Israel, Gaza, and the Laws of War
Oct 27, 2023 Jonathan Kuttab
Published originally in Arab Center Washington DC
Written by Jonathan Kuttab, cofounder and board member of Just Peace Advocates
Addressing his troops as they amass to attack the Gaza Strip, Israel’s Minister of Defense Yoav Gallant publicly announced that the new Israeli war cabinet, which includes former Minister of Defense and army Chief of Staff Benny Gantz, has “released all restraints” on the IDF in its war on Hamas. Most consequential among these restraints are the rules of war and international law. As Israel conducts its operations against the strip, Prime Minister Benjamin Netanyahu is very pleased to have received international support, especially from the United States, for proposed actions, including a ground invasion, that violate these rules.
But because of the seriousness of the humanitarian situation in Gaza today, it is particularly important to know what these rules are, both objectively and specifically from the Israeli perspective. Previous experiences with the way Israel fights its wars have exposed its differing views of the rules and of the role international law is permitted to play to restrain its behavior.
The Laws of War
Under international law, the Gaza Strip continues to be part of the Israeli occupied territory, and its status is governed by the Geneva and Hague Conventions regarding “belligerent occupation.” Yet for many years, Israeli apologists often used the redeployment of Israeli forces away from Gaza in 2005 to claim that the occupation has “ended” and thus the Geneva Conventions do not apply to it. Instead, they wish to treat Gaza as a “hostile territory.” There are valid arguments why most international scholars still consider the Gaza Strip to be an occupied territory: Israel still controls the strip’s airspace, coast, and all but one side of its land borders; it shares control of the southern border with Egypt. The Gaza Strip’s economy, banking system, currency, and customs are all part of the Israeli system. So are its postal and internet services, as well as its population registry. The status of “occupied territories” grants its inhabitants certain protections and imposes certain restrictions on the belligerent occupier. International law prohibits Israel from using collective punishment and altering the status or laws of the territories under its “belligerent occupation.” Although Israel is required to treat the Gaza Strip and the West Bank as a single territorial unit under the Oslo Accords of the 1990s, it treats the strip separately and differently.
Although Israel is required to treat the Gaza Strip and the West Bank as a single territorial unit under the Oslo Accords of the 1990s, it treats the strip separately and differently.
Following Hamas’s surprise attack on Israel and its breaching of the latter’s security fence and assaulting its army bases, villages, and kibbutzim near the border, Netanyahu declared war on the organization and announced that the Israeli Army will invade Gaza with overwhelming force to eliminate Hamas and its political authority. He also announced a number of measures Israel would take both to avenge its losses and to restore its deterrence.
The international law of warfare clearly distinguishes between two sets of conventions relating to war: those governing the initiation of war (Jus ad bellum) and those governing the manner of conducting military operations (Jus in bello). Jus ad bellum governs when a war is considered legal, what acts constitute a legal justification for starting it, how it is declared, and how it is brought to an end. In essence, it states that a war needs to be conducted in self-defense. For this reason, Israel has been projecting its rationale for the war by totally removing or ignoring the context and the decades-long grievances of the Palestinians, including those in the Gaza Strip. Whoever is watching the ongoing conflict today can easily come to believe that Israel is simply responding to an unprovoked attack on October 7 without reference to the preceding 75 years of the Palestinian-Israeli conflict. Israel is thus focusing on fully justifying its attack on Gaza in the language of self-defense.
The more relevant issue at hand is how Israel’s actions comply with the requirements of its conduct of the war, particularly in light of US President Joe Biden’s gentle reminder that he expects Israeli leaders to comply with the laws of war in their fight with Hamas.
International law clearly and entirely separates the rules of jus in bello from the matter of whether the war was legitimate in the first place. Once a nation decides to go to war, rightly or wrongly, it must conduct that war under the rules of this convention. Additionally, the conduct of war is not excused either by the reasons for the war or by the actions of its adversaries. When Israeli leaders are asked about the conduct of their war on Gaza, they repeatedly refer to the events of October 7 and emphasize Hamas’ targeting of civilians, abduction and retention of hostages, and the suffering inflicted upon Israeli society. But all of these do not absolve Israel from the responsibility of acting within the laws of war.
Rules of Conducting Wars
International law governs wars initiated or instigated by aggressive action. It has rules by which belligerents must abide. Among the rules in the conduct of war is that of distinction. An army is required to make a clear distinction between military and civilian people and targets. Noncombatants must be protected and cannot be subjected to bombing. Similarly, civilian institutions and structures cannot be targeted, particularly when civilians take refuge in them. Only military targets—soldiers, installations, and equipment, among other things—can legitimately be attacked. Non-combatants and civilian structures that serve a civilian population are never a legitimate target and an army must take pains to make that distinction.
Only military targets—soldiers, installations, and equipment, among other things—can legitimately be attacked. Non-combatants and civilian structures that serve a civilian population are never a legitimate target and an army must take pains to make that distinction.
A second rule is that of proportionality. Harming, killing, and destroying civilian lives and structures does not necessarily constitute a war crime. An army is allowed to attack military targets and seek military objectives even with the knowledge that civilians are likely to be harmed, but it can only do so if the military objective can only be achieved by such an attack. In such a case, civilian casualties are collateral damage, incidental to the military objective sought. Where such damage and injury to noncombatants is likely to occur, a proportional response must be sought that weighs the importance of the military objective vis-à-vis possible civilian casualties. Additionally, international law distinguishes between political and military objectives, although in practice it is sometimes difficult to make that distinction.
Another rule is that of precaution which requires an army to seek ways to minimize civilian casualties; to be sure, it accompanies the first and second rules. A different method of achieving the objective can be sought or warnings can be given to residents of targeted areas. Another rule relates to the prohibition of certain weapons, particularly incendiary munitions, like napalm and white phosphorous.
Israel’s War on Gaza
As soon as Israel declared war on Hamas, it announced a total siege of the Gaza Strip, cutting off water, food, fuel, and electricity. Gazans have since been treated as an enemy population that should be made to pay for the actions of Hamas. Israeli President Isaac Herzog declared that Gazans are “guilty and responsible” and that they “could have risen up. They could have fought against that evil regime which took over Gaza in a coup d’état.” This announcement followed another by Defense Minister Gallant who described Gazans as “human animals and we act accordingly,” leaving ambiguous whether he was talking about Hamas, its fighters, its administrative structures, or all the people of the Gaza Strip. From the context of the announcement and the conduct of the war so far, it appears that he was talking about all the residents of Gaza.
Israeli announcements and actions since the beginning of the war have not made distinctions between combatants and non-combatants. Israeli leaders have declared that their goal is the total destruction and annihilation of Hamas. On its face, such a declaration fails to make the necessary distinction between noncombatant members and structures of the Hamas administration, and its armed fighters. Furthermore, it makes it easier to slide into a posture that treats all Palestinian civilians, and not just Hamas members, as targets.
In addition to cutting off food, water, fuel, and electricity, Israel has heavily and intentionally targeted a number of clearly civilian institutions and structures, including schools, mosques, churches, clinics, and hospitals.
In addition to cutting off food, water, fuel, and electricity, Israel has heavily and intentionally targeted a number of clearly civilian institutions and structures, including schools, mosques, churches, clinics, and hospitals. The bombing of the Ahli Hospital attracted much media attention due to the killing of a large number of civilians in one strike and because Israel denied responsibility and claimed that the cause of the explosion was in fact an errant missile fired by Islamic Jihad. While there is no conclusive evidence yet, this one incident does not change the fact that Israeli constant and indiscriminate bombardment of other hospitals and civilian structures has killed thousands of Palestinian civilians.
As for proportionality in its response, there does not seem to be evidence that Israel heeds that principle or that it is reluctant to go after Hamas targets even if that causes major civilian casualties. In fact, as of this writing, Israeli attacks have killed over 7,000, 3,000 of whom are children. Some 1.4 million Gazans have been displaced, 600,000 of whom are sheltering in UNRWA buildings. Over 12,000 tons of explosives have been dropped on the strip, causing the destruction of tens of thousands of residences.
To be sure, Israel is not heeding the second and third principles of proportionality and precaution either, both of which supplement the distinction between military and civilian targets. Since the beginning of the attacks on Gaza, Israel has behaved as if it is more interested in destruction than in accuracy. Previously, Israel has used “roof knocking” as a tactic to warn civilians of impending strikes: aircraft drop a low-yield munition on the roof of a building as a signal for residents to abandon it in five minutes. This is in addition to making telephone calls to people or sending messages. Obviously, military commanders, facilities, or installations are not given any warning before being targeted. By sending the message that Palestinians in Gaza are “human animals,” Israel can be assumed to have abandoned this method and Gazans have reported that indeed many residential buildings have been attacked without warning.
On the other hand, and in preparation for a ground invasion, Israel on October 13 dropped leaflets on the northern part of the Gaza Strip and ordered some 1.1 million Palestinians to evacuate the area and move to the southern part within 24 hours. Israel claimed that Hamas was using civilians as human shields, and thus removing them would both save lives and allow its military to achieve its objectives from the war. But convoys of the displaced that were on their way to southern Gaza were nevertheless bombed by Israeli forces, and the area continues to be heavily bombed. It was obvious that the order was simply an attempt to achieve a population transfer, most likely to Egypt where tent refugee camps can be set up in the northern Sinai Peninsula. Indeed, it was reported in Israel that former settlers of the Gaza Strip actually dream of returning to the areas they evacuated when Israel withdrew in 2005.
In preparation for a ground invasion, Israel on October 13 dropped leaflets on the northern part of the Gaza Strip and ordered some 1.1 million Palestinians to evacuate the area and move to the southern part within 24 hours.
Finally, Israel has been credibly accused of using munitions that have long been banned in conflict. White phosphorous bombs have been dropped on both military and civilian targets in Gaza (and Lebanon). Their use causes serious burns and wildfires. Israel has also been accused of using cluster bombs that indiscriminately harm civilians and soldiers, in contravention of the Convention on Cluster Bombs, a treaty it has not yet signed.
Every day brings new statements by Israeli officials as well as actions that clearly violate the laws of war. Worrisome is the open discussion in Israel that this is a unique event that warrants abandoning previously held principles, rules, and regulations. More worrisome is the loud silence of the international community on the crimes Israel is committing in Gaza. One leader of said community, the United States, in fact appears to be aiding and abetting the ongoing killing of civilians in Gaza in the name of upholding international law on the rules of war prohibiting the targeting of civilians in combat.
Photo credit: RNN