News / Middle East

Gaza Conflict: What Exactly is a War Crime Anyway?

Ahmad and Mahmoud al Masri sit during the sunset on the rubble of their family house destroyed by Israeli strikes in the town of Beit Hanoun, in the northern Gaza Strip, Aug. 12, 2014.
Ahmad and Mahmoud al Masri sit during the sunset on the rubble of their family house destroyed by Israeli strikes in the town of Beit Hanoun, in the northern Gaza Strip, Aug. 12, 2014.
Mike Eckel

The argument, made by an American law professor and presented to the Israeli parliament as Israeli forces pummeled Gaza and Hamas rained rockets, was as provocative as it was straightforward:

Israel has the legal right to shut off electricity and water to Gaza as part of its Operation Protective Edge, which, now in its fifth week, has resulted in more than 1,900 deaths and more than 10,000 injured.

Howls erupted in legal circles. Days later, dozens of legal experts around the world piled into a debate with origins dating back decades, if not, centuries: in times of armed conflict, what exactly is a war crime?

“How do you balance military targets with human lives? That’s exactly what all commanders must do,” said Gary Solis, a U.S. law professor and author of a definitive textbook on war crimes and humanitarian law. “And many think the Israelis have not done this well.”

War has evolved quickly over the years. Less so the laws of war. Also known as humanitarian law, the laws of armed conflict were birthed in the U.S. Civil War, matured in the devastation of the First World War and refined after the Second, built on the proposition that even if war is inevitable, it doesn’t have to be immoral.

The 1949 Geneva Conventions, adopted by every country in the world, spell out the rules for everything from how prisoners of war should be treated and who exactly is considered a soldier, to what objects or buildings are considered legitimate targets. Two “Additional Protocols” updated those rules in 1977 to include special protections for children, women and civilian medical personnel, and measures of protection for journalists.

The International Committee of the Red Cross, considered the interpreter of international humanitarian law, or IHL, tries to be the neutral arbiter of conflicts like those now raging in Gaza, Ukraine and Syria.

As of last Friday, more than 1,900 people had been killed in Gaza, along with 10,000 wounded and at least 400,000 people displace, according to the ICRC. That included at least 10 people killed when Israeli artillery hit a United Nations-operated school that was sheltering women and children.

U.N. Secretary-General Ban Ki-moon called that shelling a "criminal act.”

Necessity vs. Proportionality

"International humanitarian law is meant to strike a balance between military necessity and humanitarian considerations,” ICRC president Peter Mauer said in a statement Aug. 8. "Having seen the destruction on the ground, and met the victims of the hostilities, I can affirm first-hand that this balance has not been respected.”

Humanitarian law’s slow evolution was jolted by the Sept. 11, 2011 terror attacks, whose resulting wars highlighted the laws’ limitations. It’s one thing to have armies clashing on a battlefield — think U.S. and German tanks in the Ardennes in 1945. It’s another when the enemy doesn’t wear uniforms, or targets civilians with suicide bombs. When an attacking force launches Qassam rockets near schools or hospitals, or a soldier fires a Hellfire drone missile with the push of a button from suburban Washington, D.C., the Geneva Conventions’ proscriptions seem almost quaint.

That was something the Bush administration struggled with, what to call men captured in Afghanistan who may or may not have had connections to al-Qaida. Under traditional laws, they would have been called prisoners of war and entitled to legal protections. For some Bush advisers, that was problematic: a “terrorist” is not the same as an “enemy combatant.”

“The verbal gymnastics that the U.S. and others have undertaken is a good illustration of the conceptual challenge that IHL has had in trying to keep up with this new form of conflict,” said John Ciorciari, an assistant professor of international law at the University of Michigan’s Gerald R. Ford School of Public Policy.

Last month, Abraham Bell, a professor at the University of San Diego, submitted a legal brief to the Israeli Knesset arguing that Israel is within its rights to cut off the water and electricity supplies it provides to Gaza.

“In times of armed conflict, warring parties have to allow humanitarian supplies to flow to civilians [in] enemy territory as long as they are certain the supplies will not be appropriated by the enemy combatants,” Bell said in an email interview with VOA. “[B]ut they obviously have no obligation to provide the supplies themselves, and they certainly have no duty to allow the passage of non-humanitarian goods.

On July 26, on the legal blog OpinioJuris and elsewhere, Bell was rebutted by others who called cutting off power and water a violation of humanitarian law: civilians in Gaza are not combatants and shouldn’t be targeted as part of military action.

That question, Cornell University law professor Jens David Ohlin said, turns on whether Gaza is considered occupied or not.

“If Gaza is occupied territory, then Israel has certain humanitarian obligations to the residents of Gaza based on Israel’s status as a belligerent occupier of the territory,” Ohlin wrote in an email. “Many questions of international law hinge on whether a territory is a state or not, and the status of Palestine continues to be controversial and unsettled.”

Days after Bell’s argument circulated on OpinioJuris, an open letter signed by more than 140 legal experts from around the world began circulating on the Internet, accusing Israel of war crimes. The letter, which doesn’t appear timed to Bell’s argument, argued that, among other things, Operation Protective Edge was in fact part of an armed conflict that’s been ongoing since 1967.

Asymmetric Warfare

Many argue that Israel, which has “smart” weaponry, sophisticated surveillance and a clear command structure, has a greater duty to avoid civilian casualties. If you have satellite-guided missiles that can be targeted with pinpoint accuracy, then using an artillery barrage in an area crowded with civilians is indiscriminate — illegal.

Others point to the fact that Hamas is firing its missiles amid Gaza’s high-rise apartments where Palestinian civilians live— also a violation under IHL. The Palestinian group Hamas also doesn’t fit the traditional definition of a combatant; rather it is closer to something called a “non-state actor,” a legal concept that, according to Ohlin, is only gradually being incorporated in international legal thinking.

“What we’re seeing in Gaza are the problematic outcomes when you try to apply IHL principles in these highly asymmetric conflicts,” Ciorciari said.

Prime Minister Benjamin Netanyahu has said Israel tries to minimize civilian casualties in Gaza, and instead insisted that Hamas uses human shields in its tactics.

“Israel deeply regrets every civilian casualty, every single one. We do not target them; we do not seek them,” he told reporters in Jerusalem on Aug. 6. “The people of Gaza are not our enemy. Our enemy is Hamas.”

The goals of prosecuting war crimes overlap with the International Criminal Court, the 12-year-old Hague-based tribunal established to prosecute war crimes, as well as genocide and crimes against humanity. The Palestinian Authority has signaled it might seek an ICC criminal investigation into Israeli tactics in Gaza. That, however, might also result in investigations for Hamas leaders, also for war crimes.

On Monday, the United Nations Human Rights Council announced the appointment of three experts to look into possible legal violations in Gaza, a step that in the past has resulted in full criminal investigations in other places.

“A pox on both their houses,” Solis said.

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Comments
     
by: Kenneth Gelnick from: Bronx, NY
August 15, 2014 10:23 AM
Although I do not agree that Israel committed war crimes, I would have to concede it would not be unreasonable to investigate this conflict as well as all other conflicts to see if war crimes were committed. However, there is no doubt as to Hamas. Firing rockets from civilian areas at civilians is a war crime. And if Hamas can evade being guilty of a war crime because it isn't a state, then it is certainly guilty of genocide. Article 2 of the Geneva convention on Genocide convention defines genocide as:
...any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Hamas has killed numerous Jews because they are Jews, both inside and out of Israel. Hamas has at the core of its charter the destruction of Jews. If it isn't guilty of war crimes it is guilty of genocide. By voting for and supporting Hamas the Gazans are at least accomplices in the genocide. Israel whatever you say does not have as its founding Raison d'être the killing of Arabs. Hamas's Raison d'être is the killing of Jews.

by: Leroy Padmore from: Jersey City
August 14, 2014 6:08 AM
If the UN wants to charge Israel with war crime, they are bias and it is antisemitism. What about Assad that killed thousands of thousands people? Ahmadinejad killed lot of people during the Iranian up raising, the Isis, Hezbollah, Boko Haram, Al shabat militants, and above all the U.S in Afghanistan and Iraq?

Let the UN bring these people or group to justice. why Israel? Hamas started this fight, let them be brought to justice. Khaled Mashal, Haniyeh, why the UN is not talking about charging them with war crime also? This organization is a joke. Everywhere you fight war, civilians will died. you can have the best military, still you will kill civilians.

Why Hamas couldn't put their civilians in the tunnels and fight Israel? instead they left them in the cities to died. they are cowards, these are not real men, real men die with their people. Real men die for a cost. what kind of cost they believed in and cannot die for it? instead, they are letting their civilians died. Haniyeh and Mashal are cowards, they are sitting in Qatar, why the common people are dying, real heroes died with their people.

by: dan
August 13, 2014 9:29 PM
all the things that israel, its leadership, and its army did in Gaza past month is equivalent of genocide, and war crimes and killing of over 2000 people 500 children and wounding of almost 10,000 and not letting people leave ,have access to open seas,air, and have a right to live and leave you country or area freely and israel army, and navy is keeping Palestinians in Gaza and west Bank in the enforced military encirclement witch is equal to Auschwitz or the Jewish ghettos of Europe in 1942-1945 era......all these are war crimes and some one must answer for them ....but since its done all by UN , and western powers produced regime and nation of Israel whole world including Palestinians are doubtful that it will not happen....if it does not happen than the world is entering new world dark ages brought to all of us by Israeli armies
In Response

by: ABYN from: london
August 14, 2014 1:56 AM
May be you right ,but what caused this conflict and who started sending Rockets Israelian Civilian? this is the behaviour of Terrorist Orginazation .Hamas Terrorist are not Palistainian Govt.they Illegal Terrorist so any thing happen to there people they have to take full resposiblity.Hiding them selves in the civilians and sending Rockets to Israels civilian is a clear war crime,Israels Army fully adhere the disceplian of the Military law of behaviour. in that respect needless to support a TERRORIST Orginazation.bye 4 all ( no feelings) tks

by: Igor from: Russia
August 13, 2014 9:12 PM
There is no human shield in Gaza. Almost all the citizens of Gaza support Hamas. So the situation is similar to the Vietnam war. The US troops see no enemy or more correctly speaking, the enemy is everywhere because the US troops cannot make the difference.

by: James from: Finland
August 13, 2014 7:03 PM
Dear Mr. Eckel!

This is an excellent and very dispassionate analysis of the Gaza conflict with regards to IHL with many scholary sources, good references and excellently chosen statements. I wrote a more modest piece on my blog on the very same issue with some focus on distinction and proportionality. [http://fmashiri.wordpress.com/2014/07/24/the-laws-of-war-gaza-and-israel-hamas-and-idf/]

I feel the need to elaborate/discuss some of your points:

Firstly, Israel is not a signatory to the Additional Protocols I and II of 1977, but some of the provisions in those protocols have been ruled by the Israeli High Court of Justice (HCJ) to apply on IDF conduct in war as customary law.

2.The point on occupation made by professor Ohlin is key to understanding the responsibilities of the Parties. This is also subject to "verbal gymnastics" as the Israeli governement doesn't consider itself an Occupying Power with responsibilities in accordance with the Fourth Geneva convention art 47-78, even though the HCJ has on several occasions ruled that Israel is a belligerent occupying power of the occupied territories.

3. While defining the nature of the conflict depends on statehood this is not the issue in the Gaza conflict. Israel has made no statement saying it wages war on the Palestinian Authority or the State of Palestine, but has been rather careful to state that its only enemy are Hamas' terrorists and those lending them support. Nor has the PA claimed that it is at war with Israel. Thus, by the agreement in views of both parties, this conflict is not international.

4. While some would hold Hamas continuously responsible for its conduct in war such outcries are pointless. Hamas fails at the first and foremost principle - distinction - in that is deliberately targets civilians. Demands of proportionality are senseless. Thusly, the only party that bears responsibility for adhering to jus in bello is the State of Israel.

//James
In Response

by: Layp from: US
August 14, 2014 3:13 AM
The problem with this article is that it seems to start with the false premise that prof. Bell's position is adopted by the state of Israel. Ie., it starts with academic discussion of what is permissible in war, and then somehow slips into implying that Israel's rules of engagement reflect problematic views of different scholars.

I am not a lawyer, but it seems to me Israel never argues that HAMAS conduct makes it permissible for IDF to target civillians. So, I am not sure Israel argues with James et al on the principle of permissible targeting etc.

Perhaps there are arguments on other issues, like whether Israel is an occupying power under Geneva convention. And here, I would think the common sense test is whether it has enough control to administer the territory. Perhaps in some cases HCJ felt that it did, but my sense tells me that as far as Hamas controlled Gaza goes, Israel is not even close to the degree of control which triggers occupying power responsibilities. To me it is clear that Gaza is occupied by Hamas, and not by Israel. So, it is really difficult to understand what the corresponding legal controversy is about...

Returning to the question of civillian targeting, James et al seem to argue that since Israel has precision weapons, large number of civilian casualties is a proof that Israel is not as careful as it claims in its targeting. The problem with this assertion is that not all the targeting is done from afar. Clearly, to deal with tunnels, Israel has to send soldiers in the field. This might trigger difficult situations where I would think protecting lives of soldiers from eg mortar fire coming from vicinity of say UN shelter makes this vicinity a legitimate target for urgent/real time automated mortar suppresion fire. I would be interested in hearing legal experts opinion on whether Israel has an obligation to sacrifice his soldiers in such a situation, or returning fire to suppress Hamas mortars would be legal even if it is accompanied by high risk of kilingl civillians in the shelter.

by: Pedro Cruz from: Hackensack, NJ
August 13, 2014 4:09 PM
Israel is guilty of war crimes because it is not waging a war against its enemy in the conventional sense, it is merely destroying everything and everyone within 50-100 feet of a suspected enemy location. Israel has never engaged the enemy directly through hand to hand combat or street by street search and kill; had it done so, i.e., fought a real war against the enemy, its causalties would have been in the hundreds and the conflict would have stalled long ago. Calling someone on the phone and warning them that you are going to destroy their home because the people in the home above them are suspected Hamas terrorists, then dropping a bomb and destroying the building is a cowards way of combat.

by: Sir Rah from: Missouri USA
August 13, 2014 2:25 PM
To claim Israel was targeting civilians as a war crime is wrong. When Hamas hides their weapons being fired indiscriminately at Israel with the full knowledge of the non-combatants and often with their aid in schools mosques and hospitals, they become legitimate targets. No amount of precision weaponry will prevent civilian deaths when the civilians are sitting atop legitimate targets or when legitimate targets try to hide in the civilian population. When the general population does not support Israels right to exist, the general population themselves must understand their right to exist becomes forfeit. No nation should allow indiscriminate attacks on their territory even if it is from within their territory. Until the will of the people is to remove HAMAS, it will be the will of the people that must drive them out. Gaza must acknowledge Israels right to exist or the right to exist for the people of Gaza should be forfeit and no two stones be left standing together so that man remembers an individuals right end where someone else,s nose begin. Not only should Israel fight until their right toe exist is acknowledged, but also until Gaza officially supports and sign the UDHR (UNIVERSAL DECLARATION OF HUMAN RIGHTS) (http://www.un.org/en/documents/udhr/) Only when and if these things are supported can peace occur.
I feel sorry for the people of Gaza, but until the people of GAZA wake up and chase HAMAS out, peace is unachievable. HAMAS in every conflict start complaining for the death of their children and non-combatants. I am sorry, no matter how clean and accurate your weapons are, if you hide your weapon among civilians. civilians will die and the blame for the death all lie squarely on HAMAS. Any other nation on earth would have wiped them from the map long before now.

by: Don from: US
August 13, 2014 2:25 PM
Interesting that the article makes no mention, nor have those who are investigating the war crimes acknowledged the fact that Hamas not only fires from heavily populated areas, in fact using the structures and population as cover, much as any infantry would, albeit illegal given the civilians proximity, but fires it's rockets indiscriminately toward any Israeli civilian populated areas, not even trying to engage the armed force it opposes, but builds tunnels depriving the civilian population of Gaza of much needed building materials in the process, for the express purpose of performing raids whose goal is to kill or kidnap Israeli civilians, only engaging military targets when there is no other recourse.

by: meanbill from: USA
August 13, 2014 1:57 PM
CRAZY isn't it;.. A war crime or crimes against humanity are what the US, EU, and NATO countries determined them to be, (but), when "they" commit those same defined, (war crimes and crimes against humanity), like the US, Israel, and NATO countries continually do, (then they are defined and determined to be), collateral damage and human shields used by the other side, and therefore not war crimes or crimes against humanity, as defined and determined by the US, Israeli, and NATO rules.... (It's really great to be a super power, isn't it?)..... and making your own rules?

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