According to IHRL, Israel must respect and protect the human rights included
in the UN treaties it has ratified, such as the ICCPR.16 While the aforementioned
legal framework has been reaffirmed as applicable in the oPt by the UNGA,
the UN Human Rights Council, the International Court of Justice (ICJ),17 among
others, Israel has always denied their applicability to the Gaza Strip and the
West Bank by trying to reinterpret and transform these applicable laws. The
ICJ specifically affirmed that “the Court considers that the protection offered
by human rights conventions does not cease in case of armed conflict, save
through the effect of provisions for derogation of the kind to be found in
Article 4 of the ICCPR.”18 IHRL imposes several obligations on Israel, such
as the respect for the right to life in law enforcement operations, following
international policing standards which include principles such as only using
force as a last resort, and the respect for the right of freedom of assembly,
opinion, and expression. In its suppression of resistance, Israel has not only
made use of excessive force to stop armed struggle but it goes as far as to
criminalize and suppress demonstrations or even the development and
practice of Palestinian culture. Israeli policies of imposing its own language
and culture upon the occupied population are not only a violation of the
ICESCR, but they directly affect and deny the right to self-determination of
Palestinians.
Law Enforcement and Hostilities Paradigms
There are two legal paradigms derived from international law that regulate
the use of force in armed conflict; the hostilities paradigm, and the law
enforcement paradigm. Determining the appropriate paradigm is of
extreme importance as it has a direct impact on the loss of life and injury
to persons.19 Although both must follow IHL and IHRL, the relevance of each
of these bodies of law is different under each paradigm.20 In IHL, the rules
and principles regulating the use of force are found in the aforementioned
Hague Regulations, the Additional Protocols, and Customary IHL.21 The legal
regime regarding the use of force in IHRL is derived from the right to life,
16 Other treaties ratified by Israel include the International Covenant on Social, Economic and Cultural
Rights (ICESCR); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (CAT); the Convention on the Rights of a Child (CRC); and the Convention on the
Elimination of all Forms of Racial Discrimination (ICERD)
17 ICJ, The Advisory Opinion on the Wall, op. cit., 2004
18 Ibid.
19 Expert meeting, The use of force in armed conflicts – Interplay between the conducts of hostilities and
law enforcement paradigms, International Committee of the Red Cross (ICRC), November 2013, page
iv. Available at: https://www.icrc.org/eng/assets/files/publications/icrc-002-4171.pdf
20 Ibid., page 4
21 Ibid.
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