The surprise attack launched by Hamas against Israel on 7 October and the ensuing violence and loss of life has prompted international law experts to say that one way to de-escalate is honouring obligations under International Humanitarian Law.

In the immediate aftermath of Hamas’ October 7 attack, the International Bar Association issued a statement condemning the militant group, while urging Israel to ensure its military response remains within its commitments to international law.

Israeli forces launched scores of airstrikes, dropping weapons on wide residential areas in the heavily populated Gaza, attacks that Israeli officials say target only Palestinian armed groups. Hamas and the Jihad Group, a smaller militant faction, have both fired rockets indiscriminately towards population centres such as Tel Aviv and Hamas still holds 240 Israeli captives.

So far, war crimes committed may include indiscriminate or disproportionate use of force, the use of white phosphorus, which is a prohibited weapon, and collective punishment such as cutting off food, water, medicine and fuel, as stated by Human Rights Watch and Amnesty International. These organisations also cite the targeting of ambulances and the killing of entire families as possible atrocities. UN Secretary-General António Guterres decried 'clear violations' of international humanitarian law (IHL). ‘What we've seen unfold in Israel and in the Occupied Territories is nothing short of what I think I would call a blight on our collective conscience,’ said UN Humanitarian Coordinator Martin Griffiths. ‘All of us, we are all somehow involved in this.’

The IBA's Human Rights Institute (IBAHRI) issued a detailed statement early in November calling for an immediate ceasefire and for both sides to follow IHL principles of proportionality and of distinction between military and civilian targets. ‘Where war crimes have been committed, we remind Israel and Hamas that there will be serious consequences for those in leadership positions that have planned, facilitated and executed them,’ the statement says, noting that international criminal and humanitarian rules continue to apply in armed conflicts.

Hans Corell, former legal counsel of the UN, who helped set up war crimes tribunals in Cambodia, Rwanda, Sierra Leone and Yugoslavia, says IHL should be respected but acknowledged thorny issues around the decades-long conflict that has lasted since Israel was founded in 1948. ‘It is extremely important that international law – in this case in particular the laws of war and humanitarian law – is respected,’ he says ‘But, as I understand it, the situation in Gaza is extremely complex. It has been said that Hamas is using the population in Gaza as human shields and that military personnel and equipment is sometimes based in civilian institutions. If so, the situation is very difficult for a state engaging in self-defence. This means that harming civilians is sometimes unavoidable. Of particular importance here is that the so-called principle of proportionality is respected.’

Anne Ramberg, Co-Chair of the IBAHRI, says respecting the law in this case has become even more crucial given the gravity of the toll on human life. ‘The whole idea about International Humanitarian Law is to take every and all measures necessary in order to protect human life and uphold human dignity, even in war,’ she says. ‘[The IBAHRI is] deeply concerned. The suffering and killing of innocent civilians, including children in large numbers, is horrific.’

Corell explains that proportionality is an integral part of international humanitarian law. ‘It regulates the conduct of hostilities, requiring that the expected incidental harm is not excessive in relation to the anticipated military advantage. But proportionality plays a greater role than this as it appears in many provisions in the Geneva Conventions of 1949 and their Additional Protocols,’ he says.

Both Corell and Ramberg correct suggestions that non-state actors, such as Hamas, are absolved from following IHL provisions as they didn’t ratify the Geneva Convention. ‘IHL should apply to both sides, even if Hamas is not a state,’ Corell says. ‘But there is a difference depending on the fact that Hamas attacked Israel on 7 October 2023 in flagrant violation of the most fundamental rules in the laws of war and national penal law. This means that Israel is entitled to self-defence. At the same time, Israel must act in conformity with IHL. In particular, access to food and drinking water, medical supplies must be secured. Some have called for a humanitarian pause to allow for aid to enter the Palestinian enclave. I fully agree.’

Ramberg argues war crimes by Hamas don’t automatically constitute justification for atrocities by Israeli troops. ‘Hamas' attack on 7 October was a serious war crime, including [as it did] cruel attacks on civilians and the taking of hostages. Israel has the right to self-defence and a duty to protect its population,’ she says. ‘However, the exercise of this right must be proportionate. Collective punishment is not permitted despite the horrors that took place on October 7. The deprivation of electricity, water, fuel, communication and food to the population of Gaza Strip; the blocking of almost all humanitarian relief efforts; and a bombing campaign that has caused civilians and civilian infrastructure unprecedented casualties are actions most likely to be judged in retrospect as collective punishment.’

Image credit: Art and writings on the wall in Bethlehem, between Palestine Westbank and Israel. graceenee/AdobeStock.com

In mid-November, the UK’s Supreme Court unanimously agreed that sending asylum seekers to Rwanda contradicts the country’s obligations under international and domestic law. Now, the government plans to overrule the country’s highest court to get its way.

‘I told parliament earlier today that I’m prepared to change our laws and revisit those international relationships to remove the obstacles in our way,’ said UK Prime Minister Rishi Sunak following the ruling. He vowed to introduce ‘emergency legislation’ to get flights to Rwanda off the ground.

The UK’s plans involving sending asylum seekers to Rwanda have been the subject of protests and legal proceedings from the beginning, resulting in the last-minute grounding of the first scheduled flight in June 2022 via an intervention by the European Court of Human Rights (ECHR). While initially found lawful by the UK’s High Court, the Court of Appeal later ruled against the Rwanda deal, identifying a risk that asylum seekers could be returned to their home countries, where they could face inhumane treatment – also known as refoulement. The Court of Appeal’s decision has now been confirmed by the Supreme Court.

In its evidence to the Court, the UN Refugee Agency (UNHCR) presented ‘at least 100 allegations of refoulement’ in Rwanda, including since its agreement with the UK. ‘UNHCR recognises that Rwanda has generously provided safe haven to refugees for decades and has made efforts to build the capacity of its asylum system. UNHCR’s position on “safety” in Rwanda pertains to some gaps within the Government of Rwanda asylum system, including its structures and procedures for determining eligibility for refugee status,’ says Maeve Patterson, the UNHCR’s National Spokesperson for the UK.

In response to the Supreme Court judgment, the Rwandan government stated that it rejected the conclusions reached and said that the country takes its ‘humanitarian responsibilities seriously, and will continue to live up to them.’

In its ruling, the Supreme Court stated that sending asylum seekers to Rwanda would be in violation of international as well as domestic law. Sunak’s continued insistence that he ‘will not allow a foreign court to block these flights’ and talk of the UK’s possible departure from the European Convention on Human Rights (ECHR) would thus not change the outcome of such a judgment.

Alex Stojicevic is Newsletter Officer of the IBA Immigration and Nationality Law Committee and co-founder of MKS Immigration Lawyers in Canada. He says that the offshore processing of asylum claims is ‘a very problematic practice that really should not be undertaken’, especially in countries with poor human rights records. ‘The Court ruled that apart from Article 3 of the ECHR – which was found to specifically prohibit the expulsion of asylum seekers to countries where they face the risk of refoulement (direct or indirect) to their country of origin – the same commitment was given effect by multiple international treaties that the UK was a party to,’ he says.

Withdrawal from international treaties that protect human rights would also have wider consequences, including for trade, says Rollason. ‘The UK’s adherence to these international conventions enables it to take part in the international community and they are fundamental to the UK doing business around the world,’ he explains.

While asylum seekers in the UK at risk of being sent to Rwanda may be relieved, their status under the UK Illegal Migration Act remains one of great uncertainty. Under the law – passed in July – anyone arriving in the UK on small boats will be detained and deported to a ‘safe’ third country. While the Court ruled that Rwanda cannot be considered ‘safe’, it didn’t dismiss the notion of sending asylum seekers to a third country. However, no deals currently exist between the UK and other countries.

Meanwhile, migrants keep arriving on small boats. These people will be ‘waiting for this to play out’, says Rollason. ‘The numbers will keep on growing, so the backlog will continue growing. People will potentially sit in detention without their claims being processed. It will just heap misery on misery for people who are arriving in the UK, many of whom will have very strong claims for asylum.’

Austria is reportedly exploring a similar third country deal to that which the UK struck with Rwanda, while Italy recently announced an agreement with Albania, under which the latter will allow the former to manage migrant centres on its land. The UK Supreme Court ruling may provide some indication as to how such deals would fare in court.

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