What are the rules, according to international law?
War is cruel. After all, war is violence, or more precisely: the use of organised violence to achieve political goals. International law aims to contain this violence by means of rules. But when this collides with the ugly reality that is Israel and Gaza, things get complicated.
There is clarity regarding the brutal raid when Hamas terrorists entered Israel on 7 October, killing more than 1300 people and abducting nearly 200 as hostages. Stefan Talmon, an international law expert based in Germany, considers this to be "mass murder". In view of the decades-long struggle between Israel and the Palestinians, however, he also concludes: "Owing to the scope and intensity of the attack on 7 October, international law assumes that we are dealing with an armed conflict."
Israeli Prime Minister Benjamin Netanyahu accordingly declared a state of war. The day after the massacre in southern Israel, Netanyahu explicitly stated that all places where Hamas was operating or hiding would be reduced to rubble. Israel has been bombing Gaza ever since. Around 6,000 bombs were dropped on Gaza – an area equivalent in size to the city of Detroit – in just six days, with the bombing campaign continuing unabated. Over 4,000 people have been killed in Gaza, though the actual death toll there is likely much higher.
⚠️Israeli bombardments have destroyed around 25% of residential housing units in #Gaza in the last 10 days, creating unprecedented and urgent needs for bedding sets, dignity kits and hygiene items for 700,000 IDPs, according to the Shelter Cluster hosted by @NRC_Norway pic.twitter.com/B4AzIUh1Uf
— NRC MiddleEast (@NRC_MiddleEast) October 17, 2023
Four days after the attack, Israeli army spokesman Daniel Hagari said that "hundreds of tons of bombs" had already been dropped on Gaza, adding that "the emphasis is on destruction, not accuracy".
Self-defence – within limits
Israel's right to self-defence against armed attack under Article 51 of the UN Charter is undisputed. Yet this right of self-defence is limited by international humanitarian law. Accordingly, one of the most important principles is that of differentiation: the warring parties must distinguish between civilians and combatants, between civilian objects and military targets.
But this only means that the civilians or civilian objects must not be the deliberate target of attacks. In other words, the killing of civilians is only prohibited if it is demonstrably premeditated.
In practice, law professor Talmon explains, this means: "If Hamas positions a missile site in a civilian neighbourhood, Israel has the right to attack this missile installation – even at the expense of what is horribly termed 'collateral damage' among the civilian population. And that collateral damage can, depending on the military objective and requirement, also be very high."
Differentiating between civilian and military targets, as required by international law, is impossible in Gaza. It is one of the most densely populated and built-up areas on earth. Hamas tunnels run under apartment blocks, and Hamas facilities are sometimes located in residential and office buildings. International law makes no provision for this.
"If Hamas is hiding out in schools, mosques and hospitals, maintaining command centres there, then these are legitimate military targets," explains Stefan Talmon. Simultaneously, if Hamas establishes military positions in civilian areas, this also constitutes a war crime.
Collective punishment banned
Israel has imposed a comprehensive blockade on the Gaza Strip. Israeli Defence Minister Yoav Gallant spoke of a total siege, in which Gaza would be cut off from supplies of electricity, water, food, fuel. The Israeli human rights organisation B'tselem has accused Israel of war crimes, given the scale of the air strikes and the blockade. The humanitarian aid organisation Medecins Sans Frontieres has spoken of the collective punishment of Gaza in contravention of international law.
According to Professor Talmon, most international law experts agree that a complete blockade – food, drinking water, fuel, medical products – is at odds with international law. "In international law there is a ban on what is termed collective punishment, in this case the collective punishment of the entire Palestinian population of the Gaza Strip. Not all of them are members of Hamas and not all of them are responsible for this attack, but they are all being affected by this reaction from Israel just the same – indiscriminately."
“Horrific violence has been wreaked over the last 10 days. The situation today in Gaza is catastrophic… Basic humanity needs to be restored in #Gaza.” @DrChristou sends a message on the Gaza-Israel war. pic.twitter.com/0iPBYAOR6N
— MSF International (@MSF) October 17, 2023
Moreover, international law explicitly prohibits starving out a civilian population. "If I impose a total blockade, at some point food or drinking water will run out and then it is a case of starving out the civilian population. That is illegal under international law," Talmon says.
Evacuation legal, expulsion illegal
On 13 October, Israel's military ordered over a million civilians in the northern part of Gaza – almost half of the total population – to move to the south of the territory. The same applies to international organisations. Hamas, on the other hand, has called on the population to stay – and according to the Israeli army, prevented them from fleeing.
Because Gaza's infrastructure is in ruins and there are not enough places for that many people to go, the United Nations said such an evacuation is impossible. Jan Egeland, former foreign minister of Norway and current secretary-general of the aid organisation Norwegian Refugee Council described the evacuation order as illegal. It is "not an evacuation opportunity, it's an order to relocate. Under humanitarian law, it's called forcible transfer of populations, and it's a war crime," he said.
Since the bombardment is ongoing, complying with the order is no guarantee of safety either. Video footage reviewed by The Washington Post shows a number of people, including several children, apparently killed by an Israeli attack as they fled south.
In principle, however, Stefan Talmon argues that the evacuation of civilians by an occupying power is permissible under international law. "To ensure the protection and security of the population and to enable military operations, for example." In Talmon's view, Israel is not acting unlawfully in this respect.
International humanitarian law "archaic"
"Any attempt by Israel to evict the population from the entire Gaza Strip would be prohibited under international law. Within the territory of the adversary, however, evacuations or forced relocations of the population for their own protection and safety are certainly permissible," the international law expert elaborates.
International humanitarian law, or the law of war as it used to be called, is archaic, says Stefan Talmon. "It was made by countries for countries – by those that assumed that one day they themselves would actually be waging war. In doing so, they were careful not to put shackles on themselves or impose rules they would be unable to follow."
© Deutsche Welle 2023