It has been 26 days since Hamas launched its attacks on Israel. In my column a few days after the conflict began, I said that international law provided a framework for analyzing what happened, even as the atrocities committed by Hamas continued to be documented, and as the consequences of Israel’s devastating air strikes on Gaza and the cutting off of the Gaza Strip were still being documented. food, water and fuel began to unfold.
I stand by that. But I also know that for many readers, the events of the weeks that followed—the rising number of civilian casualties in Gaza, the continued hostage taking by Hamas, and the apparent inability of world leaders to agree on a way to protect civilians—a profound A difficult question: does this law actually make sense if it is so difficult to enforce?
Yes. But like any instrument, international law has both limitations and strengths. I’ll dig into that in more detail by trying to answer some of the broad questions I’ve heard from readers and other commenters.
If a wartime attack kills innocent people, how can this be legal?
The laws of war are not intended to prohibit combat entirely, or even to prohibit all killings of civilians. Instead, they set minimum requirements for a situation in which our usual moral rules (e.g., “Don’t kill other people”) have already been suspended and our usual ways of resolving disagreements have failed. In practical terms, as sad as it is, this means that acts of war can be heinous without necessarily being illegal.
“International humanitarian law often seems quite tolerant to us when we view violence in moral terms,” says Janina Dill, co-director of the Oxford Institute for Ethics, Law, and Armed Conflict. “A starving citizen, a displaced citizen, a dead citizen – none of that in itself is evidence of a violation of the law.”
Consider, for example, the rule that attacks on military targets may not cause “disproportionate” damage to civilians. This is one of the fundamental principles of humanitarian law and is intended to protect civilians. But it also presupposes a grim reality: that some civilian deaths could be proportionate. For example, the value of attacking a particular base for enemy operations might be considered so high that an attack on it would be legal even if it meant killing some nearby civilians.
All parties to a conflict have a duty to carefully weigh the facts and ensure that proportionality requirements are met before carrying out an attack. But of course, these decisions can be fraught and subject to disagreement.
If the laws of war are so limited, what are they good for?
The laws have weight, even if (like all laws) they are not always adhered to. Committing war crimes can damage a country’s international status and endanger alliances. Many military personnel employ full-time lawyers to advise on issues such as proportionality. And even many secessionist movements and rebel groups follow international humanitarian law—or at least publicly claim so—as a way to gain credibility.
Although the rules are minimal, they are universal. And they remain in effect no matter how nasty a war gets. Violations by one side do not justify violations by another—a useful way to move away from the bitter debate over which side of the conflict has the greater claim to moral right or to historical resentment.
Take, for example, the issue of human shields. It is a war crime to use the presence of civilians to protect a particular military target from attack. Israel has claimed that Hamas operates from hospitals and other civilian buildings as a way to protect itself. Hamas denies having done this.
But whether or not Hamas uses civilians as human shields, Israel’s legal responsibility to protect these civilians remains the same: it cannot disproportionately harm them or attack them directly.
Will anyone ever stand trial?
International law is not linked to any international police force or to a fast-acting legal system. There is no global emergency number for war crimes.
Investigations into war crimes and crimes against humanity often take years and do not necessarily lead to criminal prosecution. The International Criminal Court in The Hague, founded in 2002, has limited resources. It describes itself as ‘a court of last resort’, aiming to complement and not replace national courts. But domestic courts are often reluctant to prosecute their own leaders and troops.
The ICC has occasionally acted more quickly. In 2022, after a referral from more than forty member states, the court began an investigation into Russia’s invasion of Ukraine – even though Ukraine and Russia are not members of the ICC. And in March this year, the court issued an arrest warrant for President Vladimir V. Putin of Russia for crimes related to his invasion of Ukraine. But the court’s powers are still limited: Putin cannot actually be arrested unless he travels to a country that chooses to enforce the warrant, which is unlikely to be the case.
Some argue that the threat of future prosecution can act as a deterrent. The ICC can say, “This is what the law is. Let me make it clear to all parties that we are watching you, we are documenting what you are doing, and there will be prosecutions,” said Rebecca Hamilton, a spokesperson for the International Criminal Court. professor of law at American University, who previously worked at the ICC prosecutor’s office.
What about the accusations of collective punishment?
Collective punishment is when a person or group is punished for an act that someone else has committed. As the Red Cross says, it is a war crime, but also a violation of international humanitarian law. (It is worth noting, however, that collective punishment is not one of the war crimes over which the ICC has jurisdiction, although it could be prosecuted in a domestic court.)
The ban on collective punishment is “one of the central, fundamental rules of international humanitarian law,” said Shane Darcy, a professor at the National University of Ireland Galway and a leading expert in the field.
But not all attacks on civilians violate that rule.
“We must distinguish between the legal concept of collective punishment and the ordinary, moral concept of collective punishment,” said Adil Haque, an expert on international law at Rutgers University. To violate the law against collective punishment, the actions must be done to punish a person or group. Actions for any other purpose, or simply with careless disregard for civilian life, do not qualify – although they could obviously violate other laws.
In recent weeks, Israel has been accused of collective punishment numerous times, including by a group of independent UN experts. They released a statement saying Israel’s “indiscriminate military attacks on the people of Gaza” amount to “collective punishment.” And UN Secretary General Antonio Guterres said late last month that Hamas’s attacks on Israel “cannot justify the collective punishment of the Palestinian people” and that “even war has rules.”
Evidence points to Israel’s intention to collectively punish civilians in this conflict, Darcy said. “I think the clearest example is the siege declaration that no fuel, electricity or supplies will be allowed in until the hostages are handed over,” he said, citing comments from Israeli Defense Minister Yoav Gallant and from Energy. Minister, Israel Katz.
On Tuesday, the Israeli Authority for the Palestinian Territories said it was monitoring supplies of food, water and fuel and that “the situation is far from crisis.” However, these claims are in stark contrast to reports from the United Nations, humanitarian aid groups and individuals in Gaza that civilians are suffering from severe shortages of basic needs.
“It is illegal for the IDF to ban humanitarian aid for any reason, whether to punish the people of Gaza or to make things more difficult for Hamas,” Haque said, referring to the Israeli military, the Israel Defense Forces. “Similarly, it is illegal for Hamas to take civilians hostage for any reason, whether to punish the hostages for the actions of their government or to use the hostages as leverage in a prisoner exchange.”
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