Israel, Hamas, and the laws of war

Israel, Hamas, and the laws of war

Subject :IR

Section: International conventions

Context: Hamas attacked Israel on October 7, sparking a deadly conflict with significant civilian casualties and hostilities.

What are the laws of war:

• Two fundamental aspects of international law govern conflicts.
  • Jus ad Bellum: This aspect of international law addresses the conditions and justifications for countries to use force in their international relations. It is regulated by the United Nations (UN) Charter.
  • Jus in Bello: Jus in bello concerns the rules that dictate how a war is to be fought, specifying what military actions are permissible. Even if a country is justified under the UN Charter to use force, it must adhere to these rules.
• This law of war, known as international humanitarian law (IHL), outlined in customary international law, the 1949 Geneva Conventions, and the 1977 Additional Protocols, prescribes rules to protect civilians and minimize suffering during armed conflicts. Regardless of the justness of their cause, warring parties must abide by IHL.

Do the laws of war apply to the ongoing military conflict:

• The conflict between Israel and Hamas is considered an armed conflict in international law.
• It falls under the category of non-international armed conflict (NIAC) because it involves non-governmental forces i.e. Hamas in battle with governmental forces i.e. Israel.
• Both parties are obligated to adhere to International Humanitarian Law (IHL).

What about civilian killings:

• International Humanitarian Law(IHL) aims to protect civilians in armed conflicts by distinguishing between combatants and non-combatants.
• Both Hamas and Israel must adhere to IHL.
• Indiscriminate attacks on civilians, as in Israel’s bombing of Gaza, are illegal, and a disproportionate use of force violates the Geneva Conventions, constituting war crimes.

Is hostage-taking legal:

• Hamas’s hostage-taking of Israelis is illegal and classified as a war crime under Article 8 of the Rome Statute and Article 1 of the International Convention Against the Taking of Hostages.

What about the Gaza Strip blockade:

• Israel’s plan to block essential supplies in Gaza, affecting two million people, constitutes collective punishment, a breach of International Humanitarian Law (IHL).
• It violates the principle that individuals shouldn’t be punished for others’ actions and IHL’s requirement for effective advance warnings before attacks.
• Both sides should uphold IHL.

What are war crimes:

• War crimes encompass grave breaches of humanitarian laws within conflicts.
• The Rome Statute of the ICC provides the definition, which draws from the principles of the 1949 Geneva Conventions.
• It centers on the principle of individual accountability for actions committed on behalf of a state or its armed forces. Illustrative examples include hostage-taking, deliberate killings, torture or inhumane treatment of prisoners of war, and the recruitment of child soldiers.

What is Criteria for War Crimes:

• International humanitarian law employs three key principles to determine whether an individual or military has committed a war crime:
  • Distinction: This principle forbids targeting objectives that are likely to cause excessive harm to civilians or civilian infrastructure compared to the expected military advantage.
  • Proportionality: Proportionality restricts the use of disproportionate force in response to an attack. For instance, it prohibits indiscriminate retaliation, such as bombing an entire city for the death of a single soldier.
  • Precaution: Parties involved in a conflict are obligated to take measures that prevent or minimize harm to the civilian population.

What are the Geneva Conventions (1949):

• The Geneva Conventions, established in 1949 along with their Additional Protocols, represent crucial international agreements that set forth fundamental regulations to mitigate the cruelty of armed conflict.
• These conventions provide safeguards for non-combatants i.e. civilians, medical personnel, humanitarian workers and individuals who are no longer able to participate in combat  i.e. injured, sick, and shipwrecked military personnel, as well as prisoners of war.
• The First Geneva Convention protects wounded and sick soldiers on land during war.
• The Second Geneva Convention protects wounded, sick and shipwrecked military personnel at sea during war.
• The Third Geneva Convention applies to prisoners of war, including a wide range of general protections such as humane treatment, maintenance and equality across prisoners, conditions of captivity, questioning and evacuation of prisoners, transit camps, food, clothing, medicines, hygiene and right to religious, intellectual, and physical activities of prisoners.
• The Fourth Geneva Convention protects civilians, including those in occupied territory. The other Geneva Conventions were concerned mainly with combatants rather than civilians.
• Two Protocols of 1977: Additional to the four 1949 Geneva Conventions were adopted in 1977. They strengthen the protection of victims of international (Protocol I) and non-international (Protocol II) armed conflicts and place limits on the way wars are fought.
• In 2005, a third Additional Protocol was adopted creating an additional emblem, the Red Crystal, which has the same international status as the Red Cross and Red Crescent emblems.