The Israel-Hamas War: Are war crimes being committed?
Brian Fitzsimmons, Intern
Foundation for Middle East Peace
July 22, 2014
Charges and countercharges have been made that, on the one hand, Israel is committing war crimes through its massive aerial bombardments and use of heavily armed ground troops at great cost to civilians in Gaza, and on the other hand, that Hamas is committing war crimes by firing missiles against Israeli population centers. The following summary provides some guidance on war crimes. See also the footnoted citations of scholarly and legal analyses.
The Fourth Geneva convention includes three principles of war concerning civilians and previous combatants who are now sick, wounded, or have surrendered, along with several annexes. The main three are:
1. Principle of Distinction (and Humane Treatment): Armies must distinguish between combatants and non-combatants (i.e. civilians) and are prohibited from attacking non-combatants. As long as non-combatants do not take part in the hostilities, they are legally protected from treatment “of such a character as to cause physical suffering or extermination. This prohibition applies...to murder, torture, corporal punishments, mutilation and medical or scientific experiments,” as well as collective punishment and the use of human shields. All civilians have these protections, regardless of race, gender, religion, ethnicity, etc.
2. Principle Military Necessity: Armies can only attack “military objectives,” not “civilian objects.” In other words, armies can only attack locations or personnel that give them a definite military advantage. Anything that does not produce this military advantage is considered a “civilian object,” and is protected by the 4th Geneva Convention. Furthermore, armies cannot attack indiscriminately - they must attack a specific military objective with precise equipment/weaponry that damages only the intended target.
3. Principle of Proportionality: During an attack, the harm to civilians cannot exceed the military benefit of the attack. For example, an army could not blow up an entire apartment complex just to kill one lowly lieutenant. (Clearly, there is some subjectivity - Israel could publicly claim that the advantage of killing that lieutenant exceeded the harm done to civilians in the apartment complex. It’s all based on perspective). Similarly, an army must take all precautions before the attack to ensure minimal civilian casualties. If an attack will disproportionately harm civilians, the army must scrap the operation. If the attack is justifiably proportionate, the army must still warn civilians in the area of the impending attack. Israel does this with text messages, leaflets, and phone calls, but also with small bombs not designed to kill. Once the army controls a military objective, the safety and protection of nearby civilians falls upon it.
The Fourth Geneva Convention also ensures the protection of:
Medical, humanitarian, and religious personnel (as long as they don’t partake in hostilities)
Humanitarian relief operations and locations (i.e. refugee camps, cease fires so NGOs can provide relief to affected civilians)
The natural environment (for example, an army could not destroy farms or poison rivers to starve a population center. An environmental attack must give a proportional military advantage)
Infrastructure necessary for the survival of civilians
Both Israel and Hamas have violated international humanitarian law.
On the Israeli side, Israel is clearly not taking the necessary precautions to avoid civilian casualties, what with 70-80% of the dead being non-combatants according to the UN.[i] Examples of this violation include the 4 children killed on the beach, strikes against civilian apartment complexes, and the destruction of a disabled center. Furthermore, though Israel is warning Palestinians to evacuate, there are few places to which they can actually flee, and no possibility of leaving Gaza exists due to the Israeli and Egyptian closures. With few shelters, many Palestinians have no choice but to stay in their homes. This leaves them vulnerable to Israeli air strikes and ground attacks. Israel undoubtedly understands this, but continues with the strikes anyway.
It is also plausible that Israeli strikes violate the principle of proportionality. Israeli bombings have wreaked so much more death and destruction than Hamas’s rockets, and the constant barrage further harms the economy, cutting many Palestinians off from vital necessities and medical care. Though Israeli air strikes do not directly deprive Palestinians of these necessities, their high frequency renders any attempt to access food and medical care potentially fatal. This implies a violation of the “humane treatment” clause. Nevertheless, as mentioned above, proportionality is subjective - Israel could claim that the military advantages gained by these strikes outweigh civilian loss. It is harder to justify an entire ground invasion, however, against the principles of proportionality and military necessity.
As for Hamas, it is obviously violating the principle of distinction and military necessity by indiscriminately firing upon Israeli population centers. With no guidance, Hamas’s rockets and mortars make no distinction between combatant and non-combatant, nor military objective and civilian object. Hamas does not recognize any of these distinctions - all of Israel, combatant or otherwise, is its target. Furthermore, accusations that Hamas is using Gazan civilians as human shields (in a general sense) may hold water. Purposefully erecting launch pads in civilian areas could be interpreted as violations of humanitarian law. However, Hamas might reply that Gaza is so densely populated, there is no location to fire missiles from that does not house civilians as well. In addition, Hamas might accuse Israel of the same violation, since its Ministry of Defense is in downtown Tel Aviv. The “human shield” argument, therefore, is more debatable.