By Professor Ayman salama
Israel announced unprecedented total blockade on the whole occupied territory of Gaza last Monday.
The direct catastrophic in Gaza indicates that more than 250,000 people in Gaza have already been displaced, the only power station ceasing to operate and a serious shortage of water. No fuel, food, water or medical supplies are being allowed in, placing the entire population of Gaza at risk. Such collective punishment of civilians is strictly prohibited by international law.
UN High Commissioner for Human Rights Volker Türk urges all States to insist upon and assist the parties to the conflict in immediately implementing a humanitarian corridor to ensure safe and unimpeded access to humanitarian aid.
The term “superfluous damage” is not explicitly defined in international humanitarian law (IHL), but it is generally understood to refer to damage that is unnecessary for the achievement of a legitimate military objective. In other words, it is damage that is caused without any military advantage.
IHL prohibits the causing of superfluous damage, as stated in Article 51 of the Additional Protocol I to the Geneva Conventions of 1949:
The Parties to the conflict shall do everything feasible to avoid and, in any event, to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.
The principle of proportionality, which is another fundamental principle of IHL, also plays a role in preventing superfluous damage. The principle of proportionality requires that the incidental loss of civilian life, injury to civilians, and damage to civilian objects caused by an attack be proportional to the concrete and direct overall military advantage anticipated.
In other words, even if an attack is directed at a legitimate military objective, it is unlawful if the collateral damage to civilians and civilian objects is excessive.
There are a number of factors that can be considered in determining whether damage is superfluous, including:
- The nature and importance of the military objective
- The likelihood of achieving that objective
- The potential collateral damage to civilians and civilian objects
- The availability of alternative means of achieving the objective with less collateral damage
The International Criminal Court (ICC) has stated that superfluous damage is a war crime. In the case of Prosecutor v. Thomas Lubanga Dyilo, the ICC found that Lubanga was responsible for the war crime of causing superfluous damage by ordering his forces to attack villages and kill civilians.