Laws of War
By Rafael Hoffman
The State of Israel’s attempts to defend its citizens from terror groups have long been accompanied by accusations that its actions violate international laws of war. Accusations that the state and its supporters vociferously deny.
Nearly all Western countries expressed shock and horror over Hamas’ wanton slaughter of men, women, and children and supported Israel’s right to self-defense.
Still, in the early days of Israel’s operation some prominent voices already used international law to cry foul and rally support for a ceasefire long before Israel had accomplished its defensive goals.
Activist groups with long anti-Israel records, such as Amnesty International and Human Rights Watch, branded Israel’s actions illegal, citing effects on civilians.
An announcement by Israeli Defense Minister Yoav Gallant, two days after Hamas’ attacks, that Gaza would be under “a complete siege,” drew broader finger-wagging.
The European Union’s top diplomat Josep Borrell and U.N. Human Rights Chief Volker Turk, both declared the actions illegal.
Vermont progressive Senator Bernie Sanders backed their position and added to it, saying the act was aimed at Gaza’s civilian population.
“The targeting of civilians is a war crime, no matter who does it,” he said. “Israel’s blanket denial of food, water, and other necessities to Gaza is a serious violation of international law and will do nothing but harm innocent civilians.”
President Joseph Biden forcefully backed Israel’s position, but also made steady reminders that the state must observe the “rules of war.”
Israel’s military (IDF) claims to adhere carefully to laws of war and pro-Israel groups tout its careful measures to minimize civilian casualties.
Following his recent meeting with President Biden, Prime Minister Binyamin Netanyahu declared, “As we proceed in this war, Israel will do everything it can to keep civilians out of harm’s way.”
These declarations do little to convince Israel’s critics. Yet, despite their quick draw to accuse the state of war crimes, experts on the topic say the realities are complex and often vague.
Laws for a Wasteland
Most of the corpus of the laws of war, also known as International Humanitarian Law, is rooted in the Geneva Conventions, a set of international conferences that began in the 1800s. Most significant among them were protocols ratified in 1929, mostly dealing with the treatment of prisoners of war, and a set codified in 1949 which addressed more extensive issues about how wars should be conducted. Many of the principles of humanitarian law have been incorporated into U.N. charters as well.
“International law passed post-World War II was aimed at promoting peace and security,” said Donald Childress, Professor of Law at Pepperdine University in California. “Two areas they focused on were ways to protect civilians and to prevent populations from coming under occupations.”
Israel has ratified these conventions. So has the Palestinian Authority, which rules Gaza in principle only. Hamas, which is regarded as a terrorist organization, has not.
The international community’s ability to enforce these laws is limited, but some instances, like trials of the perpetrators of genocide in the Balkan states, have provided some precedent of how they should be applied. Much more interpretation has been the work of international law scholars and bodies like the U.N. and its legal arms.
Near the beginning of the list of principles is not to resort to the use of force to obtain political or diplomatic objectives. In this vein, there is wide agreement in the West that Russia’s invasion of Ukraine (aside from its conduct of the war) was a violation of international law.
Generally, use of force is only justified in self-defense. In Israel’s case, there is little serious debate that protecting itself from another deadly attack by Hamas justifies its Operation Swords of Iron.
“As a response to Hamas’ incursion, Israel clearly can rely on the right to self-defense to pursue its efforts in Gaza,” said Professor Childress. “If international law were fully working, the U.N. would pass a resolution on Chapter Seven of its charter approving of Israel’s operations. The U.N. doesn’t operate that way now, but they can still rely on their right to exercise self-defense.”
In the past, Israel’s actions against Hamas have been focused on degrading its offensive capabilities. Now, it says that since the terror group has shown its goal to be the unlimited death of Jews and destruction of Israel, its obligation of self-defense demands Hamas’ complete elimination. That task will likely involve a drawn-out conflict with high risks, but Geoffry Corn, Director of the Center for Military Law and Policy at Texas Tech School of Law, said that self-defense can be expansive.
“Think of a state like a person. If someone shoots at you, your right to self-defense doesn’t end when you duck one bullet. There’s an ongoing threat. A state can do all that is reasonably necessary to restore its security,” he said. “At this point, Hamas demonstrated that the defensive measures Israel took in the past were not sufficient and that they can bypass them and inflict terrible carnage. If Israel is serious about security, it’s very feasible that they have to do what they can to eliminate Hamas’ military capacity.”
A technical complication to applying war laws, which were designed to set ground rules between nations, is that Hamas is a terrorist organization, not a state or recognized governing entity. Yet, most think that fact plays little role when it comes to how legal standards should be applied.
“Hamas functions like a state and they invaded Israel,” said Eugene Kontorovich, head of the international law department for the Kohelet Policy Forum and professor at George Mason University Scalia Law School. “This has all the characteristics of a war; what Hamas is or isn’t shouldn’t matter.”
In addition to de facto realities, one of several extensive articles on legal questions about the war by Michael Schmitt, a law-of-war scholar at the U.S. Military Academy at West Point and former Air Force judge-advocate, pointed to agreement by scholars and the International Court of Justice since America’s fight against al-Qaida following the 9/11 attacks, that nations have full rights to exercise self-defense in response to an “armed attack” by a group that was “not on behalf of a state or with substantial involvement therein.” Depending on what might be uncovered regarding Iran’s involvement in Hamas’ attack, even that point might be moot.
Mechanics aside, the conflict itself brings war laws to bear.
“It’s irrelevant if Hamas is a quasi-state or a terror group; both parties are obligated to follow basic rules of war and should be equally accountable under international criminal law,” said Professor Corn.
One potential difference that Hamas’ non-state status might make is whether captured members of its forces are protected by conventions about Prisoners of War (POW).
“Russian soldiers captured by Ukraine can’t be punished for fighting since they’re POWs; the law might not recognize that privilege for Hamas, but that only matters once they’re captured. It doesn’t affect things in the fight itself,” said Professor Corn.
Some in the pro-Palestinian camp have suggested in the past as well as after Hamas’ recent savage incursion that its actions can be justified by U.N. resolutions and additions to the Geneva Conventions in the 1970s granting peoples under colonial or occupations the right to resist. Yet, while Gaza is still part of Israel, it has not been occupied since the “disengagement” 17 years ago. Furthermore, few experts believe that this right to resistance justifies violence, except possibly in response to a specific instance of unlawful violence against that group.
“Gaza is not occupied; if anything, they are occupying it,” said Professor Corn. “Most importantly, international law draws bright lines between why you are fighting and how you are fighting. Even if the Palestinians would have cause for taking up arms, they still have to follow the rules of war, which forbids targeting civilians.”
Professor Childress said that Hamas’ status as a terror organization might also block its ability to rely on resistance to justify its actions.
“International law does not sanction the use of force by a terrorist organization,” he said. “I know people try to conflate self-determination with these acts, but in reality, that law does not protect them.”
Most early accusations that Israel’s campaign crossed legal boundaries focused on the Defense Ministry’s announcement that no food, water, or fuel would be allowed to enter Gaza.
This tactic, some argued, violated the basic principle that nations may not target civilians. Though, against the backdrop of Israel’s preparation for a ground assault to dismantle Hamas, some countered that while civilians were indeed impacted, they were not targeted.
“There’s nothing in the law that requires a country at war to provide provisions to its enemy,” said Professor Kontorovich. “Part of the tragedy of war is that civilians are affected by military goals, but that’s not illegal.”
Turning off Gaza’s power sources, Professor Corn said, was not difficult to justify.
“Angst over the loss of electricity is inconsistent with the nature of combat operations,” said Professor Corn. “Any military would tell you that power has high value as a target since it contributes substantially to an enemy’s capabilities. … Another aspect is that this tactic is better than bombing a power facility since they can just turn it back on when the threat is eliminated.”
Given the level of impact that water availability has on the civilian population, Professor Corn said that Israel would have been better served by explaining the strategic value of cutting its supply.
“The law says you can deprive enemy fighters of sustainment, but it also requires you to factor a way to ensure the civilian population is not deprived of essential requirements, so they would be wise to explain why this was a military necessity,” he said. “I think it could be justified if Israel connected it with other measures, like saying, ‘Here are humanitarian evacuation zones, there’s food and water there, just move there.’ That’s balancing it out with a mitigating factor, getting people to leave the conflict zone.”
About a week into the conflict, Israel did just that. The country restored water to south Gaza, where it urged civilians to go to clear them from the Gaza City area where Hamas is concentrated.
The IDF has multiple procedures and policies to minimize collateral damage to civilians in its operations against Hamas. Yet, the dense nature of Gaza and Hamas’ deliberate use of schools, hospitals, and residential areas as human shields (which itself is a war crime) make that a very difficult task.
“No matter how illicit Hamas’ conduct is, that doesn’t relieve the IDF from doing all it can to mitigate damage to civilian casualties. But the law focuses on the process of deciding about an attack and when your ability to mitigate harm is compromised by an enemy tactic. That makes the evaluation much more difficult, since it’s impeding your legitimate military goals,” said Professor Corn. “Still, there’s one side of a conflict trying to kill civilians with complete disregard for the risks to its own population, in fact, exploiting it, while the other is trying to limit civilian casualties. That’s what needs to be focused on.”
Given the limited options the IDF has in how to achieve its goals in Gaza, Israel initiated a campaign encouraging northern Gaza’s population to move south, out of the conflict zone. Reportedly, some 600,000 have done so, but Hamas is blocking travel and encouraging civilians to stay put.
Some in the progressive activist camp portrayed Israel’s attempt to encourage civilians to get out of harm’s way as a war crime.
“The Israeli army’s order to people in northern Gaza and Gaza City to ‘evacuate’ to the south of the Gaza Strip, cannot be considered an effective warning and may amount to forced displacement of the civilian population, a violation of international humanitarian law,” read a statement by Amnesty International.
Many experts took issue with this assessment; firstly, since Israel has no authority to “order” Gazans to move and is only doing so as a recommendation for their own safety.
In his symposium on the legal aspects of the present war, Professor Schmitt wrote that given the abundant justification of Israel’s operations and the nature of Hamas’ actions, opposition to calls to evacuate are difficult to rationalize.
“It is bewildering that humanitarian organizations are not encouraging the civilian population to move away from what will be a destructive and deadly urban battle,” he wrote. “It is mystifying that humanitarian organizations are not condemning Hamas’ efforts to keep the civilians in place. … The more civilians in the area, the more complicated Israeli targeting and clearance operations become. And, sadly, the more civilians who tragically will become ‘collateral damage.’”
Questions over Israel’s “siege” as well as the impact its attacks have on civilians come down to the most fundamental and also most muddled aspect of the laws of war: proportionality. This concept is often misapplied by activists and others to imply that a nation’s attacks become illegal once the deaths or damage caused to its enemy exceed what it has suffered.
In reality, proportionality demands that belligerents weigh the military advantage of an action against the impact it could have on civilians.
“Proportionality is inherently arbitrary and amorphous,” said Professor Corn. “You can’t look at the effects of an attack and say it was illegal. The questions to ask are what was the value of the target, what was the risk to civilian population, and what would have been the mitigation cost? That is what commanders have to ask.”
The proportionality rubric exists in a gray area often facing commanders and their legal advisors with very difficult questions.
“If you have a kitchen that makes meals for 100 enemy soldiers in the back of a kindergarten, only a sociopath would target it, but if there’s a missile launcher shooting at your population across the street from a kindergarten, that’s a difficult call to make,” said Professor Corn.
Hamas’ use of human shields makes these questions even harder to evaluate.
“If Hamas was not hiding behind these civilians, Israel would not target these areas, but when the enemy is mixed with the civilian population, you have to focus on the military objective and look for how you can limit damage while achieving your goal,” said Professor Childress.
Laws for Whom?
Despite much ink spilled by scholars on the topic, there is much skepticism about the usefulness of international laws of war. Countries such as Russia have been accused of breaking its boundaries and are unlikely to face consequences. Terrorist organizations like Hamas, al-Qaida, and ISIS show abject disregard for laws without being held accountable.
The International Criminal Court (ICC) was established in 2002. But that body has largely been influenced by countries with anti-American and anti-Israel positions. Neither the U.S. nor Israel has joined the ICC. The Palestinian Authority is a member and, in 2021, successfully lobbied for the court to open an investigation into alleged Israeli war crimes in territory under its control.
Much of the original purpose of the U.N. was to police the community of nations, and the Hague court is dedicated to addressing some issues of humanitarian law. Yet for decades, divisions among the U.N.’s key members and voting blocs of anti-Western and anti-Israel third-world nations have rendered this function largely obsolete.
Against this backdrop, adherence to laws of war is mostly left to nations themselves. Due diligence, though, can be important in maintaining international support.
“I can’t remember a time when there was more support for Israel. And what triggered that is Hamas’ barbarism. If [Israel] focuses carefully on military targets, their operation will be linked with legitimacy, and it will help maintain that support,” said Professor Corn.
Professor Corn added that careful adherence to legal standards plays an important role in a military’s own integrity.
“People going into battle are human beings from a moral society. There is an expectation that they will be asked to do difficult things, but there must be lines or else war becomes a moral abyss,” he said. “Commanders have an obligation to be aggressive and to use violence to achieve their goals, but doing that in a way that minimizes suffering and adheres to the law, preserves their moral integrity and that of those under their command.”
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