News | War / Peace - Israel - Palestine / Jordan - War in Israel/Palestine Is the German Government Complying with the Geneva Conventions?

Riad Othman of medico international on Germany’s legal obligations during the war in Gaza


 Aid workers search for survivors after Israeli airstrikes on houses in the Jabalia refugee camp in the northern Gaza Strip, 1 November 2023.
 Aid workers search for survivors after Israeli airstrikes on houses in the Jabalia refugee camp in the northern Gaza Strip, 1 November 2023. Photo: picture alliance / REUTERS | STRINGER

Since the war in the Gaza Strip began on 7 October, both sides have been accused of human rights violations — by each other as well as by various international watchdog organizations. Yet while the condemnation of Hamas’s crimes against Israeli civilians has been more or less universal across the Western world, criticism of the IDF has been more selective, particularly in Germany, one of Israel’s staunchest allies. This seemingly selective criticism has caused many, especially in the Global South, to ask how universal human rights and international law really are.

Riad Othman is the Middle East coordinator at medico international in Berlin. He previously served as the director of the medico office for Israel and Palestine.

medico international is a German aid and human rights organization founded in 1968. It operates as a non-profit, independent of any political party, and its work is primarily focused in Africa, Asia, and Latin America. Since the war began, it has been one of the most vocal critics of violence on both sides in the German-speaking world, publishing regular updates on the situation informed by its partners in both Israel and Palestine.

Riad Othman of medico international recently sat down with Karin A. Gerster from the Rosa Luxemburg Foundation’s Ramallah Office, to speak about the situation in the Gaza Strip, as well as Germany’s obligations under international law in the midst of this terrible war.

Humanitarian aid is enshrined in human rights and international law. Can you give us a brief overview of when, where, and how that came to be?

It is part of the Geneva Convention. This means that humanitarian aid must be guaranteed not only in conflicts between state actors, but also in conflicts between a state like Israel and non-state actors such as Hamas or Islamic Jihad. In other words, Israel, as an occupying power, is obliged to take responsibility for the humanitarian situation of the population in Gaza or at least to guarantee access to aid.

This remains the case even after the evacuation or withdrawal of the settlers from the Gaza Strip in 2005, since Israel still holds the status of an occupying power due to the control it wields over Gaza. There are extensive resources detailing all of this.

More importantly, perhaps, a 2008 Israeli Supreme Court ruling also determined that Israel continues to have humanitarian obligations to the people of Gaza. The Israeli government has never contested or rescinded this ruling, as the international law expert Prof. Kai Ambos made clear in an article on the current legal situation for the Verfassungsblog.

At present, only 650 truckloads of humanitarian aid have been allowed into Gaza over the course of the entire war. The international community is not even demanding that Israel provide this aid itself, which it is technically obliged to do as an occupying power, but that Israel allow humanitarian access at all.

Thank you for this important clarification. The German government abstained from the UN vote in favour of a humanitarian ceasefire at the end of October. At the same time, Annalena Baerbock, the Federal Minister for Foreign Affairs for Germany, pledged 50 million euro in emergency aid. That was on 19 October. The money was intended to support international organizations such as the World Food Programme, UNICEF and above all The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNWRA). She also stated that civil infrastructure was needed, including hospitals and schools. The Israeli military has already targeted many of these places or rendered them inoperable.

Germany claims to stand for human rights and has signed the Geneva Conventions. What obligation does this place on the German government?

As a signatory party to various international agreements, the German government is obliged to prevent crimes under international law to the best of its ability. This is part of the Geneva Convention. It is stated in the preamble of the Rome Statute, which the Federal Republic of Germany has committed to.

The German government should use diplomatic channels and do everything within its power to prevent all parties to the conflict — including Hamas, Islamic Jihad and, of course, the State of Israel — from committing crimes against humanity and war crimes. Should such crimes nevertheless be committed in breach of the law, both bilateral and international law contain more robust measures that can be implemented, starting with the freezing of accounts, entry bans, sanctions and so on.

Does that mean that those who don’t actively oppose crimes against humanity are actively supporting them?

I would say that at the very least, they are failing to honour their contractual obligations to do what they can to stop it. If no action is taken in the face of clear violations of international law, then this is at the very least a failure to provide assistance.

As a signatory party to international agreements, Germany has an obligation. Isn’t this just another example of the kinds of dilemmas we see in Somalia, Kurdistan, Bosnia, Rwanda, and Sudan? When politics fails to stop crimes against humanity, is humanitarian aid instrumentalized as a substitute for politics?

Yes, we can say that to a certain extent. We have had cases where it was even worse, where the instrumentalization went so far as to use humanitarian arguments to justify regime changes.

Think of Libya and the fall of Gaddafi, which was clearly done in the name of the so-called “responsibility to protect”. The justification at the time was that all opposition forces would be slaughtered unless there was an intervention. As a result, an intervention mandated by international law was carried out that was allegedly not aimed at a regime change, but at protecting the opposition. Thus, it was not classified as an illegal war of aggression like the one waged by the United Kingdom and the United States in Iraq in 2003.

The Palestinian side has relied on diplomacy for 30 years, that cannot be forgotten. Thirty years have passed since the first Oslo Accords and what has this given them? Three times as many settlers.

That said, what we have been observing with the situation in Israel and Palestine for decades is somewhat different. But here, too, we also see the instrumentalization of foreign and humanitarian aid.

According to the German Federal Ministry for Economic Cooperation and Development (BMZ) and the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ), German development assistance is focused on setting up proto-state establishments or, as the jargon goes, institution-building for a future Palestinian state. However, there is a lack of political pressure from German politicians to actually implement the Palestinians’ right to self-determination. In other words, the GIZ, among other agencies, are helping build state or rather pseudo-state structures for an entity that will never become a state if the conditions of recent years and decades persist.

Their approach is to manage the conflict, and this does not lead to any lasting solution. Nor does it lead to any status quo being set up with regards to the situation, instead it only gets worse and worse. The Palestinian side has relied on diplomacy for 30 years, that cannot be forgotten. Thirty years have passed since the first Oslo Accords and what has this given them? Three times as many settlers.

I would also like to discuss how medico conceives of itself and its role as a humanitarian and political organization. medico carries out critical public relations work, highlighting the extent to which the Global North is responsible for miserable living conditions and violence in many regions of the world. It organizes actions and campaigns and draws attention to the destructive consequences of capitalist and neocolonial power relations.

With regard to the situation in Israel and Palestine, which concerns an occupying force and occupied country, the EU is one of the largest financial backers, and Germany supports both Israel and Palestine. However, as we can see, these forces intervene without any clear political will to change anything act politically. This contributes to the fact that the Middle East conflict is being managed, as you noted.

medico has a clear twofold approach: helping people help themselves, and providing political education. But still, how do you navigate the dilemma I outlined above? Does it concern medico? And if so, how?

This dilemma is a tightrope walk that I have been dealing with for ten years in Palestine/ Israel. We are trying to defend and implement the population’s right to assistance. Concretely, this means provisioning humanitarian aid. What does a patient with high blood pressure or diabetes do in Gaza if she can’t receive treatment because she can’t get permission from the Israelis to leave Gaza?

Part of our approach here is to try to provide people with the best possible medical care in Gaza. According to the WHO, only 70 percent of patients were recently allowed to leave Gaza in time to receive medical treatment. The other 30 percent were not permitted or were only permitted to leave once it was too late. This can be a death sentence for some. I still remember years ago when the percentage of patients who were denied the right to adequate medical treatment was significantly higher.

At the same time, we are faced with real problems in the occupied West Bank. The question is entirely justified: doesn’t aid just contribute to maintaining the status quo by making the occupation more “bearable” for the afflicted Palestinian population? Doesn’t humanitarian aid placate people to a certain extent? After all, the international donors are not only funding humanitarian aid, but also the Palestinian Authority.

The rights of the people of Gaza are guaranteed independently of whether or not Hamas fires rockets into Israel or captures Israeli civilians or takes them as hostages. Nothing that Hamas does can make these rights null and void.

Our approach is to defend the population’s right to assistance and aid and at the same time to repeatedly criticize the fact that this agenda is a political failure writ large. We remind people that human rights and international law apply to everyone, regardless of the identity of the perpetrators and their victims.

As a human rights organization with clear obligations, we believe that everyone should join standing up for the following, which is the bare minimum: innocent civilians are not legitimate targets. And they have rights.

Are you alluding to the allegations that Hamas uses women civilians as human shields?

No, that’s a different issue, but an important one: take, for example, the claim that Al-Shifa Hospital is a large Hamas command centre, and thus the “operational heart” of their military operation. Homemade computer-animated 3D videos are not enough to prove this claim.

Proving such a claim and thereby proving that a facility like Gaza’s largest hospital was or will be a legitimate target requires concrete evidence that would stand up in a court of law. Even if there were Hamas fighters present in the hospital, a measured response would still be mandatory. If Israel has the evidence to support the above, as it claims it does, then it should publish it instead of the videos and satellite images produced by its own army.

If Hamas wrongfully uses civilians as human shields or civilian infrastructure for military purposes in violation of international law and thus commits a war crime, this does not exempt the Israeli army from its own obligations under international law. Karim Khan, the chief prosecutor of the International Criminal Court, made this point clear during his visit to Rafah on 29 October, and it is very important: for each and every one of its strikes, the belligerent that points a gun or fires a rocket at a target has the obligation to prove that it was a legitimate military target.

We have now counted over 100 attacks on ambulances in the West Bank carried out by the Israeli army. Nobody can claim that Hamas used these ambulances as shields. These ambulances were on their way to the injured. These ambulances are used at demonstrations to provide medical care to injured protesters.

I have to say, given the experience of disinformation on the part of the Israeli army, which is of course a part of every war — that holds for the Palestinian side too, by the way — it would be naive to doubt that now, of all times, the truth would be the first casualty of war, or to suggest that the Israeli army would adhere to a higher moral standard than other governments and armed forces. In the midst of a conflict, none of the parties can be considered a neutral source of information.

Any time humanitarian aid is used or appears to be used as part of a political or military strategy, it takes on a political significance and becomes susceptible to attack. Netanyahu only wants to allow for humanitarian corridors — and thus internationally funded humanitarian aid — on the condition that Israeli hostages are released. Is it legitimate for an occupying power to make such a demand, i.e., to premise humanitarian aid upon the release of hostages?

No, it is not legitimate in any way. The rights of the people of Gaza are guaranteed independently of whether or not Hamas fires rockets into Israel or captures Israeli civilians or takes them as hostages. Nothing that Hamas does can make these rights null and void. The same applies to civilian hostages: they have the right to be released immediately and unconditionally regardless of what the Israeli army or government do.

By making the right to aid conditional upon the release of hostages, the Israeli government is attempting to blackmail the population of Gaza. Above all, however, it is an attempt to use the atrocities committed by Hamas to legitimize its own violation of the law against the Palestinian population.

Incidentally, it is a similar mechanism when the Israeli army drops leaflets calling for mass evacuation or forced resettlement: you can do that temporarily, this is clearly stipulated in the Geneva Convention. You can also temporarily evacuate a civilian population if military necessity requires it. Now, however, Israel is arguing that the north of Gaza is so densely populated that it can only fight Hamas effectively if the civilian population is evacuated, for otherwise there would be very high civilian casualties. But the point is — I refer again to Karim Khan — if more than 50 percent of the homes in Gaza are destroyed, damaged or uninhabitable and around 1.9 million people have already been forcibly displaced, then this demonstrates that Israel’s response is not measured or proportionate.

Either the Israeli army is incorrect or it is not bothered by the fact that it is injuring and killing tens of thousands of civilians.

The bottom line is: after more than 10,000 deaths in Gaza, only 60 Hamas commanders have been “neutralized” or “eliminated”, as it is said. That means 60 Hamas commanders or officers for 10,000 dead, the majority of them civilians. This does not seem to me to be proportionate.

The Israeli army claims that it is carrying out precision strikes and that it is making every effort to protect the civilian population. However, I wonder why 70 percent of the casualties are women and children. In addition to these 70 percent of women and children, there are also civilian men. These are not even counted as civilians in Gaza. The remaining 30 percent are therefore made up of actual combatants and male civilian victims who are not involved in the conflict.

So, does the Israeli army show little or no consideration for the civilian population and thus disregard their right to protection, or is the accuracy it boasts of not so good after all? Are their strikes imprecise, not to say blind? As the high number of civilian casualties attests to, these two statements — the claim to protect the civilian population and the claim that the army is carrying out precision strikes — do not match up.

Either the Israeli army is incorrect or it is not bothered by the fact that it is injuring and killing tens of thousands of civilians. IDF international spokesman Lt. Col. Richard Hecht succinctly described the latter case live on CNN as “the tragedy of war” when he confirmed that the army knew in advance that there would be numerous civilian casualties in the air strike in Jabalia.

In Germany, however, leading politicians continue to say that Israel is complying with international law and human rights in Gaza. You can look at any war and ask yourself whether wars generally lead to increased respect for human rights or not. And if not, I wonder how our politicians are able to claim that Israel has been blatantly breaking the law in the West Bank for decades without an outright war being waged there.

Translated by Hunter Bolin for Gegensatz Translation Collective.