The legal aspects of Haniyeh’s Assasination
Disclaimer:
This article examines the legal and diplomatic implications of the assassination of Ismail Haniyeh, based on the assumption that Israel might be involved. The analysis is presented by an individual with an interest in international relations and diplomacy but without a professional background in law or international relations. The conclusions drawn are speculative and based on currently available information.
The author unequivocally condemns the attacks on Israel by Hamas and the attacks on innocent civilians in Gaza by the IDF. The actions of both Hamas and the IDF are denounced. The author does not take sides in the conflict and aims to present the analysis neutrally. The author accepts no responsibility for any harm or consequences arising from the use of this article. Readers are encouraged to consult additional sources and expert opinions to gain a fuller and more accurate understanding of the situation and its implications.
The legal aspects of Ismail Haniyeh’s Assassination
The Middle East is enduring a bloody merciless war in which thousands of innocuous civilians from both Israel and Palestine have perished as a result of the ravages perpetuated by the rapacious IDF and Hamas. At a time when the world was getting weary of the protracted and callous bloodshed, the news of peace talks between the belligerents Hamas and the State of Israel offered a gleam of hope. Albeit there was little hope that the Palestinian rivers would once again glisten in the pristine moonlight, there was a small hope the one that always exists even in the most somber situations, the hope that is ephemeral yet repetitive, the hope that things would eventually get better. In the context of the war on Gaza, the hope was that at length the inexorable acrimonious throbbing of innocuous human lives would end. However, a few days ago something happened that sent every soul hopeful of ceasefire into melancholy. International media started reporting that Ismail Haniyeh, Head of the Hamas political Bureau has been assassinated in Iran. 1 Haniyeh was proactively participating in the ceasefire /peace talks and was the negotiator in the peace talks. The assassination of Haniyeh also highlights Israel’s apathy to a ceasefire and pushes the attempts at a ceasefire into further torpor. Killing the negotiator who had sojourned in Iran to attend the Iranian president’s oath ceremony in a nearly fastidious attack effectively kills any further attempts at peace and stability in the wider Middle East region. Any further attempts at peace would sound forlorn and would be languid given that one party has killed the other party’s negotiator. Now, I would like to stop wrangling about Haniyeh’s assassination and would like to get into the legal aspects of it.
Legal Aspects
Since Hamas is a nonstate actor in the conflict, the Israel – Gaza war must be seen as a NIAC (Non-International Armed Conflict). 2. In this case, the conflict would be governed by the common article 3 of the Geneva Convention along with numerous customary law rules. As per the Common Article 3 of the Geneva Convention, the murder of a person taking no active part in hostilities is prohibited. Now, we would have to assess the role of Haniyeh within the Hamas organization. Hamas, which has been designated as a terrorist group by the US, UK, Israel, and some other states but not the UNSC, has a separate political and military wing. Haniyeh headed the political wing of Hamas and not the military wing. Haniyeh was the head of the political wing of Hamas and had been living in Qatar for the past few years.
The US claimed that he had close relations with the military wing of Hamas, something that seems very plausible. As per the US embassy’s press note, Haniyeh had reportedly been involved in terrorist attacks against Israeli citizens. 3 Haniyeh kept traveling around the world and met with several world figures notwithstanding his terrorist designation. He met world figures as the political head of Hamas. Adeeb Zidan of Qatar University calls Haniyeh the political and diplomatic front of Hamas.4 Since, the outbreak of the War in Gaza, Haniyeh had been regularly taking part in various international negotiations.5 He had met a Chinese diplomat in Qatar in March over the war in Gaza.6 It’s obvious that Haniyeh was associated with the political wing of Hamas and was involved in the political and diplomatic activities of Hamas. Haniyeh was probably involved in the attacks on Israeli civilians in the past.
The question is whether he was currently involved in the decision-making of the military wing of Hams or not. Did he participate in the October 7 attacks? In international law, a person who is involved in the planning, execution, and order of commands related to an attack or hostility on behalf of an armed group is considered a member of that armed group. But what is an armed group anyway?
What constitutes an armed group?
The term organized armed group refers exclusively to the armed or military wing of a non-state party to a non-international armed conflict. It does not include those segments of the civilian population that are supportive of the non-state party such as its political wing.7
In NIAC the status of a combatant does not exist and Members of armed groups with a continuous fighting function may, according to doctrine, be targeted like combatants. Other people must not be directly targeted. Civilians who directly participate in hostilities, however, lose that protection for the duration of their participation in hostilities.8
By this definition, persons associated with the political wing of the Hamas must not be considered members of the armed group or the military wing of Hamas. This foments the argument that Haniyeh was not liable to be targeted. However, if Haniyeh was involved in the execution, planning, or order of commands in the attacks on Israel or IDF or the October 7 attacks then he would become a legitimate target.
If Haniyeh had not taken part in the October 7 attacks and was not actively taking part in the conflict then his assassination is a violation of the Geneva Convention. Since he was the Head of the Political Bureau of Hamas since 2017 it is plausible that he might not have been a part of the military activities of Hamas. This is something that is subject to debate and one can only infer or speculate.
Conclusion
If Haniyeh was involved in the planning, execution, or order of commands in the October 7 attacks on Israel or was in any way taking a part in the attacks on IDF or Israel in the ongoing war on Gaza then in that case he can be considered a legitimate target.
Violation of UN Principles
UN’s Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions Recommended by Economic and Social Council resolution 1989/65 of 24 May 1989 says that
“Governments shall prohibit by law all extra-legal, arbitrary and summary executions and shall ensure that any such executions are recognized as offences under their criminal laws, and are punishable by appropriate penalties which take into account the seriousness of such offences. Exceptional circumstances including a state of war or threat of war, internal political instability or any other public emergency may not be invoked as a justification of such executions. Such executions shall not be carried out under any circumstances including, but not limited to, situations of internal armed conflict, excessive or illegal use of force by a public official or other person acting in an official capacity or by a person acting at the instigation, or with the consent or acquiescence of such person, and situations in which deaths occur in custody. This prohibition shall prevail over decrees issued by governmental authority.” 9
The assassination of Haniyeh unequivocally violates this principle.
Legal aspects of assassination on Iranian Soil
UN CHARTER
Article 2 (4) of the Charter prohibits the threat or use of force and calls on all Members to respect the sovereignty, territorial integrity and political independence of other States.10
The Rome Statute of the International Criminal Court
Points out that the protection of territorial integrity constitutes a relevant principle even within non-international armed conflicts and therefore in relation to non-state actors that are involved herein.11
Haniyeh was assassinated in Tehran, Iran and therefore the assassination violates Iran’s sovereignty. As per international laws, the use of force must be a “military necessity”. There must be no alternative to killing such as arrest. The foreign nation in which the killing takes place must also consent to it. Iran obviously didn’t consent to the “killing” of Haniyeh who was there to attend the swearing-in ceremony of Iran’s new president. Alternatives to killing were obviously present the foremost of them being arrest. Israel could have asked Iran to extradite Haniyeh. Detractors might argue that it would have been a non–pragmatic approach as Iran is an ally and benefactor of Hamas. I wonder if one can make decisions in the global and wider geopolitical contexts based on mere speculations.
CONCLUSION
One can say with certainity that the assassination of Haniyeh on Iranian soil violates the Article 2(4) and The Rome Statue of the International Criminal Court.
Citations
1) Hamas chief Ismail Haniyeh killed in Iran: What to know, what’s next?
2) Non International Armed Conflict
3) State Department Terrorist Designations of Ismail Haniyeh, Harakat al-Sabireen, Liwa al-Thawra, and Harakat Sawa’d Misr (HASM)
4) Hamas leader Ismail Haniyeh leads group's diplomacy as Gaza war rages
5) What We Know About the Assassination of Ismail Haniyeh
6) Chinese envoy meets Hamas chief Haniyeh after first visit to Israel since Gaza war began
7) Armed Groups
8) Combatants and POWs
9) Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions
10) Purposes and Principles of the UN (Chapter I of UN Charter)
Comments
Post a Comment