Memorandum on international humanitarian law aspects

By Marco Sassòli, honorary professor of international law at the University of Geneva, Switzerland

International law and international humanitarian law are not the solution, but their respect facilitates a solution

International law is probably not an important part of the solution of the Israeli-Palestinian conflict (but rather in certain respects an obstacle, inter alia because Palestinians are convinced that it is entirely with them, which diminishes their readiness to make compromises). More particularly, international humanitarian law (IHL), applicable to armed conflicts and specifically to the Israeli occupation of Palestinian territory is certainly not the solution, which must end the occupation, although its respect could pave the way to build the trust necessary to find a solution.

What is IHL?

IHL protects the life and dignity of persons affected by armed conflicts, but only to the extent States consider their respect to be compatible with the only legitimate aim of an armed conflict, which is to weaken the military potential of the enemy. IHL does not prohibit armed conflicts or occupation but regulates them.

IHL, war crimes and genocide

The most serious violations of IHL constitute war crimes and the individuals responsible must be criminally prosecuted according to the principle of universal jurisdiction by all States.  As genocide cannot only be committed in armed conflicts, its prohibition is technically not part of IHL but several IHL violations may also constitute acts of genocide, if accompanied by the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. While several statements of Israeli officials concerning Gaza may evidence such an intent, I don’t think the actual conduct of the Israeli armed forces shows such intent. They want to eliminate Hamas, not the Palestinian people and that the Palestinian civilian population suffers is a problem governed by IHL. However, at the provisional measures level, the International Court of Justice (ICJ) considered that South Africa rendered it plausible that Israel violated the Genocide Convention. It is understandable that South Africa brought forward claims under that convention, because this was the only basis for jurisdiction between the two States. 

IHL of international and of non-international armed conflicts 

The precise protection offered by IHL depends on the classification of the conflict as international or non-international, the classification of the affected person as a civilian or combatant and many other legal categorisations. 

IHL of belligerent occupation

In an international armed conflict (IAC), IHL continues to apply in occupied territories even after the general close of military operations. IHL offers better protection to protected civilians who find themselves in an occupied territory than to anyone else. Such expanded protection is justified because such civilians are living in their own territory and through no choice of their own come into contact with the enemy who gained territorial control over the place where they live. IHL of belligerent occupation applies as soon as three cumulative criteria are satisfied. First, one State must have gained effective control over territory it did not control before the conflict and does not belong to it. Second, the State formerly controlling that territory must have lost effective control over the territory. Third, that State did not consent to the enemy State’s presence in its territory. IHL of belligerent occupation is designed to allow protected civilians to continue their lives as normally as possible while allowing the occupying power to protect the security of its armed forces. The status of the occupied territory may not be changed. Any such change, annexation or an agreement with local authorities – such as arguably the Oslo accords − cannot deprive protected civilians of their protection under IHL. 

Was the Gaza Strip always an occupied territory?

Under the criteria mentioned above, the overwhelming majority of all States, international organisations, NGOs, scholars and the ICJ consider that all Palestinian territories beyond the 1949 armistice line are, since 1967, and remain, occupied territories. For the West Bank, including East Jerusalem, this is reasonable as Israel exercises direct or indirect control over all its parts, including in the C areas administered by the Palestinian authority, because Israel can at any time regain, as recent events have shown, full control. For the Gaza Strip, the situation was in my view more doubtful before 7 October 2023. Israeli armed forces withdrew from the Gaza Strip in 2005 and the current operations in which it did not succeed to militarily defeat Hamas in 10 months, as well as the thousands of rockets fired from the Gaza Strip on Israel, demonstrate in my view that Israel had no effective control over the Gaza Strip on 7 October. Nevertheless, the majority opinion is that Israel kept, after its withdrawal, control over so many aspects of life in the Gaza Strip (access from the sea and land, control over all imports and exports, population register, currency, etc.) and re-entered so often militarily parts of the Gaza Strip that its occupation never ended. This would mean that Israel has still all IHL obligations of an occupying power, such as to maintain law and order and to provide the necessary foot, shelter and healthcare to Palestinians in need, even in areas actually controlled by Hamas. This would also mean that the default paradigm of any Israeli use of force in the Gaza Strip would be the law enforcement paradigm basically governed by International Human Rights Law (IHRL) and all Palestinian civilians in the Gaza Strip would be protected persons in the power of Israel, benefitting from all rights foreseen in Geneva Convention IV. To me, this seems unreasonable. A more reasonable compromise approach is to consider that Israel kept all obligations of an occupying power in those fields it kept control over after the withdrawal of its armed forces and to admit that even in an occupied territory there can be hostilities, governed by the customary rules on the conduct of hostilities and not by Convention IV. In any case, since 7 October 2023, Israel has regained full effective control over many parts of the Gaza Strip, where it has again all obligations of an occupying power under Geneva Convention IV. Such applicability of IHL of military occupation during the ‘invasion phase’ is, however, not uncontroversial among scholars and States.

The classification of the armed conflict in and around the Gaza Strip since October 2023

The Prosecutor of the ICC considers that the fighting between Israel and Hamas that started on 7 October 2023 comprise an IAC and a non-international armed conflict (NIAC) running in parallel. The conflict between Israel and Hamas is an NIAC, if Palestine is either not considered to be a State or if Hamas does not belong to Palestine as a Palestinian resistance movement because the Palestinian authority rejects it (a point on which the Palestinian authority is often ambiguous). If this is an NIAC, it is well arguable that nevertheless an IAC between Israel and Palestine exists because either:

1. Palestine is a State, and an IAC arises if a State uses force against a non-state actor on the territory of another State without the latter’s consent; or
2. Palestine and Israel are both High Contracting Parties to the 1949 Geneva Conventions, and that pursuant to the text of Common Article 2 of the Conventions, an armed conflict between two High Contracting Parties is international in character; or
3. There is a belligerent occupation by Israel of at least some Palestinian territory.

Hamas is bound by IHL

When IHL of NIACs applies, it binds an armed group involved and protects its members (whether or not they are classified as ‘terrorists’). It is important that IHL binding upon non-State armed groups remains realistic for them. Many IHL rules already take the capacity of parties (and therefore the asymmetric nature of an armed conflict) into account. Beyond that, realistic rules may be ensured by holding either such groups or both parties to an NIAC only to a sliding scale of obligations according to the armed group’s capacity to respect the rules.

If one wanted to apply IHL of IACs also to the fighting between Israel and Hamas (which would have the advantages of avoiding that Israel is bound in conducting hostilities to other rules than Hamas and the difficulty to separate and distinguish hostilities against Hamas and against Palestine), Hamas would either constitute a resistance movement belonging to Palestine, made up of combatants who are legitimate targets of attacks even if they do not have combatant and prisoner-of-war status because they do not comply collectively with the requirement to comply with the laws and customs of war. Alternatively, and in particular if they are considered not to belong to Palestine, its fighters must be civilians, who may only be targeted if and for such time as they are directly participating in hostilities. This seems absurd but results from the ICRC approach that members of armed groups with a continuous combat function are targetable even when they do not directly participate in hostilities only in NIACs.

Clear IHL violations committed by both parties

The armed conflict between Israel and the Palestinians raises many IHL questions, even beyond the classification of the situation and of Gaza as an occupied territory. Anyway, on some issues, there were clear violations of IHL: the Israeli settlement policy in the West Bank (which greatly contributed to the general atmosphere leading to the new outbreak of hostilities, also offering Hamas a pretext for its initial attack); the ill-treatment, rapes, summary executions and taking of hostages by Hamas in Israeli villages near the Gaza Strip; the execution by Hamas of some of those hostages; the Hamas rocket attacks on Israeli towns which even Hamas itself did not claim to be directed at military objectives; the use by Hamas fighters of Palestinian civilians and of hospitals as shields against Israeli attacks (a practice that Israel, in my view, abusively claims to be general and systematic); or the Israeli announcement to cut all supplies to the Gaza Strip. In my view, in particular if the Gaza Strip is, as Israel argues, no longer occupied, numerous ‘orders’ by Israel to hundreds of thousands of inhabitants of the Gaza Strip to move away from their homes or from areas to which they fled previously cannot possibly constitute a warning required (unless circumstances do not permit) by IHL, because such warning must concern an attack directed at a determined military objective and entire areas of the Gaza Strip cannot possibly constitute a military objective. 

Furthermore, there is serious reason for concern about the treatment of Palestinian detainees by Israel (as about that of Israeli hostages by Hamas). In the last 11 months the ICRC is denied access to any Palestinian detainee, in violation of Geneva Convention IV. There are unfortunately serious reports that many of those detainees are systematically ill-treated, if not tortured. 

Finally, in the West Bank, Israel allows settlers to use force against Palestinian civilians (while it should maintain law and order) and its armed forces increasingly use force in ways that at best comply with IHL rules on the conduct of hostilities but not with law enforcement rules which must prevail in an occupied territory. 

Many Israeli practices in the West Bank that violate IHL have been described by the ICJ in its advisory opinion on the legality of the continued Israeli presence in the occupied Palestinian territory, concluding that they cumulatively constitute a de facto annexation, which makes the continued Israeli presence in the West Bank unlawful because it implies an attempt to acquire territory by the use of force. 

None of those violations by one side can justify those committed by the other side (but they may explain why so many Israelis and Palestinians condone IHL violations committed by their side). Similarly, according to the strict separation between jus ad bellum and jus in bello, neither the (contested) right of Israel to self-defence or its undeniable security concerns nor the (contested) right of Hamas to exercise by using force the right of the Palestinian people to self-determination can justify violations of IHL, which was precisely made for such situations.

Particular difficulties to assess whether IHL on the conduct of hostilities is respected

When it comes to Israeli attacks against targets in the Gaza Strip, which already claimed too many civilian victims, including its invasion of nearly the entire Gaza Strip by ground operations, it is much more difficult to determine to what extent IHL is violated. This difficulty is not mainly due to controversies over the law. Whether IHL of IAC or IHL of NIACs applies, whether Gaza is or is not considered to be already now an occupied territory, only lawful weapons may be used, only military objectives, Israeli soldiers and Hamas fighters may be targeted. Even in such attacks directed at legitimate military objectives, the proportionality rule protects to a certain extent – but not completely − civilians incidentally affected by such attacks and both the attacker and the defender must take feasible measures to avoid and, in any event, minimise incidental civilian losses.

What makes the determination in this case difficult is rather the difficulty to establish the facts. It is much easier to establish violations of rules protecting persons in the power of a party, traditionally designated as ‘Geneva Law’ (for example, whether a prisoner has been tortured, a person has been raped or a house in an occupied territory has been destroyed) than it is to determine violations of the rules on the conduct of hostilities, traditionally called ‘Hague Law’ (for instance, whether a person killed or a school destroyed by an air, missile or artillery bombardment constituted a violation of IHL). What counts for the Hague Law is not what was destroyed or who was killed or injured but what and who was targeted. To target civilians or civilian objects violates IHL. Whether an attack is lawful under Hague Law does not depend on the results of the attack but rather an ex ante evaluation by the attacking party. 

As the aforementioned example of the Hamas rocket attacks demonstrates, it is not always impossible to make such an evaluation. In most cases, including in the case of the Israeli attacks on the Gaza Strip, but also for most Russian attacks in Ukraine, establishing whether an attack violated Hague Law requires a complex analysis of several legal factors, including the status of the targeted person or object, whether such person or object was the actual target, the actual or intended use of the targeted object by the adverse party, the military value of the targeted person or object for the attacker compared to the extent of expected incidental effects upon civilians. It is important to stress that in jus in bello, the proportionality rule does not imply a comparison of the number of victims on both sides but a comparison between the expected military advantage of each individual attack and the resulting incidental civilian harm that must be expected because of that attack. 

Difficulties to know the relevant facts and the plans of the parties

Assessing these legal factors necessarily requires knowledge not only of what actually happened (which is already difficult in the fog of war, propaganda and fake news), but also of the military plans of both parties. To evaluate whether the proportionality rule was respected, one should, for example, know how important the intended target was for the military plans of the attacker and the intelligence the attacker had on expected incidental effects. Parties, however, do not make such information public and they do not have an obligation to do so. Fact-finding bodies and the media therefore either neglect the fundamentals of IHL or can come only to very tentative conclusions. In case of individual attacks, only plausibility arguments can be made, except based upon declarations of the attacker, which may evidence violations, such as in the case of Hamas rocket attacks against Israeli towns. In most cases, when apparently civilian buildings are destroyed and/or civilians are killed or injured by the impact of artillery, rockets and aerial bombs, fact-finders, the media and the public have either insufficient evidence that those buildings were the target or whether those buildings were defended by Hamas and therefore military objectives.

Alternatively, certain patterns can be observed which lead to the conclusion that a party probably did not observe IHL. Such conclusions, too, are, however, tentative.

The first OSCE Moscow Mechanism mission of enquiry into violations of international humanitarian law and human rights in Ukraine between 24 February and 1 April 2022, in which the author of these lines participated, concluded, for example:

A detailed assessment of most allegations of […] IHL […] violations concerning particular incidents has not been possible. Nevertheless, the mission found clear patterns of IHL violations by the Russian forces in their conduct of hostilities. If they had respected their IHL obligations in terms of distinction, proportionality and precautions in attack and concerning specially protected objects such as hospitals, the number of civilians killed or injured would have remained much lower. Similarly, considerably fewer houses, hospitals, cultural properties, schools, multi-store residential buildings, water stations and electricity systems would have been damaged or destroyed.

Criminal tribunals do not even have this option, which may explain the limited number of convictions for violations of the Hague law. 

The need for transparency

The lack of any obligation for a party to an armed conflict conducting hostilities to reveal what it targeted, what was its plan and what precautionary measures it took is a serious shortcoming of IHL, which undermines the credibility of conduct of hostilities rules, makes it very difficult to find violations and is a playground for ‘lawfare’ through false accusations.

Although it is not existing IHL – contrary to what IHRL requires in many respects − the only solution would be to require transparency or to establish a presumption against an attacker unwilling to explain that a certain attack was directed against a legitimate target, why it complied with the proportionality rule and what feasible precautionary measures were taken to spare the civilian population. Transparency would also allow Israel to counter false accusations and avoid the impression among public opinion and in particular the Palestinian population that IHL is most often violated, that Israel does not care about IHL, which can only increase hate and accelerate the circle of violence and violations, which make the inevitable search for peaceful solutions more difficult.