Ruth FitzGerald SC: International humanitarian law in the conflict between Israel and Hamas
Ruth A FitzGerald SC considers the application of international humanitarian law to the current conflict between Israel and Hamas.
The question being considered here is as to the way fighting is being conducted between Israel and Hamas, i.e., the law of war, and not the question of the legality of war which is governed by the UN Charter. There are two aspects to the law of war: the rules in connection with the military aspects of the war, e.g., what weapons may be used, and international humanitarian law (IHL) which provides for the protection of the sick and wounded and of civilians and is principally contained in the Geneva Conventions. This latter is the subject of this article.
Following the 1967 Six-Day War, the United Nations (UN) has held Israel to be the Occupying Power in Gaza, West Bank and East Jerusalem pursuant to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War. Israel does not consider the Fourth Geneva Convention to apply to those territories.
The four Geneva Conventions of 1949 restated and developed the pre-existing rules on the conduct of war and introduced “elementary considerations of humanity”. There are also Additional Protocols to the Conventions; Additional Protocol II relates to the strengthening of the protection of victims in a non-international armed conflict.
Israel, which is party to the Conventions, is not a party to this Protocol. Palestine has acceded to the Third and Fourth Geneva Conventions and Additional Protocol I (without the question of its statehood being debated) but not Additional Protocol II. However, many of the provisions of the Conventions and Protocol are part of customary international law and, therefore, binding, and applicable in all armed conflicts, regardless of ratification.
The four Conventions address, in turn:
- the treatment of the sick and wounded in the field;
- the treatment of the sick, wounded and shipwrecked in war at sea;
- the treatment of prisoners of war; and
- the protection of civilians and civilian persons in time of war.
One of the developments which the Conventions brought about was the application of some of the obligations under them to non-international armed conflicts (conflicts within the state rather than between states) and the application of those obligations to non-state actors. In addition, while the rules in connection with the conduct of war are based on the international law principle of reciprocity, the Conventions and Protocols are not — they apply to the Contracting Parties irrespective of what the other side is doing.
The Rome Statute, 1998, establishing the International Criminal Court, criminalises certain war crimes, including many of those mentioned here. Israel is not a Party to the Rome Statute. Palestine is a Party since 2015 (although, again, the question of whether Palestine can be regarded as a state was not debated).
Application of the Convention and Protocols
The Conventions apply to armed conflict. In the Tadić case , the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia said that “armed conflict” arises where protracted armed violence between governmental authorities and organised groups exists. In addition, it held that for the conflict between governmental authorities and non-state actors to constitute armed conflict, the non-state actors must be sufficiently organised and the conflict sufficiently intense.
The hostility between Israel and Hamas meets these conditions so that the Conventions and Protocols apply to the conflict — to Israel as a state, and to Hamas as a non-state actor — in a non-international armed conflict.
Although not all the obligations under the Conventions and Protocols apply to non-— international conflicts or, indeed, to non-state actors, where the provisions referred to below differentiate as between the status of the conflict or whether an actor is state or non-state, they likely apply under customary international law.
Some provisions of the conventions and protocols that may be engaged
Below are some provisions of the Conventions and Protocols that may be relevant to what is occurring in the conflict between Israel and Hamas currently.
Common Article 3 of the Conventions prohibits:
- violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture;
- taking of hostages;
- outrages upon personal dignity, in particular humiliating and degrading treatment;
- the passing of sentences and the carrying out of executions without previous judgements by regularly constituted courts affording all judicial guarantees, and
- failing to care for the wounded and sick.
Article 34 of the Fourth Convention repeats the prohibition on the taking of hostages. This prohibition has clearly been breached by Hamas.
Protection of civilians
The principle of distinction, that is to say, the obligation of warring parties to distinguish between combatants and civilians, is an important principle of IHL. Additional Protocol II provides that the parties to a conflict “shall at all times distinguish between the civil population and combatants and between civil objectives and military objectives and accordingly shall direct their operations only against military objectives”.
Article 57(2) of Additional Protocol I obliges parties to take precautions in their attacks to avoid or minimise incidental civilian losses. These rules apply by way of customary international law to non-international conflicts. The standard applicable is “common sense and good faith”.
Article 58 of Additional Protocol I requires parties, to the maximum extent feasible, to “avoid locating military objectives within or near densely populated areas”. The rule applies in non-international conflicts under customary international law. The population density in Gaza of 5,751 per square kilometre (just slightly greater than that of Greater London).
The Fourth Convention provides in Article 51(2):
“2. The civilian population, as such, as well as individual civilians, shall not be the object of an attack. Actual threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”
This provision may be relevant to Israel’s threat of intensive attack on Northern Gaza, taken with the warning for the population to move south.
The Fourth Convention provides in Article 28 that the presence of a civilian “may not be used to render certain points or areas immune from military operations”. The rule is given further effect in Additional Protocol I in respect of international conflicts and most likely applies in non-international conflicts by virtue of customary international law.
The case law in connection with the definition of “human shield” would seem to limit the concept where civilians are intentionally co-located with a military objective with the intention of preventing the targeting of that objective.
Article 19 of the First Convention provides that medical facilities shall not be attacked in any circumstances, but shall at all times be respected and protected. It goes on to provide that the responsible authorities shall ensure that those facilities are, so far as possible, situated where attacks against military objectives do not imperil their safety.
The second important principle of IHL is that of proportionality. Article 51(5)(b) of Additional Protocol I prohibits attacks that violate the rule of proportionality: that is to say, is not permissible to attack, even when there is a clear military target if it “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”. The principle which, although not explicitly referenced in Additional Protocol II has attained the status of customary international law, limits the damage caused by military operations by requiring that the effect of the military action not to be disproportionate to the military advantage sought.
Proportionality is dealt with in some detail in the Conventions and Protocols. The parties to the armed conflict are required to take specific measures to ensure compliance with the rule. This includes, for example, establishing systems to gather and analyse relevant information and ensure that that data is taken into account in targeting potential military objectives.
The scale of the bombing by both Israel — on 12 October 2023 Israel said it had dropped 6,000 bombs on Gaza in six days — and Hamas is such that it is hard to see how the rules in connection with proportionality are being met. These rules require an individual analysis of each target of a bombing. There is simply not time in the bombing that is occurring for this to be achieved.
Requiring the population to move to enable the attainment of military objective
Article 49 of the Fourth Convention provides that individual, or mass, forcible transfer, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, “regardless of their motive”.
Civilians are under no duty to remove themselves from an area of conflict, although if they wish to leave, they may do so unless their departure is contrary to the national interests of the state (Article 35 of the Fourth Convention). Further, Article 17 of Additional Protocol II provides that the displacement of civilians shall not be ordered unless “the security of the civilians involved or imperative military reasons so demand”. Where such displacements occur, all possible measures must be taken in order that the civilians are afforded satisfactory shelter, hygiene, safety and nutrition.
The setting of a deadline by the Israeli authorities for the population of Gaza City to move south, with the threat of intense operations in Gaza City, taken with the failure to secure the conditions for the receipt of the civilians south of Wadi Gaza may constitute a constructive forcible transfer.
Article 17 of Additional Protocol II provides that civilians shall not be compelled to leave their own territory for reasons connected with the conflict. Although Israel is not a party to the Protocol, the efforts of third parties to provide a humanitarian corridor into Sinai could be viewed as aiding and abetting Israel in the transfer of protected persons contrary to Article 49 of the Fourth Convention and Article 17 of Additional Protocol II as their intention is not relevant.
Providing supplies to the civilian population vs collective punishment
Article 55 of the Fourth Convention requires the Occupying Power, to the fullest extent of the means available to it, “to ensure food and medical supplies to the population. It should, in particular, bring the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate”.
Common Article 33 provides that collective punishment is a war crime. Collective punishment is a penalty imposed on a group for acts allegedly carried out by members of the group and applies to international and non-international armed conflicts.
Contrary to its duty under Article 55, the act of Israel in cutting off water, electricity, food, and fuel to the population of Gaza punishes the entire population of Gaza for the acts of Hamas — is a collective punishment — as the objective of the siege is that of destroying Hamas.
Allowing third-party aid
Article 61 of the Fourth Convention requires the Occupying Power to agree relief schemes for the population of an occupied territory if it is inadequately supplied.
That Article goes on to provide, in addition, that all Contracting Parties shall endeavour to permit the transit and transport, free of charge, of relief consignments on their way to occupied territories. The question then arises as to whether Israel, in controlling the borders of Gaza and failing to provide safe transit to aid agencies, has done so for security reasons or in support of its siege.
No quarter given
Article 41 of Additional Protocol II prohibits an order that there should be no survivors. Israel’s threat to destroy Hamas could be viewed as a breach this prohibition. Declaring that no quarter will be given is also a war crime under Article 89(2) of the Rome Statute.
There are, of course, many more provisions of the Conventions and Protocols which may be applicable to specific attacks or actions by the combatants. The above merely give a introduction of the type of provisions in the Conventions and Protocols which may be relevant to the current armed conflict.
- Ruth A FitzGerald SC is a senior barrister. This article was first published on the Law Library website.