military offensive in Gaza is in conformity with these rules of war is the question. The laws of war apply to the lawful conduct in war.
The laws do not address the issue of legality of war, on just and unjust wars. This is fundamental to the understanding on lawful conduct in war, at two levels: the right to war (jus ad bellum) and right in war (jus in bello), or, the `why` and `how` of conflict. On their part, both Hamas and Israel have had a right to wage this war, or the right jus ad bellum.
For Hamas, it was the withering of the Arab support and bottling them up in Gaza for over two decades. For Israel, it was the indiscriminate and horrific killing of innocent civilians and children, and kidnapping and brutal treatment of hostages. In gross violation of jus in bello (right in war), the Hamas did not discriminate between combatants and non-combatants and indulged in barbaric killings on 7 October. But then, Israel too has not been proportionate in its response.
Simply put, a war begun on unjust grounds must end in a just manner. For the laws of war to work, three aspects are important. First, the laws of war must hold the warring states accountable to their actions. Second, the laws must allow states to direct tools of international justice at the perpetrators. And third, the laws must allow the international community to ascertain whose cause is more just, or unjust, and no side uses these laws to justify killing of innocent civilians and children.
No wonder, UN Secretary General Antonio Guterres had to invoke Article 99 to draw UNSC’s attention to the humanitarian catastrophe in Gaza. While the invocation does carry some weight, it is less likely to impact the international stasis. Now with 153 votes in favour of a ceasefire in Gaza, which includes India, Australia and Canada, the UNGA has signalled the increasing international outrage on the evolving humanitarian crisis.
The fallout from the Ukraine war and other persisting conflicts have constrained the global appetite for conflict prevention. This imperils future peace interventions, including the one in Gaza. It is incumbent on international actors to strengthen tools of intervention, and not to endanger peace. And the laws of wars must intervene to mediate, and enforce humanitarian concerns, where and when it is most needed.
The pursuit of peace must remain a paramount global objective, for it is the basic principle of a stable and prosperous world. Surely, the moral compact to prevent or contain conflicts is flailing and the international community needs to redeem itself.
(The writer, a retired Lieutenant-General of the Indian Army, was Commander of the UN Multi-National Brigade during the M23 rebellion of 2012 in the Democratic Republic of Congo)