Before reading these 7 points on International Humanitarian Law (IHL) please remember that IHL is not ‘best practice’ in a war zone, nor a reflection of my aspirations. It is merely a set of legal minimum standards that warring parties must abide by, nothing more, nothing less.
1. Hamas’ rockets attacks are often, by their very nature, violations of IHL.
The rockets fired by Palestinian armed groups such as the military wing of Hamas or Palestinian Islamic Jihad are often Russian-designed “Grad” rockets. These are widely considered to be so inaccurate that they are incapable of being targeted enough to distinguish between military and civilians. Combine this with the fact that they often launched toward highly populated areas means that they are often, by their very nature, violations of IHL.
2. Neither Israel nor Hamas are prohibited by IHL in fighting in Gaza but the density of the civilian population and infrastructure does impose extra responsibilities on them.
IHL demands that all parties in the conflict “take all feasible precautions” of loss of civilian life and damage to civilian objects (houses, hospitals, mosques etc – I will come onto this more later). Fighting in such an area undeniably makes it harder for the warring factions to distinguish between civilian and military targets but it does nothing to reduce the obligation of the parties to make these checks. Where there is doubt, the assumption has to be that it is civilian and thus protected.
In the Gaza/Israel example, Hamas has a responsibility to ensure that it avoids locating potential military targets in close vicinity to civilians. It also prohibits the use of human shields – something which has been seen in previous conflicts but so far there has been no confirmed evidence that this has happened in the latest fighting.
However, even if Hamas is keeping weapons within civilian areas or buildings, this does not remove any of the obligations imposed on Israel under IHL to take into account the risk to civilians when seeking out these otherwise legitimate military targets.
3. Although Israel normally sends warnings while Hamas doesn’t, this doesn’t impact on their responsibilities to civilian populations.
Israel has widely publicised in this latest round of fighting that it sends ‘knock on the roof’ explosions as warnings that larger attacks are soon to be happening while Hamas rarely if ever sends warning of rocket fire.
IHL requires that warring parties give “effective advance warning” of attacks that may effect civilian populations. Because of the density of the civilian population in Gaza this means in practice that virtually all attacks should have such warnings. The idea is that the warnings would allow for civilians populations to leave the area.
However, if the civilian population refuses to leave, they are still protected persons under IHL. In short, even after delivering an effective warning, Israel must still take all measures to ensure civilian life is protected.
4. It is not just people who are protected but also civilian infrastructure such as hospitals, schools and yes, even the homes of Hamas officials.
Israel has openly stated that in this latest round of fighting they have targeted the homes of Hamas officials. While IHL allows for the targeting of military leaders who are ‘in action’ it does not allow for the targeting of leaders at any time. Attacking the home of a Hamas official who was not present at the time would be an unlawful attack on a civilian object that if carried out intentionally would constitute a war crime.
Something similar applies for schools or religious buildings such as Mosques. However, if any of the above are being used for military purposes, such as a military headquarters or an arms store, then they become legitimate military targets.
The exception to this simple ‘it’s civilian unless you show it is being used for a military purpose’ rule are medical facilities that hold a special place status under IHL.
Like all the above they are considered civilian targets unless they are used for a military purpose. However, Israel then has a further obligation of showing that they were being used to cause them actual harm before they can become a legitimate target.
5. Collective punishment is a war crime
Undertaking actions that aim to punish a population as a whole for things that they have not personally done is a war crime.
6. Why the is no Israeli or Palestinian being dragged to the International Criminal Court (ICC) for these violations of IHL?
The ICC has a mandate to investigate, charge, and try people suspected of genocide, crimes against humanity, and war crimes committed after July 1, 2002.
Quite a few Israelis and Palestinians fit this description. However, the court can only exercise jurisdiction over these crimes if: The crimes occurred in the territory of a state that is a party to the ICC treaty; The person accused of the crimes is a citizen of a state that is a party to the ICC treaty; A country that is not a state to the ICC treaty accepts the court’s authority for the crimes in question by submitting a formal declaration to the court; or The UN Security Council refers the situation to the ICC prosecutor.
At the time of writing neither Israel nor Palestine are a party to the Rome Statute, the treaty establishing the ICC. Israel has signed the statute but not ratified it. Palestine submitted a declaration in 2009 to accept the courts mandate but this was rejected at the time over the ambiguous nature of whether or not it was/is a state. Since then, Palestine has been voted in to the UN has a non-voting member state (confirming in the eyes of the international community that it is a state). However, since that has happened Palestine has not sought the court’s jurisdiction or signed and ratified the Rome Statute.
Thus, in short, the court’s jurisdiction does not cover Israel/Gaza.
7. There are lots of people and organisations who have written, researched and published on this issue that are a lot better sources than me.
And I suggest you read them. For more on IHL, human rights and the Gaza/Israel conflict: