International Humanitarian Law and the Israel-Palestinian Conflict
In this article, Solomon B. Shinerock and Alex Bedrosyan analyze international humanitarian law through the context of the crisis in Gaza.
Commentary on the current conflict between Israel and Hamas has brought into popular use a number of terms such as genocide and war crimes that emerge from distinct and specific legal traditions. Using powerful terms like these in political and human rights advocacy can conflate the moral, political, and legal implications of the conflict—or rhetorically, advance certain moral beliefs, cultural allegiances or political agendas. Throwing around legal terms for emotive impact can obscure the important legal framework governing armed conflict that must be applied in addressing this conflict as a matter of international law.
The international community, including the United States, has chastised the Israeli Defense Forces (IDF) for purportedly insufficient protection of civilians and decried the harm to civilian life and infrastructure in absolute terms—some at the fringes even going so far as to say this constitutes evidence of genocide. Others, drawing on extensive experience in urban warfare, assert that Israel’s measures to protect civilians during combat are unparalleled, and note that in comparison to the U.S. military’s actions in conflicts such as Iraq and Afghanistan, Israel’s precautions far exceed what international law mandates.
The required legal analysis, however, is not fulfilled solely by reference to the number of civilian casualties, the kind of precautions taken, or the justifications for starting the war in the first place. Rather, the rules require the warring parties to balance objectively and in good faith the competing imperatives of military necessity and the protection of civilian life. And this exercise is mandatory—even if the adversary refuses to respect the rules of engagement—as Hamas has and will continue to refuse to do—the IDF’s international legal obligations are not excused.
Sources of Law Governing Use of Force and Armed Conflict
The laws governing armed conflict are set out in treaties, international charters and a body of principles known as customary international law—similar in many ways to common law—that have developed based on identifiable state practices, viewed as obligatory, that are practiced and accepted by a sufficient number of states over a sufficient range of time so as to reflect an international consensus that they are law. These laws are part of the larger universe of international law set forth in Article 38 of the Statute of the International Court of Justice (ICJ).
The prevalence of armed conflict throughout history has resulted in a robust body of multilateral treaties (most notably the Geneva Conventions), customs and principles. These rules offer critical principles to assess the legality of actions taken by belligerent parties, particularly as it applies to the protection of civilian lives and civilian infrastructure, which is the greatest driving purpose behind the centuries-old effort to regulate conduct in war.
Jus ad Bellum: Whether a State May Resort to Military Force
To begin at the beginning, a discrete set of principles governs the legality of a state going to war. Associated with the “just war” philosophy that traces its roots to the Greek philosophers, jus ad bellum defines the scope of accepted reasons for engaging in armed conflict. Once a broad and liberal mix that included among other things retribution, deterrence, the acquisition of land, slaves and other resources, and even religious dominance (see, e.g. the Crusades),now the only broadly accepted bases for resorting to the use of force are (1) self-defense and (2) when the use of force is authorized by the U.N. Security Council.
Since the Treaties of Westphalia in 1648, the international community has placed increasing importance on a state’s sovereignty and territorial integrity—the notions that states should be defined by clear borders, within which their governments have a sovereign right and obligation to protect and administer their population as they choose, without intrusion or meddling from neighboring powers.
These principles of sovereignty and territorial integrity are often honored in the breach, but they have gained strength over the past century, principally as reflected in core aspects of the U.N. Charter and related decisions of the ICJ. Article2(3)-(4) of the U.N. Charter requires member states to “settle their international disputes by peaceful means” and prohibits “the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
However, Article 51 confirms that “nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.” Furthermore, Articles 38-42 of the U.N. Charter provide that the U.N. Security Council may authorize member states to use force in response to any “threat to the peace, breach of the peace, or act of aggression” if the council determines that non-forceful measures “would be inadequate or have proved to be inadequate…to maintain or restore international peace and security.”
When force is used in self-defense or as authorized by the U.N. Security Council, the amount of force used must be no more than necessary to repel the armed attack or accomplish the goal authorized by the Security Council. Some human rights advocates have argued for expanding the scope of lawful justifications for military force to include “unilateral humanitarian intervention”. This refers to situations where such force is necessary to protect civilian populations instates where the government is unwilling or unable to fulfill that basic remit (or indeed poses the primary threat to civilians), and the Security Council has not provided the requisite authorization (because of a politically-motivated veto by one of its permanent members).
Advocates of unilateral humanitarian intervention posit that the international community has a “responsibility to protect” civilians facing internal warfare and its attendant atrocities, famine, and internal displacement. The concept played a role in foreign policy decisions in the 1990s, most prominently in the use of force by the United States and NATO to try and protect ethnic minorities from genocide and other atrocities in the Balkans.
Following several decades of American and allied entanglement in the Middle East, however, there seems to be a reduced appetite for such interventions. In the past decade, civil wars, internal unrest or secessionist conflicts in Syria, Iran, Sudan, Myanmar, Azerbaijan and elsewhere have generated massive civilian casualties and atrocities and other human rights violations, but sparked limited interest elsewhere and little or no military response by other countries on behalf of unprotected civilians.
Jus in Bello: How a State May Use Military Force
Once engaged in the use of military force, the parties to the conflict must comply with jus in bello, regardless of their justification under principles of jus ad bellum. These rules governing the conduct of hostilities are independent of the rules that govern whether the use of armed force is justified in the first place.
In other words, a party who has suffered an armed attack from a hostile neighbor is justified in responding with military force, but that justification does not excuse the commission of war crimes in the conduct of the war. Similarly, a party pursuing an illegal war of aggression to expand their territory is not excused merely because they conduct that illegal war in a manner that does not violate the principles of international humanitarian law.
Thus, whether or not a party is justified in resorting to military force, how it uses force is to be judged independently and on the basis of a stable set of rules articulated and enforced in whole or in part through a number of instruments. These include among others the Geneva Conventions, the charters and decisions of international tribunals, and military field manuals that are relied upon daily by field commanders and military lawyers accompanying the armed forces.
Prominent among the principles of jus in bello, and particularly relevant to the conflict in Gaza, are the principles of proportionality, distinction and precaution. These principles work together to further the overarching goal of limiting harm to civilians and preventing unnecessary suffering during armed conflict.
Proportionality dictates that the anticipated military advantage of an attack must outweigh the expected harm to civilians and civilian objects. While parties to a conflict have the right to engage in military operations, they must ensure that the means employed are not disproportionate to the intended military objective. This principle aims to prevent excessive collateral damage and ensure that the use of force is proportionate to the threat posed. It is applied on an attack-by-attack basis, however. This means that a state using force in response to an attack and existential threat from a terrorist group does not have carte blanche to inflict civilian casualties. Rather, the civilian harm from each defensive attack is to be measured against the specific military advantage that attack is likely to confer within the overall defense strategy. Disproportionate strikes are prohibited.
Distinction requires parties to distinguish between combatants and non-combatants, as well as between military objectives and purely civilian objects. Combatants are legitimate targets, whereas civilians and non-combatants enjoy protection from direct attack unless they directly participate in hostilities. Civilian objects, such as homes, schools and hospitals, are protected from intentional attacks, unless they are being used for military purposes at the time of the attack. Combatants are supposed to distinguish themselves through appropriate dress, such that opposing forces are able to distinguish legitimate military targets from civilians and non-combatants.
Precaution requires parties to take all feasible precautions to minimize harm to civilians and civilian objects during military operations. This includes avoiding or minimizing the use of weapons with indiscriminate effects, such as cluster munitions or landmines, and providing warnings to civilians before launching attacks, when circumstances permit. Furthermore, it is absolutely prohibited to use civilians as human shields, or to deliberately place military installations or objectives in or near civilians and civilian objects—particularly with the goal of inviting civilian deaths to use for propagandistic purposes.
All three fundamental rules become more complicated—and more necessary—in the context of warfare in a densely populated urban area like Gaza, where combatants exist amidst civilian populations and infrastructure, and where combatants sometimes intentionally incorporate civilians and civilian infrastructure directly into hostilities.
In the case of Gaza, while Israel may target Hamas where Hamas is hiding, it must take into account the higher expected collateral damage in determining whether a strike will be proportional, and it must call off any strike that will be disproportionate. Israel may target a civilian object that Hamas is currently using for military purposes, but not an object that Hamas is no longer using; and it must never target civilians in any circumstance—except for such time as civilians are directly participating in hostilities. And Israel must take or continue to take extensive precautions to minimize civilian casualties, including issuing warnings before airstrikes, employing only precision-guided munitions, and allowing evacuations. An evacuation plan that is dangerous or impossible on its face (because of an unmanageable number of evacuees, or lack of routes or truly safe destination areas) is not a legitimate precautionary measure.
At the same time, Hamas is absolutely prohibited from using civilians and civilian infrastructure as human shields, hiding among civilian areas (including hospitals, schools and residential areas), disguising its combatants as civilians, and all other conduct whose effect—or intent—is to increase the number of actual or perceived civilian casualties that the terrorist group may then hope to exploit in generating political support from the international community.
Against this backdrop, the question whether the principles of jus in bello have been violated, and by whom, requires a factual analysis informed by experienced and knowledgeable military perspectives concerning the tactical and strategic context for given attacks, which is essential to weigh the anticipated military advantage of such attacks against the known civilian casualties that will result. It can often take years to generate the political conditions to institute legal proceedings, gather and analyze the relevant facts, and analyze them in accordance with appropriate due process, all of which is a predicate to a considered and credible judgment concerning compliance with international humanitarian law.
It must be emphasized that mere retaliation, without a military objective, for a previous attack that was in breach of these principles is prohibited. It can also not be assumed that people in civilian dress who are in the same area with Hamas are combatants or even sympathizers.
Given that Hamas does not distinguish its fighters from civilians, however, it can also not be assumed that people in civilian dress are civilians—in each instance a deeper factual analysis must determine the legality of targeting decisions and the proportionality of a proposed attack. Does this inhibit the Israeli war effort and prevent or delay IDF attacks on legitimate targets? The IDF from hitting legitimate targets?
To be sure, it does, but the laws of armed conflict apply independently of prior breaches, and one side’s violations do not excuse violations by the other. Savagery in the face of equal savagery is an impulse, not an acceptable principle of war and not a strategy that balances military necessity with the protection of civilian lives.
Genocide
South Africa has filed proceedings against Israel alleging Israeli violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). As only states can be parties to proceedings before the ICJ, Hamas is not and cannot be a party to the case—although the ICJ has called for the unconditional and immediate release of the Israeli hostages Hamas is holding.
Article 2 of the Genocide Convention defines genocide as:
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any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. |
This definition has been interpreted and applied by the ICJ (in cases against states) and by several international criminal tribunals (in criminal prosecutions of individuals).
The jurisprudence establishes that it is very difficult to prove genocide. The key question has been the intent of an individual or state when engaging in the acts enumerated in Article 2. To be genocide, the intent must have been the physical (rather than merely cultural) destruction of a substantial part of the protected group.
In many instances the ICJ and international criminal tribunals found that an individual or state did not commit genocide because it was pursuing aims other than the physical destruction of the group. These other aims have included ethnic cleansing (the displacement of a population as distinct from its physical destruction), striking fear in the population, punishing the population for having done a supposedly hostile act, coercing a population to surrender, acquiring territory or pursuing a lawful military objective.
However, once it is established that there is genocidal intent, the existence of an otherwise lawful military objective does not negate a finding of genocide. In other words, it is not a defense that the intended physical destruction of a group was a means to another end; this is still genocide, and genocide is always prohibited. Therefore, the physical destruction of a group cannot be rationalized as necessary to win a war or protect a country.
Similarly, the establishment of a military objective that is inextricably intertwined with physical destruction of the group, or cannot be reasonably attained without the physical destruction of the group, can lead to a finding of genocide. For example, the ICJ and International Criminal Tribunal for Yugoslavia found that the Bosnian Serb forces committed genocide during a military operation in Srebrenica because one objective of their military operation was “to eliminate the enclave and, therefore, the Bosnian Muslim community living there” (Prosecutor v. Blagojević, IT-02-60-T (Jan. 17,2005), para. 674).
A state’s genocidal intent can be proven directly, through expressions of state policy, or by inference from a pattern of conduct involving the Article 2 acts enumerated in the Genocide Convention. In the latter case, the genocidal intent must be the only reasonable inference from the conduct.
The international humanitarian law principles discussed above are relevant to determining whether genocide has been committed. An Article 2 act is unlikely to support an inference of genocidal intent if it was otherwise lawful as a matter of international humanitarian law. For example, the phrase “killing members of a group” in Article 2(a) of the Genocide Convention could on its face include the lawful killing of combatants, as well as civilian deaths that occur as collateral but proportional damage in a lawful strike on a military target. Neither scenario would be persuasive evidence of genocidal intent.
On the other hand, a pattern of jus in bello violations can support the inference of genocidal intent. Since, as described above, jus in bello permits only acts that are militarily necessary, the repetition of acts that are not justified by military necessity can suggest that the perpetrator’s true aim is not merely to win the war but to physically destroy the protected group.
The question is whether the actions of the IDF in Gaza support an inference that, taken together, they are intended to destroy the Palestinian population of Gaza. This consideration likely played a role in the ICJ’s March 28 provisional measures order requiring Israel to take all necessary measures to ensure the unhindered provision of sufficient humanitarian assistance to the civilian population in Gaza (“Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)”, Provisional Measures (March 18, 2024), para. 51). The obstruction of humanitarian assistance to a vulnerable civilian population would be difficult to justify as a matter of military necessity.
Similarly, a state’s seeming denial of the applicability of relevant jus in bello protections may also contribute to an inference of genocidal intent. For example, in its January 26 order indicating provisional measures, the ICJ cited the statement of Isaac Herzog, President of Israel, on Oct. 12, 2023, that “it is an entire nation out there that is responsible. It is not true this rhetoric about civilians not aware, not involved. It is absolutely not true” (“Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)”, Provisional Measures (Jan. 26, 2024), para. 52).
If this statement was intended to convey that civilians are all fair game in Gaza, that is an incorrect statement of law and one for which Israel must answer, given that it comes from Israel’s president. To the extent that it was intended as a defense to a charge of genocidal intent, it reveals a callous misunderstanding of the complex humanitarian crisis unfolding in Gaza.
The ICJ has not made a finding that Israel is committing genocide or other violations of jus in bello, and it has avoided phrasing its provisional measures orders in a way that implies that Israel is doing so. For example, the ICJ did not call on Israel to “desist” from the commission of genocide, or to cease its military operations, both of which South Africa had requested. Rather, the ICJ has only restated Israel’s existing obligations under the Genocide Convention and called on it to ensure the unimpeded supply of humanitarian aid.
If the proceedings continue to the merits, the ICJ will analyze whether Israel is committing the acts enumerated in Article 2 of the Convention and whether it is doing so with the requisite genocidal intent. In this analysis, the ICJ will undoubtedly evaluate the scale of devastation in Gaza, statements by Israeli officials, the nature of Israel’s war aims, and its compliance with jus in bello.
Conclusion
The tragic situation in Gaza provides fertile ground to observe the interplay between the different principles governing initiation of military force, the conduct of hostilities, genocide and their application in contemporary armed conflicts. Understanding these principles and appreciating the complexity of their application in urban conflicts will allow fair minded thinkers to make appropriate legal conclusions based on the proven evidence, consistent with the moral imperative to prevent and reduce the suffering of innocent Palestinians and Israelis alike.
Solomon B. Shinerock is a partner at Lewis Baach Kaufmann Middlemiss. His practice areas include international disputes, international asset tracing and investigation, litigation, complex financial disputes and internal investigations, among others. Alex Bedrosyan is an associate at the firm, where he practices in the areas of international disputes and litigation.
Reprinted with permission from the April 22, 2024 edition of the New York Law Journal, © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.
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