Humanitarian intervention in Gaza…Niaz A Shah

In Gaza, an overwhelming humanitarian catastrophe is underway. All diplomatic and peaceful means demanding delivery of humanitarian aid have failed. On 16 October, the UNSC failed to adopt resolution (S/2023/772) calling for humanitarian ceasefire. On 18 October, the US vetoed resolution (S/2023/773) calling for pauses to allow full, rapid, safe and unhindered humanitarian access. On 25 October, China and Russia vetoed the US-led resolution (S/2023/792). Veto powers (P5) have deadlocked the UNSC. An emergency special session was convened under the UNGA resolution 377A(V) Uniting for Peace. On 26 October, the UNGA adopted resolution (A/ES-10/L.25) by a majority of 120 to 14 votes. Forty-five states abstained. The historic resolution demanded the immediate, continuous, sufficient and unhindered provision of essential goods and services to civilians throughout the Gaza Strip, including but not limited to water, food, medical supplies, fuel and electricity, stressing the imperative, under international humanitarian law, of ensuring that civilians are not deprived of objects indispensable to their survival. Resolution (A/ES-10/L.25) is not legally binding but it carries the weight of world opinion and the moral authority of the world community. Israel rejected the resolution and called on states to defund the UN.

The world community has reached a point where it needs to decide whether to let the humanitarian catastrophe continue or intervene on humanitarian ground to stop it. The humanitarian intervention doctrine, in simple terms, is the use of force, as a last resort, in extreme and overwhelming humanitarian situations without authorisation by the UNSC or reliance on use of force for self-defence. The two exceptions to the general prohibition on the use of force under Article 2(4) are self-defence under Article 51 or authorisation by the UNSC under its Chapter VII powers of the UN Charter.

In my opinion, humanitarian intervention in Gaza is legal for two reasons.

First, Article 2(4) of the UN Charter refrains states from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations but it does not exclude the possibility of humanitarian intervention in cases such as Gaza. The potential use of force in Gaza would not be against the territorial integrity or political independence of Israel. The target here is not Israel but arresting a continuing humanitarian tragedy outside Israel. This would also be consistent with the purposes of the UN Charter i.e. protection of civilian lives and preventing genocide.

Second, there is a body of state practice, based on customary international law, where force has been used on humanitarian grounds. During the 1990-91 Gulf War, the US, the UK and France established no-fly zones in Iraq on humanitarian grounds. In April 1991, no-fly zone was established in northern Iraq to provide humanitarian assistance to Kurds. In March 1999, NATO intervened in Kosovo to halt the humanitarian catastrophe because all diplomatic means had failed. On 24 March 1999, the UK told the UNSC: Every means short of force has been tried to avert this situation. In these circumstances, and as an exceptional measure on grounds of overwhelming humanitarian necessity, military intervention is legally justifiable. On 26 March 1999, by twelve to three votes, the UNSC rejected resolution (S/1999/328) condemning NATOs use of force in Kosovo. In 2018, the US and the UK intervened in Syria. The UK justification was to alleviate the extreme humanitarian suffering of the Syrian people by degrading the Syrian regimes chemical weapons capability and deterring their further use.

Given the factual and legal position, it is time for humanitarian intervention in Gaza to halt the ongoing humanitarian catastrophe. Humanitarian intervention does not mean to attack Israel but to ensure safe flow, distribution of humanitarian aid and protection of humanitarian workers. Necessary and proportionate force may be used, by a coalition of the willing states, if Israel continues to block humanitarian aid vital for saving civilian lives i.e. preventing genocide.

Courtesy The Express Tribune