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How can international law protect civilians in the Israel-Hamas war?

An expert explains the laws of war.

- October 30, 2023
Palestinians inspect the damage after an Israeli airstrike in Gaza, Oct. 10, 2023 (cc) Naaman Omar, Palestinian News & Information Agency (Wafa) in contract with APAimages

At a heated U.N. Security Council debate on Oct. 24, representatives from dozens of countries advocated for protection for civilians in Gaza. Israel’s response to the Oct. 7 Hamas attacks, many urged, must adhere to international law and follow international guidelines for protecting noncombatants. 

I’ve asked Tanisha M. Fazal, professor of political science at the University of Minnesota and author of Wars of Law: Unintended Consequences in the Regulation of Armed Conflict (Cornell University Press, 2018), to discuss how international laws protect civilians in war.

Stacie Goddard: Observers have charged both Hamas and Israel with violating the laws of war – which laws, exactly?

Tanisha Fazal: It’s important to establish what we mean by “laws of war.” There are two bodies of international law that are specific to war. The first, jus ad bellum, is about the resort to force – i.e., when states are justified in using armed force against another state. For example, Article 2(4) of the United Nations Charter states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” But the Charter does not prohibit all uses of force. Article 51 of the Charter reads: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” Both Ukraine and Israel assert they are exercising their right to self-defense in their separate wars.

The second major body of the laws of war is jus in bello (sometimes also referred to as international humanitarian law, or the law of armed conflict), which is about belligerent conduct during war. The 1949 Geneva Conventions, for example, provide protection for wounded and sick military personnel on land and at sea, describe how prisoners of war should be treated, and lay out rules for treatment of protected persons, including civilians under occupation. The fundamental project of international humanitarian law today is to mitigate the human costs of war, for both combatants and civilians. Its basic premise is that the ends and means of war must be separated.

In terms of your specific question, the fog of war means that a full accounting of violations – especially as the ground invasion is underway and Israeli air strikes on densely populated Gaza are ongoing – is not going to be possible for some time. But we know for certain that Hamas has violated not only international humanitarian law, but also international human rights law, in its horrific Oct. 7 attack on Israel. The deliberate targeting of civilians and taking of hostages is in violation of Article 3 of all four of the 1949 Geneva Conventions, Article 82 of the Rome Statute, and customary international humanitarian law. Depriving civilians of basic needs, such as water and medical supplies, as the Israeli government has done in Gaza, is also a violation of international humanitarian law. The Fourth 1949 Convention clearly lays out that noncombatants must be protected and also that medical supplies cannot be restricted.

In your book, Wars of Law, you argue that separatists and insurgency groups are likely to follow the laws of war when they need to gain international support for their cause. 
Evidence from the Oct. 7 attacks Hamas has committed war crimes, brutally targeting civilians for harm. What explains this behavior? Is Hamas trying to secure international support, or does this violence have another cause?

I find that secessionist, or state-seeking, groups are generally more likely to comply with international humanitarian law (IHL) than are non-secessionist groups. The logic behind this claim is that secessionist groups are especially attentive to the “international community,” which generally insists on compliance with IHL. In the book, I define the “international community” as “the collectivity of actors – primarily states, but also intergovernmental organizations and NGOs – whose aims transcend national interests and are grounded in the Charter of the United Nations.”

Hamas’ behavior clearly contradicts this claim. One reason, surely, is that Hamas does not see the same international community I referred to above as its target audience. For me, the question is: Who has influence over Hamas, and how likely are they to pressure Hamas to comply with international humanitarian law?

IHL has a lot to say about how civilians must be protected in general, including in the event of a siege, even as international law does not prohibit sieges per se (see this excellent explainer from Emanuela-Chiara Gillard of Chatham House).

There are three major governing principles of IHL to remember: distinction (differentiating between civilians and combatants); military necessity (exactly what it sounds like); and, proportionality – that any attack that produces civilian casualties must be proportional to the military aim and advantage. Strictly speaking, an attack that kills civilians is not necessarily illegal. But directly targeting civilians, knowingly attacking targets that will produce large numbers of civilian casualties disproportionate to military aims, and not taking due care are illegal.

Like sieges, airstrikes must abide by these principles of distinction and proportionality. They must also be discriminate. Broadly speaking, parties to the hostilities must take all feasible precautions to minimize civilian harm.

The international community wants all sides to cease targeting civilians and adhere to the laws of war. Who will enforce this?
Complicating this question, Israel is not a party to the Rome Statute of the International Criminal Court (ICC). And Palestine’s 2015 accession to the ICC gives the ICC jurisdiction over Hamas’ atrocities. Can the ICC keep the two opponents from targeting civilian populations?

Given how long ICC cases can take, I see the court as more of a potential deterrent than an enforcement mechanism. As you note, Palestine is a party to the Rome Statute – indeed, being able to have standing to bring suit against Israel under the law of occupation was one reason Palestine lobbied to be recognized as a “state non-member“ of the United Nations in 2012.

According to reporting at the time, Hamas supported Palestine’s accession to the Rome Statute. But being a party to the Rome Statute has certainly not prevented Hamas from committing war crimes clearly outlined in the treaty.

I do think that this conflict represents a potential critical moment for the ICC. The court has been on the back foot for some time, given accusations of an Africa bias. Both the Global North and the Global South will be carefully observing the ICC response to this conflict, and ICC decisions could either buttress or erode its legitimacy. As Kelebogile Zvobgo notes in a recent Good Authority piece, the Court is often beholden to politics.

Partly for these reasons, I don’t see the ICC as a silver bullet to prevent further depredations against civilians in this conflict. I wish I did. 

What will be important is finding the right levers of influence for both sides. We have already seen how difficult it has been to wade through the (mis)information landscape and to even negotiate allowing aid into Gaza.

So what aspects of the history of IHL are especially relevant to this conflict?

First, I would say that IHL, historically, was written by states, for states. Partly for this reason – and recognizing the complex sovereignty landscape in this case – it has been a struggle to apply IHL to what are called “non-international armed conflicts.” States have historically been reluctant to extend any kind of recognition to non-state challengers because doing so could be seen as legitimating their status. This position began to shift, somewhat, with agreements such as the 1977 Additional Protocols to the 1949 Geneva Conventions. But fewer states have signed onto the 1977 Protocols than the 1949 Conventions. (Israel is a signatory to the 1949 Conventions, but not the 1977 Protocols. Palestine is a signatory to both.)

Second, the history of IHL, like much of what we think of as public international law, is very Eurocentric. You don’t have to look very hard to find phrases like “civilized peoples,” which imply that the laws were originally really only meant to apply to a subset of states in their wars with each other. In research related to my book, Brooke Greene and I found that European states were especially likely to target civilians in non-European states they were fighting. And so it is especially concerning when political and military leaders use dehumanizing language, as we have seen in this current conflict.

Third, there is a famous quote by Cicero: “In times of war, the law falls silent.” But in this war, neither party has been silent about the laws of war. That belligerents use the law of war instrumentally is not surprising – but it shows both the limits and the strength of the law. If IHL was irrelevant, belligerents would not engage with it at all. But it is not as much of a constraint on behavior as its strongest proponents would hope.

Fourth and finally, the distinction between jus ad bellum and jus in bello is extremely important. Insofar as belligerents view a war as existential, blurring these lines becomes more likely. If this line disappears – in other words, if either side believes the ends justify the means – it is civilians who will pay an even higher price than they already are.