Israel-Hamas war from a legal perspective
DI PAULA MURESAN
After Hamas’ attack, the role of international law in the Israeli-Palestinian conflict needs to be brought to the public discourse. Israel’s use of force with their military campaigns has various objectives, one of them being the destruction of Hamas and the rescue of hostages; allegedly, they act in the name of self-defense, according to Article 51 of the UN Charter. Let's investigate both Hamas and Israel’s actions and see to what point they comply or not with international law.
A few premises
Israel and the state of Palestine - which includes Gaza’s Strip, the West Bank and East Jerusalem - ratified the four Geneva Conventions in 1949. Israel did not ratify the first and second protocols of the conventions in 1977, which further regulated the protection of civilians during war. More precisely, the two additional protocols established: protection to all medical personnel, units and means of transport so that civilians can receive medical care during wartime; a strengthen of the obligation to provide civilians with food, water and other basic resources; that suffering inflicted on an opponent must not go beyond what is necessary to achieve a legitimate military objective.
The Palestinian Authority also ratified the Rome Statute - which allows the International Criminal Court to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression - while Israel didn’t. However, the International Criminal Court has jurisdiction over Palestinian territories; therefore, it is allowed to investigate violations committed both by Israel and Hamas. An international arbiter may establish individual accountability for those who engaged in unlawful actions.
State or non-state actors
One of the first matters to take into account in the ongoing legal debate is establishing whether Article 51 of the UN Charter can be applied to entities that cannot be classified as state actors. Many consider the ongoing war a conflict between a state and a non-state actor, while others view Hamas as the de facto governing authority of Gaza’s Strip. But the two interpretations lead to different implications: if Hamas is considered a state actor, Israel possesses the right to use force in the name of self-defense, according to Article 51. At the same time, if Hamas is not to be considered a state actor, Israel's use of force would constitute a violation of a ius cogens law, a mandatory law. However, after 9/11, the praxis took another direction, and the international community dealt with many cases that included non-state actors.
There is, however, a further issue: establishing if it’s a non-international armed conflict between an armed group, Hamas, and a state, Israel, or if it is an international armed conflict. Israel has been considered an occupying power in Gaza’s Strip territories since 2008. Since Israel controls the borders, the airspace, the electromagnetic fields, and every other basic necessity that enters Gaza’s Strip, this makes it fall under the classification of an occupying power in line with international law. According to the law of occupation, Israel’s use of force may be further restricted and allowed as long as it is done what is necessary to establish order and protect lives within the occupied territories.
Violations and legal implications
An international arbiter may hold Hamas accountable for its violations on October 7: more precisely for the attack against the kibbutz, the murder of civilians, and the capture of hostages. The latter is specifically prohibited by Article 34 of the Geneva Convention and is considered a war crime. Secondly, it will have to establish if Israel has the right to self-defense by taking into account the previously discussed points. However, even if Israel has the right to self-defense, this right must be exercised with respect to International Humanitarian Law, more precisely in accordance with two principles: proportionality and distinction.
The first one implies that the response to the aggression can’t be disproportionate: the goal of using force as a response to the inflicted aggression must never be a vindictive campaign but the termination of the unlawful action. The second principle regulates the distinction between military and civilian objectives.
Also, the total siege - the block of entrance of food, water, medicine, fuel and electricity Israel has been imposing since October 9 - must be justified in accordance with the principle of necessity; otherwise, it can be classified as collective punishment, which is a war crime. Finally, Israeli forces have been using white phosphorus, an incendiary weapon regulated by Protocol III, whose use is prohibited in highly populated areas or close to civil infrastructure. The phosphorus ignites when in contact with oxygen, and burns down organic tissue to the bone, becoming fatal.
Until now, the Israeli-Palestinian conflict eluded the strict adherence to international law. For decades, the international community has been pursuing approaches that bypassed the causes, focusing on the single violations of human rights rather than taking into account the unlawful actions brought forward since 1948. The ongoing failure of the international community to offer a comprehensive solution to the conflict, opens the debate on the effectiveness of the institutions and their impact on crisis management. Recently, attention was raised as a consequence of the perceived double standard in the international community’s approach towards Ukraine: Stefan Talmon, an expert in international law, points out that while the West remains silent on any violation of Humanitarian Law taking place in Gaza, emphasizing Israel’s right to self-defense (which exists), it does not condemn any violation of International Humanitarian Law brought forward by Israel. This inconsistency questions the effectiveness of international institutions. However, as the global scenario evolves, there is room for improvement in better addressing the complexities of conflicts and promoting lasting peace.