Olivia Flasch

In Gaza, people are dying. Who is responsible for their deaths?

Over the past four weeks, two wars involving Israel have been taking place. The first, an armed conflict between Israel and Hamas, and the second, a misinformation war penetrating our news outlets, social media accounts and personal interactions with friends and colleagues. Curiously, this second war is not just about facts – but about the law applicable to those facts.

In the same way that pseudoscience spreads online, inciting anger and distrust in our institutions and society, the spreading of pseudolaw, or misinformation about the law applicable to the current conflict, is having very real, and very serious consequences.

Legal terminology and assumptions about the law are being thrown around nonchalantly, and in absolute terms, with no obvious purpose other than to shock, anger and incite to some sort of action. Regrettably, the action it has incited to is mainly one of antisemitic hate crimes, like the storming of the Dagestan airport by people hunting Jews, apparently “for Palestine”.

What is striking about this conflict and the discussions about international law it has sparked, is not only that most of the legal analysis is being carried out by non-lawyers, but that the conversations appear to be missing a fundamental element of the equation. Like starting a book from its middle, or a play from act two, the discussion around whether or not a violation of international law has occurred in this conflict begins in each case with a review of Israel’s response, and not, as would be logical, with the attacks perpetrated by Hamas to which Israel is responding.

It cannot be overstated that Hamas is a genocidal terrorist organisation which has as its raison d’être the complete elimination of Jews from the face of the Earth and the destruction of the State of Israel. Its ability to execute this plan was truly revealed to the world on October 7th, when it tortured, raped and murdered over 1,400 men, women and children, and kidnapped over 200 more, whose whereabouts are still unknown. And here is the crucial bit: Hamas does not care about the law. Its armed forces do not undergo training in the Geneva Conventions. The permitted means and methods of warfare are not taken into account by Hamas operatives. There is no Hamas military lawyer, providing legal advice to its commanders. Indeed, the genocide of a people cannot come about through adherence to the laws of war.

Conversely, Israel as a state, does care about the laws of war. If it did not, its possible violation of the law would not be a relevant topic for discussion, in the same way that Hamas’s disregard for the law is generally ignored or minimised. But it is important to acknowledge this discrepancy – not because it legitimises any violation of the laws of war by Israel (indeed, those familiar with the law know that one party’s disregard for it does not enable the other party to ignore it), but because it is highly relevant to establishing legal and moral responsibility for the civilian casualties.

Let’s discuss then, the laws of war. The laws of war, or international humanitarian law, is exactly that – humanitarian in nature. It is a body of law that was developed to minimise the human suffering that armed conflict necessarily induces, through rules that regulate the conduct of hostilities. In doing so, it imposes specific protections, rendering certain categories of people and objects immune from being deliberately attacked. For example, it is legally prohibited to deliberately attack civilians, civilian objects, like schools or hospitals, and prisoners of war. In contrast, it is legally permitted to deliberately attack combatants, or soldiers, and military objectives like weapons storage units or army headquarters (subject of course to certain other legal restrictions).

Even in the beginning of the 20th century, when early renditions of the laws of war were being developed, the drafters were clever enough to anticipate that some parties to a conflict might seek to exploit these legal protections to their advantage. Thus arose the prohibition against perfidy. Perfidy is defined in international law as acts which invite the confidence of the adversary, leading them to believe that they can or should afford protection under the laws of war, with the intent to betray that confidence. In other words – pretending that you are entitled to protection, only to prevent yourself from being attacked and thus gaining a military advantage. In simple terms, as one scholar has put it, being a wolf in sheep’s clothing.

Why is perfidy prohibited in international law? Because it erodes the protections that are necessary to minimise human suffering. If parties to a conflict cannot be sure whether an ambulance is actually an ambulance or a military vehicle, if they cannot be sure whether a civilian is actually a civilian or a combatant, it puts every ambulance and every civilian at risk. This is because civilian objects which are used for military purposes can be legally attacked. The definition of a military objective depends on its nature, location and use – and not on its name or designation. Thus, a mosque or a hospital loses its immunity if it is used for military purposes.

The commission of perfidy, of using protected persons and objects to shield oneself from attack, is considered so inhumane, so immoral, that it has been designated a war crime, thus shifting legal and moral responsibility for the deaths of the civilians, or the destruction of the civilian objects, to the perfidious party. The reason for this shift in responsibility is logical: using protected persons as a shield evidences a complete disregard for the purpose of the laws of war: to minimise human suffering.

The use of perfidy by Hamas is widespread and has taken many forms. Storing and launching weapons from or near hospitals, schools, mosques, residential buildings and United Nations buildings is one example. Most recently, rocket launchers were found five metres from a children’s swimming pool, 30 metres from a residential complex, inside a children’s playground and within an amusement park. Threatening or physically preventing (including by killing) civilians from fleeing the areas of hostilities is another example of perfidy. In this regard, recent footage has emerged of Hamas operatives gunning down fleeing civilians on evacuation routes in northern Gaza.

This extreme use of perfidy does not mean that Israel is given a carte blanche to carpet bomb these civilians or buildings. As a law-abiding party to the conflict, Israel is still restricted by other rules of international humanitarian law, which require it to take certain steps to minimise civilian casualties (including issuing warnings, giving time for an evacuation, and creating a safe passage towards a protected zone or place, as well as protecting the general principles of necessity and proportionality), despite the difficult circumstances. But it does mean that in these circumstances, one must at least consider the possibility that Hamas bears a significant responsibility for the casualties, which undoubtedly would have been far fewer, had it not resorted to using civilians as human shields.

By ignoring Hamas’s actions completely and focusing only on Israel’s response, we are disregarding an essential piece of the puzzle: the reason for the high number of civilian casualties in Gaza. This is the determining factor in establishing whether a violation of international law has occurred. While the answer to this question may very well implicate both Hamas and Israel to varying degrees, it is simply impossible to establish a violation, or the commission of war crimes, in absolute terms, by looking solely at the numbers. We should be asking ourselves: What, if anything, have the parties done to try and minimise these numbers? And what have the parties done to try and maximise them? The answer to this second question is just as important as the answer to the first.

About the Author
Olivia Flasch is an international lawyer who currently lives in London. She studied Public International Law in The Hague, and has a Master's in Law from the University of Oxford. Born into a Jewish family in Sweden, she writes about all things Jewish, as well as about Israel and the world from an international law perspective.
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