Photo: "Geneva Conventions - signing in 1949" by British Red Cross is licensed under CC BY 2.0.
By Cesar Jaramillo
To end the ongoing violence in Gaza, everyone needs to recognize and understand that, even during the legitimate exercise of self-defence, international humanitarian law (IHL) remains applicable and binding.
Unfortunately, many misunderstand the relationship between self-defence and IHL or choose to misrepresent it. The result is ongoing debates of frustrating circularity and no meaningful action, leaving civilians unprotected from the ravages of armed conflict.
Without a proper understanding of this critical relationship, efforts to halt the bloodshed in Gaza will fail. At one time, it would have been natural for Canada to step up and assume a leadership role to clarify and support the appropriate view. But Canada’s current response to this crisis—and its broader defence of IHL—has been tepid at best.
If Canada were to come forward now to champion a principled and rigorous defence of IHL, while also clarifying its connection to self-defence, it could set a new standard for accountability and constructive engagement. The opportunity exists.
Self-defence and IHL
States, including Israel, have the inherent right of self-defence, as enshrined in the UN Charter. However, this right must operate within the bounds of IHL, which imposes obligations of distinction, precaution, and proportionality to protect civilians. Even in asymmetrical conflicts, IHL is intended to limit suffering in the chaos of war, providing a practical framework for protecting civilians and stabilizing conflicts.
The erosion of IHL’s universality will, inevitably, reach a point where the resulting chaos will impact even those who consider themselves removed from today’s tragedies.
A set of universally recognized principles, IHL is designed to protect civilians and regulate armed conflict. It ensures accountability in any conflict, no matter the cause or the adversary’s brutality. Any violation of IHL not only harms civilians but undermines the stability created by shared values and a shared belief in the integrity of international law.
The international community has to determine without equivocation not only that the right of self-defence can coexist with adherence to IHL, but that it must. Not only is self-defence compatible with IHL, but each reinforces the other. The legitimacy of self-defence justifies certain actions, while IHL governs the conduct of those actions. To set the principles against each other risks eroding the very fabric of international relations, paving the way for unchecked violence.
IHL applies equally to all actors
Israel can adhere to IHL without diminishing its right or capacity to defend itself. Indeed, adherence to IHL strengthens the legitimacy of its self-defence efforts, ensuring that actions are proportional and minimize civilian harm. IHL’s universality ensures that accountability applies equally to all actors, regardless of their role in the conflict, reinforcing its impartiality and credibility.
Hamas violated IHL during October 7 incursions into Israel, during which civilians were killed and taken hostage, and continues to violate international law by refusing to release the remaining hostages. But these actions do not give Israel the right to violate IHL.
Compliance with IHL is unconditional. And, while the release of Israeli hostages must remain a priority and is an essential step toward achieving a ceasefire, a ceasefire is not—and cannot be—a prerequisite for such compliance. All armed conflicts are subject to IHL, which impose obligations on all parties, regardless of the status of peace negotiations.
In Gaza, more than two per cent of the entire population—more than 43,000 individuals from a population of 2.1 million—had been killed as of October 2024. The 1949 Geneva Conventions and their Additional Protocols are being trampled under foot—systematically, persistently, and with shameless disregard for the most fundamental rights of fellow humans. Abuses are being documented with unprecedented clarity as never before seen in the history of warfare.
The need to defend IHL
The failure of any state to robustly defend IHL in the face of flagrant violations is not only a moral lapse but a profound strategic miscalculation. History will record, with dismay, that this moment was allowed to set a precedent for what many in the international community—including influential Western liberal democracies—deem acceptable conduct in times of armed conflict.
The consequences of such inaction will extend far beyond Gaza. By tolerating the erosion of humanitarian standards, we pave the way for a world in which the protections enshrined in IHL are seen as optional, rather than inviolable. This precedent will embolden future violators, erode the integrity of international law, and weaken the protections for civilians in every future conflict.
The costs of such shortsightedness are high. The erosion of IHL’s universality will, inevitably, reach a point where the resulting chaos will impact even those who consider themselves removed from today’s tragedies. The world will become less stable, less secure, and less humane—a reality that will ultimately come to haunt all who failed to act when the foundations of international law were under siege.
Without clarity on the relationship between the right of self-defence and IHL, attempts to address the situation in Gaza—or conflicts elsewhere—will result only in ambiguity and inaction.
A clear choice must be made between two polar-opposite positions. One holds that the right of self-defence is unequivocal and that IHL is equally binding and must always be respected. In this view, self-defence and adherence to IHL are not only compatible but complementary, with IHL governing the implementation of self-defence actions.
The second position holds that the right of self-defence is paramount. Violations of IHL—including serious, persistent mistreatment of the innocent—can be deemed acceptable depending on the actor or the causes of the conflict. A logical corollary to this position is that violations of IHL in Gaza are permissible in exercising self-defence.
The international community must reject the second position. To accept deviations from IHL as permissible erodes the credibility of international law and undermines the protection of civilians. Stopping the carnage in Gaza requires courage and clarity. It requires steadfast support for both the right of self-defence and adherence to IHL.
The violence in Gaza demands an urgent response rooted in law and accountability. Nations like Canada, with a strong tradition of multilateral engagement and support for a rules-based international order, must reaffirm the universality and indispensability of IHL, reject any tolerance for its violations, and uphold principles that safeguard humanitarian standards even in armed conflict.
The fact that Israel positions itself as a historic ally of Canada or as a proponent of democratic values does not and cannot negate the unacceptability of its actions in Gaza. The credible evidence of Israel’s persistent violations of IHL demands that Canada take a principled stand. Canada has a duty—both moral and legal—to denounce such actions with clarity and vigour.
