Michael Sierra

Is Israel violating international law?


The massacre on October 7, in which over 1,400 Israelis were brutally murdered, more than 4,600 were injured, including women, disabled individuals, children and 241 civilians were kidnapped, along with Israel’s defensive response, has prompted various accusations of anti-Semitism worldwide. Among these, the accusation that Israel violates international law stands out. It seems that after the halt to the Constitutional Reform in Israel, we have moved from a world where everyone’s an expert in Israeli constitutional law to a world where everyone is an expert in international law.

There is no doubt that Hamas has violated international law. However, Israel is often accused of similar violations. In this brief article, I will explain what international law is and why Israel does not violate this branch of law. It is worth noting that these accusations often come from people who, at worst, accuse Israel in bad faith and, at best, are not experts in the field.

What is International Law?

International law is a system of rules and principles that regulate the relations between states and other international entities in the international community. This legal field deals with issues such as treaties, territorial boundaries, human rights, international trade, war and peace, and many other matters involving international actors.

It can be divided into two main categories: public international law and private international law. While public international law focuses on the relations between states and other sovereign entities globally, private international law concerns legal issues involving individuals and businesses acting beyond national borders. In international law, mandatory sources are established by Article 38 of the Statute of the International Court of Justice (ICJ), which is the principal judicial organ of the United Nations. This article lists the following sources as mandatory sources of international law:

Treaties: International agreements concluded between states and international organizations. These treaties can have different names, such as conventions, protocols, agreements, and are binding on the parties that have ratified them.

Customary International Law: Practices generally accepted as law, even if not formalized in treaties. Customary international law is based on repeated and generally accepted behaviors by states over time.

General Principles of Law: Generally recognized legal principles applied by various national and international jurisdictions. These principles can be considered mandatory sources when there are no specific treaties or customs on a particular issue.

Legal Decisions and Teachings of Qualified Jurists from Different Nations: Decisions of international courts, as well as the opinions and writings of recognized legal scholars and experts in the field of international law who interpret and apply international law.

Teachings of Religions and Human Philosophies: Although less frequently invoked than the other sources listed, religions and human philosophies can influence international law in certain circumstances, especially in specific cultural contexts.

These mandatory sources represent the foundations on which international law is based. When disputes arise between states or other parties, the International Court of Justice can refer to these sources to reach a decision.

International humanitarian law, also known as “jus in bello,” should not be confused with “jus ad bellum,” which regulates the legitimate reasons for a state to wage war. This distinction is crucial and is designed to separate the reasons of parties in conflict from their conduct on the battlefield. A state that has waged a legitimate war (which, according to modern law, is almost exclusively a war of self-defense) and has thus respected “jus ad bellum” might still violate “jus in bello.”

International law is essential to promote stability, security, and cooperation among states and to address global issues such as human rights, the environment, and international trade. However, the application and effectiveness of international law often depend on the political will of states and their compliance with legal norms and obligations.

Let’s examine some sources and refute false statements that Israel violates international law.

Conventions and Customary International Law – Legitimate Defense, Necessity, Proportionality, and Distinction

International law, both conventional and customary, recognizes the inalienable prerogative of states to use force for individual or collective self-defense. Article 51 of the United Nations Charter clearly states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.”

Israel has always acted in accordance with these rules, including the principles of necessity and proportionality. The mere fact that there is a numerical difference in civilian casualties during a military operation does not necessarily imply that the operation is “disproportionate.” According to the law of armed conflict, the relevant question is whether the military force deployed to achieve what is provided for in legitimate defense is proportionate or necessary.

Israel’s explicit goal during the campaign is to free the 240 civilians kidnapped by Hamas, stop and deter terrorist groups of Hamas and Jihad from firing rockets at civilians and infrastructure or overcoming the protective barrier – an action that constitutes a serious threat to public safety, as demonstrated on October 7. Moreover, Israel warns the unarmed population of the Strip each time, to avoid further innocent victims. The question, therefore, to ask would be: “What is permissible for a sovereign nation every time 7,000 rockets are launched in a few hours against the civilian population by an enemy dedicated to its destruction?”

The principle of proportionality is also part of customary international law, including the first additional protocol to the Geneva Conventions of 1977. We are talking about Article 51(5 ter), which states: “An attack that may cause accidental loss of human life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.”

Furthermore, Article 51 of the 1977 Amendment to the Geneva Conventions of 1949 expressly prohibits the use of human shields: “The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular attempts to shield military objectives from attacks, or to shield, favor, or impede military operations.”

During the investigations into the invasion of Iraq in 2003, Luis Moreno-Ocampo, former Chief Prosecutor of the International Criminal Court, stated the following: “According to international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, as grave and deplorable as it may be, does not constitute a war crime per se. International humanitarian law and the Rome Statute allow belligerents to launch proportionate attacks against military objectives, even when it is known that there will be deaths or injuries among civilians.”

In Israel, the proportionality of operations is examined – before its execution – by the Office of the Military Advocate General of the Israel Defense Forces, while the IDF seeks to use precision-guided weapons and warns civilians of the anticipated attack. Indeed, it is important to note that – while Israel uses the Iron Dome and air raid shelters to protect civilians – Hamas positions weapons or rocket launchers in densely populated areas or “shelters” such as schools and hospitals.

According to international law, an objective is considered military if it is used for military purposes. Article 52(2) of the first protocol of the Geneva Convention refers to “objects which, by their nature, location, purpose, or use, make an effective contribution to military action and whose total or partial destruction, capture, or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” Therefore, if residential buildings, schools, or mosques are used by Hamas for military purposes, they become military objectives.

Israel warns before bombing and allows civilians to move to the southern Gaza Strip through a humanitarian corridor that Israel has specifically created. Hamas, on the other hand, tries to block its citizens, whom it prefers to keep as human shields, putting them at risk.

Conventions and Customary International Law – Non-Occupation of the Gaza Strip

In another article, I could explain why Israel did not occupy Judea and Samaria, but let’s focus on the Gaza Strip. According to Article 42 of the Hague Regulations, July 29, 1899: “A territory is considered as occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territories where such authority has been established and can be exercised.” This article was adopted in 1899 during the Hague Conference on the Laws and Customs of War on Land and establishes the conditions that define a territory as occupied. According to this article, a territory is considered occupied when the following three conditions occur. First, the physical military presence of the occupying state’s forces in the territory (boots on the ground). Second, the exercise of governmental powers over the territory by the forces of the occupying state. Third, the loss of the ability of the former sovereign to exercise governmental powers.

These conditions were established to protect the civilian population during armed conflicts and ensure that occupation does not lead to a permanent change in the territorial status without the consent of the inhabitants of the occupied territory. Since these are cumulative terms, when one of the three ceases to be satisfied, the territory loses its legal status as an occupied territory. In the case of the Gaza Strip, none of these conditions are met. Since the implementation of the disengagement plan in September 2005, all IDF forces have withdrawn from the Gaza Strip; there was no permanent physical presence of Israeli military forces in the Gaza Strip until the Iron Sword war. Israel does not exercise governmental powers over the territory of the Gaza Strip. The governor is Hamas, elected by the citizens of Gaza in 2006.

Hamas’s government dominates the management of all aspects of life in the Gaza Strip: from internal security and public order, through the economy, law enforcement, and the judicial system, to health and education systems, ending with control over civilian infrastructure.

Therefore, Israel is not an occupier in the Gaza Strip. It was not before October 7 and is not following the ongoing war. But even if it were, there is no obligation under international law to provide humanitarian aid to the civilians of Gaza, as Israel voluntarily does. In fact, as I will explain in the following lines, there is an obligation not to provide aid that could fall into the hands of terrorists.

United Nations Security Council Resolution 1373 (2001)

Often, those who argue that Israel violates international law recall certain decisions of international bodies, such as decisions adopted by the Human Rights Council, for example. It is essential to emphasize that such decisions or statements, while potentially providing a basis for future principles of international law, do not automatically have legally binding value. In reality, not all decisions of international bodies in public international law have the same legal significance. It is also worth remembering that the UN Human Rights Council is composed largely of non-democratic countries. It may seem absurd, in fact, but the UN Human Rights Council has been chaired by Iran since November 2023.

Statements of the UN General Assembly also do not have legally binding power from a legal perspective. So what are the binding decisions? Decisions of the United Nations Security Council adopted under Chapter VII of the United Nations Charter. Such decisions are of great importance in the context of international law. Chapter VII deals with actions that the Security Council can take to maintain or restore international peace and security in situations of a threat to peace, breaches of peace, or acts of aggression. Decisions made under Chapter VII are the most significant for several reasons.

The first is that decisions of the Security Council under Chapter VII are legally binding on all member states of the United Nations. States are obligated to respect and implement these decisions. The second reason is related to Executive Force: The Security Council has the power to impose coercive measures, such as economic sanctions, arms embargoes, or the use of military force, to enforce its decisions under Chapter VII. These measures have a direct impact on the countries involved and can be used to resolve international crises and conflicts.

The third reason is related to the fact that Chapter VII is designed to maintain international peace and security. Decisions made under this chapter are aimed at resolving conflicts, preventing acts of aggression, and suppressing threats to global peace. Moreover, decisions of the Security Council under Chapter VII can be referred to the International Court of Justice for interpretation or decision. The Court can be called upon to assess the legality of actions taken by the Security Council under this chapter.

United Nations Security Council Resolution 1373 (2001) is a resolution of the United Nations Security Council, adopted on September 28, 2001, under Chapter VII of the United Nations Charter, just days after the September 11 attacks in the United States. This resolution was adopted unanimously and highlights the importance of international cooperation in combating terrorism. According to the resolution: “The Security Council… acting under Chapter VII of the Charter of the United Nations…1. decides that all States shall:

(a) prevent and repress the financing of terrorist acts;

(b) criminalize the voluntary provision or collection, by any means, directly or indirectly, of funds from their citizens or in their territories with the intention of using the funds, or knowing that they are to be used, to carry out acts terrorist;

  1. further decides that all States shall:

(a) refrain from providing any form of aid, active or passive, to entities or persons involved in terrorist acts, including through the repression of the recruitment of members of terrorist groups and the repression of the supply of weapons to terrorists;

(b) take the necessary measures to prevent the execution of terrorist acts, including by warning other States early through the exchange of information;

(c) deny safe haven to those who finance, plan, support or commit terrorist acts, or provide safe haven;

(d) prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territory for those purposes against other States or their citizens…”.

Considering Hamas’ control of the Gaza Strip and considering the profit-making use of funds, goods and services entering the territory, including humanitarian aid, it is clear that any provision of goods will at least indirectly support terrorist agents, in violation of the law.

There is an argument that the legal obligations under Resolution 1373 not to provide supplies to Hamas in the Gaza Strip do not apply because Israel had previously agreed to provide humanitarian aid and both to allow others to provide funds, goods and services. This statement is false since the obligations set out in the decision are considered Erga Omnes, and as such they bind everyone without exception.

Others argue that resolution 1373 does not apply to supplies to the civilian population even though it is clear that they would go directly to Hamas. However, the plain language is clear that the decision in Article 1(b) criminalizes “the voluntary supply or collection, by any means, directly or indirectly.

Conclusion – Is Israel violating international law?

No. According to the sources of international law: treaties or conventions, international custom and other sources, Israel does not violate international law. Neither the “ad bellum” one for self-defense nor the “in bello” one for the various IDF methods described above.

The fact that Israel is sometimes condemned by international bodies, often dominated by a majority of non-democratic Arab countries, does not mean that Israel violates international law. Not all declarations or decisions of international bodies have the same binding legal value and before supporting a false and baseless accusation of Israel using sources of international law it is worth knowing the facts and knowing the sources.

About the Author
Michael Sierra was born and raised in Jerusalem, where he founded the youth movement of the local Jewish-Italian community and he currently serves as a board member of the Italian Community. He is a veteran of the international branch of COGAT and he holds an LLB in Law and International Relations, along with an LLM from the Hebrew University. His professional experience includes working in the research department of the Supreme Court, at the Hebrew University as teaching and research assistant of different professors and a paid internship at the prestigious Agmon & Co. law firm.