Questions and Answers: International Humanitarian Law Principles in Times of Warfare

On Saturday, October 7, 2023, Hamas launched a murderous attack on Israel. Its members breached the border from Gaza and carried out indiscriminate slaughter, killing thousands of innocent people. Thousands of missiles were fired towards Israel. Over 200 people, including the elderly, toddlers, and women, were abducted. These are horrifying war crimes.

The attack was accompanied by a declaration of war by Hamas, and in response to these events, the Israeli government declared a state of war. Alongside intense fighting against Hamas forces that infiltrated into Israel and the attempt to restore calm to the Gaza envelope, the Air Force initiated a significant bombing of the Gaza Strip.

The Israeli government bears the responsibility for the peace and security of its citizens. It must act to immediately release the prisoners and the abducted individuals. It should urgently assist in locating missing persons, extract those still in the war zone, and immediately provide means of protection to those found in the area.

Hamas' murderous attack did not differentiate between Jewish and Arab civilians. It is forbidden to follow those inciting violence, discrimination, or carrying out crimes of hate and vengeance. Responding in kind will only add to the cycle of terrible bloodshed.

Hamas committed atrocious war crimes of the highest degree. However, their blatant violation of international law does not absolve Israel from complying with its provisions. Israel must refrain from harming the necessary infrastructure for humanitarian needs and the civilian population in Gaza, and permit the compulsory entry of humanitarian aid into the Strip, as required by international humanitarian law.

These provisions, among other things, delineate the limitations of the use of force to protect innocent civilians. This is the role of international humanitarian law, which defines the boundaries of using force in times of war and seeks to provide the greatest possible protection for non-combatants.

What is International Humanitarian Law?

International Humanitarian Law is a branch of international law that applies in specific conflict situations. It imposes limitations on the conduct of parties to a conflict in order to reduce the human suffering resulting from armed conflict and to ensure that fundamental humanitarian values are upheld even in times of war.

This is based on the understanding that warfare does not occur in a legal vacuum:

"Israel is engaged in a difficult battle against rampant terror. It acts according to its right to self-defense (see Article 51 of the United Nations Charter). This battle is not fought in a normative void. It is conducted according to the principles of international law, which establish principles and rules for the conduct of warfare..." (HCJ 3451/02 Almadani v. Minister of Defense, PD 56(3) 30, 35 (2002)).

What are the binding principles of international humanitarian law during armed conflict?

The international humanitarian law has three fundamental guiding principles that bind any country and combatant organization engaged in a conflict: the principle of distinction, the principle of proportionality, and the principle of precaution. These principles are intended to balance the obligation to protect civilians with each party's aspiration to gain significant advantage in times of warfare.

What is the principle of distinction?

The principle of distinction requires that the fighting force distinguishes between enemy combatants and civilians and makes every effort to avoid harming the civilian population and property. Harming combatants during wartime is permissible, but deliberate harm to civilians is prohibited. Every side involved in the conflict is obligated to minimize the impact on non-combatants and avoid damage to civilian infrastructure.

The principle of distinction necessitates the preservation of both the civilian population and civilian property and infrastructure. Therefore, a legitimate military target is one that the enemy uses for military purposes. Residential buildings, for instance, are civilian property and, as such, are not legitimate targets. For an attack to be legal against these sites, the activity conducted from within them must make a substantial contribution to the enemy's combat efforts.

What is the principle of proportionality?

The principle of proportionality requires the combatant force to weigh the expected damage from any military activity against the military advantage gained from that action. Therefore, even if the military targets a clear military objective, it must consider how many civilians it puts at risk in the attack and the expected severity of the damage to the civilian environment, against the military advantage gained from that action.

What is the principle of caution?

The principle of caution obliges combatant forces to exercise reasonable caution to prevent harm to civilians and civilian property. This principle applies to both the attacking force and the defending force, and the attacking force is required to make every effort to ensure its targets are military objectives.

Furthermore, the duty of caution necessitates the use of means of attack that will minimize civilian harm and property damage as much as possible, along with providing effective advance warning to civilians before an attack to minimize civilian casualties, unless circumstances do not allow for this. The principle of caution also places an obligation on the fighting sides to avoid, to the extent feasible, locating military objectives within civilian populations.

What is the relationship between international law and prisoners of war?

International law distinguishes between combatants taken as prisoners of war and the abduction and imprisonment of civilians. It prohibits the deprivation of civilians' liberty, except in cases where detention is a necessary means to ensure their safety. Harming civilians and imprisoning them cannot be used as a form of punishment or coercion.

The rules that regulate the conditions for those entitled to prisoner of war status require protection from any act of violence, torture, cruel or degrading treatment, as well as the provision of appropriate conditions for the detainees.

Is there an obligation to allow humanitarian aid to the civilian population?

The international law requires combatant parties to provide humanitarian aid to civilians on the attacked side. They are prohibited from preventing the population from essential means for survival and entitled to receive vital necessities such as food, medicine, medical equipment, water, and electricity supply.

Moreover, warring parties must allow humanitarian passages for civilians to flee combat zones and refrain from targeting designated safe areas.International law prohibits damage to medical facilities, medical teams, and infrastructure belonging to humanitarian organizations.

The duties of the military during warfare can also be understood from the Supreme Court ruling:

"The duty of the military commander is to ensure water supply in the area of combat activity. This obligation is not only the (negative) duty to prevent damage to water sources and disruption of water supply. It is also the (positive) duty to provide water if it is in short supply..." (HCJ 4764/04, Physicians for Human Rights v. Commander of the IDF Forces in Gaza, paragraph 385, 396 (412)).

Continuing:

"In the normative context, the principle is that the military commander who holds an area of combat must meet the food needs of the local residents under his control. Issuing this obligation from power to action is, of course, conditional, particularly in combat situations. However, it is forbidden in warfare to bring about the starvation of the local residents under military control..." (ibid, at pages 399-398).

Is it permissible to impose a siege?

Imposing a siege on a specific area is a recognized warfare tactic in international law. Due to the potential consequences of a siege on civilian populations, international law imposes duties and limitations related to sieges.

The primary principle is to allow civilians to evacuate the besieged area. The parties in conflict are not allowed to force civilians to remain in a besieged area against their will, and there is a prohibition on attacking fleeing civilians. The presence of civilians in a besieged area also necessitates taking cautious measures to prevent harm to them. Additionally, there is an absolute prohibition on starving the population in the attacked area. This is not a legitimate means of warfare.

Are there violations of the laws of war in the current conflict?

The attack by Hamas constitutes a blatant violation of international law. Additionally, the indiscriminate firing of missiles towards civilian populations by Hamas and Islamic Jihad also violates the laws of war and continues to exact a heavy toll on the Israeli society in terms of life and property.

Despite Hamas' breach of the laws of war, it does not absolve Israel from adhering to its obligations according to the aforementioned principles. Israel's offensive policy in Gaza includes airstrikes on densely populated civilian areas, attacks aimed at causing damage to buildings regularly used for civilian purposes, extensive damage to infrastructure, such as roads, electricity, and medical facilities. Reports even suggested the use of prohibited means, such as white phosphorus. As a result, hundreds of thousands have been forced to flee their destroyed homes or escape from the bombings.

Numerous statements from government officials and military leaders declared a change in the rules and pledged attacks of unprecedented scale. The Defense Minister announced the imposition of a blockade on Gaza, while the Infrastructure Minister ordered the disconnection of Gaza from electricity and water supplies coming from Israel. There were reports that Israel threatened Egypt to prevent fuel delivery to Gaza and even attacked a pipeline to hinder the entry of aid. Consequently, there is a severe lack of essential resources such as medical equipment, water, fuel, and electricity.

Thus, it seems that Israel's current policy is ignoring its obligations and international law. The laws of war are intended to prevent suffering and harm to innocent civilians. They set the rules even when emotions run high and cries for revenge are heard. Violations of these laws might lead to war crimes. These laws oblige every country or party in any conflict, even in the current one.