Almost as numerous as the missiles and rockets currently flying between Israel and Gaza are the accusations of war crimes, i.e. serious violations of international humanitarian law (IHL): attacks directed against civilians, hostage taking, indiscriminate attacks, disproportionate attacks, attacks on hospitals, violence aimed at spreading terror among the civilian population, starvation, collective punishment, and more. “Crimes against international law are committed by men, not by abstract entities,” but attributing these colossal human sufferings solely or primarily to the criminal behaviour of individuals downplays the serious, complex structural problems that stand behind these individuals. As the UN Secretary General has reminded us recently, war crimes do not “happen in a vacuum.” Even though structural problems do not justify individuals in committing war crimes which must be prosecuted, their prosecution only addresses the symptoms, and only imperfectly, without curing the disease, which requires remedies from other parts of international law. This may be illustrated by exploring the escape routes for the civilians in Gaza who are under heavy bombardment at the time of writing.
On 13 October 2023, Israel called for 1.1 million Gazans to evacuate to Southern Gaza in anticipation of military operation in Gaza City. Some were led onto so-called “safe routes” that were bombed. Others who reached Southern Gaza found themselves still under continuous bombardment. Those who have stayed or returned after fleeing because of the dangerous journey were subject to further bombing, such as the Jabalia refugee camp bombing by Israel, which claims to target senior Hamas leaders following warnings to evacuate civilians since 13 October 2023.
The predominant approach to analyse all these is through the lens of IHL and war crimes, which can connect atrocities to individuals with human faces to assuage the urgent emotional need for accountability. As the UN has observed, the Jabalia refugee camp bombing could amount to the war crime of disproportionate attack for as the ICRC commented, “[i]ncidental losses and damages should never be extensive.” Israel’s expectation that civilians should have vacated the camp following its call for evacuation could indicate that the entire camp area was treated as a single military objective, amounting to the war crime of area bombing. A UN expert has also denounced Israel’s call for the evacuation of 1.1 Gazans as a forcible transfer in violation of IHL and therefore, a war crime.
“This is a wake-up call for us to look beyond IHL … into other bodies of international law.”
It has been debated whether Israel’s original call for evacuation constitutes a forcible displacement in violation of IHL or an advance warning of attack obliged under IHL. IHL even specifically provides for establishing neutralised zone or hospital and safety zones to shelter civilian from the effects of war, and implicitly contemplates evacuation to a foreign country. The potential legality of these escape options under IHL should not, however, detract from the fundamental questions of why anyone should leave their homes to facilitate a military assault, or face a proportionate attack, or be an “incidental loss,” all allowed by IHL. Exploring the escape routes for the Gazans thus presents a catch-22 dilemma: their immediate needs for safety might be met at the cost of even greater peril in subsequent military escalation. This is a wake-up call for us to look beyond IHL, which accepts the armed conflict as is and regulates the conduct of individuals caught up in it, and more deeply into other bodies of international law regulating the structural conditions that make armed conflict and IHL violations within it possible.
The use of armed force in international relations is generally prohibited by the UN Charter except in self-defence. In the mid-2000s, the International Court of Justice has opined on two occasions, one of which related to specifically Israel and Palestine, that armed attacks not attributable to a state do not trigger the right of self-defence. In light of these holdings, Israel’s continuous claim of self-defence in attacking Gaza may be seen as confirming Palestine’s status as a state under international law. If one traces Israel’s occupation of Gaza back to the six-day war in 1967, where Israel used force to “pre-empt” an armed attack that had not actually occurred, Israel’s continuing occupation of Gaza since then becomes itself a continuing armed attack which entitles Palestine to the right of self-defence. Even if Hamas’ 7 October 2023 attack in Israel as an act of self-defence was seen as disproportionate, Israel’s right to defend itself against that attack is limited to the extent necessary and proportionate to halt and repel it. And even if bombing Gaza is somehow seen as necessary to halt and repel the continuing rocket attacks from Gaza that break through Israel’s Iron Dome system, the scale and intensity of the bombardment cannot be considered necessary or proportionate to achieve that goal.
The 7 October 2023 attack was conducted against the background of the persistent denial of the Palestinians’ right to self-determination and long-term, gross violations of civil, political, socio-economic, and cultural rights in Palestine. While the latter do not justify any violation of IHL, they create structural conditions that hinder IHL compliance when conflict erupts. Israel’s tight and illegal land, air, and sea blockade on Gaza to control Gazans’ activities was answered by Palestinian militants’ construction of a labyrinth of underground tunnels network as an all-purpose military compound, which in turn renders the commingling between militants and civilians almost inevitable. Airstrikes by Israel in the tiny, crowded, and sealed Gaza Strip then tend to cause extremely high civilian casualties, generating deep resentment and fuelling militancy, building momentum for fresh rounds of violence that are pre-disposed to violate the UN Charter and IHL. There is no short-cut to curing these “root causes of recurrent tensions, instability, and protraction of conflict,” which would require transforming the structural conditions by fully respecting, protecting, and promoting the human rights of all concerned in accordance with international human rights law.
The Use of Force against Individuals in War under International Law: A Social Ontological Approach is available on Oxford Scholarship Online via institutional access.
Featured image by Chuttersnap via Unsplash (public domain)