Are Israel and Hamas Committing War Crimes in Gaza?


Palestinians gather at the site of an Israeli strike on a street near a U.N. school, after an Israeli attack killed dozens of Palestinians taking shelter there, in Jabaliya refugee camp, northern Gaza Strip, Tuesday, Jan. 6, 2009. (AP Photo/Khalil Hamra)


By Anthony Dworkin

Israel launched its latest full-scale offensive against Hamas in Gaza on December 27, saying its action was necessary to end rocket attacks against Israeli towns. In the eleven days since then, more than 600 Palestinians have been killed, including an increasing number of civilians. The Israeli army stepped up its attack on January 3, when it sent ground forces into the Gaza strip. In the most disputed incident of the conflict so far, Israeli tanks shelled three UN-run schools being used as shelters in Gaza on January 6, including the al-Fakhora school in Jabaliya, where 40 Palestinian civilians were killed, according to the United Nations. Rockets fired from Gaza have killed four civilians in Israel.

The fighting, and the increasing civilian death toll, have attracted international concern. European leaders have suggested that Israel is guilty of using disproportionate force, while US president-elect Barack Obama said he was “deeply concerned” about civilian casualties on both sides. An official of the UN relief agency in Gaza, John Ging, was quoted in the Guardian as saying Israel’s offensive against Hamas was a “completely unjustified and unnecessary conflict.”

In a war between two countries, the decision to attack another country is governed by the UN Charter and the customary law of self-defence. This is the branch of international law known by the Latin tag jus ad bellum, defining when the resort to armed force is justified. The UN Charter recognizes the right of self-defence against an armed attack, and customary law requires that any war undertaken in self-defence be limited so that its extent is proportionate to the threat it is designed to counter. Since Gaza is not an independent state, and Hamas not recognized as a legitimate government, there is some ambiguity about how these rules would apply in this case. Nevertheless there is wide agreement that the repeated launching of rockets by Palestinian militants against Israel would count as a legitimate reason for Israeli action.

It is more debatable whether the extent of the Israeli offensive would meet the criterion of being proportionate to the objective of halting Hamas attacks against Israel. However it is worth noting that the difference in civilian casualties on both sides is not necessarily evidence of a disproportionate use of force. Nor is it obvious that there existed alternative military options that would have achieved the stated goal. For this reason, it seems easier to argue that Israel’s action was short-sighted, brutal and potentially counter-productive, rather than to claim that it clearly violates international rules on self-defence.

A separate set of questions concerns the way that the fighting is being conducted. This body of law, known originally as jus in bello and now most often referred to as international humanitarian law, is codified in the Geneva Conventions of 1949 and associated treaties, and also in a body of customary rules. Since the conflict in Gaza pits the state of Israel against a non-state organization, Hamas, the applicable rules are those that govern “non-international conflict”, spelled out in Common Article 3 of the Geneva Conventions and in customary international law. (Another treaty governing non-international conflict, the Second Additional Protocol to the Geneva Conventions, is not applicable because Israel is not a party to it.)

Perhaps the most important question thrown up by the fighting in Gaza is one that has also been central to U.S. actions against al-Qaeda: which individuals or objects are a legitimate target for lethal force? In Gaza, Israel has deliberately targeted not only Hamas fighters and rocket installations, but also members of Hamas police forces, the Interior Ministry, the television station controlled by Hamas, and the Islamic University. Israel’s thinking, evidently, is that all members of Hamas, and any facilities used to enforce their physical or ideological control over Gaza, are fair game.

Under the laws of war, such an approach is highly questionable. Common Article 3 forbids the use of violence against anyone “taking no active part in the hostilities”, and it is widely agreed that customary law also forbids the targeting of civilians who are not directly participating in hostilities. The precise interpretation that should be given to this concept is disputed (the International Committee of the Red Cross is about to publish a report on the subject based on extensive study and debate) but it generally agreed to exclude members of the political wings of armed groups, where these are clearly distinct from the cadres involved in military operations. It is hard to see how all these targets could be justified according to the rules of international humanitarian law.

Another area of controversy concerns indiscriminate attacks—those that make no effort to distinguish between legitimate and illegitimate targets, or that are likely to cause harm to civilians that is excessive in relation to the likely military advantage. Although Common Article 3 does not forbid indiscriminate attacks in non-international conflict, many authorities believe they are forbidden by customary law. The International Committee of the Red Cross, in its recent study on customary law, claimed that both indiscriminate and disproportionate attacks were forbidden in non-international armed conflict. The United Kingdom states in its Manual of the Law of Armed Conflict that “the principle of distinction prohibits attacks that are not aimed at a specific target.”

There is little question that Hamas’ rocket attacks violate this rule. Most have been fired at random or directed at towns with no military significance. But Israel has also launched attacks that have caused extensive civilian casualties. Justifying its attack on the school in the Jabaliya refugee camp, Israeli officials said that their fighters were responding mortar fire from that location. But the spokesman for the UN relief agency in Gaza, Christopher Gunness, said the organization was “99.9% certain” that there had been no militants or militant activity within the school compound. The agency also emphasized that all its schools and other facilities were clearly marked and that their co-ordinates had been provided to the Israel Defence Forces.

Some would argue that principles of humanity would require that Israel not reply to mortar fire from a location near a civilian shelter, if their response would be likely to cause extensive civilian casualties. But an Israeli spokesman, Mark Regev, turned this argument around, saying that Palestinian militants were responsible for a war crime because they had used the civilians as “human shields” to try to make their own positions immune from attack.

It is true that the use of human shields is widely thought to be prohibited under customary law. The ICRC study on customary law lists the prohibition on the use of human shields as a customary rule in non-international, as well as international, conflict. But it is not at all clear that Hamas’ placing of mortars near civilian places (if it did so) amounts to the use of human shields. According to the ICRC study, the use of human shields generally involves cases “where persons were actually taken to military objectives in order to shield those objectives from attack,” with the individuals often held against their will.

By contrast, the placing of military positions in civilian areas would seem to be covered by a different principle, by which armed forces “must, to the extent feasible, avoid locating military objectives within or near densely populated areas.” (Again, the language is taken from the ICRC study on customary law). Although many people may believe that Hamas has violated this provision, the rule is very loosely phrased and appears to allow scope for location of military materiel within civilian areas if such guerrilla tactics are the only available option for the force involved.

In general, there appears to be a strong argument that both Israel and Hamas have violated international law in the conduct of hostilities in Gaza, by attacking people who are not themselves participating in hostilities. But the disturbing aspects of the conflict go beyond these potential violations of the law, and seem rooted in the essential nature of the contest, in which Israeli tactics evidently involve firing against every Hamas fighter who reveals himself. The strongest arguments for a ceasefire may be grounded in both international law and essential principles of humanity.

Related Links

Gaza Conflict: Who is a Civilian?
By Heather Sharp
BBC News website, January 5, 2009

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