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How do the 'laws of war' apply to the conflict between Israel and Hamas

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

Shafra Buchris, a police officer who rescued ten of the party participants in Ra'i. Screen shot Channel 11
Shafra Buchris, a police officer who rescued ten of the party participants in Ra'i. Screenshot channel here 11

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Simply put, these instruments seek to spare civilians and others who are no longer active combatants from the effects of hostilities by placing restrictions and prohibitions on the conduct of warfare.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?

Children sing calling to return the kidnapped children home

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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4 תגובות

  1. Destroying Nazis is the law of war.
    3 options: either they will be destroyed or we will or you will bring them the keys and bring ships to the Jews

  2. interesting. It's just not clear to me how exactly these laws are enforced (will they impose a boycott on the country that violated them? Isn't it a bit like a siege on a population?).
    And I'm not sure how much the laws will help the dead.
    Then some old leaders will be tried, assuming and in general they will be able to arrest them. And maybe some generals too. So what? It won't undo the bodies and the destruction. The criminals won and they are willing to pay a personal price for it.
    So some jurists will feel morally superior, the world will pay lip service and life will go on.
    It is enough just to think about Germany, which turned from a war criminal country into the strongest economy in Europe within a few decades. I don't think they really paid a price for their crimes.

  3. You are wrong. Your understanding of the subject is non-existent. The laws of war apply to all parties even if one party violates them.

    If you would like to contribute to influence, or change them, you are welcome to begin the long journey that will begin with a post-doctorate at IHL. From there you are invited to publish top articles and win a large amount of citations that will recognize you as an expert. From there, you may be admitted to one of the bodies that have influence on the subject.

    Successfully!

  4. Laws of war, like any other set of laws or rules, are only relevant if both sides obey them. When the enemy does not obey those rules, you effectively tie your hands and deny yourself the possibility of victory.

    When it comes to war, it is a matter of life and death in the full sense. It is about the risk of being or ceasing as a people and a country.

    In addition, the laws of war were written from a Western perspective. One that cares about rights even when it comes to the enemy, and prefers to preserve life.

    When the enemy does not share this worldview, and even sanctifies death and openly declares that his goal is to kill every male on the other side, even at the cost of the lives of his own citizens, it is understood that it cannot be expected that those laws will be respected by the parties equally and therefore their right to be annulled.

    The argument that the civilian population should be separated from the armed forces is also not always correct or legitimate.
    When the civilian population encourages, supports and assists the armed forces, it should be considered an integral part of the conflict and a goal like all other military goals. It does not make sense that you would allow arms to be delivered to the enemy just because it was carried out by civilians.

    The West's perception of values ​​such as morality, justice or the right to freedom, do not receive a similar appreciation from the countries of the East, certainly not from countries with dictatorial or monarchical rule.
    Moreover, these countries see the Western concept as a weakness, and cynically exploit it to their advantage by forcing the West to tie its hands in conflicts with them. Any allegation on their part of harming an innocent population should be accompanied by a case file about the violation of the rights that those countries demonstrate themselves towards their population.
    Freedom of speech, democracy, freedom of movement, women's rights, freedom of religion, freedom of dress, gender freedom and more - all of these do not exist at all in these countries and they are openly opposed to these values.

    Past experience shows that even democracy and freedom of expression must never be absolute, otherwise the forces opposing them will take advantage of these rights for the purpose of destroying them. In the same way, the values ​​of morality and justice also require protection from those who despise them and strive to eliminate them. The reality is that they cannot be protected without being violated. At least not towards the other side.

    And if we go down for a moment to the ground of the bloody reality in our small country, we must realize that the citizens of the Gaza Strip are not held captive by Hamas. They encourage, support and strive for the destruction of the State of Israel and the murder of Jews wherever they are. Even in the murderous attack on October 7, those citizens did not hesitate to enter Israeli territory during the attack, to commit acts of looting, destruction and even killing. It is by no means reasonable to spare the lives of those who at the first opportunity will not spare our lives even if we are defeated and surrender. And they have proven again and again that this is indeed the case.

    Therefore, any discussion about the laws of war, reasonableness or proportion, is theoretically fascinating, but is not at all relevant or applicable in the kind of war we have been experiencing for 75 years (and even more so if we go back to the history of disturbances in the Jews).
    Every legal argument directed at us must be answered with the simple answer that it does not apply in a war in which it binds us unilaterally and forces us to give up our lives for the benefit of our enemy's lives.

    And to those who fear moral deterioration, I say again that morality, justice and equality are indeed high values ​​to strive for. But this can only be done when everyone is on board.
    After the victory, we can continue to act in favor of establishing a western and civilized society in our country, while our neighbors will continue with their dark world view that advocates oppression and hatred.

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