"There is clear evidence that war crimes have been committed in the latest outbreak of violence in Israel and Gaza," a UN panel said on October 10, just three days after the conflict erupted.
The fighting has now escalated further as the Israeli Defense Forces operate deep inside the Gaza Strip. Casualties continue to rise following Israeli airstrikes, including two bombardments of the Jabalia refugee camp, Gaza’s largest.
An Israeli tank near the border with the Gaza Strip (Photo: New York Times).
What is the nature of the Hamas - Israel war?
Modern armed conflicts are generally governed by the laws of war, also known as International Humanitarian Law (IHL), which include the four Geneva Conventions of 1949, the two Additional Protocols of 1977, the Hague Conventions of 1899 and 1907, as well as several arms conventions.
These documents help protect civilians and those who have been excluded from combat, by placing restrictions and prohibitions on certain ways of waging war.
Responding to Dan Tri reporter, Professor Robert Goldman, a war law expert at the Washington School of Law at American University, said that based on the characteristics of the warring parties, international law classifies armed conflicts into two types: International conflicts (between two or more countries) and non-international conflicts (between a country and a non-state armed group, or between armed groups).
International conflicts will be governed by the full text of the laws of war. Non-international conflicts will be governed only by Common Article 3 of the Geneva Conventions and various other customary laws, according to Mr. Goldman.
"In the Hamas-Israel case, Hamas is not a state. The current conflict is not between Israel and Palestine - which is represented by the State of Palestine," Professor René Provost - an international law expert at McGill University in Canada - told Dan Tri . "Therefore, I see quite clearly that this is a non-international armed conflict."
In a non-international armed conflict, Hamas fighters do not have the status of prisoners of war when captured alive and therefore do not enjoy the protections that come with it, such as personal immunity from prosecution for lawful acts of hostilities. They can be prosecuted by Israel simply for taking up arms to fight.
Even though it is a non-international armed conflict, both Hamas and Israel must still adhere to basic rules such as only attacking military targets and responding proportionately.
Gaza residents pull an injured boy from the rubble at Bureij refugee camp after an Israeli airstrike (Photo: AP).
Hamas attack
Mr. Provost commented that Hamas' attack violated international law.
“If Hamas crossed the border and just attacked Israeli soldiers, that would most likely not be a violation of international law but of Israeli law,” Provost said. “But that’s not what happened.”
Documents found on Hamas fighters show plans to attack Israel (Photo: NBC, Washington Post).
Does Israel have the right to self-defense?
In response to the Hamas attack, Professor Provost asserted that Israel has the right to self-defense because it is the victim of an armed attack. Of course, Israel's response must follow the rule of proportionality with the first attack.
But “at some point, Israel’s response will no longer be proportionate,” Mr. Provost pointed out.
An example of a disproportionate response was the fighting between Israel and Hezbollah forces in southern Lebanon in 2006, according to Mr. Provost.
Full siege of Gaza
According to Mr. Goldman, unlike in the past, all-out siege warfare is now against international law, regardless of whether it is an international or non-international armed conflict.
“In principle, the violation of the law by one party cannot justify or permit the other party to violate prohibitions set out in international humanitarian law,” Mr. Goldman said.
Movement of Israeli forces in Northern Gaza (Graphic: New York Times).
As part of a comprehensive siege, Israel has cut off electricity, water and fuel to the Gaza Strip.
According to Mr. Provost, international law prohibits starving civilians and one of the main ways of starving is cutting off water, so cutting off water to Gaza would be a violation of international law.
Israel has reopened one of the three water pipelines, but experts say this only meets a small fraction of the needs of Gaza residents. Most of the water is drawn from underground, but fuel for pumping stations and desalination plants is running low, and some residents have resorted to drinking unsanitary water, even seawater.
Whether power and fuel cuts are legal is up for debate, according to Mr Provost, as they have both civilian and military (dual-use) uses.
"Israel must consider the impact on civilians and must restore power and fuel if the impact on civilians is disproportionate (to the military impact)," Provost said.
If, say, the power cut caused a serious humanitarian crisis (like a hospital without electricity to treat patients), it would likely violate international law. “The reason is that it was foreseeable that this would have consequences,” Mr. Provost argued.
Meanwhile, Mr. Goldman said that cutting off electricity, water and medicine is not in itself against international law, but all these measures have led to a serious humanitarian crisis in Gaza.
Israel therefore has an obligation to facilitate relief operations to salvage the situation, according to Professor Goldman.
Regarding the cutting of phone and internet signals, Mr. Provost commented: "Communications systems are clearly critical infrastructure for military purposes" and "whether Hamas can use communications infrastructure for military purposes will make a big difference".
Of course, civilians also need communication systems to know information such as evacuation orders, locations of essential goods and medical care... But if we compare the military benefits achieved by cutting off Hamas' military communications and the impact on civilians, cutting off phone and internet signals is not necessarily a violation of international law, according to Mr. Provost.
Palestinians line up to get water at the UN-run camp in Khan Younis, southern Gaza Strip, October 26 (Photo: Reuters).
Hamas and Israel's Responsibility to Civilians
“The primary requirement in any conflict is that combatants must always distinguish between civilians and combatants, and that attacks must be directed only at combatants and other military targets,” said Professor Goldman.
Placing civilians around military targets or placing military equipment in civilian environments (also known as "human shields") is a violation of international law.
Israel has frequently accused Hamas of storing weapons and equipment in civilian buildings. In 2014, for example, the United Nations condemned the hiding of rockets in a school run by the international organization in the Gaza Strip.
Hamas has strongly denied Israel's accusations.
However, the movement has often told Palestinians in Gaza to ignore Israeli calls to evacuate. Hamas’s interior ministry has sent out text messages saying “people must act responsibly and not follow Israel’s deceitful instructions,” according to the Guardian .
Civilians are still protected under the proportionality rule of international humanitarian law. In the case of Gaza, this means that before an attack, Israel – the attacker – must determine the likely impact on civilians. If the expected attack will cause too many civilian casualties relative to the military advantage, it must delay or cancel it.
If an attacker finds an enemy fighter surrounded by civilians, “it would certainly be disproportionate to use a missile to kill that fighter and kill 30 civilians at the same time,” Provost said. But if the military advantage is greater, that would undermine the argument that the attack was disproportionate.
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