Professor Mohamed Arafa of Prince Sultan University College of Law (Saudi Arabia) and Cornell Law School considers the present Middle East conflict from various legal perspectives, arguing that no matter the scale of Hamas' actions, the Israeli government must let basic essentials into Gaza...
It is unbearable to observe the events of the last few days in the Middle Eastern region, especially between Israel and Palestine with anything other than shock and horror. These events have left us deeply disturbed, our hearts heavy with the distressing images of death, destruction, and suffering, as we mourn all the dead. At this critical time, we have to think as human rights advocates, educators, decision makers, and above all, as human beings. Everyone on earth should strongly condemn the reprehensible acts committed by Hamas, which include the killing, injuring and hostage-taking of innocent children, women, the elderly and non-combatants. This condemnation surpasses identities, including all individuals, irrespective of their backgrounds, whether Israeli, Palestinian, Muslim, Jewish, or of any other origin.
The deliberate targeting of innocent civilians is vulnerable and it is promising to witness politicians, influential figures and institutions unambiguously denouncing such actions. The President of the United States, Joe Biden warned Israel against occupying Gaza – in one of his most prominent public statements – for restraint as the Israelis respond to the recent terror attacks by the radical militia Islamist group, Hamas. Religious leaders of the Islamic, Christian and Jewish faiths called for humanitarian assistance and corridors to support those under siege in Gaza and appealed for the release of hostages held by Hamas. Globe leaders asked that children, the sick, the elderly and women, and all civilians do not become the victims of the conflict, and may humanitarian rights be respected, above all in Gaza, where it is urgent and essential to guarantee humanitarian passages to help the entire population, and to avoid a severe humanitarian crisis.
In this respect, numerous reports and video footage specify that Hamas’s assault inside Israel involved shocking massacres, abductions, physical abuse, and sexual violence. These criminal activities implicate numerous war crimes, including the prohibition on killing civilians or persons hors de combat (ICC Statute, arts. 8(2)(c)(i), 8(2)(e)(i)), the taking of hostages (8(2)(c)(iii)), rape and other forms of sexual violence (8(2)(e)(vi)), torture (8(2)(c)(i)), and outrages upon personal dignity (8(2)(c)(ii)). What is additional, given the attacks’ extensive nature and systematicity (only one of which is legally necessary), they almost undoubtedly constitute crimes against humanity. Within that category, murder (7(1)(a)), extermination (mass murder) (7(1)(b)), imprisonment (7(1)(e)), torture (7(1)(f)), and sexual violence (7(1)(g)) are all implicated. These are not close calls; international criminal law was intended to outlaw such atrocities. Generally, terrorist attacks were egregious and awful violations of human dignity and cannot be justified in any context on either side. Although facts are still being collected, the available evidence suggests that the murders (killings) and kidnappings constituted war crimes in violation of art. 8 of the Rome Statute and customary international law. In addition to the main proscription against killing innocent civilians, Article 8(2)(a)(viii) of the Rome Statute forbids the taking of hostages. The failure to release the hostages makes this a continuing and constant criminal activity (ongoing crime). These prohibitions apply in both international and non-international armed conflicts, so the performances constitute international crimes irrespective of the classification of the armed conflict.
As for crimes against humanity under Art. 7 of the Rome Statute and customary international law, there is evidence that the attacks were carried out pursuant to an organizational “plan or policy,” which would establish the legal obligation of a widespread (systematic) attack against a civilian population. There is no question that the terrorist acts were carried out pursuant to a plan, since the Hamas attack required extensive organization and advance planning. Moreover, the “widespread” criterion was also recognized by virtue of the fact that the murders occurred in so several cities and sites concurrently. Besides these “chapeau” foundations for crimes against humanity, there were various “predicate” actions committed, including murder violating 7(1)(a), Imprisonment or other severe deprivation of physical liberty violating 7(1)(e), sexual violence violating 7(1)(g), persecution violating 7(1)(h), and other inhumane acts violating 7(1)(k). Definitely, each killing, kidnapping, and inhumane act instituted a separate predicate act. The predicate act of oppression appears mostly relevant to that scenario, because “the perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such” and “such targeting was based on political, racial, national, ethnic, cultural, [or] religious” grounds, in the words of the Elements of Crimes. Thus, a prosecution for crimes against humanity could either claim one predicate act or all of them, with each one adequate by itself to satisfy the legal standard, depending on how narrow or inclusive a case the prosecutor elected to initiate.
Gaza Under Siege and the Starvation as an International War Crime
The Israeli Defense Secretary Yoav Gallant announced, “[…] a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed . . . We are fighting human animals and we are acting accordingly.” This order commands the starvation of civilians as a mode of warfare, which is a violation of international humanitarian law and a war crime (ICC Statute, art. 8(2)(b)(xxv)). Also, it may establish the legal threshold for the crime against humanity of inhumane acts (7(1)(K)) and, depending on what occurs from here, other crimes against humanity, such as those relating to killing (murder and extermination) (7(1)(a-b)). Regarding the jurisdiction and applicable law of the International Criminal Court inside Gaza, due to Palestine’s accession to the Rome Statute in 2015, the ICC has jurisdiction over any offenses either perpetrated by Palestinian citizens (ICC Statute, art. 12(2)(b)) or occurring entirely or partially on Palestinian territory (12(2)(a)). And as Gaza is Palestinian territory (ICC Palestine art. 19(3) Decision 2021), the Court’s jurisdiction applies to all Hamas attacks, whether during the assault in Israel that started on the October 7th or as part of the constant holding and treatment of hostages in Gaza. Further, it applies to Israeli military activities inside or impacting Gaza. The Court has underlined that territorial jurisdiction attaches as long as a “part” of the crime happens on the territory of an ICC State Party (ICC Myanmar Authorization 2019).
It is crucial to address not only the current events but also call out the motives behind the attacks, which include: occupation, settler expansion, epitome collective punishment and oppression endured by the Palestinian people for decades. Nevertheless, Israel’s autonomous withdrawal from Gaza in 2005, a robust case can be made that it remains the occupying power there, because it never surrendered effective control, as obvious through its widespread and impactful perimeter control and recurrent unilateral armed raids back into the area. Whether or not that level of border control and periodic internal force would be sufficient to pursue an aggressive occupation, it is more than conceivable that it has at least been enough to uphold a legal occupation status (with no international consensus), given that one existed prior to 2005. Accordingly, Israel’s position as an occupying power would involve the application of the law of international armed conflict – including its war crimes provisions – to (special rules of belligerent occupation) Israel’s manner in the current status quo. Even if it is not the occupying power, a strong case can be made that Israel is obliged by the law of international armed conflict (and not only the law of non-international armed conflict) in its battle with Hamas due to the absence of Palestinian consent to Israel’s operations in Gaza (Prosecutor v. Ntaganda Trial Judgment 2019; ICRC 2016). Israel being bound by the international law of armed conflict would require that civilians are protected by the lengthier ICC code of war crimes applicable under that conflict classification, as compared to the war crimes list applicable in non-international armed conflict. The former comprises the war crime of starvation of civilians as a method of warfare (ICC Statute, art. 8(2)(b)(xxv)). In non-international armed conflict, that crime was combined into the ICC Statute by amendment in 2019, but the amendment has not yet been ratified by Palestine. Nevertheless, Israel is bound by the customary ban of starvation of civilians as a technique of warfare, which the government itself has recognized. Furthermore, the 2019 ICC amendment reflects recognition that it is a customary war crime in both forms of conflict.
The War Crime of Starvation of Civilians
It should be noted that starvation of civilians – as warfare act – is entirely criminalized and prohibited. Thus, the starvation siege as expressed in Gallant’s statement is a war crime and it could qualify also as the crime against humanity of inhumane acts, given its scale and systematicity. As Gaza’s population is civilian, and there are Hamas battalions in there and, equally obviously, those people are combatants or direct participants in hostilities, they lack civilian protections. However, the presence of those individuals does not alter the population’s civilian aspect as a whole, given that the latter is devastatingly encompassed of civilians, including about 1 million children (e.g. Protocol I, arts. 50(3), 51(3); ICTY Prosecutor v. Karadžić Trial Judgment 2016). Also, civilians do not lose their protected civilian status by declining to leave their homes or their homeland, this declination does not amount to contributing directly in hostilities. Hence, any operation targeted at the whole Gaza’s population is an operation targeted at a civilian population, irrespective of whether warnings are provided. Even assuming that Israel is not the occupying power, it is yet bound by the universal customary ban of starvation of civilians (as a military tactic against enemy), as codified (art. 54 of Additional Protocol I), including as it affects to letting the passage of essentials, as food, fuel – not explicitly recognized – and water, into the inundated area (the applicability of that rule to its control over the delivery electricity to Gaza).
Further, the openly declared siege comprises the intentional denial of food, water, and other necessities to Gaza for the reason of denying those items for their sustenance. Whether the decisive goal is to coerce (or starve out) Hamas fighters (still the goal is being achieved via an operation that purposively denies sustenance to civilians) or to impose suffering on Gaza civilians, it is, in either case, an operation that fails to distinguish between civilians and combatants, pursuant to “the basic rule” of the conduct of hostilities (deprivation targeted civilians). It is a clear case of starvation of civilians as a warfare. Notably, art. 54(3)(b) of Protocol I excludes starvation modes to force the civilian population’s movement. It should be noted that, although declining Israel’s status as an occupying power in Gaza, the Israeli High Court of Justice has per se stressed that the state is however required under international humanitarian law to allow Gaza to receive “what is needed in order to provide the essential humanitarian needs of the civilian population.” So, commending the government for supplying sufficient needs, as the Court found, “the State of Israel accepts and respects the rules prescribed in the laws of war (approval of Israel’s posture 2008), and it is committed to continuing to supply the amount of fuel/electricity needed for the essential humanitarian needs of the civilian population in the Gaza Strip.” Currently, in this case, Israel is refusing even the recognized legal binding commitments.
Also, criminal liability confers when a perpetrator denies/deprives – ongoing – civilians of basic needs (crucial things for survival) with the intent to starve civilians as a warfare (ICC elements). And in evaluating the mens rea (intent) – not the motive – even assuming the goal is to force/starve out Hamas, those undertaking this blockade are pursuing it purposively by starving civilians (intend to engage in this act, whether they desire or lament the civilian suffering that will arise). Regarding the illegitimacy of these acts, the occupying power has a key duty to “ensur[e] the food and medical supplies of the population,” to the fullest extent of the resources accessible to it (Geneva Convention IV, art. 55). According to international norms, “All Contracting Parties shall permit the free passage of these consignments and shall guarantee their protection” and “If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal”, so even assuming the demands of these duties to have been condensed by Israel’s more limited control following the withdrawal. Hence – and taking into account the moral hazard of this interpretation – an occupying power could avoid these legal obligations by withdrawing to the perimeter of occupied territory, and thereby ceasing to “exercise the functions of the government in such territory,” while never surrendering effective control over the supply of necessities into that territory (arts. 3(b), 6, 59, 69, 71 on the instructive feature of the scope of the occupying power’s obligations).
On Both Sides: Genocide or Terrorism?
The Hamas terrorist attacks established genocide in violation of the Genocide Convention and Article 6 of the Rome Statute if the culprits acted with genocidal intent, i.e., the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” (e.g. a particular geographical region, national groups as protected class). For an attack to institute genocide, it is not required that the perpetrators fruitfully accomplish that destruction as a result element; it is enough that the offenders acted with the required “dolus specialis,” which in genocide is the intent to destroy the group wholly or partly irrespective of the political goal). An assessment of a perpetrator’s mental state may be made by consideration of the available facts, including his behavior, and deducing the relevant psychological state if the facts support it. As for the required predicate acts, the attacks implicated arts. 6(a) (killing group members) and 6(b) (causing serious bodily or mental harm to the group members). According to the Elements of Crimes, the predicate acts must have “taken place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.” Given the extensive nature of the attacks on both sides in multiple locations at the same time (large number of perpetrators and victims), it would appear that the “manifest pattern” condition may apply and the terrorist attack was thus genocidal in nature. Additionally, criminal accountability applies not just to the physical perpetrators but to any culpable person linked to them through a mode of liability, as command or superior responsibility, indirect perpetration via an organized apparatus of power, co-perpetration, indirect co-perpetration, or accomplice liability. This could include individuals with a culpable mental state who facilitated the act, even from far away, by aiding its commission, and persons who aid in the future to the hostage-takers are complicit in that crime.
It should be noted that the legal rules on international crimes, apply independent of any legal conclusion concerning the collective right of self-determination, sovereignty, or jus ad bellum (including the right to self-defense). International law protects human dignity in all situations and the aspect to comply with the demands of international criminal law is universal in scope. The criterions of the IHL and the law of armed conflict (LOAC) are universal and apply equally to all parties to an armed conflict, irrespective of who triggered the armed conflict in the first place (reciprocal conditions). This includes a total ban on making civilians the direct object of indiscriminate attack(s), and the prohibition on causing disproportionate collateral damage. Thus, what this means in practice is that a blockade may be used as a tactic only against a legal military target and civilians cannot be its body; as they must have an avenue to escape and deliveries of basics cannot be suspended. Indeed, the International Committee of the Red Cross IHL Database quotes Israel’s Manual on the Laws of War for the scheme that the ban of starvation “clearly implies that the city’s inhabitants must be allowed to leave the city during a siege.”
The analysis of such horrible misconducts legally and concepts may sound clinical in nature, but the criminal law uses terms, notions, and categories to respond to, and expectantly reparation, cases of profound inhumanity, death, destruction, and evil. This should not be misread as a lack of sympathy, obligation, or emotion. Indeed, the opposite is true. In pursuit of justice and fairness, the rule of law as a foundation pursues to translate sharp feelings into real legal consequences.
The atrocities committed by Hamas actors were and remain shocking, however, they cannot rationalize the starvation of civilians. The Israeli government must let basic essentials into Gaza, and governments friendly to Israel should use whatever influence they can to insist that it do so. To quote Faisal Kutty, Muneeza Sheikh, and Faisal Bhabha’s recent thoughtful commentary on these matters: “The actions/statements of Hamas and the Israeli government deliberately contravene international law, Talmudic law, and Islamic law.”
Mohamed Arafa, LL.M., SJD, is a Professor of Law at the Prince Sultan University College of Law (Saudi Arabia) and an Adjunct Professor of Law and the Clarke Initiative Visiting Scholar at Cornell Law School in New York.
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