What are the rules of war? Here's what international law allows in the Israel–Hamas conflict

‘The thing about laws of war, it recognizes that the point of war is to basically kill your enemy and get them to surrender’

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As Israel bombards the Gaza Strip and urges the evacuation of more than one million Palestinians from the north of Gaza in preparation for a possible ground invasion, its actions — and the actions of Hamas — have sparked a debate about the rules of war, but there’s a lot of confusion about what those laws actually are.

“The thing about laws of war, it recognizes that the point of war is to basically kill your enemy and get them to surrender,” said Leah West, a professor of international affairs at Carleton University. “There’s a recognition in that and it tries to balance that out with humanity.”

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After the massive Hamas terror attack on Oct. 7 that killed more than 1,300 Israelis, mostly civilians, with Hamas seizing close to 200 hostages, western nations have supported Israel’s right to self-defence and backed its plans to free its hostages and destroy Hamas. But all have raised concerns about the humanitarian consequences for the civilian population in Gaza.

Writing in Foreign Affairs, a magazine of international relations and U.S. foreign policy, Marc Lynch, a political scientist at George Washington University, urged American officials to “insist that Israel find ways to take the fight to Hamas that do not entail the displacement and mass killing of innocent Palestinian civilians.”

“Now that it has shown its sympathy with Israel, Washington must pivot toward demanding that its ally fully comply with the laws of war,” Lynch wrote.

But what are the laws of war, and are there any consequences for breaking them? The National Post explains.

What are the international laws that apply?

The laws of war consist of four 1949 Geneva Conventions, their two Additional Protocols of 1977, the Hague Conventions of 1899 and 1907, as well as various weapons conventions, said Robert Goldman, a law professor at American University.

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There are also what are called customary laws of war, which are unwritten laws that have evolved over time that are accepted by most countries.

Not all of the laws apply when the conflict is between a state and a non-state actor. That is the case with Israel fighting Hamas, and is a difference between that conflict and, for example, Russia’s war on Ukraine. (Although there are scholarly debates surrounding whether Israel already “occupies” the Gaza Strip and West Bank, as well as debates over whether there is a state of Palestine.)

One example of a major difference between what’s called an “international armed conflict,” which is state versus state, and a “non-international armed conflict” is that rules around taking prisoners of war are different in the case of non-international armed conflicts.

“Irrespective of how you qualify or characterize the conflict, international or non-international, the rules governing the conduct of the conflict are essentially the same,” said Goldman.

To whom do they apply?

The laws of war apply to the Israel Defense Forces and Hamas: This means not only are fighters on both sides bound by rules against harming civilians, they are also lawfully allowed to kill armed combatants on the enemy side. Soldiers on both sides also have protections, for example, prisoners of war cannot be subjected to degradation and torture.

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Did Hamas have a right to attack Israel?

There are exceedingly rare instances in which non-state actors are justified in armed attack as a matter of law. International law, said Goldman, “contemplates the emergence of resistance movements,” but that’s not exactly what happened here.

Mike Schmitt, in a blog post for the Lieber Institute, argues that “it is well accepted that the right of self-defense is limited to States.” But, Schmitt notes a 1974 United Nations resolution that concludes some groups have the right in certain contexts to “resist and struggle” (italicized in the original). That does not mean, Schmitt concludes, that they have the right to do so forcibly.

“There is no ‘right’ on the part of a non-State group or individuals to do so except when unlawful violence is being used against them directly and immediately, as in a specific case of acts of ethnic cleansing that are underway,” Schmitt writes. “At the time of Hamas’s attack, Israel was not employing unlawful violence directly against any individual in Gaza. Nor were Hamas’ actions crafted to directly defend against any particular unlawful acts of violence.”

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Does Israel have a right to respond?

Yes. United Nations Article 51 enshrines the right of a state to self-defence. Since the 9/11 terrorist attacks, this right has expanded to a right to self-defence against non-state actors, in the view of many legal scholars and states themselves.

“Hamas had no right to mount Operation Al-Aqsa Flood under international law, and Israel has every right to respond forcibly, as it is doing in Operation Swords of Iron,” writes Schmitt, using the names of the Oct. 7 Hamas attacks and Israel’s response, respectively.

Children's toys in a living room destroyed in the attack
An Israeli house that was destroyed in a battle between Israeli soldiers and Hamas terrorists in the attack on the kibbutz in Be’eri, Israel. Photo by Amir Levy/Getty Images

Now that war is underway, what laws apply to Israel?

There are three governing principles that will apply to Israel in its self-defence operation against a non-state actor: Distinction, proportionality and discrimination.

“These rules apply regardless of whether it’s strictly an air campaign as it is now or if Israel does decide to move in with the ground campaign,” said Brian Cox, a visiting lecturer at the University of Ottawa and a former judge advocate with the U.S. military.

The distinction rule applies to who is considered a fair target. “Parties to a conflict have to distinguish between combatants and non-combatants,” said West. “The principle of distinction says you can’t target non-combatants, you can’t target civilians, when you’re waging war.”

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This means that the Israeli military could not attack a residential building, for example, unless it believed the building was being used as a military installation, a communications centre or harbouring enemy fighters, explained Cox, in which case it would be a legitimate military target.

The proportionality rule considers the force being used against targets, because distinction “doesn’t protect civilians from never being injured or killed,” West said.

When considering an attack, an attacker must assess the degree of expected incidental damage, whether to property or civilians. The attacker also must consider whether there is some pressing military advantage in carrying out the attack. Once those two considerations have been made, the attacker must consider whether the incidental damage to lives or property is excessive in relation to the military objective.

Put another way: If there are a few Hamas fighters sleeping in an apartment building and there are civilians present, would the attack be justified? And if a high-level Hamas commander was present in that same situation, that calculation may well be different.

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“If the expected incidental damage is going to be excessive, and the attacker engages in the attack anyways, that would violate the proportionality rule,” Cox said. “What’s completely irrelevant is whether the attack in fact causes disproportionate effects.”

The third rule says an attack cannot be indiscriminate.

“An indiscriminate attack is one that is not directed against an identified military objective, or is an attack that that uses a means of warfare that cannot be limited to the identified military objective,” Cox explained.

What’s critical to know here, Cox said, is that what matters in analyzing a military’s actions from a laws-of-war perspective is what did the attacker actually know at the time and what was the intent. The outcomes are far less relevant.

“Very often, including in a lot of kind of coverage and public discourse that I see … (there) is a tendency to focus on the outcome of an attack,” Cox said. “But the outcome of an attack, from a legal perspective, is almost completely irrelevant when it comes to analyzing whether an attack complied with (the) law of war.”

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Coffins at a funeral in Israel
Mourners gather around the five coffins of the Kotz family during their funeral in Gan Yavne, Israel, Tuesday, Oct. 17, 2023. Photo by AP Photo/Ohad Zwigenberg

What about the ‘siege’?

“I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed,” Israeli Defence Minister Yoav Gallant said last week.

Tom Dannenbaum, a professor of international law at Tufts University, has argued that Gallant’s “order commands the starvation of civilians as a method of warfare, which is a violation of international humanitarian law and a war crime.”

“Even assuming the ultimate goal is to coerce or starve out Hamas, those undertaking this siege are pursuing that goal through purposively starving the civilian population as a whole,” Dannenbaum wrote in an article on Just Security. “As such, they are intending to engage in the starvation of civilians as a method of warfare, whether they desire or lament the civilian suffering that will ensue.”

Israel is not a signatory to either of the international conventions prohibiting starvation of civilians; those same protocols, addendums to the Geneva Conventions in 1977, also call upon belligerents to allow humanitarian aid in conflict zones.

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Still, there is customary international law on the starvation of civilians that could apply to Israel. In its analysis of customary international law, the International Committee of the Red Cross says sieges are legal “as long as the purpose is to achieve a military objective and not to starve a civilian population.”

“The question, therefore, is, how long such a complete siege can remain militarily justifiable and therefore lawful,” writes Rosa-Lena Lauterbach, a PhD candidate at the University of Cologne, in an article this week in Articles of War.

Now that war is underway, what laws apply to Hamas?

All the same laws that apply to Israel also apply to Hamas. But there are some further complexities here.

A frequent criticism of Hamas is that it uses human shields, which the Rome Statute, which established the International Criminal Court in 1998, specifically identifies as a war crime.

Hamas fighters are integrated into the civilian population in Gaza. They don’t, for example, wear specific uniforms or have specific military bases. According the law, Hamas is supposed to take what’s called “passive precautions” on behalf of civilian populations.

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“It’s an obligation to separate military activities from civilian persons and objects, so civilian populations, to the greatest extent practicable or to the greatest extent feasible,” said Cox.

To locate military assets in civilian areas, if there are no geographic alternatives available, is not a violation of the laws of armed conflict.

“What is a violation, though, is to deliberately use the protected status of a civilian object — so residential building, or a school or hospital  —  to knowingly take advantage of the protected status in order to locate military objectives within those protected places,” Cox said.

But to determine whether Hamas is violating the law, we would need to know whether they have alternatives available and whether sites are being deliberately chosen to protect military assets under cover of civilian infrastructure.

The other issue from a legal (and moral) perspective is that Hamas has been telling Gaza’s civilians to stay put in their homes, while Israel is telling civilians to evacuate to safer parts of the region. “They (Hamas) have a duty to their population and so forth not to place them in harm’s way,” said Goldman.

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A family riding a donkey drawn cart
Palestinians flee following the Israeli army’s warning to leave their homes and move south before an expected ground offensive, in Gaza City on Oct. 13, 2023. Photo by MAHMUD HAMS / AFP

What’s up with Israel giving warnings that it’s going to attack?

Attackers must also take what Cox called “feasible precautions” when launching attacks to avoid civilian deaths.

The specific measures taken by Israel, such as dropping an inert bomb as a warning, or using social media or leafleting to alert people an attack is coming to a specific area, are not specifically required by the law, although feasible precautions are required, Cox said.

Now, there is an additional classification under international law called “protected objects and property.” These include, for example, houses of worship or cultural objects. In these cases, an attacking military must, where possible, notify of an impending attack. These sorts of attacks are also subject to the distinction and proportionality rules.

The exception is hospitals: “The protection to which civilian medical units are entitled shall not cease unless they are used to commit, outside their humanitarian function, acts harmful to the enemy,” according to the Geneva Convention.

If hospitals are used to commit “acts harmful to the enemy,” they may only be attacked “after a warning has been given setting, whenever appropriate, a reasonable time-limit, and after such warning has remained unheeded.” (However, reasonable time limit, for example, is hotly debated.)

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What if civilians in Gaza decide they want to fight Israel?

If civilians take up arms, they can be attacked by opposing forces. “Civilians can can only be attacked for such time as they take a direct part in hostilities,” explained Cox.

That’s a pretty clear legal standard. However, there are ambiguities because, Cox said, there isn’t widespread agreement internationally what counts as “direct part in hostilities” and what “for such time” might mean. “It’ll be up to Israel to … apply their own guidance to determine what would count as ‘for such time’ as and then ‘takes direct part in hostilities,’” said Cox.

Does international law do a good job of protecting civilians?

International law is not particularly concerned with whether civilians do get killed: in wartime, it is expected that they will.

Cox specifically explained that the rules of distinction, proportionality and discrimination are concerned primarily with what the attackers knew about the potential for civilian deaths ahead of an attack — before a missile is fired or bomb is dropped. The laws are less concerned with what happens after that point.

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“In scholarship and in rhetoric, there’s this really high expectation that the law of armed conflict exists to mitigate suffering in armed conflict. And that that’s basically the only thing that it exists for. That’s a pretty common perception, but it’s also a widespread misperception. That is a purpose of the law of armed conflict, but it’s not the purpose‚ it’s really not even the primary purpose,” Cox said.

Are there any consequences for breaking the laws of war?

The International Criminal Court has jurisdiction over four main crimes: genocide, crimes against humanity, crime of aggression and war crimes.

The ICC has jurisdiction to investigate crimes committed on the territories of its member states and crimes committed by nationals from those states on other territories. Israel is among the nations, including the United States, that do not recognize the ICC’s jurisdiction, however the court recognizes Palestinian territories as a member state and therefore could launch an investigation. It wouldn’t be the first time.

In 2021, the ICC ruled that “Palestine is a State Party to the Rome Statute” and that the court “may exercise its criminal jurisdiction in the Situation in Palestine, and that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem.” The ICC has determined it has jurisdiction over any alleged war crimes committed in the aforementioned territories and committed by Palestinians in Israel.

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In 2021, the court launched an investigation into alleged war crimes committed in 2014 by the Israel Defense Forces, Hamas and and other Palestinian groups. Alleged war crimes committed by either side during the current Israel-Hamas war could be caught up in that investigation, but Israel, which is not a signatory to the Rome Statute, has rejected that investigation.

Either way, prosecution is unlikely. The ICC has no police force to enforce warrants. And therefore, it would be up to authorities in the West Bank or Gaza Strip, or Israeli authorities, or authorities in another nation, to arrest members of the opposing side to present them for prosecution were a warrant issued.

“Nobody from Israel or from Palestine has been brought to the ICC and subjected to criminal prosecution,” said Cox.

A complaint could also be brought to the International Court of Justice. This is not a criminal court, however, and would be analogous to a civil court remedy in Canada or the United States. This is also an unlikely option, Cox said.

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Originally posted 2023-10-19 17:47:44.