LETTERS: The debate about the law of armed conflict is primarily confined to a discussion of the status quo of jus ad bellum and jus in bello.
Jus ad bellum essentially defines the legitimate reasons a state may engage in war, and what factors render a war just or otherwise.
On the contrary, jus in bello is about the conduct of the belligerents once a war has kicked off.
Irrespective of whether any armed conflict is just or unjust, the warring parties are still obligated to adhere to certain rules during the prosecution of the war.
Like it or not the number of civilian casualties on the part of Palestinian people far outnumber the civilian casualties in Israel. This is not really unexpected.
Insofar as the armed conflict between Israel and the Palestinians is concerned, it has never been conducted on an equal footing, let alone on a level playing field.
It has been a David versus Goliath battle from the outset. In saying this we certainly never seek to belittle let alone condone any attack against civilians by any party to the war.
Whoever the perpetrators are, they deserve to be condemned and dealt with by international law.
One of the important character traits governing International Humanitarian Law (IHL), which regulates the conduct of an armed conflict, is the principle of distinction, where all the parties in a war ought to distinguish between military and civilian objectives.
They have to duly abide by the rule of precaution in attack. In other words they must take steps to minimise the harm to civilians during the hostilities.
Recently, Human Rights Watch (HRW) claimed that Israel had allegedly used white phosphorus in its military operations in Gaza and Lebanon hence putting civilians at unnecessary, unmitigated and serious risk.
HRW had verified footage taken in Lebanon and Gaza showing multiple uses of artillery-fired white phosphorus over the Gaza City port and two rural locations along the Israel-Lebanon border.
This violates Israel's obligation under international law in that it failed to take all feasible precautions to avoid mischief against civilians.
It doesn't take a rocket scientist to conclude that the alleged use of white phosphorus in crowded civilian areas would pose very high risk of excruciating burns and life-long suffering.
The jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Kupreskic case provides evidence of the customary nature of this rule in both international and non-international armed conflicts.
In the Kupreskic case, the ICTY found the requirement to take precautions in attack to be part of customary law in that it specified and fleshed out general pre-existing norms.
Since both Hamas and Israel have been allegedly accused of inflicting casualties against civilians, the best way of determining the culpability of the purported war crimes is by resorting to the International Criminal Court.
Only then will we know which party has been consistently violating the international law with impunity.
MOHAMED HANIPA MAIDIN
Former deputy law minister,
Kuala Lumpur
The views expressed in this article are the author's own and do not necessarily reflect those of the New Straits Times