Time to Demand Accountability for the War Crimes in Gaza

December 8, 2023 Updated January 5, 2024 Articles

The fundamental principles of distinction, proportionality, military necessity, and humanity are the pillars of international humanitarian law (IHL), also referenced as the rules of war or the law of armed conflict including the Hague Regulations and Four Geneva Conventions and the two Additional Protocols.

All parties to the conflict must be held accountable for violations of IHL as well as all those who aid, abet or otherwise assist them in the commission, or attempted commission, of the violations.

Media narratives and political propaganda have distorted both the Israelis’ right of self-defense against attacks by Hamas and other Palestinian militants as well as the Palestinians’ right to legitimate armed resistance against Israeli occupation and Israeli settler violence. While both the right of self-defense and the right to legitimate armed resistance exist under IHL, they are both subject to the rules of war.

IHL applies equally to the parties to the conflict: Israel is not entitled to justify the war crimes they have committed against the Palestinian people under its occupation as self-defense, but rather, Israel is in direct violation of international humanitarian law. Hamas and other Palestinian militants are not entitled to justify the murder or kidnapping of Israeli and other civilians as legitimate armed resistance but rather, they are in direct violation of international humanitarian law.

Israel must be accountable for the collective punishment it has imposed on the Palestinian people and for its unnecessary and disproportionate use of force in densely populated civilian areas in Gaza. Palestinian militants and armed Israeli settlers alike must be held accountable for any acts or threats of violence the primary purpose of which is to spread terror among the civilian population.

The following IHL rules apply to the right of self-defense as well as to the right of armed resistance to foreign occupation.

  • IHL balances the principles of humanity and military necessity
  • IHL enshrines the fundamental distinction between civilians and combatants in an armed conflict as well as between civilian property and military objects
  • IHL upholds the need to ensure the necessity and proportionality of the use of force
  • IHL maintains the need to take preventive and other measures to avoid or minimize loss of civilian life or damage to civilian property
  • IHL prohibits weapons and methods of war that cause unnecessary suffering
  • IHL prohibits starvation as a method of warfare
  • IHL prohibits attacks on those who are hors de combat (out of combat)
  • IHL prohibits retaliation and revenge attacks
  • IHL strictly forbids collective punishment or the punishment of a group of individuals for the actions of one or more individuals.

These and other IHL violations are also covered by the Statute of the International Criminal Court (ICC) which also lists the following specific war crimes including:

  • Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” (including humanitarian, medical or religious personnel).
  • Intentionally directing attacks against buildings dedicated to religion, education, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not used for military objectives
  • Ordering the displacement of the civilian population or compelling them to leave their own territory for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand
  • Intentionally directing attacks against buildings, materials, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions (Red Cross, Red Crescent and Red Crystal) in conformity with international law
  • Intentionally directing attacks against personnel, installations, material, units or vehicles involved in humanitarian assistance as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict.

As defined by the ICC statute, crimes against humanity includes murder or wilfull killing and other inhumane acts intentionally causing great suffering or serious injury to the body or to mental or physical health “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”.

The international community and especially the UN Security Council have a responsibility to protect civilians against war crimes and crimes against humanity as well as against ethnic cleansing and genocide.

Disturbing statements of genocidal intent have been made by the Israeli Prime Minister Netanyahu who has invoked biblical references to punishing one’s enemies including killing men and women, children and infants. Israeli President Isaac Herzog asserted that there are no innocent civilians in Gaza, while Defense Minister Yoav Gallant vowed to “eliminate everything” there. Members of the Knesset have called for “a second Nakba” and for the complete destruction of Gaza.

The international community should protect the civilian population in occupied Palestine and the basic human needs indispensable to their survival, such as water, food and medical supplies.  Israel’s blockade on Gaza, imposed in 2007 and tightened even further on October 7, 2023, is yet another violation of IHL.

The Biden administration has provided unconditional financial, military and political support to the State of Israel. It has called upon Israel to respect international humanitarian law but it has not acknowledged that Israel’s ongoing blockade, relentless assault and collective punishment of the civilian Palestinian population in Gaza for the October 7 attack by Hamas are all actions that blatantly contravene international humanitarian law.

In a letter to the Security Council dated December 6, Secretary-General António Guterres invoked his “most powerful tool” under Article 99 of the UN Charter to call for a humanitarian ceasefire and to remind the international community that it “has a responsibility to use all its influence to prevent further escalation and end this crisis”. He sought to spare the civilian population greater harm, to avoid a humanitarian catastrophe and to avert the collapse of the UN humanitarian system.”

As the death toll in Gaza surpassed 17,000 – half of whom are Palestinian children – the United States vetoed a Security Council resolution responding to the Secretary-General’s call for a humanitarian ceasefire.

The whole world is calling for a ceasefire now. There is growing demand to hold those responsible accountable for these gross violations. The International Criminal Court has an ongoing criminal investigation into Israeli and Hamas war crimes since 2019 which must now include the horrible events of October 7, 2023 and its horrific aftermath which continues until today. The international community must uphold customary international law and must ensure accountability for all the war crimes committed. International law provides a pathway to peace and justice for Palestine and for Israel and preserves the fundamental principles of humanity for all mankind.

Thank you to Mona Ali Khalil, Director of MAK Law International and Affiliate of the Harvard Law School Programme on International Law and Armed Conflict for her invaluable assistance with this article.

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