Is Israel Abiding by International Law in Gaza? - Israel News - Haaretz

Is Israel Abiding by International Law in Gaza? - Israel News - Haaretz

Read time: 12 minutes

archived 15 Nov 2023 11:50:21 UTC

Is Israel Abiding by International Law in Gaza?

Hamas makes it is hard for the IDF to comply with international laws of war when it operates out of hospitals and schools, and tries to prevent civilians from evacuating. This is what experts think about the army's conduct in Gaza so far

At first the international consensus seemed solid: Israel has the right to fight back after Hamas killed more than 1,200 people and kidnapped 239 others into Gaza. But five weeks later, Israel's military is facing criticism worldwide, including allegations that it is committing war crimes.

Most Israeli legal experts interviewed for this article believe that the military is adhering to international law, and they are unanimous in that the Supreme Court's independence is vital in protecting Israeli soldiers, political leaders and defense chiefs from prosecution abroad after the war.

Two weeks ago the Foreign Ministry released a document crafted by the Justice Ministry and military prosecutors that rejects the international criticism and seeks to persuade the world that the Israel Defense Forces’ war on Hamas is fully legitimate.

The attorney general's office and the military prosecution are helping the government comply with the rules. Attorney General Gali Baharav-Miara and her team are outlining the broad legal policy, while military prosecutors are advising the IDF on combat issues including the legality of specific targets.

Hamas operates out of residential areas, hospitals and schools, and also tries to prevent civilians from leaving combat zones. This makes it difficult for the IDF to comply with the international laws of war, whose main goal is to avoid harm to civilians.

There’s a lot of fog of war and disinformation, and, unfortunately, based on experience, I find it hard to believe that the information that the IDF spokesperson and the Israeli government are providing is accurate.

The previous attorney general, Avichai Mendelblit, argues that even in this situation, Israel must do everything it can to comply with the rules.

“The fact that Hamas stops people from evacuating doesn’t exempt Israel from proportionality and cautionary measures to prevent harm to civilians,” he says. “If the other side is committing war crimes, that doesn’t give you legitimacy to violate [the rules].”

Our blood is hot and the grief and sorrow are immense; I feel these emotions every day. But in the end, war has to be waged from the head and not the gut.

Avichai Mendelblit

Mendelblit strongly opposes the call to lift all restrictions in the battle against Hamas; he notes the U.S. detention facility at Guantanamo Bay after 9/11 where, according to media reports, prisoners were severely tortured. The prison was set up at the U.S. base on Cuba's coast, outside U.S. territory, in order to skirt American constitutional law. “These are things we haven’t accepted,” Mendelblit says.

But the intensifying cries in Israel to fight the enemy without restraints threaten international support. The public’s lust for revenge even includes political leaders like Heritage Minister Amichai Eliyahu, who said that nuclear weapons were an option (though he later claimed he was only speaking metaphorically).

“I’m hearing that ‘we don’t care what happens there’ or that ‘we need to drop a nuclear bomb on Gaza.’ All these statements not only don't suit us morally, they’re extraordinary stupidity,” Mendelblit says.

“Our blood is hot and the grief and sorrow are immense; I feel these emotions every day. But in the end, war has to be waged from the head and not the gut. We’re committed to the rules of international law because even in our difficult situation we’re part of the family of nations. If we follow the rules, we’ll be able to keep the war clock running longer.”

Mendelblit, however, notes an extreme approach: The UN Human Rights Council claims that in the war on terror, Israel must follow human rights law and ordinary criminal law.

“But it’s impossible to fight terror like that, so Israel’s approach is that it must act against terror groups based on the four principles of the laws of war, or the laws of armed conflict,” Mendelblit says.

Thus, Israel's attacks must be solely for military purposes and in no way be collective punishment of civilians. Second, the attacks must be proportional; there must not be excessive harm to civilians relative to the military objective.

Third, the IDF must take precautionary measures to avoid harming civilians as far as is possible. Fourth, Israel must respond to civilians’ humanitarian needs such as medicine and food.

The issue of proportionality stands at the center of the dispute between Israel’s critics and supporters: Has the harm to civilians Gaza been excessive?

Prof. Barak Medina of Hebrew University’s Law Faculty says that, during the current fighting, this question is hard to answer for several reasons. First, Hamas isn't a reliable source for the number of dead and wounded in Gaza. Then there's the issue of proportionality.

Medina says the question isn’t “the harm that Hamas inflicted, it’s the harm that it’s likely to inflict in the future if the organization isn’t disabled.”

Still, he believes that “by all appearances, the IDF has been adhering to the laws of war so far.” He bases this conclusion in part on the so-called humanitarian corridors through which Israel has urged Gazans to flee.

“Hamas’ attack made clear that there is no effective defense for Israeli civilians,” Medina says. “The only way is offense, and in the current circumstances, which include giving Gaza civilians the chance to flee and limiting attacks so that the non-targeted damage isn’t too severe, Israel is complying with the laws of war.”

The families of the hostages are expected to take Hamas to the International Criminal Court in The Hague.

Sfard adds: “There’s a lot of fog of war and disinformation, and, unfortunately, based on experience, I find it hard to believe that the information that the IDF spokesperson and the Israeli government are providing is accurate.”

Michael Sfard says that he 'definitely fears that Israel isn't complying with the laws of war – that it attacks civilian targets and carries out disproportionate and indiscriminate attacks.'

He says the high number of fatalities in Gaza doesn't prove that Israel has violated the laws of war, “but it certainly creates a suspicion and shifts the burden onto the army to explain and justify its actions.”

Mendelblit, meanwhile, criticizes the “counting of skulls.” “They say that if 20 of your civilians died, you’re allowed to kill 20 of the enemy’s civilians. That isn't true,” he says.

“In every attack you have to consider the military advantage you can achieve against the disadvantage. If your aim is to destroy Hamas, this is a legitimate goal, and obviously this requires many operations: firing from afar, a ground invasion. And the result will be more significant.”

Unlike Mendelblit, Hassan Jabareen, the general director of the Adalah Legal Center for Arab Minority Rights, says the number of civilians killed is of great importance. “We’re talking about more than 10,000 dead, of which more than 4,000 are children,” says Jabareen, who relies on the statistics released by the Hamas-controlled Health Ministry in Gaza, which Israel says are inaccurate.

“Granted, a combat situation isn’t sterile, but when so many women and children are being killed every day, this attests to something being done systematically, to indifference to the killing of civilians,” he says. “So this is disproportionate harm – and it’s forbidden. To kill one person, you’re not allowed to kill 100 civilians.”

Increased 'collateral damage'

Several of the experts say one key factor tips the scales toward the military goals, despite the concerns about harm to civilians: the 239 hostages.

Former Deputy Attorney General Raz Nizri and Shelly Aviv Yeini, an expert in international law at the University of Haifa, volunteer for the Hostages and Missing Families Forum. They say the kidnappings restrict Israel’s freedom of movement in Gaza.

“The abduction of civilians is a war crime under the laws of war and international criminal law,” Aviv Yeini says. “Their forced disappearance without any information on their condition falls within the definition of crimes against humanity.”

The families of the hostages are expected to take Hamas to the International Criminal Court in The Hague. According to Aviv Yeini, “Since proportionality in warfare weighs the military advantage of a certain attack against the collateral damage, the calculation of proportionality will ‘tolerate’ increased incidental damage if the military objective significantly advances the release of the hostages.”

Nizri adds that “in the current conflict the declared goal is the release of the hostages and the overthrow of Hamas’ rule – a broader goal than the state has declared in the past.” He notes the critics around the world who don't consider Hamas’ kidnapping of civilians a crime against humanity.

“A good example is the letter in which the Columbia University faculty members referred to the massacre and abductions as a legitimate means of resistance to the occupation,” he says. “Massacre and kidnapping have no legal justification and there is no judicial possibility for clearing crimes against humanity.”

Medina, meanwhile, notes Israel's occupation of the West Bank, but he adds that from a legal standpoint, the occupation “doesn’t influence the legality of Israel’s response to Hamas, and it certainly doesn’t absolve Hamas of responsibility for its war crimes.” Still, he admits that “the international community is losing patience with us because of the occupation.”

Jabareen adds that “Hamas enjoys no exemption from international criminal justice. The Goldstone Report on Operation Cast Lead determined that Hamas committed crimes against international law,” he says, referring to the 2008-09 Gaza war.

Still, Jabareen believes that Israel is violating international law in both its declarations and its attacks on Gaza, which he says are indiscriminate.

“Until today there was a certain prudence, if only rhetorical,” he says. “Today, anyone who says it’s necessary to be careful and not harm civilians is considered radical.”

Sfard adds that he “definitely fears that Israel isn't complying with the laws of war – that it attacks civilian targets and carries out disproportionate and indiscriminate attacks.” He says this fear “stems from what we're hearing about what’s happening in Gaza, and from past experience about our methods of warfare in Gaza.”

He mentions the airstrike on the Jabalya refugee camp and says the IDF Spokesperson's Unit stated that the military knew there were civilians there and attacked anyway to kill a Hamas commander. “This raises a very strong suspicion of a deliberate disproportionate attack,” Sfard says.

The Supreme Court's protection

No single international body determines whether international law has been violated, but a case is underway at the International Criminal Court in the Hague on suspicions of war crimes in past Israeli-Palestinian wars. Israel is not a member of the court but the Palestinians joined in 2015.

Any investigations could lead to indictments and arrest warrants for the prime minister, other politicians and members of the military. If an arrest warrant is issued, each of the 123 member states will have to hand over any suspect who enters its territory. Indictments against political leaders could seriously erode Israel’s image around the world and its foreign relations. This prospect would also restrict senior officials’ foreign travel.

Everyone interviewed for this article says the independence of Israel's judiciary, headed by the Supreme Court, is essential for warding off international sanctions.

Medina notes that international law allows a country's judicial system to handle war crimes cases if that system is effective and independent. The less judicial oversight a country has, the greater the risk the International Criminal Court will prosecute military officers and policymakers.

According to Aviv Yeini, “an independent and effective judiciary protects Israel from intervention when there is a suspicion of a violation of international law. The Supreme Court has gained a reputation over the years as a strong and independent court.”

But the judiciary's independence has been impaired since Benjamin Netanyahu’s most recent government took over late last year. Hamas' October 7 attack was preceded by nine months of the government striving to weaken the judiciary through legislation. If that had succeeded, Israeli political and military leaders might have found themselves today vulnerable to international justice.

“As soon as the world perceives that the Supreme Court and attorney general have been weakened and they’re not independent, we’ll be harmed,” Mendelblit says.

“This government sought to crush the system’s independence with utter recklessness. Fortunately for us, Levin and Rothman’s initiative hasn’t been realized, and the Supreme Court is still viewed as an independent body,” Mendelblit says, referring to Justice Minister Yariv Levin and Simcha Rothman, the chairman of the Knesset Constitution, Law and Justice Committee.

“We didn’t need the war to understand that if you destroy the Supreme Court and the institution of the attorney general, turning them into mouthpieces of the regime, the world will deal with you and halt your opportunity to fight.

“We have a serious problem of eroding our legitimacy as a member of the family of nations. Critically, the independence of the State Prosecutor’s Office, the attorney general and the Supreme Court allow us to say we’re acting according to the rules of international law and the laws of war.

“The American aircraft carriers were sent here to protect us only because Israel is a front line for democracy against the horrors of Iran and Hamas. This war proves that there are two possibilities: Either we’ll be a democracy and play by the rules of international law, or we won’t exist at all.”