Balance of the law

Understanding the basics of International Humanitarian Law

The most recent escalation in the conflict in Israel and the occupied Palestinian Territories has raised significant concerns about violations of International Humanitarian Law (IHL) and the commission of war crimes.

The laws of war were drafted so that parties can fight a war effectively while limiting the damage to civilians. The rules are already skewed in favour of the fighting parties, so there is never any reason to breach IHL.

Some of the laws of armed conflict change depending on how we classify a conflict (either as an international armed conflict or a non-international armed conflict). Many of the rules, however, apply regardless of the nature of a conflict.

All sides are bound and protected by IHL

All sides are bound to apply IHL fully, and a breach by one side cannot be used to excuse a breach by the other. Similarly, the disparity in power between Israel and both the Palestinian government and Hamas does not alter the obligations on any of the parties (although Israel does have specific obligations as an occupying power).

The equality of application is a positive development for civilians. Often, both sides to a conflict will feel they are in the more “just” position and should be given greater leniency in how they fight. If we allowed conflicting parties to change how they fight depending on how ”just” they feel, no civilians would ever be protected.

The equal application also means that members of both Hamas and Israeli forces can, and should be held accountable for any war crimes, crimes against humanity, or genocide that they commit or participate in.

Parties need to protect civilians and civilian objects

One of the core principles of IHL is that parties need to distinguish between combatants and military objectives, which can be targeted, and civilian and civilian objects that are absolutely prohibited from targeting. Civilians are anyone not taking direct part in the hostilities, including journalists, politicians, or civil servants who are not part of the military. When Hamas killed people taking part in the music festival, or who were living in their homes, or with their families, they targeted civilians. This is a war crime.

There is a presumption that civilian objects—including hospitals, schools, and cars—are civilian by nature. If a party wishes to target such an object, they need to have evidence it is being used for military purposes. The burden of proof is on the attacking party to show that a civilian object has lost its protection.

There have been cases where Israeli forces have been accused of attacking civilian objects such as a car turning around on the road, a church and a refugee camp. During an investigation, Israel will bear the burden of showing there was a legitimate reason to attack those objects.

Because parties are obligated to protect civilians, they also need to take precautions to distance themselves from civilians and civilian objects. This can be hard to accomplish when the fighting takes place in a densely populated place like Gaza. In these situations, the parties should take practical steps to mitigate harms to civilians.

Attacks need to be proportionate

Once a party identifies a legitimate military target, either someone engaged in combat or an object that is being used for a military purpose, the party has to plan how it will attack. Attacks can occur even if there will be harm to civilians or civilian objects, but the attack must be proportionate.

Attacks are prohibited if the expected impact on civilians will be excessive compared to the “concrete and direct military advantage anticipated.” This cost-benefit analysis is judged by the beliefs of the one making the attack, and mistakes are allowed. But, disproportionate attacks are a war crime.

There are worrying concerns of disproportionate attacks in Gaza which should be investigated and the perpetrators should be prosecuted and punished.

Annexation of territory, the taking of hostages, and the forced transfers of civilians are absolutely prohibited

Because of the nature of this conflict, and the reports we’re seeing, it is worth noting a few final rules from IHL:

  1. The taking of hostages is prohibited and war crime. Parties can detain combatants from the other side, but they cannot take civilians hostage. Hamas remains in breach of this prohibition and is under an ongoing obligation to release all civilian hostages immediately.
  2. Annexation of a territory is also prohibited. This means that Israel cannot claim land in Gaza (or in the West Bank) by taking it by force.
  3. Finally, parties cannot forcefully transfer civilians from one territory to another. There have been numerous reports of Israeli settlers in the West Bank forcefully displacing Palestinians from their homes while the Israeli military does nothing to stop it, which can also be argued to be a war crime.

The international community has an obligation to ensure the parties abide by and enforce IHL

The conduct expected of members of the international community will differ based on how much leverage and power they have to effect change. States, like the U.S., the U.K., and Iran who supply weapons to Israel or Hamas, have a great deal of power to influence the conduct of the parties to this conflict and they should be using that to ensure that the rules are applied and that breaches are appropriately investigated, prosecuted, and punished.

So far, we have not seen evidence of this manifesting beyond words, which is not sufficient given the power these states have. They could, instead, limit further weapons transfers until the parties better evidence compliance with IHL. In fact, as a party to the Arms Trade Treaty, the U.K. has a distinct obligation to limit weapons transfers until it can be assured that Israel is applying IHL appropriately.