An explosion is seen on the Israel-Gaza border, amid the ongoing conflict between Israel and Palestinian Islamist group Hamas, as seen from the Israeli side, 27 October 2023. REUTERS TV via REUTERS

*This article was published on 30 November 2023.

The attack on Israel by Hamas on 7 October and subsequent retaliation has led to allegations of war crimes being levelled at both sides. Global Insight assesses the conflict from the perspective of international law.

On 7 October, Hamas broke through Israeli defences and, in a series of attacks, killed more than 1,200 people (according to recent Israeli government figures). Those slain were mainly civilians. The Palestinian armed group then took around 240 hostages back to Gaza, the enclave under its control. To date, 101 hostages have been released. As of mid-November, about 9,500 missiles, rockets and drones have been fired at Israel’s territory, according to its military.

‘This is our 9/11,’ a spokesperson for the Israeli Defence Forces said following the 7 October attack. Israel has since made comparisons to America’s war against terrorism as a justification for civilian casualties in its fight against Hamas, members of which it refers to as ‘terrorists’. The US-led battle against the Islamic State in Mosul in Iraq, for example, cost thousands of innocent lives. Israel dropped 6,000 bombs on the Gaza Strip in the first week after the Hamas attack – an area of just 360 square kilometres, according to Airwars, a conflict watchdog.

UN experts Margaret Satterthwaite, Special Rapporteur on the independence of judges and lawyers, and Fionnuala Ní Aoláin, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, have urged military lawyers, as part of their ‘professional duty’, to prevent violations of the laws of war by refusing to authorise any orders that could amount to war crimes. In a statement, they encouraged advocates to take ‘active steps’ to stop any abuses or be at risk of complicity. ‘The lawless massacres, hostage taking and torture carried out by Hamas must be unequivocally condemned by all and those responsible must face justice. But Palestinian civilians cannot be made to pay the price for the acts of terrorism carried out by Hamas’, said Satterthwaite and Ní Aoláin.

The Prosecutor of the International Criminal Court, Karim Khan, has pointed to Israel’s system of military lawyers whose job it is to ensure compliance with the laws of war. ‘They will be under no misapprehension as to their obligations, or that they must be able to account for their actions’, Khan said. The Prosecutor has made clear that the principles of distinction, precaution and proportionality equally apply to Hamas.

John Balouziyeh is North American Regional Forum Liaison Officer for the IBA War Crimes Committee and a partner at Curtis, Mallet-Prevost, Colt & Mosle in New York. Speaking in a personal capacity, he tells Global Insight that there’s no universal agreement as to what law applies to the conflict between Israel and Hamas. Some scholars, following the view of the International Committee of the Red Cross (ICRC) and the International Court of Justice’s 2004 advisory opinion on the construction of a wall in occupied Palestinian territory, argue that the law of occupation applies in all occupied Palestinian territories. Israel, which disputes that Palestine is a state to which Geneva Convention IV and the law of occupation could apply, rejects this position.

The way the conflict is classified can thus have important repercussions on the rights, obligations and immunities of both parties. The classification of the conflict depends in part on whether Palestine is deemed to be a state, which itself remains disputed. While the UN General Assembly upgraded the Palestinian Authority’s UN status from an ‘observer entity’ to a non-member ‘observer State’ in 2012, the vote wasn’t unanimous.

Regardless of how the conflict is classified, the basic principles of international humanitarian law, applicable in both international and intrastate conflict, will apply and equally bind both sides, says Balouziyeh. These include the principle of humanity and the principle of proportionality, as well as prohibitions on the targeting of civilians not directly taking part in hostilities.

Israel has accused Hamas of using civilians as human shields by operating from residential areas, with significant consequences on civilian casualties. ‘We are very targeted in what we do, people have to understand Gaza is the biggest terror complex around the globe with over 500 kilometres [about 310 miles] of terror tunnels’, said Michael Herzog, the Israeli Ambassador to the US.

David Scheffer is a former US Ambassador at Large for War Crimes Issues (1997–2001) and a professor of practice at Arizona State University. He says that while Israel has the right to ‘engage in combat with Hamas in residential areas’, it remains bound by the laws of war, including proportionality. ‘That is and will be extremely difficult to calculate in the neighbourhoods of Gaza but it is a necessary prerequisite to the use of armed force against Hamas’, he says.

Israel’s response

In response to Hamas’ attack, the Israeli Defence Forces sent a barrage of airstrikes into Gaza and laid siege to the area, cutting supplies of food, water, electricity and medicine. Shelling has struck apartment blocks, hospitals and schools. On 13 October, Israel gave Palestinians 24 hours to evacuate northern Gaza. By late November, more than 15,000 Palestinians had been killed in the conflict (according to the Hamas-run health ministry). Israeli troops are expanding ground operations in Gaza while airstrikes continue.

Settler violence has increased in the West Bank, where over 200 Palestinian deaths have been recorded since the beginning of October. With over 200 Palestinians killed there prior to the 7 October attack, 2023 was already ‘the deadliest on record’ for Palestinians in the West Bank, according to the UN High Commissioner for Human Rights, Volker Türk. The UN Office for the Coordination of Humanitarian Affairs has meanwhile recorded 26 Israeli deaths in the West Bank in 2023 so far.

Calling the situation in Gaza ‘horrific’, UN Secretary General António Guterres has appealed for a humanitarian ceasefire and for international humanitarian law to be respected by both sides. ‘Civilians and civilian infrastructure, including humanitarian and medical workers and assets must be protected’, he said. ‘Civilians must also not be used as human shields. Essential supplies and services and unimpeded humanitarian access must be safely allowed into and across Gaza at a scale commensurate with this dramatic situation.’

International humanitarian law – or the laws of war – governs armed conflict and military occupation and is set out in various treaties, including the Geneva Conventions and customary international law. It requires warring parties to take every possible precaution to minimise civilian casualties and damage to civilian properties, which have special protected status. It applies to government forces and organised, non-state armed groups in international as well as intrastate conflict. ‘The burden of proving that the protective status is lost rests with those who fire the gun, the missile, or the rocket in question’, says Khan.

Elsa Wyllie is Events Officer on the IBA Human Rights Law Committee and a criminal defence lawyer at Wyllie Law in Vancouver. While she says there are arguments to be made for or against the use of weapons against civilians, she emphasises the importance of looking at what’s ultimately at stake. ‘There is a difference between winning the war and securing a lasting peace. Proportionality must be measured in kind’, moving towards a ‘cessation of this conflict that poses a serious threat to international peace and security’, she says.

The lawyers of war

Questions have been raised regarding the conduct of both sides in the conflict, and allegations of war crimes have been levelled, including by the UN High Commissioner for Human Rights. The ICRC has called on both sides not to ‘neglect their legal obligations regarding the methods and means used to wage war’.

The UN High Commissioner for Human Rights described Israel’s warning for Palestinians to relocate from the north of Gaza to the south as ‘very alarming’. According to the UN High Commissioner, ‘a so-called “safe zone”, when established unilaterally, can heighten risks to civilians, and raises real questions as to whether security can be guaranteed in practice. At the moment, nowhere in Gaza is safe, as bombardments are being reported in all parts of the Strip. It also needs to be absolutely clear that civilians are protected under international law wherever they are’.

His office is also concerned that ‘the high number of civilian casualties and the scale of destruction’ resulting from bombardments of the Jabalia refugee camp – attacks in which Israel says a senior Hamas commander and several other members of the group were killed – ‘could amount to war crimes’.

‘Despite heated political rhetoric, the longstanding law on necessity and proportionality is very clear. The laws of war are written to minimise civilian deaths, which means that sometimes, a party must give up on a target because of the likelihood that too many innocent people will be killed’, says Alka Pradhan, Co-Chair of the IBA Human Rights Law Committee, who speaks in a personal capacity. ‘The statements we've seen from Israeli officials, defending the high numbers of casualties in civilian areas – including refugee camps – as simply “the tragedy of war”, are not consistent with the law.’

In 2007, when Hamas took control over the Gaza Strip enclave, Israel tightened its blockade of the area, banning most Palestinians from leaving. As a result of the restrictions, over 80 per cent of the 2.3 million people living in Gaza depend on humanitarian aid, according to the UN.

According to the UNOCHA, the total siege imposed in October has led hospitals in the north of Gaza to effectively be shut down due to a lack of supplies and without the fuel to keep life-saving equipment and ambulances running. The UNOCHA says that hundreds of thousands of people in the north are struggling to secure the minimum amounts of water and food to survive. ‘International law derives its power from legitimacy. Even if the legal argument can be made that the blockade is within the framework of international humanitarian law, legitimacy doesn’t mean that it should [be in place]’, says Wyllie.

‘Dehumanising language’

On 24 November, a ceasefire negotiated by Qatar started a 4-day cessation of hostilities and the release of 50 women, teenagers and children held hostage by Hamas, while 150 Palestinian women and teenagers in detention in Israel would also be freed. More emergency aid and fuel would at the same time be allowed into Gaza. The deal has since been extended by two days and more hostages and prisoners have been released. Israel has indicated that further extension is a possibility, as long as hostages continue to be freed. But as these negotiations were ongoing, Israeli government spokesperson Eylon Levy made clear that the war is not over yet. ‘This war will end with the end of Hamas,’ he told reporters.

Yola Verbruggen is a freelance journalist and can be contacted at yolav@protonmail.com