By Robert Goldman
The killing of Israeli civilians by Hamas and retaliatory airstrikes on the densely populated Gaza Strip by Israel raises numerous issues under international law.
Indeed, President Joe Biden made express reference to the “laws of war” in comments he made at the White house on Oct. 10, 2023, noting that while democracies like the U.S. and Israel uphold such standards, “terrorists” such as Hamas “purposefully target civilians.” Speaking the same day, the European Union’s top diplomat Josep Borrell condemned Hamas’ attack but also suggested that Israel was not acting in accordance with international law by cutting water, electricity and food to civilians in Gaza.
But international law and the very nature of the conflict itself – along with the status of the two sides involved – is a complex area. The Conversation turned to Robert Goldman, an expert on the laws of war at American University Washington College of Law, for guidance on some of the issues.
What are the ‘laws of war’?
The laws of war, also known as International Humanitarian Law (IHL), consist of the four 1949 Geneva Conventions, their two Additional Protocols of 1977, the Hague Conventions of 1899 and 1907, as well as certain weapons conventions.
Simply put, these instruments seek to spare civilians and others who are no longer active combatants from the effects of hostilities by placing restrictions and prohibitions on the conduct of warfare.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 modern IHL is not concerned with the reasons for, or the legality of, going to war. Rather, that is governed by the United Nations Charter and member state’s own practice.
It is also important to note that violations of the laws of war are notoriously hard to prosecute and can be frustrated by lack of cooperation by the parties involved.
What is the nature of the conflict between Israel and Hamas?
The answer to this question is by no means clear.
Many humanitarian law experts would argue that Hamas and Israel are engaged in what is known as a “non-international armed conflict.” In other words, it would be classified the same way as a civil war that pits the armed forces of a state against an armed non-state actor, rather than a international conflict between two or more sovereign states.
If that were the case, the conflict would not be governed by the entirety of the laws of war, but instead by the more limited Common Article 3 of the Geneva Conventions along with numerous customary law rules, which derive from general practices accepted as law. Common Article 3, which applies to civilians and those no longer fighting, prohibits practices such as torture, summary execution and denial of a fair trial. But Prisoner of War status only applies to conflicts between states, so would not apply.
But some international observers, including the United Nations, view Israel as, in effect, occupying Gaza – a view predicated on the fact that Israel controls Gaza’s borders and airspace and it supplies most of its electricity.
If that is the case, then the recent outbreak of hostilities between Hamas and Israel would trigger the entirety of laws of war.
That said, I do not believe that Israel is an occupying power
in Gaza under a strict reading of the law. This is because Israel ceased governing and pulled its forces out of Gaza in 2005. Since 2007, Hamas, after expelling the Palestinian Authority, has in effect governed 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 foremost 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.
Protecting civilian populations caught in warfare essentially depends upon three factors:
- Civilians must abstain from fighting;
- The party in control of the civilian population must not place them at heightened risk of harm by using them as human shields; and
- The attacking force must take precautions to avoid or minimize excessive civilian casualties when attacking lawful targets.
Not only are civilians in Gaza not lawful targets, they are also protected under IHL by the rule of proportionality. This rule prohibits an attack against a military target which foreseeably could cause civilian casualties that are excessive, or disproportionate in relation to the advantage anticipated from the target’s destruction.
In the case of Gaza, this rule requires that before launching an attack, the Israeli military analyze and determine the likely effect on civilians. If it appears that such an attack will cause disproportionate civilian casualties, then it must be suspended or canceled.
Given Gaza’s urban density, it will be extremely difficult for the Israelis to avoid substantial civilian casualties even when using precision weapons.
And this task will be nearly impossible if Hamas, as it has consistently done in the past, uses it civilians and now hostages to shield military targets.
While Israel bears primary responsibility to avoid excessive civilian deaths in its bombardment of Gaza, Hamas’ ability to claim the bombardment constitutes a war crime would be weakened if it deliberately places its own people in harms way.
And while Israel is complying with its duty to give an advanced warning of an attack in north Gaza, the problem remains: Where do 1 million people go to seek safety when borders are closed and military targets are being hit throughout Gaza?
Is Israel’s siege of Gaza illegal?
Unlike in the past, total siege warfare now is unlawful regardless of whether the warring parties are involved in international or non-international hostilities.
Blocking the entry of all food, water, medicines and cutting off electricity – as appears to be happening in Gaza – will disproportionately affect civilians, foreseeably leading to their starvation. This is a banned method of warfare under customary and conventional IHL.
No matter how horrific the actions of Hamas, IHL does not permit an aggrieved party to respond in kind. Violation of the law by one party cannot, in principle, justify or sanction actions by the other that violate established prohibitions in international humanitarian law.
What are the status and obligations of Hamas under IHL?
IHL rules apply equally to all the warring parties irrespective of the nature of the conflict. This means that Israeli and Hamas combatants have the same rights and duties.
If, however, the conflict is non-international, then Hamas will be regarded as an armed non-state actor and its combatants ineligible for Prisoner of War status upon capture. Accordingly, Israel can try them for all their hostile acts whether or not Hamas complies with the laws of war.
AP Photo/Adel Hana
But even if the conflict is an international one, then Hamas’s fighters would still be debarred from Prisoner of War status. They are not the armed forces of Palestine – which is recognized as a state by 138 nations and has the Palestine Authority as its government.
Rather, Hamas combatants are an irregular armed group. To be eligible for Prisoner of War status under Article 4A(2) of the Third Geneva Convention, members of an irregular armed group must adhere to very strict standards, both collectively and individually. These includes distinguishing themselves from civilians and complying with the laws of war. Manifestly Hamas has not and do not meet these standards. As such, Israel could lawfully deny them Prisoner of War status upon capture.
Israel, the U.S. and others label Hamas fighters as terrorists. Hamas’s recent acts – indiscriminately firing thousands of rockets into Israel, targeting, killing and taking civilians as hostages – are acts of terrorism in warfare and qualify as war crimes.
Robert Goldman is Professor of Law at American University.
The Conversation arose out of deep-seated concerns for the fading quality of our public discourse and recognition of the vital role that academic experts could play in the public arena. Information has always been essential to democracy. It’s a societal good, like clean water. But many now find it difficult to put their trust in the media and experts who have spent years researching a topic. Instead, they listen to those who have the loudest voices. Those uninformed views are amplified by social media networks that reward those who spark outrage instead of insight or thoughtful discussion. The Conversation seeks to be part of the solution to this problem, to raise up the voices of true experts and to make their knowledge available to everyone. The Conversation publishes nightly at 9 p.m. on FlaglerLive.
JimboXYZ says
An entire article to state that nothing really has changed for the rules of engagement in Middle East when this level & type of combat escalates.
jake says
” Speaking the same day, the European Union’s top diplomat Josep Borrell condemned Hamas’ attack but also suggested that Israel was not acting in accordance with international law by cutting water, electricity and food to civilians in Gaza.”
It’s called war.
endless dark money says
Or like Israel saying citizens should evacuate along this route then bombed that route killing women and children attempting to flee to a closed border. Sounds very religious of them. Wait I thought we already won the war on terror or did we just declare victory like trump did in the last election.
ASF says
Hamas is ordering Palestinian civilians in Gaza to stay in place and function as their Human Shields while they launch ab inexhaustible supply of rockets from inside the most crowded Gazan population centers they can set up their launchers. Just like in 2014, it will never be possible to know exactly how many Palestinian lives have been lost to PALESTINIAN fired rockets–or even how many Palestinian civilian casualties there are, due to Hamas’s habit of dumping their militant death count in with their civilian casualty count.
Your reference to religion seems strange in the light of Hamas’s Charter which swears to their promise to hunt down Jews behind every rock and tree.
Projecting the sins of the initial aggressors, who happen to have been Palestintian, onto the vicitms, who were totally innocent Israeli cvilians–even infants who were decapitated–is less than morally compelling.
endless dark money says
This conflict goes way back in history not last week. You dont think Israel has killed many innocent Palestinians? Looks like they want to force starvation upon them through the blockade which is a war crime. They blew up a hostpital today in Gaza with over 500 people in it. No one wins in these conflicts. They predicted this for over a decade but like many other things people dont work to solve problems and often create more divisions. “despite pleas from the United Nations and human rights groups Israel has maintained a land, air and sea blockade on Gaza since 2007 that has had a devastating effect on Palestinian civilians. ” My point is there is no “good guy” here and if your family was starving because of a blockade you would just watch them wither away or would you stand up and fight?
It shows the ignorance of religion that everyone thinks what they practice is right and everyone else is wrong. When religious people ruled the known world it was called the dark ages as they kept anything they didnt like from the people.
This conflict wont be resolved with missles and bullets. When people are oppressed at some point they fight back. Nothing new here.
ASF says
UPDATE: The vast consensus now–from intelligence gathering done by many parties, including the US–is that the hospital blast you referred to above was caused by misfired rocket by Hamas and/or The Islmaic Jihad. Now that that has been confirmed, the casualty numbers for that event have been down-graded from the original “200-500” hyped by “The Gaza Health Ministry” (which is under the control of Hamas) to “10-50” people. The structural damage to the hospital itself has also been “reassessed” as being much less than originally reported by “Palestinian sources on the ground.” That means the Palestinians own sources were lying from the get-go and/or are lying now.
What a shock. Not. The lesson everyone should be taking away from this is not to automatically give creedence to such reports. Jumping on false bandwagons (especially in knee-jerk reaction to pre-exisiting prejudices) only makes everyone’s journey more difficult in the end.
DaleL says
Hamas has brutally kidnapped, by the latest count, 199, Israeli civilians. The way for this latest violent confrontation to end, is for Hamas to release those civilians. Every international organization, including the Palestinian Authority, should be demanding that Hamas release these captives.
Hamas, as the de-facto government in Gaza (Giza) and the party in control of the civilian population in Gaza, must not place them at heightened risk of harm by illegally keeping Israeli civilians captive. Every international organization should condemn Hamas for endangering the civilian population in Gaza.
The Palestinian Authority has not condemned the Hamas attack. Street celebrations took place in a number of West Bank cities, with images of gunmen from the Lion’s Den terror group distributing sweets to passersby in the Old City of Nablus to celebrate the attack by Hamas.
Bill C says
Only a fool kisses death on the lips.
Jackson says
“I’m confident that Israel is going to act under the rules of war,” Biden said. “There’s standards that democratic institutions and countries go by. And so I’m confident that there’s gonna be an ability for the innocents in Gaza to be able to have access to medicine and food and water.”
I don’t share President Biden’s confidence in Israel being the least bit humane in its response. Israeli President Herzog said all Palestinians are responsible for the attacks. Netanyahu is well known for his inflammatory rhetoric as well. And Israel always wins the body count tally against the Palestinians. I think it sends a terrible message to both sides of this conflict by continuing to support Israel militarily without conditions. What gives a country the right to order innocent people to leave their homes or be killed? Is that the kind of policy our tax dollars are going to support?
ASF says
Hamas invaded Israel and committed atrocities that should turn the stomach of any human being with an operative conscience. They targeted young people at a “Peace Festival” and civilians living in a Leftist Kibbutz who had previously offered their hands in friendship to Palestinians across the border on more than one occasion. The father of one young women, out of the hundreds of people Hamas took hostage, spoke movingly about how he owns a business that employs many Palestinians who otherwise would be impoverished. Hamas picked these particular targets because they knew it would be like shooting fish in a barrel.
The battered naked hostages were paraded through the streets of Gaza where hundred of Palestinians cheered and jeered and spit on the hostages as they passed by. Israleis are not celebrating in the streets over the misery of the people in Gaza.
It strains credulity to think that the Palesitnians didn’t know that there would be consequences to the horrific acts of their elected terrorist government. Hamas was practicing for these events for over two years, right under the windows of these same Palestinians that much of the media is portraying as unknowing victims who have no culpability for the acts of those they elected to power.
Despite all this, Israel warned the Palestinian civilian populace to flee the militant controlled areas they knew they had to take out in order for these atrocities not to be repeated against the people of Israel. Israel has been working with the UN–despite the UN’s habitual bias against them–as well as with the US and other Arab countries like Egypt in order to assist the evacuees from Gaza. Egypt, which has also blockaded the Palestinians for the same security reasons that Israel has been forced to do, has been slow to offer material support and shelter to their Palestinian brethren.
It isn’t Israel’s job to offer that to the Palestinians who never cease to commit and then openly celebrate their habitual terror, as they swear to eternally seek Israel’s destruction.
The first requirement that anybody should demand of anybody is the immediate and UNCONDITIONAL release of all hostages by Hamas. Then, matters can proceed from there.
TREEMAN says
Did Israel follow the “Laws of War”when it attacked(3 times) the USS Liberty(in international waters) on Jane 8,1968 in which the IDF Killed 34 and Wounded 134 Americans! In the Palm Coast Heroes Park there is a Memorial for the USS Liberty yet, the Memorial does NOT state that the USS Liberty was ATTACKED by the IDF! WHY????
ASF says
The USS Liberty affair has been investigated mutliple times. Each inquiry came to the same conclusion–it was a “Friendly Fire” incident that was the fault of BOTH the US and Israel not communicating with each other as should have been the case.
The US had declared “Neutral status” during the Six Days War (which is when this took place.) But the US Defense Department sent the USS Liberty as a “spy ship” into the exact coordinates of that war zone that the Israeli Defense Department had warned them repeatedly to stay out of. They had warned the US to do so due to Egypt’s habit of flying the false flags of other nations into battle so they could get up close enough to take pot-shots at critical Israeli targets.
The US somehow failed to forward that information on to the USS Liberty. Despite there being plenty of blame one can assign to the US Defense Department, the Israelis apologized about a thousand times, made reparations to the surviving crew and to family members of the USS LIberty crew and also compensated the US for the cost of the lost ship.
What has the UInited States ever received from any other nation that has attacked us, deliberately, without any doubt– from the Japanese at Pearl Harbor to the majority Muslim countries that attack both civilian and military US targets to this day?
Applying Differential and more punishing standards to one nation and/or group of people than you do to any and all others (including yourself) is pretty much the operative definition of prejudice.