Preparatory Memorandum – War in Gaza and International Humanitarian law – Yuval Shany

What is international (humanitarian) law for? Is international law part of the solution to the conflict in Israel/Palestine or is it an obstacle? Is the Genocide Convention the best legal perspective on the war in Gaza? What is the jurisprudence on non-state actors in ‘international’ conflicts? How does international law regulate or how should it regulate asymmetrical conflicts between state and non-state actors?

International humanitarian law (IHL), also referred to at times as the laws of war, the laws of armed conflict or jus in bello, is a branch of international law aimed at “alleviating as much as possible the calamities of war” (St. Petersburg Declaration, 1868). It does so by limiting the license of parties to an armed conflict to use certain weapons, means and methods of war (Additional Protocol 1, art. 35) and by affording special protection to potential victims of armed conflict – especially, civilians, the wounded and persons deprived of liberty. Post-World War II, IHL has undergone a number of significant changes – which have been referred to by Prof. Theodor Meron, a leading expert in the field and the former President of the International Criminal Tribunal for the Former Yugoslavia, as the “humanization of humanitarian law”. These include the extension of some provisions of IHL from international armed conflicts – i.e., armed conflicts between states with standing armies – to non-international armed conflicts involving irregular forces, guerillas and terror groups, often occurring inside the territory of a state (in the form of civil war), but at times across international borders (e.g., the Israeli-Hamas war). In addition, reciprocity in law application or tit for tat violations, which used to be a main vehicle for enforcing IHL in the nineteenth century and early twentieth century, have been almost fully banned under the theory that victims should be protected independently from violations committed by ‘their’ side to the conflict. Instead, the Geneva Conventions, and subsequently, the ICC Statute, provide for the application of criminal law to hold accountable individual perpetrators of grave breaches and other serious violations of the Conventions. Finally, the rise of proportionality as a key principle of IHL implies a move away from the predominance of military necessity as the sole justificatory basis for almost every act of war to a regime based around horizontal balancing between military and humanitarian needs – for example, legitimate military targets cannot be targeted if the attack is likely to result in excessive collateral harm to civilians. 

Despite the move towards the humanisation of IHL, its application continues to meet immense challenges, which the war in Gaza illustrates. The enforcement of IHL through criminal avenues assumes access to evidence and suspects, which often do not exist. Many states are also unwilling or unable to investigate violations of IHL, and the ICC has very limited capacities to prosecute suspects, and is unable to address the vast majority of serious crimes committed in any specific conflict. But even before establishing the criminality of certain actions, the question whether a specific act or omission constitutes a violation of IHL is often contested – either because the facts are unclear, which is not an uncommon situation in theatres of war governed by the proverbial ‘fog of war’, due to lack of access to important information exclusively held by the different parties to the conflict, and/or because the manner of application of the law is open to different legal interpretations. 

For example, in order to establish a violation of article 57 (2)(a)(3) of the First Additional Protocol, which provides that: those who plan or decide upon an attack shall: refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated; a law-applying body would have to establish what was the anticipated military gain, what was the expected collateral harm and whether the ratio between them was excessive. For a criminal prosecution under article 8(2)(b)(iv) of the Rome Statute – whose very applicability to Gaza is contested, since it was designed to apply in inter-state conflicts and the qualification of the Gaza war is, at best, unclear and may depend on whether there exists a Palestinian state – one has to meet an even higher threshold – ‘clearly excessive’. As a result, the tragic situations inside Gaza – that is, the very large numbers of civilian casualties on the Palestinian side – do not translate immediately into a proof of violation of IHL by Israel. Instead, one has to establish, on a case by case basis, that specific IDF attacks did not serve a military need, failed to distinguish between militants or civilians, or resulted in foreseeable excessive collateral harm. The failure by the Palestinian side to distinguish between civilian and non-civilian casualties in general and in connection with specific attacks further complicates this analysis. 

The challenge of applying the principle of proportionality in the Gaza context is rendered even harder given the fighting tactics of Hamas, which – like in many other asymmetric conflicts in history – chronically violate the principle of distinction, which is another central feature of IHL (see e.g., First Additional Protocol, art. 58). Such tactics include the extensive use of tunnels located underneath civilian objects, which exposes these objects to damage from attacks aimed at destroying the tunnels, the holding of hostages in civilian locations, which generates serious risks for civilians during rescue operations; the operation from civilian areas of Hamas military command centres and rocket launches against Israel; and the alleged use of human shields by Hamas – manifesting itself, for instances, in efforts to prevent civilian evacuations from areas where active hostilities take place. None of this justifies any Israeli violation of IHL, and certainly does not remove humanitarian protection from Palestinian civilians or civilian facilities; still, it provides a strong military justification for conducting attacks against them, which could cause civilian harm – as long as the harm is not expected to be excessive. In other words, the said fighting tactics transform the protection afforded to Palestinian civilians under IHL from absolute in nature – civilians can never be deliberately targeted as such – to a relative one – where they may be regarded, regrettable as it may be, as collateral harm to legitimate attacks against Hamas operatives or assets found in their midst. 

When viewed from this perspective – a high-intensity armed conflict involving thousands of casualties on both sides, with the IDF operating in grosso modo within the IHL framework of necessity, distinction and proportionality – e.g., issuing precautions to civilians, adjusting specific weapons to specific targets with the stated aim of reducing collateral harm and engaging with organisations providing humanitarian assistance – one can wonder whether the Genocide Convention is an appropriate framework for reviewing the Israel-Hamas war. To be sure, genocides can take place during wars; and the fact that IHL is applicable does not exclude the application of the Genocide Convention. Yet, in order to establish a violation of the Genocide Convention, one would typically need to show first that IHL had been violated, since acts undertaken in conformity of IHL – that is, in the pursuit of military objective – cannot almost by definition constitute acts of genocide, since they have an aim other than group destruction and are permissible as a matter of law. 

Furthermore, even if IHL is violated – e.g., by excessive weight given to anticipated military advantage and minimal weight given to expected humanitarian harm, in most cases the intention to secure a military advantage, even if excessive weight was given to such intent, renders it almost impossible to prove an intent to commit genocide according to the caselaw of the ICJ (Bosnian Genocide, 2007), which requires the showing of a plan to commit genocide or of a factual pattern the only plausible inference from is genocidal in nature. Indeed, it was interesting to observe the extent to which the South African submissions to the ICJ in its case against Israel ignored the armed conflict context of the violence in Gaza and the difficult operational challenge posed to the IDF by Hamas embedding itself within the civilian population and seizing humanitarian aid deliveries, and the implications of such tactics for civilian protection in the war. 

This does not mean that the IDF conducted itself flawlessly during the war in Gaza – certainly there have been specific failures, some of which are criminally investigated in Israel – such as the targeting of certain humanitarian convoys – and certain IDF policies that are either legally dubious or lacking altogether in legal foundation – e.g., destruction of certain public and private properties which were used by Hamas in order to prevent it from returning to use it in the future and harsh detention conditions of Hamas prisoners. There have also been reports suggesting an overly permissive process of target identification and proportionality analysis, which, if true, would imply IHL violations and even perhaps war crimes. Still, I would submit that IHL – with its intrinsic balancing formula between military necessities and humanitarian concerns – is a more appropriate framework for evaluation of these practices and policies than the one-directional Genocide Convention that involves an exceptionally high threshold of proof and a one-dimensional perspective on a complex situation – diverting attention from a difficult conversation about balancing between competing interests in asymmetric conflict, and attribution of legal duties and responsibilities to the conflicting parties to such a conflict, to a radical claim about genocidal intentions which allegedly accompanies the entire operation undertaken by one party to the conflict, notwithstanding its limited explanatory power.