War Crimes in the Israel-Hamas Conflict: A Case for the International Criminal Tribunal Commentary
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War Crimes in the Israel-Hamas Conflict: A Case for the International Criminal Tribunal

Editors’ note: Amid surging violence between Hamas and Israeli forces, JURIST is seeking perspectives from law students, law professors and lawyers around the world. Neither this nor other commentaries constitute JURIST editorial policy, nor do they necessarily reflect the opinions of the editorial team.

Scholars of genocide argue that Israel’s siege of Gaza, which involved shutting off water, electricity, and medication while dropping thousands of bombs on a narrow, densely populated strip of territory, is a textbook example of a war crime. This is one of the realities you seldom hear in Western media. To be clear, Hamas’s targeting of Israeli citizens on October 7, 2023, was despicable and has justifiably drawn condemnation worldwide. The Israeli reaction in the Gaza Strip has included even more war crimes. Targeting or attacking people without cause is forbidden by international humanitarian law (IHL), sometimes known as the law of war, and parties must take protective measures to preserve civilian life when pursuing lawful military objectives. Hamas and the Israeli Defence Forces (IDF) have circumvented IHL, and some of their attacks have been as egregious as crimes against humanity and war crimes.

There is no moral excuse for the horrific killing or kidnapping of anybody, particularly defenceless children. However, international law prohibits using armed action for retaliation, and multiplying war crimes in response to one another will further deepen and intensify the cycle of violence. This piece makes a case for instituting an International Criminal Tribunal for Israel-Palestine (ICTIP) by applying international criminal law and IHL to the continuing war between Israel and Hamas. Even though the situation is moving quickly, it appears almost certain that there will be more civilian casualties.

The Dichotomy Between War and Peace

It is important to quickly address the legitimacy of going to war or jus ad bellum before talking about Hamas and the IDF’s actions in battle or jus in bello. These two matters are handled differently by international law. According to jus ad bellum, force is not permitted unless necessary, such as in self-defence. However, once a battle starts, IHL or jus in bello must be followed by both sides. Put another way, IHL applies to all wars, whether declared lawfully or not. Four fundamental tenets of IHL aim to lessen the effects of war on non-combatants and civilians. In general, human dignity refers to moderation and minimizing the impact of war for the safety and well-being of people. The need to distinguish between fighters and military items and civilians and civilian objects is referred to as distinction. This concept forbids indiscriminate strikes that fail to differentiate between military aims and civilian targets and the targeting of civilians.

According to the principle of proportionality, assaults directed toward military targets are not permitted to inflict harm on civilians over the expected direct and tangible military advantage. IHL clarifies that, in each strike, the anticipated immediate and concrete military benefits must exceed any potential collateral casualties or civilian harm, even though it is impossible to calculate what exactly qualifies as excessive harm. Lastly, military necessity acknowledges that defeating the opposition and winning a battle or war are acceptable military goals but must be pursued in conformity with IHL standards to minimize harm. IHL is applicable in all armed conflicts, no matter how justified the dispute may seem or how the other parties may have behaved. One party’s IHL infractions do not excuse other parties’ IHL violations.

Hamas’s War Crimes in Israel

The recent attacks by Hamas obviously violate IHL. Hamas launched thousands of missiles into Israel at the start of the episode, failing to differentiate between military and civilian targets or lessen the damage to residential areas. The ongoing rocket fire has slaughtered civilians and damaged homes and hospitals. Random attacks that lack specificity violate IHL and constitute war crimes. Under the guise of missile assaults, Hamas gunmen invaded Israel and slaughtered approximately 1,300 people, mostly civilians, in cities, homes, and an open-air music festival. They killed them instantly as they tried to escape, hide, and plead for their lives. More than 3,300 others suffered injuries. These deliberate killings and acts of torture targeting civilians are blatant violations of IHL and entail war crimes. Given how pervasive and organized the onslaught was, it’s likely that murder and torture are also crimes against humanity committed in these assaults.

Additionally, 199 people—mostly civilians, including children—were abducted by Hamas and other militants and brought to Gaza. Hamas has threatened death if Israel keeps up its attack on the Gaza Strip. IHL is violated and a war crime is committed when someone is kidnapped or detained with the intent to murder, injure, or prolong imprisonment to force a third party to act or refrain from working to secure the release of the hostages. This practice is known as hostage-taking. Hamas would also commit war crimes in the event of execution, torture, or inhumane treatment of captives. Additionally, there are rumors that Hamas is using Palestinian and Israeli citizens as human shields in Gaza, protecting regions from military activity by using civilians or protected individuals as human shields. If accurate, this is a war crime and a violation of IHL.

Israel’s War Crimes in Gaza-Palestine

Within hours, the IDF retaliated against the initial assault by attacking Hamas with airstrikes in Gaza. Israeli officials promised to use all available means to avenge Hamas wherever it is hiding and destroy those areas. US Secretary of Defence Lloyd Austin said that the United States and other nations—France, Germany, Italy, and the United Kingdom—promptly promised to help Israel in its efforts to “defend itself and protect civilians from indiscriminate violence and terrorism.” On October 18 and 19, US President Biden and UK Prime Minister Rishi Sunak flew to Tel Aviv to express their solidarity with Israel. Yet Israel hasn’t just acted in self-defence when it comes to Gaza. Israel’s actions are meant to be revenge, and it is evident that the IDF has abdicated its responsibility to adhere to the laws of war by asserting that Hamas is responsible for all in Gaza. There are worries that the IDF is breaking IHL, committing war crimes and crimes against humanity, and that this apparent desire for retribution and disdain for the laws of war is a red flag.

As of October 16, the IDF has carried out thousands of attacks throughout Gaza, leaving at least 2,800 people—more than 60% of them were women and children—dead or injured. These strikes target markets, hospitals, refugee camps, mosques, schools, and entire neighborhoods. Rear Admiral Daniel Hagari, an IDF spokesperson, acknowledged on October 10 that “the emphasis is on damage and not on accuracy,” even though many of these attacks seem indiscriminate. It also seems the IDF is not taking the essential safety measures to prevent civilian harm. For example, Israel has used advance warnings before bombing civilian areas in previous conflicts, but this practice has now been abandoned. Even if some Israeli authorities claim that Israel abides by international law, assaults without warning or indiscriminately targeting densely populated civilian areas with white phosphorus are against IHL and may constitute war crimes. They could be considered crimes against humanity if carried out frequently or systematically. Any transgressions by Hamas, like using human shields, do not diminish civilian protection or the IDF’s onus to uphold IHL and safeguard civilians.

Israeli Defence Minister Yoav Gallant planned a complete siege of Gaza on October 9, promising that nothing would enter the area—not even medical staff or aid for thousands of injured—and that “no electricity, no food, or fuel” would be allowed. In addition to airstrikes, an order was given. Gaza today lacks electricity and water, and hospitals are overflowing because of the unprecedented bloodshed. The situation worsened despite the closure of the two border crossings into Israel and the IDF’s bombing of the Rafah crossing into Egypt. People can’t just run away. The siege’s launch was postponed due to disagreements between Egypt, Israel, and Hamas.

Entirely besieging a civilian community in retaliation for Hamas’s hostage-taking of Israelis violates IHL and probably qualifies as a war crime of collective punishment. Arguments to the contrary misrepresent established IHL, which makes it quite evident that people must be spared from a siege. According to Israel’s military guidebooks, civilians must be allowed to evacuate a besieged area or be provided with food, water, and humanitarian aid. If the siege results in civilian fatalities or famine, it probably qualifies as a crime against humanity, murder and inhumane acts, and a war crime.

Additionally, Israel has begun to enter Gaza on foot. On October 13, Israel demanded that 1.1 million people living in northern Gaza leave the area within 24 hours. Médecins Sans Frontières and the World Health Organization called this order to evacuate half of Gaza, which is primarily made up of children and the elderly, “outrageous,” “as absurd as it is intolerable,” and “tantamount to a death sentence.” The order comes amid a complete siege that is preventing the entry of fuel and the exit of people, an ongoing conflict that has resulted in significant casualties, damaged roads and infrastructure, and even the death of those trying to comply with the order. The International Committee of the Red Cross also issued an extraordinary statement, cautioning “catastrophic humanitarian consequences.” The order and the ensuing mass relocation of individuals are against IHL and may amount to a war crime and a crime against humanity, including forced transfer. The directive also creates the possibility that civilians who refuse to leave northern Gaza may be treated as fighters by the IDF, leading to further civilian deaths.

The Way Ahead for ICTIP

It is difficult to comprehend how the victims of the awful slaughter on October 7 in Israel and their families will heal or how the Palestinians, under siege and constant bombing, will cope with the tragically rising death toll. Nevertheless, the gunfire and explosions will eventually end, and the dust will settle. By then, any political solution to break free from the “impunity-fueled repression and cycles of bloodshed” that have grown all too familiar in the Gaza Strip and Israel will need to include responsibility as a crucial element to go forward. On October 11, the UN representation of Israel acknowledged the necessity of ensuring accountability for Hamas’s crimes, while the UN representation of Palestine called for the equitable and just application of international law to safeguard its population. Both authorities must ensure that their forces hold anyone violating the law accountable. If they do not, the International Criminal Court (ICC) shall have jurisdiction over war crimes and crimes against humanity in Israel and the Gaza Strip. However, Israel will not accept the ICC jurisdiction, as it is not a party to the ICC Statute. The only viable option is instituting the ICTIP for punishing war crimes and crimes against humanity unless it is too late to secure the posterity in the region.

Nafees Ahmad, Ph.D., LL.M., is an associate professor, Faculty of Legal Studies, at South Asian University, New Delhi.

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