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Rules of war: international law and the Israel-Hamas conflict

After Hamas killed more than 1,300 civilians and soldiers and took dozens of hostages in its weekend assault, Israel has bombarded Gaza. It has cut off water and fuel and told the strip’s northern residents to evacuate. Palestinian authorities say more than 1,500 people in Gaza have died.

The conflict has raised questions about which laws apply — and how much relevance they are likely to have to what happens on the ground. These highlight the tensions between Israel’s right to respond to the attacks by Palestinian militant groups and its obligation to minimise civilian casualties in Gaza, which many international observers still consider to be under Israeli occupation.

Martin Griffiths, UN under-secretary-general for humanitarian affairs, has said: “My message to all sides is unequivocal: the laws of war must be upheld.”

What are the key laws governing conflicts? 

The rules of war derive from international treaties, humanitarian law and so-called customary law — common practices that have become accepted. They reflect the experiences of the most destructive conflicts including the second world war, through instruments such as the 1949 Geneva Conventions.

The laws cover areas including the rights of states to defend themselves, the degree of force they may use, and the protection of non-combatants. 

The rules of war are based on international common practice through instruments such as the 1949 Geneva Conventions © ullstein bild via Getty Images

One important principle is that laws on war crimes do not take account of political causes, including occupations. The pursuit of a liberation struggle such as that declared by Palestinian groups is not regarded as a legal justification for the intentional or indiscriminate killing of civilians.

Israel pulled its troops out of Gaza in 2005, but has blockaded the territory since 2007 after Hamas’ armed takeover there. The UN still considers Gaza to be occupied.

Hostage-taking such as that carried out by Hamas is also a war crime.

On a visit to Israel on Friday, US defence secretary Lloyd Austin said “democracies like ours are stronger and more secure when we uphold the laws of war”.

“Terrorists like Hamas deliberately target civilians, but democracies don’t,” he added.

Do governments have leeway if responding to an attack?  

A country has the right to defend itself if it comes under armed attack, according to the UN charter and customary international law.   

But a fundamental principle is that even if one party in the conflict has committed crimes, it does not justify the other to do the same in retaliation. Whatever the provocation, a combatant must comply with the laws of war. 

The response to an attack must be proportionate. It should be focused on militarily defeating its armed opponents, rather than collective punishment of a wider group of people for casualties inflicted.

Jan Egeland, secretary-general of the Norwegian Refugee Council, said on Friday about the evacuation ultimatum to northern Gaza’s residents: “The collective punishment of countless civilians is illegal under international law.”

What about military operations in civilian areas?

A warring party is forbidden from deliberately harming non-combatants or launching attacks that do not discriminate between military and civilian targets. 

Sites such as shops, hospitals, schools and places of worship are considered civilian installations where attacks would normally be prohibited. Even if a civilian site is not specifically targeted, it could still constitute a war crime if one is hit by an operation such as an Israeli air strike — or the rocket fire Hamas has launched into Israel.   

Israeli planes drop leaflets over Gaza City, urging residents to flee south © Mohammed Talatene/dpa

The rules become more complicated if a warring party has taken over a civilian installation as a military site. The use of civilians as human shields for combatants is forbidden. Israel accuses Hamas of doing this, which the Palestinian group denies.

But even if a warring party is using civilian sites, its opponent still has a responsibility to minimise non-combatant casualties. This consideration has often loomed large in Israeli offensives in Gaza, because the 40km-long territory is so densely populated.

Precautions might include issuing a warning that an attack is imminent, such as Israel’s warning to northern Gaza residents — though, again, this does not remove a combatant’s responsibility towards civilians.  

What are the rules governing siege tactics?

The laws covering approaches such as the deprivation of basic services for civilians are piecemeal, but there are relevant provisions.

The Geneva Convention’s 1977 additional protocols prohibit the use of starvation as a weapon of war. It is forbidden to “attack, destroy, remove or render useless . . . objects indispensable to the survival of the civilian population”. These include “foodstuffs, agricultural areas . . . drinking water installations and supplies and irrigation works”.

Even if a civilian site is not specifically targeted, it could still constitute a war crime if one is hit by an operation such as an Israeli air strike © Ashraf Amra/AFP/Getty Images

The Rome statute that underpins the Netherlands-based International Criminal Court echoes this language. It proscribes “intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival”. That includes “wilfully impeding relief supplies as provided for under the Geneva Conventions”.

Israel-Hamas war

A group of UN independent experts condemned “the withholding of essential supplies such as food, water, electricity and medicines” from Gaza.

“Such actions will precipitate a severe humanitarian crisis in Gaza, where its population is now at inescapable risk of starvation,” said the experts, who also deplored the “horrific crimes committed by Hamas”.

Is any of this enforceable and, if so, how?

The ICC was established to prosecute war crimes and crimes against humanity. Israel is not a member of the ICC, but the Palestinian authorities have been since 2015.

The court is already investigating possible crimes committed by both sides in the Palestinian territories since June 13, 2014, when a previous conflict in Gaza was escalating. Israel has strongly criticised the move. 

War crimes prosecutions often face difficulties such as gathering evidence, securing political co-operation and apprehending indictees. The ICC prosecutor’s office said this week that its mandate applied to the current conflict.

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