Prof. Robert Goldman, an expert on the laws of war at the American University, explains how the laws of war apply to the current conflict between Israel and Hamas in the Gaza Strip
The killing of Israeli civilians by Hamas and airstrikes on the densely populated Gaza Strip by Israel raise many questions regarding international law.
Indeed, President Joe Biden specifically referred to the "laws of war" in his remarks at the White House on October 10, 2023, noting that while democracies such as the United States and Israel uphold such standards, "terrorists" such as Hamas "deliberately target civilians."
What are the 'laws of war'?
The laws of war, also known as international humanitarian law, consist of the four Geneva Conventions of 1949, their two additional protocols of 1977, the Hague Conventions of 1899 and 1907, as well as certain arms treaties.
Simply put, these instruments seek to spare civilians and others who are no longer active combatants from the effects of hostilities by placing restrictions and prohibitions on the conduct of warfare.
It is important to understand that the modern laws of war do not deal with the reasons for going to war or its legality. Rather, it is governed by the United Nations Charter and the practice of a member state itself.
What is the nature of the conflict between Israel and Hamas?
The answer to this question is not clear at all.
Many humanitarian law experts will argue that Hamas and Israel are involved in what is known as a "non-international armed conflict". In other words, it would be similarly classified as a civil war pitting the armed forces of a state against an armed non-state actor, rather than an international conflict between two or more sovereign states.
If this were the case, the conflict would not be governed by the entirety of the laws of war, but by the narrower Article 3 of the Geneva Conventions together with many rules of customary law, arising from generally accepted legal practices.
The common Article 3, which applies to civilians and those who are no longer combatants, prohibits practices such as torture, summary execution and denial of a fair trial. But prisoner of war status only applies to conflicts between states and therefore will not apply.
But some international observers, including the UN, see Israel as, in fact, occupying Gaza - an opinion based on the fact that Israel controls its borders and Gaza's airspace and provides most of its electricity.
If this is the case, then the latest outbreak of hostilities between Hamas and Israel will trigger the entirety of the laws of war.
However, I do not believe that Israel is an occupying power in Gaza under a strict reading of the law. The reason for this is that Israel ceased to rule and withdrew its forces from Gaza in 2005. Since 2007, Hamas, after the expulsion of the Palestinian Authority, has effectively controlled Gaza.
Is the bombing of Gaza illegal under international law?
Today the rules governing the conduct of hostilities in both international and non-international armed conflicts are essentially the same.
The main requirement in all conflicts is that combatants must always distinguish between civilians and combatants, and that attacks can only be directed at combatants and other military targets.
- Protection of civilian populations caught up in warfare mainly depends on three factors:
- Civilians must refrain from fighting;
- The entity controlling the civilian population must not put them at increased risk of harm by using them as human shields;
- The attacking force must take precautions to prevent or minimize excessive civilian casualties when attacking legitimate targets.
Not only are civilians in Gaza not legal targets, they are also protected under IH law by the proportionality rule. This rule prohibits an attack against a military target that could predictably cause excessive or disproportionate civilian casualties in relation to the expected benefit of destroying the target.
In the case of Gaza, this rule requires that before launching an attack, the Israeli military will analyze and determine the likely impact on civilians. If it appears that such an attack would cause disproportionate civilian casualties, then it should be suspended or called off.
Considering the urban density of Gaza, it will be very difficult for the Israelis to avoid significant civilian casualties even when using precision weapons.
And that task will be nearly impossible if Hamas, as it has consistently done in the past, uses civilians and now hostages to protect military targets.
While Israel bears the primary responsibility for avoiding excessive civilian deaths in its bombing of Gaza, Hamas's ability to argue that the bombing constitutes a war crime will be weakened if it intentionally harms its own people.
And while Israel fulfills its duty to give an early warning of an attack in northern Gaza, the problem remains: where do a million people go to seek safety when the borders are closed and military targets are hit throughout Gaza?
Is Israel's blockade of Gaza illegal?
Unlike in the past, total siege warfare is now illegal regardless of whether the warring parties are engaged in international or non-international hostilities.
Blocking the entry of all food, water, medicine and cutting off electricity - as seems to be happening in Gaza - will disproportionately affect civilians, which is expected to lead to their starvation. It is a method of combat prohibited under accepted and accepted IHL.
No matter how horrific the actions of Hamas, IHL does not allow the aggrieved party to respond in kind. The violation of the law by one party cannot, in principle, justify or impose a sanction on actions by the other party that violate prohibitions established in international humanitarian law.
What are the status and obligations of Hamas within the framework of the IH?
The rules of IHL apply equally to all belligerents regardless of the nature of the conflict. This means that Israeli and Hamas fighters have the same rights and obligations.
However, if the conflict is not international, then Hamas would be considered a non-state armed actor and its fighters ineligible for prisoner of war status upon capture. accordingly,
However, if the conflict is not international, then Hamas would be considered a non-state armed actor and its fighters ineligible for prisoner of war status upon capture. Accordingly, Israel can judge them for all their hostilities, whether or not Hamas complies with the laws of war.
But even if the conflict is an international conflict, then Hamas fighters will still be banned from prisoner of war status. They are not the armed forces of Palestine - which is recognized as a state by 138 countries and the Palestinian Authority is its government.
Instead, Hamas fighters are an irregular armed group. To qualify for prisoner of war status under Article 4A(2) of the Third Geneva Convention, members of an irregular armed group must meet very stringent standards, both collectively and individually. These include distinguishing civilians and complying with the laws of war. It is clear that Hamas did not meet these standards and does not meet them. As such, Israel can legally deny them POW status upon their capture.
Israel, the US and others label Hamas fighters as terrorists. The recent actions of Hamas - indiscriminately firing thousands of rockets at Israel, targeting, killing and taking civilians hostage - are acts of terrorism in warfare and are considered war crimes.
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