Foreign Affairs Committee
Oral evidence: The Israeli-Palestinian conflict, HC 488
Thursday 12 December 2024
Ordered by the House of Commons to be published on 12 December 2024.
Members present: Emily Thornberry (Chair); Aphra Brandreth; Uma Kumaran; Blair McDougall; Edward Morello.
Questions 81 - 102
Witnesses
I: Claire Clement, Director, International Law and Policy, British Red Cross; Professor Marco Sassoli, Professor of International Law, University of Geneva.
Witnesses: Claire Clement and Professor Marco Sassoli.
Q81 Chair: The Foreign Affairs Select Committee is beginning an oral session on our inquiry into the Middle East. We have today the benefit of Claire Clement, the director of international law and policy at the Red Cross, and Professor Marco Sassoli, professor in international law at the University of Geneva. Both of them are giving evidence virtually and we are very grateful to them for their time. Thank you so much for coming. The evidence that you are giving in this Israel-Palestine conflict hearing is extremely important.
We know that, in the debate about Palestine and Gaza in particular, people frequently say that it is a breach of international law and that this is an international crime. They challenge politicians and say, “Call this out as a crime”. Words are bandied around and courts are invoked. There seems to be more heat than light, very often, in this debate. We would like to put on to the record and into evidence in our inquiry exactly what international law in relation to the Gaza conflict is, so that we can use it as a baseline.
I wondered whether you would be kind enough for us to actually begin with the basics. We will work from ground up, so that anyone listening to it who does not know anything about international law will be informed by it, and indeed those of who may know quite a lot will also be reminded of some important factors in relation to it, so that the debate that we have in the UK is informed by the evidence that you give.
We are grateful to you for being here to help us. Can I perhaps start with asking you to give us an overview of the legal framework that applies to all armed conflicts, including the war in Gaza? I will ask Claire Clement whether she would be kind enough to begin that, and then perhaps we can ask the professor to speak afterwards.
Claire Clement: Thanks very much for having me this morning. Just to confirm, I am from the British Red Cross. As a humanitarian auxiliary to the public authorities in the UK, we have a special responsibility to help to disseminate, promote and implement international humanitarian law, or IHL. I am going to be using that acronym quite a lot this morning and I hope that that is okay.
Q82 Chair: If I might just interrupt you, there is absolutely no problem with using the acronym. When you are giving your answer, given that we are going back to basics, would you mind explaining the difference between international law, human rights law and international humanitarian law, because they are used as interchangeable terms? For people coming completely cold to this, would you help us with that as well in your answer?
Claire Clement: Of course, that is no problem at all. International humanitarian law is also known as the law of war or the law of armed conflict, so you may also hear it interchangeably referred to as those things. Those are exactly the same things when they are called by those names. IHL is part of a much broader field of public international law, which is primarily made up of treaties and customary laws, and we can get into that as well if you like. That broader field of public international law includes, as well as IHL, human rights law, international refugee law and a range of other international laws that apply between states, and between states and international organisations.
IHL is separate to human rights law. It is sometimes misunderstood as a subset or somehow connected into human rights law. They are distinctly separate bodies of law. However, they have a number of fundamental rules within them that look the same. For example, both bodies of law prohibit the use of torture or inhumane and degrading treatment, but they do have a number of distinct differences. Human rights law, just to say, applies all the time, both in peacetime and in situations of armed conflict. IHL applies to situations of armed conflict. There are a few rules of IHL that apply in peacetime, but they are a bit of an outlier and an exception. The vast majority of IHL applies exclusively in situations of armed conflict. Those are some really critical differences.
Q83 Chair: If I might again rudely interrupt, people will have heard of Strasbourg and the European Court of Human Rights, which sits during peacetime. That is perhaps quite a good example and shows how it is that human rights law applies at all times.
Claire Clement: That is right, exactly. That is a really big difference between IHL and international human rights law. IHL is the specialised body of law that applies both in international armed conflicts and in non‑international armed conflicts. We can come on to that in a minute, but it is certainly the case that there are separate means in terms of determining what those rules are that apply both at the international level and in countries.
There are separate treaties of IHL, which we can also come on to, which a number of you may be familiar with. Those cornerstone rules are enshrined in the 1949 four Geneva conventions. I am sure that you may have all heard of these. There are a number of other important IHL treaties as well. Human rights treaties are separate to those. You have the Universal Declaration of Human Rights and the Convention on the Rights of the Child. These are all separate treaties that apply in the human rights space to those specialised international humanitarian law rules.
If I can come on to a really core definition of IHL for you, it is often described as that body of law that protects persons who are not or who are no longer taking part in the hostilities. By hostilities, we mean fighting. We mean the warfare itself. These persons who are not or who are no longer taking part in that fighting refers to the sick, wounded and captured military personnel, as well as those who do not fight at all. This is in particular civilians, who are protected under IHL, but other specific categories as well, including medical personnel. All these groups, in accordance with IHL, have to be treated humanely. There are a variety of rules that govern the treatment to which those different groups are entitled.
Separate to this protective aspect of IHL, it also imposes limits on what we often refer to as the means and methods of warfare. This would be the weaponry, tactics and strategies that are used by warring parties when they are fighting conflicts. I hope that that makes sense so far. I do not know whether you would like me to stop.
Q84 Chair: You said that you would refer to practice and norms. Perhaps we ought to explain what that is as well.
Claire Clement: The bodies of public international law, so not just IHL but all of the bodies of public international law, including human rights law, international refugee law and others, are generally found within the same sources. These are primarily treaty law. Those are the written rules that are agreed between states, and between states and international organisations. Treaties are often called conventions, covenants or protocols, as well as treaties themselves. They go by a variety of names, but they all mean the same thing. They are the written rules. When states agree those rules and agree to those treaties, they bind the parties to those treaties only. They do not bind those that do not sign up and ratify those treaties.
Another source of public international law, which is also very important in IHL, is what we call customary international law or customary rules. Custom is different to those written treaty rules. It can be written down, but it does not have to be. We find and identify custom in the practice of states. It is this uniform and virtually consistent practice of states where we can say that a customary rule is therefore being identified, but, critically, it is not just that practice. Those states must also intend that that practice will bind them legally, so there is a two-part element to identifying and defining customary rules of international law.
It is quite a high bar to identify it. It can be quite difficult. However, it is powerful when it is crystallised because customary rules do not just bind those states that are practising them. They bind all states, so customary rules can be critical. They are critical in international humanitarian law in, for example, filling gaps where we do not have many treaty rules. This is in certain areas of IHL, in particular when we come to non‑international armed conflicts, so those conflicts that are not state-to-state conflicts, but are between non-state armed groups or between states fighting non-state armed groups. I hope that that is clear on the general two categories.
Q85 Chair: Is there another side of the coin as well? If you have a law that develops on the basis of custom, there can be a threat to law if that custom is broken by a particular state and other states do not stop that state from breaking it. It is as if it is then accepted because no one is doing anything about it and so a custom can change.
Claire Clement: That is true in terms of the development of custom. You can also have rules around the development of customary laws, including one around persistent objectors to those laws. You can have virtually uniform, virtually consistent state practice but still have states that are what we call persistent objectors to those laws and do not subscribe to that custom, for example. You are absolutely right in the sense that custom can develop and change over time.
If you are interested in looking at customary rules pertaining to international humanitarian law—I am from the British Red Cross—there was a study done of customary rules of international humanitarian law a couple of decades ago now by the International Committee of the Red Cross. Just to clarify, it is not the role of the International Committee of the Red Cross to define that custom, but it has an authoritative voice and an advisory function in this way. It developed a study that defined over 160 rules of customary international humanitarian law.
Through that study, the British Red Cross and the International Committee of the Red Cross have an ongoing project based out of Cambridge University with a team of researchers, which serves to identify and define the state practice that applies to those rules. It is looking for evidence of military doctrine, political speeches and all sorts of other guidance, legislation and frameworks that would lend themselves to further providing evidence that those customary rules exist and as to how they develop over time.
Q86 Chair: I think of it as being a little bit like British law, in that British law is made from statutes, i.e. the international agreements, and then judge‑made law, which is customary practice, so that you get both of those things seeming to happen at the same time. I appreciate that it is a bit rough and ready, but I personally have found that quite helpful. I wondered whether I could perhaps move on to Professor Marco Sassoli. We have had quite a comprehensive answer, but I wondered whether there was anything that Claire Clement might have missed or anything that you think that would be helpful to add.
Professor Sassoli: Thank you for having invited me. I am very honoured. I fully agree with everything Claire Clement said. Understandably, as she is from the Red Cross, she did not mention another branch, which has to be totally separated, but which is important for armed conflict and which the Red Cross does not deal with. It is the prohibition of the use of force and the exceptions to the prohibition of the use of force. An armed conflict should normally not happen because, under the United Nations Charter, it is prohibited to use force, but there are exceptions, in particular self-defence and UN Security Council authorisation.
What is important is that whether one fights legitimately or not does not influence the humanitarian rules one has to comply with. To give an example from a current conflict, both Russia and Ukraine have to comply with exactly the same rules of international humanitarian law. Ukraine could not say, “No, but we cannot comply with these rules because we were attacked”. Humanitarian law has been made precisely for situations where one state attacks another state, where a dictatorial Government oppresses the people, or where a terrorist armed group fights against a democratic Government, which, if there is a sufficient level of violence and organisation, could be an armed conflict. There again, both parties have to comply with the same humanitarian rules, simply because it is not the fault of, say, the civilians that they are on the wrong side of the conflict.
Anyway, during the conflict at least, the parties never agree regarding who is legitimately using force and who is a victim of an aggression. We see this in the Israel-Palestine conflict. Therefore the rules must be the same. That is the only point I wanted to add.
Q87 Chair: Can I ask you one other question, Professor? While of course it is accepted that states can use force to defend themselves, is there a limit on the force that can be used when a state defends itself?
Professor Sassoli: Thank you for that question. That is an important one, which is again not an international humanitarian law question, but also under what the lawyers call the jus ad bellum, which are the rules about when the use of force between states or in international relations is lawful. There is also a necessity and proportionality limit, which is not the same as the proportionality rule in international humanitarian law. It is a global evaluation of whether the effects of the self-defence are proportionate to the threat that a state may respond to by self-defence.
Q88 Chair: You have answered this question in a slightly roundabout way, but may I ask directly how international humanitarian law protects civilians?
Professor Sassoli: The most important rule is that only lawful means of warfare may be used. For instance, chemical weapons are prohibited, or, for most states, anti-personnel landmines or cluster munitions. If a lawful means is used, it may only be used against legitimate targets, which are combatants, fighters, members of an armed group with a continuous combat function and military objectives.
If the target is lawful, it is precisely in that case that the IHL proportionality rule applies. That says that, even if you attack a lawful target, you must stop the attack or not launch the attack if it would be expected that there will be an excessive effect on civilians, such as death, injury or destruction of civilian objects, compared with the expected military advantage. This is very difficult for all of us to evaluate because we do not know what the target is and we do not know the plans of the belligerents.
Even if the proportionality rule is respected, belligerents must take all feasible precautionary measures when attacking. Say you target a bridge, although this does not happen in Gaza, because there are no bridges. That bridge is a military objective because enemy forces have to move over that bridge to attack you. To defend yourself, therefore, you destroy the bridge. People live around the bridge. You calculate proportionality and come to the conclusion that this is not disproportionate because this is, for instance, the only bridge over that river. Even then, you must take feasible precautions, for instance attacking the bridge, if it is not urgent, by night rather than by day, because fewer civilians will be around, or giving a warning to the civilians, because the bridge cannot be moved away. If you warn the civilians, “I will attack the bridge in one hour”, the enemy cannot move the bridge away and so you can keep the same military advantage while sparing more civilians.
Q89 Chair: Is there any guidance, though? Let us say you have a leader of Hamas and you want to kill him because he has been responsible for attacking your country. Is it proportionate to, let us say, bomb his household so that he and all his family are killed? You cannot notify the household because obviously you would lose him. Is that proportionate? Is it proportionate, if he lives in a block of flats, to blow up the whole block of flats and not tell anyone within it? Is it proportionate to blow up a neighbourhood if the leader is sufficiently senior? Who judges this? How do we know whether there has been a breach of law?
Professor Sassoli: To answer your question, calculating proportionality is a delicate thing because you compare two very different things: lives and injury to civilians on the one hand, and something abstract, which is a military advantage. There is, even more than that, a problem of transparency, which you correctly mentioned. We do not know. For instance, if this was the highest military commander of Hamas and, I must add, there are no other means to get him—I imagine that there are no women who are the highest military leaders of Hamas; therefore I speak about “him”—it could be proportionate to destroy the entire house, where there will be many civilians around, but the neighbourhood never, especially as Israel has very precise weapons, so you never have to destroy the whole neighbourhood to get one leader.
The most delicate thing is that it is important to determine how important this leader is. If this is the overall military leader, you may take the risk of killing more civilians than if it is a lower leader or a simple Hamas fighter. At least in my personal opinion, I think that this is the most delicate thing in the conduct of hostilities: these rules of what may be targeted.
The practice of the Israel Defence Forces is to tell us that there are thousands of command and control centres, because each time it bombs something it says, “This was a legitimate target”. They cannot all be so important that it would justify, in each individual case, in such a densely populated area, taking the risk of killing so many people. Assuming that it indeed targets only Hamas fighters, Hamas equipment, or command and control centres, then comes the proportionality rule. That depends on how important it is to kill this fighter or destroy that centre or rocket launch station, or whatever, for the military importance of the Israeli plans, so how to get control over the Gaza Strip.
Q90 Chair: Are you aware that, certainly at the beginning of the conflict, the Israel Defence Forces said that it had embedded in the IDF the lawyers who were giving advice on exactly what action was being taken and making sure that it could be justified legally? Is that still the case? Are you aware of whether that is still the case?
Professor Sassoli: I know that the Israel Defence Forces indeed has a lot of lawyers and very good lawyers. When I see the results, I unfortunately have the impression, although I have no evidence for this, that somehow their advice has been relaxed after the horrible things that happened on 7 October. I have the impression that, if I may put it this way, they have now taken the gloves off or their commanders have told them, “Take the gloves off. No longer apply these detailed rules. Be more permissive, because we have to destroy this Hamas movement that attacked us”. I cannot judge whether the lawyers give different advice or the entire atmosphere in Israel has led to the fact that they simply no longer listen to their lawyers, because all this is obviously secret and confidential.
Q91 Edward Morello: To follow on that line of questioning, I am interested to know whether there are countries whose rules of war, if you will, are always in compliance with international humanitarian law, or whether there are countries that you look at and you say, “Their guidance to their military and their rules of war are always in breach of international humanitarian law”.
Professor Sassoli: There is never a belligerent that is always in breach. In the last century, I was a delegate of the International Committee of the Red Cross in Iraq. There was the war between Iran and Iraq, and Saddam Hussein’s regime was very inhumane towards its own population, but, for instance, the Iranian prisoners of war were more or less treated according to the third Geneva convention.
On the other hand, there is never perfect respect. If I may, with all due respect, I will speak about the conduct of British forces in Iraq or before that in the Falklands War. We discovered that there were violations, but the United Kingdom took measures, including parliamentary commissions of inquiry and so on. There is never perfect respect but it is important that, when there are violations, serious inquiries must be made.
Every state party to the Geneva conventions has an obligation to prosecute great breaches of the Geneva conventions. There, indeed, you are right. There are some states that do that and in other states we never hear about prosecutions. One should not imagine that democracies comply and dictatorial regimes do not, for very different reasons. No one has, to my knowledge, been tried in the United States for the treatment of detainees in Guantanamo, and the United States is a democracy. It is governed by the rule of law. The US Supreme Court has taken Guantanamo out of a legal hole. Nevertheless, it has not succeeded in making sure that anyone is actually punished.
Chair: Let me move us on, because Uma has some questions that are probably relevant to this.
Q92 Uma Kumaran: I have a few questions. I appreciate how complicated this subject is, but if you could keep your answers short perhaps I can get through the questions. What is the difference between the International Court of Justice and the International Criminal Court? What are the specific roles of both of those courts in the context of the current conflict in Gaza?
Professor Sassoli: This is a very important question that we have not yet dealt with. It is very important to understand that violations of international law, including of humanitarian law, are committed by states, while war crimes are committed by individuals, so a state cannot commit war crimes. War crimes are prosecuted according to international criminal law. The first obligation is that every country prosecutes those committing war crimes in its armed forces, on its territory and so on. Then we have an International Criminal Court, which has jurisdiction if a war crime is committed by a national of a state party to the statute, or on the territory of a state party to the statute, and the territorial state or the state to which the individual belongs is either unwilling or unable to prosecute.
The International Court of Justice does not deal with individuals or war crimes. It deals with violations of international law. One state can bring a violation before the International Court of Justice against another state if both states have accepted the jurisdiction of the court, which is very rare. In the genocide convention—and genocide is a very extreme and, fortunately, rare case—there is a clause that gives the International Court of Justice jurisdiction.
This is why South Africa had to either not do anything or claim that Israel is committing genocide. South Africa could not have claimed that Israel is committing violations of international humanitarian law because the Geneva conventions do not contain such a clause that gives jurisdiction to the International Court of Justice. If there was, God forbid, an armed conflict between the United Kingdom and Switzerland, the International Court of Justice would have full jurisdiction, because both Switzerland and the United Kingdom have accepted the general jurisdiction of the International Court of Justice, but this is quite rare.
Claire Clement: Professor Sassoli has covered everything in relation to the differences between the International Criminal Court and the International Court of Justice, the International Criminal Court being about investigating serious violations of international laws, including international humanitarian law. These serious violations of international humanitarian law are generally referred to as war crimes. It also looks at serious violations of other bodies of public international law, including human rights law, and these are generally called crimes against humanity. In the Rome statute for the International Criminal Court, these different types of crimes are very nicely and clearly laid out for us to see.
The International Court of Justice is about state responsibility, so it has a completely different sort of premise. It technically can be applied to all states, although, if states come to that court, they cannot be dragged there; they must consent to that case going on. The International Court of Justice can also issue what we call advisory opinions, which is different to the International Criminal Court. They have completely different purposes and the ICC is really about that individual criminal responsibility.
I should say that, in addition to those two very important organs, the IHL treaties themselves, so the Geneva conventions and the first additional protocol, which was adopted in 1977, also set out some really important mechanisms that are severely underused, but aim to ensure better compliance with IHL and implementation of its rules. There is an inquiry mechanism, an international humanitarian fact-finding commission and a mechanism called protecting powers. All these things have been baked into the treaty rules to have them at the disposal of parties to conflicts. They have to consent to that use and enact them themselves, so they are underused for that purpose. However, they exist and are there in order also to be able to provide for better implementation of the rules.
Q93 Uma Kumaran: I have two follow-ups. I am conscious of time, but those were really clear answers from both of you, thank you. Professor, you touched there on the use of the word “genocide”, which is coming up time and time again. We are seeing these images play out that are horrifying and devastating. Time and time again, people have asked me, “Why have the UK Government refrained from using the word ‘genocide’?”
Last week, an Amnesty International investigation concluded that Israel was committing a genocide for acts prohibited under the genocide convention. In November, a UN special committee found that the State of Israel’s warfare methods in Gaza are consistent with a genocide, including the use of starvation as a weapon of war. In a separate case that you referred to in South Africa, the court also handed down an interim ruling that Israel is committing a genocidal act against Palestinian people in Gaza. Why do you think the UK Government are continuing to refrain from the use of the word “genocide”? What implications do these judgments have for UK law?
Professor Sassoli: I must say that there is not yet a binding decision that says that Israel is committing genocide. You mentioned that, at the request of South Africa, the International Court of Justice ordered certain measures because it considers that it is plausible that there is a risk of genocide. The acts underlying a genocide, such as killing, starving and so on, are the same as violations of international humanitarian law. What is specific about genocide is that there must be a special intent to destroy a racial, ethnic, and so on, group, or part of that group. The real question is whether Israel wants to eliminate Hamas, or whether it wants to eliminate Palestinians.
Q94 Chair: I am so sorry to cut across you. It is a very important question and you have said that it has not been answered yet. When is it going to be answered and who will answer it?
Professor Sassoli: The case before the International Court of Justice could take two or three more years. It is interesting that the prosecutor of the International Criminal Court did not ask for an arrest warrant for genocide. In my view, he has a much better case for some violations of international humanitarian law, such as the starvation of the civilian population or the forced displacement of civilians, because then he does not have to prove the specific intent to destroy the group or part of the group. Even if Israel’s only aim is to destroy Hamas, it can violate IHL, while it cannot commit genocide if that is its intent.
Simply, from certain conduct Amnesty International deduces a genocidal intent, because it claims—and I do not have the facts—that Israel also deliberately attacks civilians. The International Court of Justice, in its interim measures decision, referred to those statements by certain Israeli politicians that show a genocidal intent, because they really said, “We must get rid of these people and eliminate them, not only Hamas”, but these were certain politicians. This has never been declared as Israeli policy, but obviously it is very rare that a party that is committing genocide declares this as the official policy. You have to deduce the genocidal intent from the conduct on the ground.
Q95 Uma Kumaran: I have a further follow-up. I am conscious of time, but thank you for the incredibly clear answer. Claire, the United Nations says that upholding international law and ensuring accountability for violations rests squarely on member states. We have talked about that today. It has said that the failure to do so weakens the very core of the international legal system. In the context of what is happening in Gaza at the moment, what does this mean for future wars? Why would anybody follow international human rights law if they know that there are no repercussions in the future?
Claire Clement: Thanks for this really important question as well. I think that all of us here would agree that, just because you have—and we absolutely irrefutably do have—a world in which we see many violations of international humanitarian law, as well as other international laws at the moment, that does not mean that the laws themselves are not sound and right. There is always room to develop. There is always room to clarify and interpret. However, we would certainly consider those fundamental rules to be sound, legitimate and still worthy of following. We spend an awful lot of time, in our capacity as the Red Cross, promoting the continuing relevance and validity of those rules.
However, you are absolutely right that we do need better and more effective enforcement of the rules, both in terms of their implementation while a conflict is going on and in seeking accountability and justice for those violations after that has occurred. In terms of the situation in Gaza, because of its public profile, there is so much attention on very detailed elements of it in the media and the public. Violations that occur in other conflicts—and there are numerous that we could discuss, such as Sudan and elsewhere—are not getting the same sort of attention in the public space. Because of that public effect, you have a situation where perceived violations and actual violations of IHL have a degrading effect on people’s perception of the relevance and effectiveness of IHL.
We see a worrying situation with our partners on the ground, who are also protected under rules of IHL and are providing humanitarian relief for the basic needs that people have in conflicts, which they are entitled to. We see them feeling despondent and concerned about what they see as a lack of protection for them when they are using the Red Cross and Red Crescent emblems, which are protected under IHL, and when they are trying to navigate space to deliver that lifesaving aid and to protect civilians as well. I agree with you that we need to have more effective measures in place to ensure that we have better compliance with the rules. There are a number of organisations, including ours, and states working on initiatives over the next couple of years to do just that. Primarily, the responsibility lies with states themselves.
Q96 Blair McDougall: Thank you for your answers so far. As has been touched upon throughout this, a lot of these issues are deeply contested as to whether a breach of IHL has taken place. Could you talk us through the mechanisms for monitoring whether breaches have taken place, and perhaps give us a commentary as to whether those mechanisms have worked well with regards to the situation in Gaza?
Claire Clement: I will answer in general terms, because that is the responsibility I have at the British Red Cross. The responsibility to monitor compliance with IHL and implementation of the rules lies, again, with states themselves. IHL requires states to have all the mechanisms, personnel, processes and systems in place to be able to effectively monitor their own implementation and compliance with the rules.
That means having in place not just domestic courts and systems like that to ensure accountability, but also military legal advisers, as we spoke about earlier, and administrative systems and bodies. It is the whole suite of systems and processes to ensure good implementation. It obviously is very critical that military forces have this embedded in them. States are required to have good education and dissemination processes for IHL, in terms of not just military but also civilian education. We play an important role in supporting those obligations. In terms of whether that is working well in this instance at the domestic level, it is not really my role to comment on that, but just to say that those requirements and obligations are baked into the treaty law.
As well as that, I have mentioned that you have some mechanisms under the treaty law to monitor and ensure better implementation of the rules. As I mentioned, that includes an inquiry mechanism. There is a humanitarian fact-finding commission, an independent body of 15 experts, that exists under the first additional protocol, which not all states have signed up to, but a great majority have. There is a thing called the protecting powers mechanism that is in place, where the parties to the conflict can designate third parties or third neutral states to monitor compliance with the rules. The last instance when that happened, I believe, was in the Falklands conflict, so it is some time since that was used.
There are organisations also that have certain protective functions under the treaty laws. The International Committee of the Red Cross is one of those. It has a really important mandated function, in particular to visit and monitor conditions of detention for prisoners of war. In international armed conflicts, that is a hard duty. It is a responsibility for states to facilitate that access and monitoring of treatment of prisoners of war by the International Committee of the Red Cross. In situations of non‑international armed conflict, the International Committee of the Red Cross can offer its services to do that as well. These are a range of the monitoring and compliance mechanisms that are in place under the rules, at both the domestic and the international level.
Q97 Chair: Is the Red Cross getting access to prisoners of war in the armed conflict in Gaza? You are clearly not getting access to the hostages, but are you getting access to people who have been arrested or seized during the Gaza campaign?
Claire Clement: In this type of conflict, we have different types of detainees as they would be categorised under the law, so not so much prisoners of war, but, as you have just said, hostages in Gaza, who unfortunately the ICRC do not have access to, although it was able to facilitate the release of a number of those hostages early on in the conflict, as I believe you are probably all aware. On the other side, in Israel, there are those who are detained there. The International Committee of the Red Cross had access to those detainees before 7 October, so for a long time, in good partnership with the Israeli authorities. It has not been able to access those detainees since 7 October last year, no.
Professor Sassoli: This is a clear violation of international humanitarian law, because not only does the International Committee of the Red Cross have, in an international armed conflict, access to prisoners of war, but everyone who is not a prisoner of war is a protected civilian. If they have committed crimes, they must be punished for the crimes, but they remain protected civilians.
The ICRC, as Ms Clement correctly said, from 1967 until 7 October last year always had access to all Palestinians detained by Israel. Since 7 October, it no longer has access and that is a clear violation. Here, we do not have, as with the bombings, doubts over what the real target was and so on. It is a violation that you may consider is less serious, but you have to realise that there are very serious allegations of torture and no one is monitoring that.
If I may just clarify one point about the ICRC, while the ICRC monitors, you cannot benefit from that, because it works confidentially. It will monitor and speak with both parties to try to ensure respect, but it will not make, except in very exceptional cases, a public report or a report to the state parties, which makes it more difficult for third states. I fully understand why the ICRC privileges access and humanitarian assistance over criticising violations, but it makes it more difficult for third states, such as the United Kingdom, to fulfil their obligation to ensure respect, because states not only have to respect but also have to make sure that other states respect. How do you know whether a state respects or does not respect?
This is a very controversial issue now: whether Western states should still supply weapons, for instance, to Israel. Certainly, if they know that there is a risk of that these weapons are used to violate IHL, they should stop that, but here is the controversy. A lot of Western states say, “We do not have sufficient indications that these weapons are used to violate humanitarian law”.
Q98 Blair McDougall: Professor Sassoli, you started to touch on my next question. My last question was about the monitoring of international humanitarian law. I wonder whether you could talk me through the mechanisms for the enforcement of international humanitarian law and tell me what you think the strengths and weaknesses have been in the enforcement with regards to the conflict in Gaza.
Professor Sassoli: I think that there is a general agreement that the enforcement mechanisms are not sufficient, but states do not want to have more efficient enforcement mechanisms. This is true not only for humanitarian law. In many other fields of international law, states do not want to have a world court, a world police or a world Government. As Claire Clement explained, the states themselves have to ensure that the law is respected. The International Committee of the Red Cross and Switzerland suggested very nice additional mechanisms—nice in the sense of not very tough—but even this was refused by states. Therefore we have to live with what we have.
It would be good if there were additional mechanisms. Perhaps because of this lack of mechanisms, theoretically the UN Security Council could take action, and it has taken action in the past. If one of the parties is either a permanent member—Russia-Ukraine—or is systematically protected by a permanent member, the Security Council cannot take any measure.
It would be good, yes, if there were better enforcement mechanisms, also because today, in my personal view, too many hopes are put on the International Criminal Court. This can be ruinous for the International Criminal Court, because humanitarian law contains mainly obligations for states and for armed groups, and it must be enforced against them. Since the typical subjects of international law are states, we do not have efficient mechanisms to enforce, as you put it. The ICRC does a lot of work, but we do not know what successes it has because it is confidential. I am convinced that the situation would be even worse if the ICRC was not trying to work. You are right: not only for IHL but also for human rights, or even international trade law, we need more efficient enforcement mechanisms, but states do not want to have them.
Q99 Blair McDougall: You are talking about how states do not want to give up sovereignty to have more effective enforcement. Is your feeling that we are moving in the wrong direction as an international community on that? We hear Putin talking about a multipolar world. We have a more, arguably, sovereigntist American President at the moment. Is it becoming less likely that we have effective mechanisms for enforcement?
Professor Sassoli: I do not think that the situation has worsened. In terms of enforcement mechanisms, simply, we would need additional ones. The United Nations had planned on having, through the Security Council, an enforcement mechanism that can take binding measures and authorise the use of force or send troops, but, as you know, this does not work, especially now with the divide and permanent members disagreeing with each other. Unfortunately, this is the mechanism that is foreseen by international law and that would also cover humanitarian law.
We have seen in the former Yugoslavia that the Security Council was able to take measures against violations of humanitarian law. There is always a risk of double standards, and I can only underline what Ms Clement said. I understand that your Committee is concerned with Gaza, but, if you look at violations of humanitarian law, in the Democratic Republic of Congo many more civilians are killed than in Gaza and no one speaks about that. She mentioned Sudan and I could make a long list.
Chair: I am so sorry to cut across you, Professor. As ever, when I chair these meetings, we seem to be running out of time. Your evidence is so interesting and I appreciate that I am exactly making the point that you want to make, which is that we do not talk sufficiently about breaches of IHL in other countries, but we are just focusing on Gaza today. Perhaps I can move the conversation on.
Q100 Aphra Brandreth: Thank you, both of you. Professor Sassoli, you touched on this briefly in your answer to Blair about the actions that the UN Security Council could take. I wondered whether you could elaborate on what functions and powers, if any, the UN Security Council has in initiating, guaranteeing and enforcing ceasefires.
Professor Sassoli: Initiating and guaranteeing ceasefires is not an IHL task, but it is very important from a humanitarian point of view. In my view, it would be more important to stop wars than to get them to respect IHL. As long as, unfortunately, there are wars, we need IHL.
The ceasefire is a typical task of the United Nations Security Council. Under the UN charter it could send troops, and sometimes it has authorised the use of force, but this is about the legality of using force. The Security Council has, for 30 years, considered that violations of international humanitarian law threaten international peace and security, and therefore it could take measures, as it has in the past. When there was a consensus between the permanent members, it has taken sanctions against states that violated international humanitarian law. Again, this is only possible if the majority agrees and no permanent member disagrees.
Claire Clement: I completely agree with Professor Sassoli. Cessation of hostilities is referred to under IHL, but it is absolutely right that it is not regulated under IHL. It is more for the parties to the conflict themselves to negotiate that. There may be other countries and interested parties that assist in that as well, but it is absolutely right that humanitarian considerations can be very important when negotiating a ceasefire.
We have seen examples of ceasefires that have been negotiated on two tracks. For example, there is a political track to it, and there may be a humanitarian track to that as well, which is done separately in order to ensure that elements of the humanitarian side of things are taken care of in a way that is separate from the political consideration. That ensures the safeguarding of populations, the return of detainees and prisoners of war, and those sorts of things. It is all up to the parties to the conflict themselves to be able to negotiate and agree those things. In terms of UN Security Council involvement, exactly as Professor Sassoli has said, it depends on the members and their political will.
Q101 Edward Morello: I wanted to return to a point that you made earlier on, Professor, which was about the fact that Britain has been supplying weapons to Israel during this conflict period, although we have withdrawn numerous export licences. If Britain supplies weapons that are used in a proven violation of IHL, do we have a legal culpability?
Professor Sassoli: If you supply weapons, you can never be sure that they will never be used to violate humanitarian law. The standard, as laid down by the ICRC commentaries to common article 1 of the Geneva convention, is when there is a clear risk that the weapons will be used in violations of humanitarian law and you can establish that. Obviously, you can never foresee the future, so you must evaluate this based on the past conduct of a party. Say you supply submarines. I am not aware of any possible violation by Israel with submarines. If these are guided missiles, then comes the question of whether they were sometimes used against targets that are not military objectives.
All this is delicate. The example of the guided missile is perhaps not so relevant for Israel because it has very sophisticated weapons. Sometimes, if you give sophisticated weapons it facilitates the respect of humanitarian law compared with dumb bombs, so it is a dilemma. When it provides weapons to a warring party, a state must certainly take measures to monitor and ensure compliance with those rules of international humanitarian law.
Q102 Edward Morello: I have a slightly expanded question, if I may. When it comes to the conflict in Gaza and the broader Middle East, what is the UK doing to ensure all sides are adhering to international humanitarian law? What should we be doing if there is stuff that we are not?
Claire Clement: Thanks very much for that important question. To clarify, the role of the British Red Cross is not to comment publicly on what the UK is or is not doing in relation to ensuring IHL is complied with in this sort of conflict and in other sorts of conflicts. We deal generally directly and privately with the UK Government as their humanitarian auxiliary to try to promote better adherence to IHL and implementation of its rules.
With that important clarification, the UK, like various other countries, has an important role to play in encouraging better implementation of IHL in this context and others. It can do that through its diplomatic relations. It is doing that, from what we understand, know and work with, at every turn, but that can always be more effective and widespread. Using its full diplomatic leverage would certainly be appreciated and encouraged by us and other organisations.
Over the longer term, there are ways in which the UK can champion its role as a longstanding leader in IHL as well. For a long time, the UK has pioneered quite innovative means of ensuring better compliance with IHL, including, for example, instigating more countries engaging in voluntary reporting on IHL. The UK has just published its own second voluntary report on implementation of IHL. It is leading by example in terms of showing how it implements and complies with the rules in its own space.
It is encouraging other states and working with other states to do that as well. For example, Ukraine has just released its first voluntary IHL report. These things are not mandatory. The name of it suggests all of it: this is a voluntary report. However, these are steps towards better transparency, among countries that are willing to engage in that, around how exactly they are implementing the rules and adhering to them. There are certain things that the UK could be doing in the diplomatic sphere, as well as the technical IHL sphere, working peer to peer with other countries to be able to ensure better compliance with IHL.
Chair: I would like to thank you very much for coming today and giving your evidence in the clear way that you have. It has been incredibly important to us. I would also like to put on to the record our gratitude to the Select Committee legal advisers for the advice and help they have given to us in preparation for today. We are only running slightly over, so it is amazing. Thank you very much for giving your time to us today. If there is anything that you feel that we have not asked you about that was important, or anything additional that you think that we should know about, please write and add that to your evidence.