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Since the surprise, brutal October 7th attack on Israel by militant group Hamas, the refrain “we are at war” has been heard repeatedly from Israeli commentators – the implication being that a declaration of war allows Israel unrestrained right to retaliate in whatever manner it deems appropriate, irrespective of the consequences.
In fact, the outbreak of armed conflict or the occupation of territory triggers the application of international humanitarian law, the branch of international law that binds all parties, including militant groups such as Hamas, during armed conflicts. It seeks to protect those who are not directly participating in hostilities and imposes limits on the means and methods of warfare adopted by all parties. The rules of war are enshrined in a number of treaties, the most important of which are the Geneva conventions of 1949 and customary international law.
While all states are required to respect and ensure respect for the Geneva conventions, it is difficult to decipher the mixed responses coming from Europe and the US. So far, US diplomatic language may be interpreted as telling Israel that it can do what it deems necessary with the support of the US, but that it must abide by the rules of war. It has also warned Israel to define its political aims and consider what comes after military action. The US fears that Israel is being lured into a quagmire in Gaza that will be long and bloody, and will even further weaken US influence in the region.
US President Joe Biden views the occupation of Gaza as a mistake, but considers it necessary to “take out” the extremists and eliminate Hamas, while acknowledging there needs to be a path to a Palestinian state. His visit to Israel this week will be interpreted as further support for Israel’s actions and risks tying the US even more closely to the bloodshed in Gaza. In the UN Security Council, the US veto has consistently shielded Israel from condemnation.
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The EU position is more complex. EU Commission president, Ursula von der Leyen, has expressed strong support for Israel while failing to call on it to abide by international law. This position drew criticism as it went outside her remit and seemed to support any retaliatory action by Israel irrespective of its human cost and legal implications. At the same time, Josep Borrell, the EU’s foreign policy chief has drawn parallels with Russian tactics in Ukraine. He stated that the siege of Gaza was contrary to international law. This was the EU’s position when it came to Ukraine, where Russian forces besieged communities and cut off water, and it should be the same when it comes to Gaza.
Germany, meanwhile, has never been even handed when it comes to the Palestinian/Israeli conflict. Addressing the Bundestag last week chancellor Olaf Scholz said that “our responsibility, arising from the Holocaust, makes it our ongoing task to stand up for the existence and security of the State of Israel” and said Germany is “firmly on Israel’s side”. Unconditional support for Israel will not absolve Germany of responsibility for the Holocaust, but does make it complicit in the crimes now being perpetrated against the Palestinian population.
Israel has declared a siege of Gaza, restricting access to energy, food and water, and launched thousands of air strikes, killing over 3,700 people at the time of writing, according to the Palestinian health authorities. The stated rationale for this response is to force the release of the hostages. An invasion of Gaza will only highlight the Achilles’ heel that the plight of the hostages presents.
Cutting off water and electricity, mass starvation and the total destruction of Gaza violate a range of international law principles. None is a legally acceptable response or solution. Israel’s combined actions, particularly the killing of civilians and targeting civilian infrastructure, and the use of dehumanising language, raise the prospect of not just war crimes, but also crimes against humanity and possibly genocide.
Israel is saying that the northern Gaza Strip has to be cleared of Hamas, and then it will move further south, without any indication where the over one million displaced civilians will go. This expulsion of Palestinians constitutes a mass collective punishment contrary to international law. The warning to evacuate does not absolve Israel from its obligations and responsibilities under international humanitarian law. Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited. There is no exception. All parties must uphold the laws of war and humanitarian assistance must be provided at all times to civilians.
Installations such as hospitals have special protection under the Geneva conventions, while apartment blocks, schools and places of worship are civilian objects and not military targets. Even if they lose their civilian status when used for military purposes, they may only be targeted when militarily necessary and such action must abide by the principles of humanity, proportionality and distinction. The principle of humanity forbids the infliction of suffering, injury or destruction not necessary for legitimate military purposes. Moreover, Hamas comprises both military and political wings, and it is responsible for a large civilian bureaucracy delivering healthcare, education and other matters. It is not clear which elements Israel is aiming to destroy.
Anyone assessing the prospects of such a campaign should read the US Government Accountability Office reports on Iraq and Afghanistan and the catastrophic failure of the Bush administration’s policy to “cleanse” Iraq of Saddam Hussein’s Baath Party. Even if Israel succeeds in defeating Hamas, an outcome that is not assured, other threats will emerge both in Gaza and the region. The consequences of this conflict will be felt by generations to come, especially in the Arab and Muslim world.
Accountability for international crimes remains inconsistent. The Prosecutor of the International Criminal Court ultimately remains the arbiter when it comes to pursuing investigations and cases. To date he has not demonstrated the same sense of urgency for investigating the situation in Palestine as he has for that of Ukraine. There have been a number of UN and other enquiries in the past, notably the Goldstone Report. These have established facts and set out a comprehensive legal analysis, but they have not led to accountability of individuals or states.
Right now, the immediate imperative is a pause in the fighting to allow an effective humanitarian corridor to open up and negotiations for the release of the hostages.
Dr Ray Murphy is a professor at the Irish Centre for Human Rights in the School of Law, University of Galway