International Humanitarian Law and its Relevance to the Ongoing Israel-Palestine Conflict
By: Skylar Blumenauer
On October 7th, 2023, Hamas, a Palestinian Islamist militant organization, led a series of surprise attacks against Israel from the Gaza Strip. Hamas is one of the main political parties of Palestine and has been the governing body of the Gaza Strip since 2007. Dozens of countries, including the United States and the European Union, have labeled Hamas a terrorist organization. In 2007, Israel responded to Hamas’s control of the Gaza Strip by imposing a blockade over the territory, limiting the flow of goods and people in and out—the blockade is an ongoing, 16-year situation conflict that the UN labeled a humanitarian crisis. The West Bank is also occupied by and subject to Israel.
The root of the conflict began at the collapse of the Ottoman Empire and the beginning of World War I. The 1917 Balfour Declaration, a letter written by the United Kingdom’s Foreign Secretary, announced support for the establishment of a national home for the Jewish people in Palestine. Large-scale Jewish immigration commenced, especially throughout World War II. In 1948, Israel declared independence. By 1967, after the Six Day War, Israel controlled the Gaza Strip, the West Bank, and Jerusalem, as well as Sinai and Golan Heights. Today, after decades of wars, conflicts, and failed negotiations, Israel retains control of Jerusalem, the West Bank, and the Gaza Strip, sparking continued arguments over who the territory rightfully belongs to.
In the aftermath of the newest round of ongoing hostilities, there is much debate about the relevance of international humanitarian law to the current conflict.
What is international humanitarian law?
Laws of war have existed in various forms for thousands of years. The modern system of international humanitarian law (IHL), in other words, the regulation of armed conduct, was codified throughout the Geneva Conventions of 1949. There are three Additional Protocols that strengthen the protection of victims and further limit the ways wars are fought; the first two were adopted in 1977, and the third was adopted in 2005.
The fundamental idea of IHL is that civilians and combatants are required to be distinguished at all times throughout the course of the conflict—civilians and civilian objects may never be intentionally targeted. Attacks of any form must discriminate between combatants and civilians. Furthermore, IHL requires combatants to take every precaution possible to minimize civilian harm. An attack may not disproportionately harm the civilian population compared to the offender’s military gain. If an attack may affect a civilian population, parties are required to give advanced warning, but this does not release parties from the requirement of continued civilian protection.
There are many further stipulations. Hospitals and schools are civilian objects and fall under the protection of IHL. Starvation and the denial of humanitarian aid as a method of warfare are also prohibited. The civilian population is entitled to receive rapid and unimpeded passages for humanitarian aid in the form of food, medicine, or other necessities during armed conflicts. Collective punishment is prohibited in all circumstances—civilians and captured combatants cannot be mistreated.
Article 3 of the Geneva Conventions prohibits, in all circumstances, murder, mutilation, cruel treatment, and torture against any persons and civilians not currently taking part in the hostilities. Any serious violation of IHL with criminal intent constitutes a war crime. A crime against humanity, which occurs in both peaceful and unrestful times, is executed as an attack against a civilian population. The crimes include but are not limited to murder, enslavement, forcible transfer of a population, torture, rape and other grave forms of sexual violence, apartheid, inhumane intentional acts, and persecution on the basis of political, racial, ethnic, cultural, national, religious, or gender grounds.
Under IHL, international armed conflict occurs when one or more states use armed force against another state. Non-international armed conflicts can happen between government forces and non-state armed groups, or solely between non-state armed groups. States, organized non-state armed groups, and government forces are all held accountable to IHL.
The application of international humanitarian law to the ongoing Israel-Palestine conflict
Since October 7th, there have been over 1,400 Israelis and 7,000 Palestinians killed amidst the fighting between Israel and Palestine. Over 200 Israelis are being held hostage by Hamas, and half of Gaza’s population has been displaced.
Hamas began its assaults against Israel in multiple locations on October 7th, one of those being the Supernova trance music festival. Soldiers open-fired on the gathering, killing adults and children alike and taking hostages as well. This attack, including the others that resulted in more citizen deaths and kidnapping, constitutes a war crime and is an undeniable violation of IHL. Additionally, there is media, such as photos and videos, revealing that Hamas may be committing crimes against humanity.
In retaliation, Israel vowed to destroy Hamas and unleashed airstrikes and a complete siege of Gaza that restricted its access to energy, food, water, and other essentials. Israel claims these are moves of self-defense, a concept of customary international law that is allowed under Article 51 of the UN Charter. As Israel stated that its sole intention is to terminate the Hamas organization entirely, IHL does not prohibit this use of force as long as it does not target citizens in the process or violate other rules of IHL.
However, using starvation in any form, including the restriction of food, water, and electricity, in Gaza is not a lawful weapon against Hamas—it has disproportionately affected Gazan civilians more than Hamas itself. Furthermore, Israel’s bombing leveled entire city blocks in Gaza, destroying hospitals, schools, homes, and stores, and killing thousands of civilians, including children. The siege itself is not a war crime as long as it intends to target Hamas and not civilians. The Israeli military gains of the siege, however, are not significantly outweighing the loss of civilians, which means it could be held as a violation of IHL.
More recently, Israel ordered Gazans to evacuate, which is permitted for civilian security or essential military reasons, but the civilian population needs a guarantee of return as soon as possible because permanent displacement is a violation of IHL. More than half of Gaza’s population is currently displaced.
There are claims that Israel is committing acts of genocide against Palestinians. Genocide is defined as the intent to destroy, in part or in whole, an ethnical, racial, national, or religious group. Israel has not stated its intent to destroy Palestinians, nor has it explicitly stated its intent to harm Palestinians in their attacks—according to IHL regulations, it is not committing genocide against Palestinians. Law experts and political scientist alike agree that it is too soon to define Israel’s actions as a genocide. Rather, under IHL, Israel would be guilty of collective punishment. Collective punishment is punishment or sanctions taken against a group in retaliation for an act committed by a small group of individuals within the larger group. Israel was knowingly harming innocent Gazans by destroying their homes, cutting off their access to essential services, and blocking humanitarian aid. While some humanitarian aid is now in Gaza, it was first denied, which is a violation of IHL.
Whether or not Israel is found guilty of violating IHL on these accounts hinders solely on its intent: did Israel intend to harm Hamas, the Palestinian civilians, or both? Proving intent is complicated, and IHL’s reliance on intent is one of its downfalls. Prior to the ongoing conflict, organizations were investigating claims of apartheid, the implementation of systemic racial segregation, by Israel against Palestine, and if true, it may be the way to prove Israel’s intent.
Since October 7th, multiple war crimes have been and will continue to be committed by Hamas and Israel—it is only by both sides abiding by IHL that civilians will no longer be unlawfully and indiscriminately attacked.
Future accountability
The International Criminal Court (ICC), established in 1988, is a multilateral system aimed at establishing the rule of law and ending impunity. Impunity is the exemption from punishment of injurious consequences of actions. In other words, the ICC’s goal is to hold states accountable for violations of international humanitarian law and ensure that the most severe crimes do not continue to go unpunished.
Israel, along with other prominent states such as the United States, is not a member of the ICC and, therefore, does not fall under its jurisdiction. However, the state of Palestine was a state party of the Rome Statute of the International Criminal Court, meaning that Palestine falls under the ICC’s jurisdiction. As its de-facto government, Hamas leaders and personnel can be held accountable for violations of IHL.
Prosecution of IHL violations is a long, laborious process. It can take ICC years to investigate witnesses, footage, and data evidence thoroughly, and trials generally take even longer. The whole process, from the investigations to the decisions, often takes place decades after the conflict happened. Israel will claim that Palestine is not a real state and not subject to ICC investigation, which will disrupt the entire process of accountability as Israel itself is not under ICC jurisdiction.
However, universal jurisdiction could be the answer for future accountability. Universal jurisdiction is the principle that allows a state to have jurisdiction over crimes against international law even if the crimes did not occur within that state’s territory or the parties involved were not nationals of that state. The principle allows an outsider country to address international crimes occurring abroad. Perpetrators will thus be liable, and impunity is prevented. If the ICC is not able to investigate the war crimes and IHL violations of Israel and Palestine’s ongoing conflict, universal jurisdiction can bring justice for all sides.
Sources:
Anti-Defamation League. “Allegation: Israel Commits Acts of Genocide.” ADL, 25 Oct. 2023, www.adl.org/resources/backgrounder/allegation-israel-commits-acts-genocide.
Baldwin, Clive. “How Does International Humanitarian Law Apply in Israel and Gaza?” Human Rights Watch, 27 Oct. 2023, www.hrw.org/news/2023/10/27/how-does-international-humanitarian-law-apply-israel-and-gaza.
European Center for Constitutional and Human Rights. “Universal Jurisdiction.” ECCHR, www.ecchr.eu/en/glossary/universal-jurisdiction/.
Human Rights Watch. “Part 4: Applicable Legal Standards.” Collective Punishment: War Crimes and Crimes against Humanity in the Ogaden Area of Ethiopia’s Somali Regional State: Part 4: Applicable Legal Standards, www.hrw.org/reports/2008/ethiopia0608/18.htm.
Hutchinson, Bill. “Israel-Hamas Conflict: Timeline and Key Developments.” ABC News, ABC News Network, 19 Oct. 2023, abcnews.go.com/International/timeline-surprise-rocket-attack-hamas-israel/story?id=103816006.
Robinson, Kali. What Is Hamas?, Council on Foreign Relations, 9 Oct. 2023, www.cfr.org/backgrounder/what-hamas.
Scheffer, David. “What International Law Has to Say about the Israel-Hamas War.” Council on Foreign Relations, Council on Foreign Relations, 19 Oct. 2023, www.cfr.org/article/what-international-law-has-say-about-israel-hamas-war.
Song, Sang-Hyun. “The Role of the International Criminal Court in Ending Impunity and Establishing the Rule of Law.” United Nations, United Nations, Dec. 2012, www.un.org/en/chronicle/article/role-international-criminal-court-ending-impunity-and-establishing-rule-law.
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