Israel, Gaza and the Law of War

Three weeks ago, several hundred legal academics published an open letter accusing Israel of committing war crimes in Gaza. On its face, the letter projects a patina of legal credibility, complete with 85 footnote citations and repeated appeals to ‘customary international law.’

But, in truth, this lawyers’ jeremiad is little more than a gossamer web of political arguments glued together by partisan animus against Israel.

The customary international law that forms the basis for these lawyers’ arguments is a nebulous collection of unwritten principles tainted by ‘eye of the beholder’ subjectivity. It is far more useful to assess Israel’s military actions by the actual text of the international conventions countries negotiated to establish an authoritative law of war.

The baseline treaty governing how armed conflicts are to be fought is the 1907 Hague RegulationsConcerning the Laws and Customs of War on Land. Article 42 of the Regulations states: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”

Israel withdrew from Gaza in 2005, uprooting all its military bases and evicting 8,600 Jewish civilians from 17 farming and residential communities.

Two years later, Hamas seized absolute political power in Gaza at gunpoint, killing or exiling its political rivals from the Fatah movement. And those jihadis have used Gaza as a launching pad for attacks against Israel ever since.

Thus, per the terms of the Hague Regulations, Gaza cannot be “occupied” as the lawyers’ letter asserts, but constitutes a foreign enclave controlled by a terrorist army that was waging war against Israel. This means Israel is under no legal obligation under the laws of war to supply fuel and food to what, in essence, is hostile belligerent territory. Particularly in view of the certainty that Hamas has already been seen stealing relief supplies for military use.

The next issue to assess should be Israel’s air and ground campaign against Gaza. What does the law of armed conflict require in balancing military necessity against the imperative to protect non-combatants from harm?

Israel’s detractors point to Palestinian casualty figures as definitive proof of IDF criminality as they peddle the fallacy that higher death tolls equate to moral righteousness. By ethical stupidity of that argument becomes evident when applied to WWII. The Nazis were not the good guys, despite suffering 430,000 German civilians dead from Allied bombing while only 70,000 British were killed by the Luftwaffe.

And in great measure, Palestinian non-combatant casualties in Gaza are directly attributable to the longstanding Hamas tactic of hiding weapons and command centers at civilian locations. Back in 2014, the UN complained about repeated instances in which Hamas and Palestinian Islamic Jihad stored weapons within school buildings throughout Gaza City.

We’ve seen video footage of Palestinian terrorists abusing UN ambulances to transport armed fighters around the battlefield. And Israel has also documented the discovery of numerous weapons caches in schools and hospitals throughout Gaza.

Each of these Palestinian tactics violates the principle of distinction in the law of armed conflict as defined by the International Committee of the Red Cross (ICRC). This rule is intended to protect non-combatants by ensuring their physical separation from military targets that are legally subject to attack.

What does the law of war say about the misuse of civilian facilities for military purposes? Article 19 of the 4th Geneva Convention states: “The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy.”

In other words, hospitals, schools, or residential buildings used to conduct military operations lose their legal immunity from attack and become legitimate targets of war. On a macro scale, that same rule of distinction also explains Israel’s urging for Palestinian civilians to vacate the battleground of northern Gaza.

As Section 5.14.2 of the US Department of Defense Law of War Manual explains: “The evacuation of civilians from areas likely to be attacked is advisable when there is immediate danger and where it would be likely to involve less hardship and danger to civilians than leaving them in place.” Yet, Israel is going above and beyond to lessen those hardships by facilitating the delivery of medicines, food, water and shelter to a designated safe zone near Gaza’s border with Egypt.

The procès-verbal (drafting notes) of the 4th Geneva Convention also give lie to the claim that Israel is violating the Article 33 prohibition against collective punishment. Those notes make it clear that the intent of the Convention’s drafters was to prohibit crimes of collective reprisal such as the WWII massacres committed by the SS at Lidice and Oradour-sur-Glane. Article 33 has nothing to do with legitimate military operations against valid targets of war.

It’s demonstrable that the Israeli military is doing everything required by the law of war – and more – to minimize harm to the civilian population of Gaza. But because of the inherent chaos of the battlefield, compounded by the lawlessness of Hamas, it’s an equal certainty that those efforts will fail.

But for Israel, there is no alternative to the physical annihilation of Hamas. The bloody rampage of October 7 demonstrates the folly of seeking long-term coexistence with a hostile terrorist statelet that’s just across your border.

Ted Lapkin is a former Israeli army officer who served in Australia’s conservative Abbott government as a ministerial advisor.