On 10 May 2021, the Israeli Defence Forces (IDF) fired dozens of rockets in the Gaza strip. These strikes were in response to the 150 rockets launched by the Hamas into Israel, targeting Jerusalem and the mainland following days of clashes after the police cut off the speakers of the Al-Aqsa mosque on the first day of Ramadan and fired gas bombs along with rubberised steel bullets. The strikes by Israel killed several civilians and caused significant damage to Palestinian property. Israel also struck the al-Jaala building in Gaza, which housed the offices of media houses: Al‑Jazeera and the Associated Press, citing the presence of “Hamas military intelligence”. The conflict reached a crescendo last seen only in 2014, when a seven-week conflict exploded, resulting in the death of thousands of civilians.
According to the Israeli Foreign Ministry, the strikes were in the exercise of Israel’s right to self‑defence, a sentiment echoed by US President Joe Biden. Such an approach blurs the distinction between jus ad bellum and jus in bello by conflating the principle of proportionality in the two frameworks. The ICJ has stated that for use of force to be lawful, it must comply with the principles of humanitarian law. While ostensibly directed at Hamas military installations, Israeli airstrikes also targeted civilian buildings and killed innocent civilians. This runs contrary to the principle of proportionality in the jus in bello framework, of avoiding civilian damage. The framework comprises International Humanitarian Law (IHL) and International Criminal Law (ICL), which apply to Israel by virtue of there being an armed conflict and Israel being the occupying force in Palestinian territory. This post argues that Israel’s violation of the applicable international law framework amounts to the commission of war crimes.
Existence of an International Armed Conflict and the status of Gaza as an occupied territory
War Crimes are defined in Article 8(2) of the Rome Statute of the International Criminal Court (ICC). They constitute grave breaches of the Geneva Conventions (GCs) of 1949 and “serious violations of the laws and customs applicable in international armed conflict”.
Both Israel and Palestine are parties to the GCs of 1949, including the fourth Geneva Convention on the Protection of Civilian Persons in Time of War (IVth GC). Under common Article 2 of the GCs of 1949, the conventions shall apply (a) during an international armed conflict; and (b) when the territory of a party is under total or partial occupation. I shall analyse each of these criteria in turn.
An international armed conflict (IAC) refers to a state of war or an armed conflict between the States Parties. Both Palestine and Israel are State Parties to the GCs and are engaged in firing rockets, air-bombing and other hostilities. Despite some controversy concerning Palestine’s status under international law, Palestine has been granted non-member observer state status by the United Nations General Assembly and has a representative office to the UN as a non-member state. It is also recognised as a state by 139 states. Therefore, the situation qualifies as an IAC. The existence of an IAC was also noted in 2006 by the Israeli Supreme Court in the Targeted Killings Case.
The Hague Regulations of 1907 define territory as an occupied territory when it is placed under the control of a hostile army. Gaza has been regarded as an occupied territory since the 1967 Six-day war between the Arab states and Israel, at which point both West Bank and Gaza were seized from Egypt and Jordan, and Israel became the occupying power.
In 2004, the Israeli Supreme Court stated that Israel was an occupying power in Gaza, citing the Hague Regulations. The International Court of Justice (ICJ), in its 2004 Wall Advisory Opinion (paras 90‑101), also stated that Israel was the occupying power in all of the Occupied Palestinian Territory. In 2005, Israel disengaged and evacuated its forces and settlement from Gaza. However, Israel’s status as an occupying power and Gaza as an occupied territory persisted, as was eventually clarified by various international legal bodies. The United Nations Security Council (UNSC) resolution of 2009 and the ICRC’s assessment in 2012 specifically mention the Gaza Strip as an occupied territory over which Israel exercises effective control.
On 3 March 2021, the ICC prosecutor officially opened an investigation into the situation in Palestine, and war crimes committed since 13 June 2014 after a pre-trial chamber of the ICC decided that the ICC had jurisdiction over occupied Palestinian territory.
An occupying power has various responsibilities under IHL: it is under a duty to respect the laws in force in the occupied territory, ensure public order and safety, and prevent the destruction of enemy property. Israel accepts this is as part of customary IHL and is, therefore, bound by these principles.
Violation of customary and treaty IHL amounting to War Crimes
Israel’s actions shall be analysed under the IVth GC and Additional Protocol I to the Geneva Convention relating to the Protection of Victims of International Armed Conflicts (AP I) as it governs rights and obligations during an IAC. However, only Palestine is a state party to the AP I whereas, Israel is not. Therefore, while it does apply to Gaza, the analysis shall include AP I as most of its provisions, including those of proportionality, distinction, and precaution, as referred below, reflect customary IHL (also).
As mentioned above, grave breaches of the IVth GC amount to war crimes, defined in Article 147 include willful killing, harm to body or health, serious injury, and destruction of civilian property without military necessity. War crimes also arise from violations of customs, such as intentionally targeting civilians and their property without any distinction or possessing any military objectives. The targeting of civilian areas with the knowledge that incidental loss of civilian life is possible also constitutes war crimes. These definitions have achieved the status of customary IHL as evidenced by the Rome Statute and Article 2 of the ICTY. Various legislations and manuals of UK, USA, Germany, Australia (also here), Spain reflect the same along with judgments of the ICTY.
Article 48 of AP I states the “basic rule” for conducting military operations: to ensure the protection of civilians, these operations should be aimed only at military objectives. The principles of proportionality, distinction, and precaution are enshrined in customary IHL and Part IV of AP I. Firstly, the principle of distinction states that no civilian shall be the object of an attack. It seeks to prohibit indiscriminate attacks on civilians and attacks not aimed at a specific military objective. This principle is an “intransgressible” part of customary international law. Secondly, the principle of proportionality states that any attack that is excessive compared to the military advantage gained is prohibited and must be avoided if it could cause incidental injury to civilians or civilian objects. Lastly, the principle of precaution states that all viable measures to avoid civilian casualties and harm must be taken with an appropriate assessment of the timing and choice of weapons.
The killing and wounding of multiple civilians including children, and doctors who are specifically protected under customary IHL, amount to grave breaches under the IVth GC. Israel has also violated Article 58(b) of the IVth GC by locating military targets within densely populated areas. It killed twenty Palestinian families and thirty-eight more people on a subsequent day by attacking their houses and not issuing a warning, as required. It must be noted that even warnings of the type previously employed by Israel, as seen before the al-Jaala strike, would not absolve it of international responsibility. Warning is a minimum and necessary requirement but not sufficient to conform with the principle of precaution, which requires all viable measures to be taken to avoid civilian casualties. All rights and obligations apply even after a warning has been issued.
Further, Israel’s bombardment of the al-Jaala building violated the principles of proportionality and distinction. The strikes targeted a civilian building, housing media and journalists who stated that the building had no military connections. In the absence of compelling evidence that an attack on civilian property would provide any definite military advantage, such an attack constituted a war crime. Mere suspicion cannot suffice for conducting such a strike. All feasible measures must be taken to ascertain that it is a military objective. In 2009, the Goldstone Report condemned a similar attack by Israel on the Palestinian Legislative Council’s building during the Gaza War, which Israel accused of being part of the Hamas infrastructure. The report stated there was no evidence of it making any military contribution and classified Israel’s actions, in paragraph 32, as a grave breach for the destruction of property not justified by military necessity. It concluded that Israel had violated both customary and treaty law.
Israel has violated customary IHL previously as well. A resolution passed by the United Nations Commission on Human Rights (UNCHR) in 1982 stated that Israel’s continuous breaches of the IVth GC and AP I constitute war crimes. Since Israel was not a party to the conventions at that time, the commission’s findings were based on a violation of customary IHL, as noted by the Human Rights Council in its 2019 report.
The above discussion shows that Israel has committed war crimes under international law. However, the classification of Israel’s actions as war crimes is not diluted by the actions of Palestine, which may also have committed war crimes.
Kabir Walia is a final-year student at the West Bengal National University of Juridicial Sciences with a keen interest in Public International Law and International Humanitarian Law.
The author would like to thank Atul Alexander and Unnati Jhunjhunwala for their valuable inputs on this piece.