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How have Israel and Hamas broken the laws of war?

‘I hope and I trust that the ICC prosecutor will investigate.’

A man is sitting on cinder blocks that have been placed around graves that have been dug up on the ground. His hair is tilted downwards and his arms are crossed over his stomach. Behind him we see rows and rows of graves that are prepared to bury Palestinians killed in Israeli airstrikes at a cemetery in Deir al-Balah, a city in central Gaza, on 17 October. Ashraf Amra/Anadolu
Graves are prepared to bury Palestinians killed in Israeli airstrikes at a cemetery in Deir al-Balah, a city in central Gaza, on 17 October.

Ongoing hostilities between Hamas and Israel are exacting a brutal toll, especially on civilians, sparking accusations that both parties have breached international humanitarian law (IHL). But what exactly are these laws of war and how do they apply in this situation?

IHL is a set of rules on how parties to an armed conflict should conduct hostilities. Codified in the Geneva Conventions and other international conventions, these rules aim to limit some of the worst effects of fighting and to protect civilians.

“Obviously, both states and non-state armed groups respect [IHL] sometimes and violate it [at] others,” Marco Sassòli, a professor and leading expert on international law at the University of Geneva, Switzerland, told The New Humanitarian.

Importantly, IHL does not address the justifications that states and non-state armed groups might use for starting hostilities. “Humanitarian law deals only with the means employed [once hostilities begin],” Sassòli said.

As such, it can be a narrow lens for viewing and understanding what is happening in Palestine and Israel. But IHL still plays an important role in terms of acting as a deterrent for abuses, and as a potential avenue for accountability. 

“The difference between war and crime is that there are rules about how to conduct war,” said Sassòli.

However, there has been a double standard in terms of where the international community has shown the political will to pursue accountability, according to Sassòli, who pointed to the speed at which alleged Russian violations have been investigated in Ukraine compared to other contexts around the world.

Since 7 October, Israel’s bombardment of Gaza has killed over 3,000 people and injured more than 12,500 others, with women and children accounting for over 60% of those killed, as of the latest death toll on 17 October. The Israeli military and settlers have also killed at least 61 people in the West Bank, and injured 1,250, amid increasing violence there as well. 

The bombardment of Gaza was launched in response to Hamas gunmen breaching the security barrier surrounding the enclave on 7 October and killing at least 1,400 people – many of them civilians – injuring 3,400 others, and taking around 200 hostages.

Since 9 October, Israel has also imposed a complete siege on Gaza, which is governed by Hamas, cutting off electricity and water and blocking the entry of food, fuel, and medical supplies. Efforts to open a humanitarian corridor at Gaza’s Rafah border crossing with Egypt for the delivery of aid have so far failed.

Over 1,200 people are also thought to be trapped under the rubble of destroyed buildings in Gaza. And out of a population of 2.3 million, an estimated one million have been displaced, according to the UN’s emergency aid coordination body, OCHA. Overwhelmed hospitals attending to the wounded are reportedly running out of fuel to power generators and medical supplies, food supplies are dwindling, clean drinking water is scarce, and concerns about the potential outbreak of water-borne disease are growing.

The New Humanitarian sat down with Sassòli recently to discuss these events – and also the situation in the Occupied Palestinian Territories more broadly. The conversation covered a range of topics including: what constitutes a violation of IHL; what rights Palestinians have to resist occupation, and Israel has to self-defence; and how relevant IHL is in a world where enforcement mechanisms are few and far between, and selectively applied.

This interview has been edited for length and clarity. 

The New Humanitarian: Do Palestinians have a right to resist Israeli occupation under international law, and does that right include armed resistance?

Sassòli: Yes, this right exists under public international law, not international humanitarian law. Humanitarian law says, even if you have a just cause, you have to comply with humanitarian law. The Palestinians may exercise their right to self-determination, and they have a claim that would take a long time to discuss, but it is not unreasonable that they have the right to use force to exercise their right to self-determination and to resist occupation. 

But, as everyone who makes war, even for a just cause, they have to comply with IHL. Same for Israel. Israel has a right to self-defence, but it also has to comply with IHL. Both parties of all armed conflicts claim they are right. The victims, it’s not their responsibility that their party has violated the UN Charter or the right to self-determination or whatever. 

The New Humanitarian: Are there precedents of armed resistance to occupation being lawful?

Sassòli: The fight to exercise self-determination concerning South Africa when it was Apartheid South Africa; the UN General Assembly has several times declared that the use of force by neighbouring states, or support provided by neighbouring states to South Africans fighting the apartheid regime – so for the self-determination of the South African people – was justified.

The right to self-determination is similar to self-defence, it’s a justification to use force, but then you have to comply with the rules [of IHL]. And last Saturday, Hamas clearly did not.

The New Humanitarian: You mentioned apartheid, human rights groups have said Israel’s occupation of the West Bank and Gaza, as well as its treatment of Palestinian citizens of Israel, amount to crimes of apartheid. Is that claim supported by IHL? If so, how?

Sassòli: I understand these claims. But in the specific situation of an occupation, I think the law of occupation prevails over the concept of apartheid because the law of occupation requires an occupying power to treat the protected persons – in this case the Palestinians – differently from their own nationals.

Obviously, this occupation has lasted for such a long time. But the very concept of occupation is that you are in a foreign land provisionally and you have to treat those people not like your citizens. That would be annexation, and annexation is prohibited. So they must treat those people differently, and those people must live under their existing legislation and so on. 

The problem, in my view, is that if Israel denies that these are occupied territories, then the apartheid issue [is relevant]. 

I’m not talking about the treatment of Arab Israelis because it is not really an international humanitarian law issue. We are talking about the Palestinians in the Occupied Territories, and there it is in conformity with humanitarian law that they are not treated in the same way as Israeli citizens.

By the way, there shouldn’t be so many Israeli citizens in the Occupied Territories because settlements are prohibited by humanitarian law.

I can understand these humanitarian organisations saying Israel cannot have it both ways; you cannot deny that humanitarian law applies and then say, “Yes, we are just an occupying power, and therefore we treat those people differently than our own citizens”.

The New Humanitarian: Looking at Hamas’ 7 October incursion into Israel, what does IHL have to say about the killing of civilians and taking of hostages?

Sassòli: To the best of my understanding, most or many of these civilians were not even killed in hostilities. They were already in the power of the Palestinian group, and they executed them. Therefore, we don’t even have to check whether these people were soldiers or civilians. It is always a violation of humanitarian law – and a war crime – to execute prisoners or people who are in your power.

The taking of hostages as civilians is also prohibited. To arrest Israeli soldiers and to bring them back to the Gaza Strip is not taking hostages. But Hamas is not saying they are keeping them as prisoners of war as long as this war continues. They are saying they will execute them if Israel bombs them. Bombing Hamas is lawful, so this is clearly an indication that Hamas took them as hostages.

The New Humanitarian: Is the indiscriminate firing of rockets by Hamas into Israel prohibited under international law?

Sassòli: If it is indiscriminate, it is prohibited. In the past, for instance in the 2014 Gaza War, Hamas tried to make the argument that they were targeting military objectives but only had old fashioned rockets that were not very precise, and so on. They also made the argument that, because of the Iron Dome, the effect on the civilian population would not be disproportionate. And, indeed, at that time, there were relatively few Israelis who were killed or injured, while now this is very different.

So, I think this is a clear case of a violation of IHL. During the conduct of hostilities, determining whether IHL has been violated is always more difficult than when it comes to the treatment of people under your power. Nevertheless, in this case, I think it is clear that IHL has been violated in most of these rocket attacks.

The New Humanitarian: What rights do states have to self-defence and to respond to an attack like the one Hamas carried out?

Sassòli: The vast majority opinion, confirmed by the UN Security Council, is that you can exercise the right to self-defence not just against another state but also against an armed group.

But this is not a humanitarian law issue. Humanitarian law says that whether you are defending yourself or you are the aggressor, you have to comply with certain rules. It doesn’t care about the justification about the use of force.

As an international law professor, I can say that, in this case, Israel has a good case to act in self-defence to stop the attacks against Israel – but while doing so it must respect international humanitarian law. 

The New Humanitarian: Does Israel have a right to carry out a ground invasion of Gaza, and under what conditions? 

Sassòli: We have to distinguish between the justification of the war and the means that are employed. Humanitarian law deals only with the means employed.

Nevertheless, I would have to say that, if Gaza is an occupied territory, then it doesn’t matter if Israel redeploys in their occupied territory. Then, we come to humanitarian law, and there, in such a densely populated place as the Gaza Strip, an invader has to deal with the reality. It cannot simply evacuate everyone, and this is the basic idea of humanitarian law, that those who fight have to fight in the environment they find. 

Under humanitarian law, they still have the right to attack military objectives or rocket-launching positions or command and control headquarters of Hamas. But in an environment that is so densely populated, they have to take special care for the civilian population. Nevertheless, even if they respect IHL, there would be plenty of civilian suffering from such a ground invasion. 

The New Humanitarian: Egypt has said it will not allow civilians attempting to escape the bombardment and expected ground invasion of Gaza to enter. Do neighbouring states have obligations to provide safe haven to people escaping violence?

Sassòli: Egypt has absolutely no obligation to accept these people, and it may fear that afterwards these people wouldn’t be able to go back as was the case in Lebanon or Jordan in 1948. The suggestion [by Israeli officials] that all these people should go to Egypt – this would be ethnic cleansing.

Where Egypt would have an obligation – and it’s interesting that no one speaks about this – if Israel doesn’t allow humanitarian assistance into Gaza, then Egypt would have to let humanitarian assistance in. 

To answer your specific questions, morally, perhaps, there is an obligation to say rather than have all these people massacred, let them in. But also, this could be a contribution to unlawful deportation or ethnic cleansing, if this is prearranged between Israel and Egypt. But that doesn’t seem to be the case here.

The New Humanitarian: What is the proportionality principle, and how applicable is it when there is a substantial power imbalance between the two sides, as many people argue there is between Palestinians and the State of Israel?

Sassòli: At least in international humanitarian law, proportionality is not really a problem linked to this power imbalance. Simply, when the Israelis use force, they may use force only against military objectives, and military objectives cannot be the whole of the Gaza Strip, nor the north of the Gaza Strip, nor every member of Hamas, but the fighters of Hamas and their infrastructure. 

When Israel uses force against such targets, it has to take into account the anticipated effect on the civilian population, and if it is excessive compared to the military advantage, the attack is prohibited. 

The difficulty of evaluating whether proportionality was respected or not is obviously that we don’t know the plans. Perhaps it was essential for the plan to attack that specific military objective, and then it would not be excessive to take the risk, but never to deliberately kill civilians. But they must also take feasible precautionary measures: using munitions which are sufficiently precise, perhaps making the attack at a time of the day when there would be less civilians around, and, as I mentioned, warning the civilian population. 

And here Israel has quite a record of specifically warning people about attacks against specific targets. However, the warning simply to say, “We will invade, and therefore don’t stay here”, is not a warning.

The New Humanitarian: In the Israeli bombardment of Gaza that we’ve been seeing since 7 October, has Israel been following the conditions that you have been laying out in terms of avoiding the indiscriminate targeting of civilians and civilian infrastructure?

Sassòli: I cannot make a statement about this because you would have to be on the ground. And even if you are on the ground and you see a destroyed school, you are still not sure about the circumstances. Was this the headquarters of Hamas, or was it nearby, or was it a mistake? Mistakes happen. Precautionary measures must be taken to avoid mistakes, but if they nevertheless happen, they are not a violation of humanitarian law. 

So I cannot say for the time being that humanitarian law was violated. When the full-fledged invasion starts – and we hope this will not happen – then, obviously, it is easier to say prima facie, certain attacks are incompatible with IHL. 

This is something I always criticise in humanitarian law, but, unfortunately, states did not accept a transparency obligation – that the one who destroyed the school has to explain why this was lawful. There is no such obligation. 

The total closure of the Gaza Strip is something we can say violates IHL.

The New Humanitarian: What does IHL have to say about the blockade of Gaza that Israel and Egypt have maintained since 2007? And what about the complete siege of Gaza that Israel announced on 9 October, cutting off water, electricity, and the internet, and blocking food, fuel, and humanitarian supplies? 

Sassòli: The previous naval blockade is a complicated issue. It involves the law of naval warfare where, according to the US, UK, Canadian, Australian, and other military manuals, blockades are still lawful and can be total, except if the purpose is to starve the civilian population, and most people would add that the proportionality principle also applies. 

Everyone, including me, has said that Israel has such control over what enters the Gaza Strip that you don’t need to have a blockade. But we have now seen all of these weapons that Hamas used on 7 October. Some of them have been produced in the Gaza Strip, but some parts for it had to be brought in. So apparently the control was not so strict, and there was a military interest of Israel to hinder Hamas getting these rockets. 

By the way, it’s interesting that when Russia blockaded the Ukrainian coast, Western states strongly criticised it. Here, there is less criticism.

On the land, there was this blockade, which makes the life of the inhabitants of Gaza difficult. But Israel always let through enough food, electricity, water, and food to guarantee, at a minimum, that these people don’t die.

But the declaration to close it totally is absolutely unacceptable.

The New Humanitarian: What does IHL have to say about the establishment of humanitarian corridors to deliver aid during situations like what we’re seeing in Gaza?

Sassòli: This is a difficult issue because, as such, you have to allow humanitarian assistance in. It must be impartial humanitarian assistance. But you can control it, and those who bring the assistance, if there is fighting everywhere, they will not risk their lives for that. Therefore, you need a kind of ceasefire, and this cannot be only one road. It would have to be quite large. And this presupposes an agreement between the parties because both must promise that they won’t take advantage of this corridor to invade or to break out. 

Independently of humanitarian corridors, you have to let goods that are indispensable for the survival of the civilian population in. 

The New Humanitarian: In our coverage, we have seen that aid workers and paramedics in Gaza have been targeted, and a high number of paramedics have been killed. One ICRC staffer told us that Israeli forces refused to ensure the safety of their paramedics. What protections do aid workers and medical personnel have under IHL?

Sassòli: Under the rules on the conduct of hostilities, they are civilians and they have to be respected as all other civilians. In addition, medical personnel have the right to fulfil their medical duties, impartially. So, if an Israeli soldier is wounded, they must also care for the Israeli soldiers. 

Unfortunately, paramedics and humanitarian personnel will also be killed. In my personal opinion, except for the issue of the special protection of medical personnel because they have to care for the wounded, the rest of the humanitarian personnel are not better protected by IHL than any other civilian in the Gaza strip. That goes for journalists as well. Journalists are civilians. 

If they were targeted, this was a clear violation of humanitarian law. Now, when I get hit by a bullet, how do I know if I was targeted or if this was a stray bullet?

The New Humanitarian: Basically, in order to establish whether there has been a violation of international humanitarian law, there needs to be an investigation?

Sassòli: Yes, and this is much more difficult when it comes to things like conducting hostilities than it is when it comes to things like closing the Gaza Strip or Hamas executing people. But it is interesting that when commissions of inquiry and NGOs investigate the Russian attacks in Ukraine, all Western governments were totally shocked by these attacks, although those investigators too had to make all sorts of presumptions and assumptions because you can’t know what the Russian plan was. 

The New Humanitarian: The Palestinian Authority became a member of the International Criminal Court (ICC) in 2015, and the ICC launched an investigation into alleged war crimes in the Palestinian Territories – by both Israel and Palestinian factions – in 2021. What is the status of this investigation, should a new one now be launched, or should actions during the current hostilities be included under the ongoing investigation?

Sassòli: I hope and I trust that the [ICC] prosecutor will investigate. As long as individuals have not been individually indicted, it’s not important whether it is the same or a new investigation. Once a person is indicted, you cannot always add new allegations. 

I must simply notice that the prosecutor was very fast concerning Ukraine. On the other hand, since 2015 when a preliminary examination was launched by the ICC Prosecutor on Israel and Palestine, we haven’t seen any results. 

The conduct of hostilities issues are complicated, as I told you, but the settlements, for example, are not. We have evidence that there are settlements and that the prime minister ordered these settlements, and so on. 

I must say that I have a certain feeling that there is a double standard there. Double standards are unacceptable and undermine the credibility of the law even where it is correctly implemented because then these people, like Putin, can say, “Look, they prosecute me, but they don’t prosecute others”.

The problem of the prosecutor is that, now, he and his cohort are suddenly popular with the US because they make inquiries against the Russians. If they start inquiries against Israel, they could again – as they were under presidents Bush and Trump – become considered to be main enemies of the US. This is pure speculation.

It’s not only a political issue; it is also perfectionism. But they overcame perfectionism in Ukraine, and therefore they can overcome perfectionism in this case. 

The prosecutor could, as he did concerning Russia, take out some clear cases to start somewhere. There are also clear cases with these Hamas operatives, like what they did with these young people in the festival, for example. 

The main thing I would expect from the prosecutor now is to start with some indictments and to speed up. 

The New Humanitarian: Many Palestinians feel they have been failed by IHL over the course of the past 50 years, or longer. Have they? And how relevant is IHL in a world where enforcement mechanisms are few and far between, and the ones that do exist appear to be applied selectively?

Sassòli: I understand their frustration. I would ask them, would you have preferred not to have humanitarian law? It is only because of humanitarian law that they can say the settlements are unlawful, and it’s because of humanitarian law that the Israelis cannot annex the Occupied Territories. 

But obviously, humanitarian law cannot solve their main problem: they want to have a state. But this is not an issue of humanitarian law. 

This is a criticism that has often been made against humanitarian law, that somehow it makes war a little more humane and therefore more bearable. I don’t think anyone makes war by saying we have humanitarian law, and if we didn’t have this we wouldn’t even start because this war would be so inhumane. No one really trusts that it will be respected all the time. 

So, I understand the frustration of Palestinians, but, for instance, if the law of occupation was respected, they would be in a much better position.

As for the double standard issues, look at the Sahrawi. Who cares about them? One cannot balance the suffering of people, but I feel a certain double standard. In Ukraine, there was really a willingness – and I was happy about this – to say now we enforce this law, while here there is less [than] in other cases. But the Palestinians are not the only ones who suffer from such double standards. Remember that, last year, 20 times more civilians died from the consequences of the armed conflict in Ethiopia than in Ukraine.

Edited by Andrew Gully.

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