Hamas–Israel conflict: Relevant international law

A Factsheet

The current violence is extremely tragic. Civilians are afraid and are dying. In the face of massive physical destruction in the Gaza Strip, and mounting Palestinian fatalities—undeniably including innocent civilians—it is difficult to form views on the issue.

This fact sheet breaks down the key tenets of relevant laws of armed conflict, all distilled from the International Committee of the Red Cross (ICRC) database of Customary International Humanitarian Law (IHL), which is here.

There are many principles of IHL. The key ones discussed here are distinction and proportionality.

Distinction (ICRC description is here)

  • Military attacks should always distinguish between combatants and civilians, and between military targets and civilian objects. It is absolutely prohibited to target civilians or civilian objects.
  • The rockets coming from Gaza are deliberately aimed at civilian areas. They are also fired in volleys, often over 100 at a time, so as to overwhelm Israel’s Iron Dome anti-rocket system and thereby cause more civilian casualties and greater destruction of civilian objects.
  • Israeli attacks against targets in Gaza have included apartment buildings, which most observers would assume are civilian objects. How is Israel justified in these attacks?
    • According to the laws of armed conflict, a civilian object (including a dwelling place) will lose its immunity if it is used for military purposes (ICRC description is here).
    • When Hamas stores rockets in an apartment building, it renders that apartment building a target (subject to a few other conditions, such as proportionality (see below) and taking precautions when attacking to prevent needless civilian deaths.)
      • Israel drops leaflets, delays attacks and even phones on-the-ground Palestinians so as to avoid civilian deaths. This reduces the military effectiveness of the attack (it gives combatants warning), which is further evidence of Israel’s priorities.

Proportionality (ICRC description is here)

  • Media and other commentators offer grim fatalities tallies, or compare the physical destruction wrought in Gaza and Israel, and argue that ‘Israel is using disproportionate force’. Then they often invoke international law. There are two issues that need to be addressed here:
    • What is proportionately in the laws of armed conflict, and
    • Why is there more death and destruction in Gaza?
  • Proportionality means the force and actions used in each individual attack must be proportionate to the intended objective of that attack. In other words, use the minimum force required to achieve your objective. Moreover, an individual attack that is expected to result in civilian injuries or civilian property damage “which would be excessive in relation to the concrete and direct military advantage anticipated” is prohibited. 
    • Proportionality does not refer to the amount of deaths or destruction on each side.
    • And nor does the accidental killing of civilians automatically render an attack disproportionate.
  • Notwithstanding the legalities, it’s true that the death toll in Gaza is higher, and the physical destruction is worse. This is due to a number of factors
    • Iron Dome: Israel’s anti-rocket system tracks rockets as they’re fired, determines whether they will land in a civilian area and, if they will, shoots them out of the sky. Every single Iron Dome interceptor costs tens of thousands of dollars. Thousands have been used in the past few days. Iron Dome has intercepted 90 per cent of its targets, which has saved dozens of Israeli lives and much physical destruction
    • Bomb shelters: Because of the constant threat of rockets, Israeli homes and public spaces have bomb shelters and/or reinforced rooms, and a siren system that provides locals with as much time as possible to find shelter.
      • Depending on how far they are from Gaza, locals have from 10 seconds warning to up to a minute. This investment in physical security has saved countless lives.
    • Hamas’s use of civilian areas: As is widely known and reported on, Hamas purposefully utilises civilian areas to attack Israel.
      • The purpose is two-fold; to moderate the expected Israeli response (Israel doesn’t like attacking civilian areas, even if such attacks are legitimate) and to draw the condemnations of the world against Israel if the latter does attack and, especially, if Palestinian civilians are killed. Sociologically, a higher Palestinian death toll, even if caused by Hamas actions, will see Palestinian rally to the Hamas flag, therefore garnering more support.
    • Hamas’s misfiring of rockets: About 20 per cent of Hamas rockets have landed within Gaza. These misfired rockets have reportedly caused 17 deaths so far.
    • Lack of protective infrastructure for civilians in Gaza: Hamas has invested millions of dollars in creating reinforced tunnels throughout Gaza. However, these are only for Hamas combatants, to allow for quick movement and to attack Israeli troops, should a ground invasion occur. Hamas won’t let civilians enter them.
  • Proportionality is linked to the principle of military necessity (ICRC description here). In short, “In the case of an armed conflict the only legitimate military purpose is to weaken the military capacity of the other parties to the conflict.”
  • If people suggest Israel is using disproportionate force, you might want to ask them what Israeli response they think would be proportionate.

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