Humanitarian Law In Israel-Gaza: Who's Responsible?

The conflict between Israel and Gaza has raised questions about the relevance of international humanitarian law (IHL) and its ability to protect human rights during war. IHL, or the laws of war, has existed for thousands of years and is designed to govern armed conflict and military occupation. It binds states, including Israel, as well as non-state armed groups, such as Hamas and Islamic Jihad, and sets out their obligations during conflict. IHL demands that all parties distinguish between combatants and civilians, and that they refrain from targeting civilian objects. It also prohibits actions such as taking hostages, using people as human shields, and imposing collective punishment. While IHL only applies during specific situations, such as armed conflict or occupation, international human rights law applies at all times, governing the duties of states to protect the rights of people within their jurisdiction. In the context of the Israel-Gaza conflict, understanding the application of IHL is crucial for evaluating the conduct of both sides and ensuring accountability for any violations.

The distinction between combatants and civilians

International Humanitarian Law (IHL) is based on the principle of the distinction between civilians and combatants. This principle is considered "cardinal" and "intransgressible".

Under IHL, a "civilian person" is any individual who is not a member of the armed forces. This includes anyone not belonging to the regular armed forces, militias or volunteer corps forming part of such armed forces, and organised resistance groups. Civilians are granted protection from the dangers of military operations, and certain categories are entitled to reinforced protection.

Combatants, on the other hand, must distinguish themselves from civilians and are allowed to participate directly in hostilities.

The distinction between the two is not always clear-cut, especially in non-international armed conflicts, where guerrilla movements and non-state armed groups may maintain close links with the civilian population. In such cases, civilians may take part in hostilities without formally belonging to any regular armed force. Civilians who take part in hostilities in this way retain their civilian status but lose the protection granted to civilians for the duration of their direct participation.

The loss of protection for civilians who directly participate in hostilities does not result in the acquisition of protection afforded to combatants. This creates a dangerous, hybrid status, which the two Additional Protocols of 1977 attempt to limit in time and according to the situation of the persons concerned.

The Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, published by the International Committee of the Red Cross (ICRC) in 2010, provides ten recommendations for a legal reading of the notion of "direct participation in hostilities". These include:

• All persons who are neither members of the armed forces of a party to the conflict nor participants in a levée en masse are civilians and are therefore entitled to protection against direct attack "unless and for such time as they take a direct part in hostilities".
• Direct participation in hostilities refers to specific acts carried out by individuals as part of the conduct of hostilities between parties to an armed conflict.
• For an act to qualify as direct participation in hostilities, it must meet three cumulative criteria: it must be likely to adversely affect the military operations or military capacity of a party to an armed conflict; there must be a direct causal link between the act and the harm likely to result; and the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another.
• Civilians lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities.
• All feasible precautions must be taken in determining whether a person is a civilian and, if so, whether that civilian is directly participating in hostilities. In case of doubt, the person must be presumed to be protected against direct attack.

The prohibition of targeting civilians

International humanitarian law (IHL) prohibits the targeting of civilians. This is a fundamental rule of international humanitarian law in conflict, and it applies to both states and non-state armed groups involved in conflict. According to IHL, all parties must, at all times, distinguish between combatants and civilians and only target combatants and military objectives. Direct attacks on civilians or civilian objects are prohibited and are considered war crimes.

IHL requires parties to a conflict to take all feasible precautions to minimise harm to civilians and civilian objects. This includes giving "effective advance warning" of attacks that may affect the civilian population, unless circumstances do not permit it. However, the issuance of a warning does not absolve parties of their responsibility to protect civilians. Even if civilians do not evacuate following a warning, they must not be targeted, and attackers must take all feasible measures to protect them.

In the context of the Israel-Gaza conflict, there have been allegations and evidence of violations of IHL by both Israeli forces and Palestinian armed groups. Israeli airstrikes and rocket attacks by Hamas and other armed groups that target civilians or are indiscriminate violate the laws of war and, when committed with criminal intent, are considered war crimes.

For example, on October 31, 2023, an Israeli airstrike on a residential building in Gaza killed at least 106 civilians, including 54 children. Human Rights Watch found no evidence of a military target in the vicinity, indicating that the strike was unlawfully indiscriminate under the laws of war. Additionally, Israeli forces have been accused of using white phosphorus in densely populated areas, causing severe burns and fatalities.

Palestinian armed groups, such as Hamas, have also been accused of deliberately targeting Israeli civilians and taking hostages, which are also considered war crimes.

The rules of war and their violations

International humanitarian law (IHL), or the laws of war, has existed in various forms for thousands of years. The modern version of IHL is set out in the Geneva Conventions of 1949, alongside other treaties and customary international law. The Geneva Conventions have been ratified by all 196 states, and very few international treaties have this level of support.

IHL binds states, including Israel, as well as non-state armed groups, such as Hamas and Islamic Jihad, even though they cannot formally ratify the treaties. The rules of law are non-reciprocal, meaning they apply irrespective of what the other side has done. Violations, such as deliberately targeting civilians or imposing collective punishment, can never be justified by claiming that another party has committed violations or that there are power imbalances or other injustices.

The laws of war only apply in specific situations, notably during an armed conflict or an occupation. In the case of Israel and Palestine, IHL applies to the Israeli occupation of Palestinian territory, including the West Bank, East Jerusalem, and Gaza, which collectively constitute the Occupied Palestinian Territory (OPT).

• Protection of Civilians: The fundamental rule of IHL in conflict is that all parties must distinguish between combatants and civilians at all times. Civilians and civilian objects must never be the target of attacks. All feasible precautions must be taken to minimise harm to civilians. Airstrikes and rocket attacks by Israel, Hamas, and other armed groups that target civilians or are indiscriminate violate the laws of war and, when committed with criminal intent, are war crimes.
• Humane Treatment of Detainees: Under IHL, anyone taken into custody, such as prisoners of war, must be treated humanely. Taking hostages and using people as "human shields" are prohibited. The deliberate killing of Israeli civilians and the taking of hostages by Hamas and other armed groups are violations of this rule.
• Protection of Hospitals and Aid Workers: Hospitals, medical workers, and aid workers are protected under IHL. Attacking hospitals, ambulances, and aid workers is prohibited. During the conflict, there have been reports of Israeli interference with aid efforts, including killing aid workers, bombing ambulances and hospitals, and blocking the delivery of food and medicine.
• Safe Passage for Civilians: Parties to a conflict must take all reasonable steps to evacuate civilians from areas of fighting and provide safe passage for them to flee. Israel's ordering of the displacement of much of Gaza's civilian population has raised concerns, as permanent displacement is a crime.
• Access to Humanitarian Organizations: Civilians and militants who are no longer fighting have the right to receive humanitarian aid, such as medical care, food, water, and shelter. Restricting the delivery of humanitarian aid is prohibited. Israel has been accused of deliberately blocking humanitarian aid to Gaza, including food and medicine, which constitutes a violation of this rule.
• Proportionality and Necessity: The tactics and weapons used in war must be proportionate and necessary to achieve a definitive military objective. The use of weapons that are "by nature indiscriminate" is prohibited. Israeli forces have been accused of using white phosphorus in densely populated areas, causing severe burns and fatalities.
• No Collective Punishment: Collective punishment is strictly prohibited under IHL. Israel has been accused of engaging in the collective punishment of Gaza's population by cutting off access to food, water, electricity, and fuel.

These are just some of the key rules of war and their violations in the context of the Israeli-Palestinian conflict. The International Criminal Court (ICC) in The Hague has jurisdiction over war crimes and other serious international crimes committed in the OPT and by nationals of Palestine.

The role of the International Criminal Court

The International Criminal Court (ICC) has jurisdiction over war crimes and other serious international crimes committed in or from the Occupied Palestinian Territory (OPT) and by Palestinian nationals. The OPT is considered the territory of the State of Palestine, which is a member of the ICC.

The ICC prosecutor has been investigating possible war crimes committed in both Israel and Gaza since 2021, with a focus on crimes within the court's jurisdiction that have been committed since June 13, 2014. This investigation was opened following a request by the State of Palestine in 2015, which was accepted by the ICC.

In November 2024, the ICC prosecutor filed applications for arrest warrants for five individuals: Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri, and Ismail Haniyeh of Hamas, and Benjamin Netanyahu and Yoav Gallant of Israel. The charges include war crimes and crimes against humanity, such as extermination, murder, taking hostages, rape, and sexual violence.

The pursuit of these arrest warrants has been controversial, with some arguing that it will incentivize all parties in the conflict to obey international law, while others claim that it is offensive and falsely equates a democratic country with a terrorist organization. Israel and its allies, including the United States and the United Kingdom, have rejected the ICC's authority to investigate or try Israelis for actions in Gaza or the West Bank, citing a lack of jurisdiction.

The role of the ICC in the Israel-Gaza conflict is significant as it seeks to hold individuals accountable for war crimes and crimes against humanity. The investigation and potential prosecution of these crimes send a signal that those responsible for violations of international humanitarian law and human rights law could face justice.

Humanitarian relief operations

The ongoing conflict between Israel and Hamas has led to a worsening humanitarian crisis, with thousands killed and many more wounded and displaced. The blockade of Gaza has severely impacted humanitarian relief operations, with Israel blocking food, fuel, and other supplies from entering the territory. This has resulted in food and medicine shortages, and the United Nations has declared a famine in parts of Gaza.

Humanitarian groups are facing significant challenges in delivering aid to those in need. For example, Doctors Without Borders, which is still operating in Gaza, is unable to bring in additional supplies and must rely on what is already inside the territory. The group has reported providing treatments to over 50 people following airstrikes and donating medical supplies to other clinics and hospitals. Mercy Corps, another humanitarian organization, has expressed concern about the blockade's impact on their ability to provide food and water to those in need.

The United Nations and other aid agencies are working to send humanitarian aid to Gaza through a crossing point between the strip and Egypt's Sinai Peninsula. However, the ongoing fighting and the blockade have complicated these efforts. The World Health Organization has reported that medical supplies in seven hospitals in Gaza have been depleted, and they are reprogramming funds to purchase more from local markets.

The International Committee of the Red Cross (ICRC) has offered help to both sides, donating medical supplies to Gaza and working to help identify missing people. The ICRC is also working with Magen David Adom and the Palestine Red Crescent Society to assist those who are wounded, sick, and in need.

Despite the challenges, several organizations are actively providing humanitarian relief. ActionAid has set up an emergency response fund to deliver essential relief and sustain long-term disaster preparedness. Anera is working to provide humanitarian relief to Palestinians and residents of East Jerusalem, providing hygiene kits, food, and other essential supplies. The Jewish Agency for Israel is providing immediate financial assistance to victims and their families through its Fund for Victims of Terror.

While these organizations are doing crucial work, the ongoing conflict and blockade are severely hindering their efforts. The international community's attention and support are vital to ensuring that humanitarian relief reaches those in need.

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