Since the end of the Second World War, international law has created a comprehensive set of mandatory rules governing both the conduct of war and hostilities and the administration of military occupations. In sum: belligerents have substantial obligations to conduct war in a highly restricted fashion, and civilians have very broad rights to be protected against death and suffering. There are many nuances to these rules, and this summary only covers the bare bones pertaining to the current Israeli assault on Gaza.
International law's strength lies in the red lines that it draws on (mis)conduct during wars and occupations. The reputation of a country or an organization is significantly stained if it has been credibly accused of committing war crimes or other violations of international law. However, the ability to impose accountability on an offending state or non-state actor is primarily a political act, as there is no comprehensive international judicial system comparable to domestic courts. International law truly works only when it is combined with international resolve.
There is no human rights crisis or military occupation in the modern world where international law has spoken so frequently and so clearly, primarily through hundreds of United Nations resolutions, as with the Israeli occupation of Palestine. Yet since the origins of the question of Palestine, international law in Palestine has been much closer to power than to justice.
We have yet to see whether power will prevail yet again over justice during this latest dark moment following Hamas's attack into southern Israel on Oct. 7 and Israel's punishing response in Gaza. If probative evidence that war crimes, crimes against humanity and even genocide have been committed by Israel, Hamas and/or other Palestinian militant groups, then the International Criminal Court in The Hague would have jurisdiction over these crimes in the occupied Palestinian territory. This is based on a February 2021 ruling by the Pre-Trial Chamber of the ICC that its jurisdiction extends to Gaza and the West Bank, including East Jerusalem. The ICC's current chief prosecutor, Karim Khan, stated at a press conference in Cairo last month that the situation in Israel and Palestine remains a high priority for his office. However, critics of Khan's record at the ICC have argued that he has been too slow in pursuing his office's formal investigation of war crimes in Palestinian territory, which was opened back in early 2015.
International law truly works only when it is combined with international resolve.
- Michael Lynk
Distinction, Proportionality and Precaution
There are three main branches of international law that apply to Israel and Palestine respecting conflict and occupation. The first is international humanitarian law, found principally in the 1907 Hague Regulations, the four Geneva Conventions of 1949, the Protocols Additional of 1977 and customary international humanitarian law. The second is international human rights law, found in the nine principal human rights treaties and covenants adopted by the international community since 1948. The third is international criminal law, found principally in the 1998 Rome Statute, which created the International Criminal Court.
The core governing principle of international humanitarian law is the protection of civilians. Military operations must not be directed toward them. This is expressed through three key principles of distinction, proportionality and precaution. At all times, parties to a conflict must distinguish between civilians and combatants, and between civilian areas (i.e., housing, hospitals, etc.) and military objectives (i.e., headquarters, military bases), directing their attacks only against combatants and military sites.
Even with a clear military objective in mind to attack, military leaders must still act with proportionality. They are forbidden under international humanitarian law to initiate an attack if it would be expected to cause excessive incidental civilian deaths and injuries and/or damage to civilian sites, or a combination of the two. Defining "excessive" is not a science, but it cannot have an elastic meaning.
And finally, a military must take all reasonable precautionary measures to minimize civilian casualties and damages. This includes employing the most accurate available weapons; giving effective warning to civilians of an imminent attack unless the situation does not permit it; and cancelling or suspending an attack if it becomes apparent that the objective is not a military target or the impact of the attack on civilians will be disproportionate.
Any violation of these strict prohibitions against attacks on civilians can amount to a war crime or, if widespread and systemic, a crime against humanity.
A Culture of Impunity
Israel evacuated its military and its 8,000 settlers from Gaza in 2005, and claimed that its occupation had ended. It subsequently defined Gaza as an "enemy entity," a concept unknown in law. However, the United Nations continues to consider Gaza to be territory occupied by Israel, and therefore governed by international humanitarian law. This is because Israel has maintained a comprehensive air, sea and land blockade that has been in place since 2007. Under international law, an occupation does not depend on whether a foreign power has a direct ground troop presence in a territory, but whether it asserts "effective control." In 2009, the United Nations Security Council affirmed the status of Gaza in Resolution 1860, which stated that "the Gaza Strip constitutes an integral part of the territory occupied in 1967." As a result, the Palestinians of Gaza are still "protected persons" under the Fourth Geneva Convention and entitled to the extensive protections guaranteed to them under the laws of war.
The use of collective punishment, defined as the imposition of sanctions or deprivations on a particular group—political, ethnic, religious or otherwise—for acts committed by individual members of that group, is strictly prohibited by Article 33 of the Fourth Geneva Convention. This comports with the modern legal principle that individuals alone are responsible for their acts, not the groups to which they belong.
In 2010, the International Committee of the Red Cross stated that the closure of Gaza by Israel constituted a collective punishment imposed in clear violation of international humanitarian law. "The closure of Gaza suffocates its people, stifles its economy and impedes reconstruction efforts," then-U.N. Secretary General Ban Ki-moon declared in 2016. "It is a collective punishment for which there must be accountability." In 2017, the United Nations Country Team for Gaza issued a report that predicted that Gaza would be "unlivable" by 2020. In 2020, as the U.N. Special Rapporteur on human rights in the occupied Palestinian territory, I concluded in my report to the U.N Human Rights Council that "the actions of Israel towards the protected population of Gaza amount to collective punishment under international law."
Since 2009, the U.N. Human Rights Council has commissioned three comprehensive reports on the conduct of Israel and Hamas during the Israeli assaults on Gaza in 2008-09 and 2014, as well as on Israel's conduct in Gaza during mass Palestinian protests in 2018, known as the Great March of Return. The sum of these three reports is that Israel was identified in all three, and Hamas in the first two reports, as having likely committed war crimes in its conduct of its military operations.
As the 2009 report concluded:
From the facts gathered, the Mission found that the following grave breaches of the Fourth Geneva Convention were committed by the Israeli armed forces in Gaza: willful killing, torture or inhuman treatment, willfully causing great suffering or serious injury to body or health, and extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly. As grave breaches these acts give rise to individual criminal responsibility. The Mission notes that the use of human shields also constitutes a war crime under the Rome Statute of the International Criminal Court.
The 2015 report to the U.N. Human Rights Council concluded:
In relation to this latest round of violence, which resulted in an unprecedented number of casualties, the commission was able to gather substantial information pointing to serious violations of international humanitarian law and international human rights law by Israel and by Palestinian armed groups. In some cases, these violations may amount to war crimes. The commission urges all those concerned to take immediate steps to ensure accountability, including the right to an effective remedy for victims.
The 2019 report to the U.N. Human Rights Council stated:
The Israeli security forces killed and maimed Palestinian demonstrators who did not pose an imminent threat of death or serious injury to others when they were shot, nor were they directly participating in hostilities…The commission therefore found reasonable grounds to believe that demonstrators were shot in violation of their right to life or of the principle of distinction under international humanitarian law.
All three reports of the commissions of inquiry noted that there was a prevailing culture of impunity enjoyed by both Israel and Hamas. "Justice and respect for the rule of the law are the indispensable basis for peace," the 2009 report noted. "The prolonged situation of impunity has created a justice crisis in the Occupied Palestinian Territory that warrants action." As the 2019 report on the Israeli military's killings of Palestinian protesters in 2018, along the Gaza border, concluded, "to date, the Government of Israel has consistently failed to meaningfully investigate and prosecute commanders and soldiers for crimes and violations."
Since the origins of the question of Palestine, international law in Palestine has been much closer to power than to justice.
- Michael Lynk
War Crimes and the Crisis of Justice
People living under colonialism or occupation have the right under international law to resist their subjugated position, including by arms if necessary. However, non-state actors engaged in armed struggle are nevertheless bound to follow international law and the rules of war, and in particular not to target civilians in their armed resistance. The targeting of civilians by combatants, the firing of inaccurate missiles toward civilian communities, and the capturing of civilians to be used as hostages are all strictly forbidden under the laws of war. Violations of these prohibitions may well amount to war crimes. Hamas and/or other Palestinian armed groups appear to have committed all three offenses on Oct. 7.
But war crimes by one armed group or military does not justify in any way war crimes by the opposing side. The strict rules of war apply in all circumstance of conflict and hostilities to all sides, regardless of the provocations initiated by one side or regardless of the brutality of the occupation or colonial rule.
The use of starvation of a civilian population as a method of warfare is absolutely prohibited under the laws of war. As well, depriving a civilian population of the necessities of life—such as attacking, destroying, denying the availability or rendering useless foodstuffs, access to crops, livestock, drinking water, fuel and power—for the specific purpose of denying sustenance value to the civilian population or to force them to move away, is also prohibited.
The mass forcible transfer of a civilian population under occupation and/or during a conflict is a serious violation of international humanitarian law. The reports of recommendations by Israeli military intelligence and the statements by various high-ranking Israeli political and military leaders to encourage or force some or all of the Palestinian population of Gaza to relocate to the Sinai Peninsula in Egypt, if implemented, would clearly be a war crime.
The act of intentionally attacking civilians is a serious breach of international law. As well, indiscriminate or reckless attacks on civilians and/or civilian sites, without overriding military justification, would also amount to significant violations of international law. Israel's persistent firing of shells and missiles into Palestinian civilian areas—damaging and destroying Palestinian homes, civilian places of refuge, civilian routes of escape and civilian institutions with the exponentially increasing civilian death and injury toll—may well be war crimes. When a civilian area is attacked during hostilities, the onus rests with the attacking force to strictly justify its actions. Absent clear and convincing evidence to justify each specific attack at each specific time, the civilian character of the targeted object is to be presumed.
Hospitals, places of worship, schools and other civilian facilities are expressly protected under the laws of war. They must not only not be targeted, but extraordinary care must be used to avoid hitting them as collateral damage in an attack.
The possibility of Israel committing genocide in Gaza has been raised by U.N. human rights experts and the Center for Constitutional Rights. Genocide is prohibited by the 1948 Genocide Convention and the 1998 Rome Statute. The convention defines genocide as specific acts "with intent to destroy, in whole or in part, a national, ethnical, racial or religious group." In addition to the absolute prohibition against committing genocide, the convention also prohibits conspiring, inciting, attempting to commit, and complicity in, genocide. But mass killing is only one means of committing genocide. In its case against Jean-Paul Akayesu Case—who was found guilty of genocide and crimes against humanity in the first conviction for genocide anywhere in the world, for his role in the 1994 genocide in Rwanda—the International Criminal Tribunal on Rwanda stated that "subjecting a group of people to a subsistence diet, systematic expulsion from homes and the reduction of essential medical services below the minimum required" can also constitute the necessary elements of physical destruction of a people.
The right of Israel to defend itself has been regularly raised by Western leaders to justify their support for Israel's assault on Gaza in the aftermath of Oct. 7, frequently citing Article 51 of the U.N. Charter. However, while states have the obligation to protect their citizens and others under their control, the use of force in self-defense can only be justified under Article 51 if the armed attack originated from another state. The International Court of Justice stated in its 2004 Wall Advisory Opinion that Israel is the occupying power over the Palestinian territory and that Article 51 does not apply when the threat originates from a territory over which it has control. Notwithstanding, Israel would have the right to use proportionate force, strictly within the limits of international law, to apprehend those who killed or kidnapped Israeli civilians.
Charles Montesquieu, the 18th French political philosopher whose ideas inspired the American Constitution, once wrote that international law "is a science which explains to kings how far they can violate justice without damaging their own interests." The best answer to his cynical observation would be for the ICC to robustly investigate the obvious crimes committed by all sides in Gaza and Israel, and to conclude its nearly nine-year investigation with a flurry of arrest warrants in advance of war crimes trials at The Hague. Only this will address the real "justice crisis" in Israel and Palestine.