Kavindu Peiris
Researcher in International Security

Navigating legal complexities and accountability in the Israel-Hamas conflict

The enduring Israel-Hamas conflict presents challenges that extend far beyond the region’s borders, with significant implications for international law and accountability mechanisms. Recent assessments by the United Nations Office for the Coordination of Humanitarian Affairs (UN OCHA, 2021) highlight serious humanitarian crises resulting from the conflict, underscoring the urgent need to address legal intricacies while upholding principles of justice and human rights.

While the analysis aims to present a balanced perspective by examining the actions of both Israel and Hamas, it is imperative to ensure fairness and accuracy in portraying each side. Avoiding biases or perceptions of bias is crucial to maintaining the credibility of the analysis and fostering a nuanced understanding of the conflict.

In addition to discussing the political dynamics influencing accountability initiatives, it is essential to delve deeper into the intricate relationships between different actors involved in the conflict, including regional and international powers. Understanding these dynamics is vital for comprehensively addressing accountability issues and navigating the complexities of the conflict.

Acknowledging the challenges in implementing accountability mechanisms, we recognize the need for further exploration of specific obstacles and potential solutions. Practical challenges such as evidence collection, witness protection, and cooperation between conflicting parties play a crucial role in determining the effectiveness of accountability measures. Delving deeper into these implementation challenges will provide readers with a better understanding of the practical complexities involved.

While recommendations are provided for improving accountability systems, it is essential to consider the potential implications of implementing these measures. Exploring how these recommendations might impact future peace negotiations and conflict resolution efforts is crucial for understanding their broader implications. By examining the potential consequences of implementing accountability measures, readers can gain insights into their long-term impact on the conflict and its resolution.

The application of international humanitarian law (IHL) and human rights law emerges as a critical prism through which to comprehend and evaluate the actions of parties involved in the intricate and protracted Israel-Hamas’s conflict. These legal frameworks, rooted in the 1949 Geneva Conventions and later treaties, provide a framework for reducing the human cost of armed conflict while preserving the inherent rights and dignity of those caught in its crossfire.

The principle of distinction, a cornerstone of IHL, mandates a clear separation between combatants and civilians, as well as between military targets and civilian infrastructure. Its aim is to ensure that military actions solely target legitimate military objectives and shield civilians and their property from the ravages of warfare (ICRC, 2021). However, this principle becomes challenging to implement in Gaza’s densely populated urban landscape, where Hamas operates within civilian communities. The blurred line between fighters and non-combatants complicates efforts to minimize civilian casualties, resulting in tragic outcomes that highlight the significant challenges of upholding the principle of distinction.

Another fundamental principle of international humanitarian law is proportionality, which requires that the anticipated harm to civilians and civilian property be weighed against the expected military advantage of an attack. According to this principle, attacks resulting in a disproportionate number of civilian casualties compared to the intended military objective are deemed unlawful (ICRC, 2021). However, in asymmetric conflicts such as the one between Israel and Hamas, where one side possesses significantly greater military strength, there is a strong temptation to use excessive force. Reports of civilian casualties caused by Israeli artillery and airstrikes demonstrate the difficulty of adhering to proportionality during confrontations.

Moreover, human rights law serves as an additional framework alongside IHL aiming to safeguard the liberties and rights of those affected by armed conflict. Fundamental rights protected by international law include freedom from arbitrary detention, the right to life, and the prohibition of torture and other forms of cruel, inhuman, or degrading treatment (UNHCR, 2021). These rights are frequently violated by extrajudicial killings, arbitrary detentions, and indiscriminate attacks, among other offenses, and those responsible must be held accountable for their actions. However, allegations of human rights violations in the context of the Israel-Hamas conflict often face denial, deflection, and impunity, highlighting the challenges of maintaining accountability during periods of hostilities.

It is noted that the parties in the Israel-Hamas conflict have been accused of violating international law, which has prompted an examination of their actions in light of accepted legal standards. These accusations cover a wide variety of acts, including the use of indiscriminate weaponry and attacks on civilians and civilian infrastructure, which present serious legal issues under IHL and human rights law.

During the 2014 conflict, reports surfaced of airstrikes and artillery bombardments targeting densely populated areas in Gaza, resulting in civilian casualties and significant damage to civilian infrastructure. Israel faced criticism for its military operations in Gaza during this time (Amnesty International, 2014). These actions prompted discussions regarding Israel’s adherence to the standards IHL, particularly the principles of distinction and proportionality. These principles, which prohibit attacks causing more harm to civilians than expected military gain, have been scrutinized in relation to Israel’s actions (ICRC, 2021). Article 48 of Additional Protocol I to the Geneva Conventions (1977) emphasizes the principle of differentiation, forbidding strikes that fail to distinguish between military and civilian targets. Similarly, Article 51(5)(b) of Additional Protocol I prohibits indiscriminate attacks that fail to differentiate between civilian and military objectives or that result in disproportionate harm to civilians.

Furthermore, Human Rights Watch (2019) has denounced Israel’s siege of Gaza as an instance of collective punishment that infringes on the rights of civilians. States are required by IHL to protect civilians in areas under their jurisdiction and to make it easier for individuals to obtain necessities such as clean water, healthcare, and education (ICRC, 2021). The Fourth Geneva Convention (1949) forbids collective punishment directed against individuals who are protected, and Additional Protocol I’s Article 55 highlights the parties’ need to provide for the basic requirements of civilians.

On the other hand of the conflict, Hamas stands accused of utilizing indiscriminate weaponry, including mortars and rockets, to target Israeli civilian neighborhoods, causing harm to civilian infrastructure and casualties among civilians (UNHCR, 2020). The principle of distinction under IHL is violated by these strikes, as it mandates that parties to a conflict make a distinction between civilians and combatants and focus their attacks solely on legitimate military targets (ICRC, 2021). Additional Protocol I’s Article 51(4) restricts attacks that might harm civilians excessively. However, critics argue that Hamas’s use of indiscriminate weapons demonstrates a disregard for the safety and well-being of civilians, constituting a breach of its obligations under international law.

Israel’s sovereignty has been breached, and Israeli civilians’ safety and security are endangered by Hamas’s use of tunnels to infiltrate Israeli territories and carry out attacks on civilian neighborhoods (UNHCR, 2020). International humanitarian law (IHL) mandates that parties to a conflict take every feasible precaution to prevent harm to civilians and refrain from launching attacks on civilian areas (ICRC, 2021). Article 57(1) of Additional Protocol I require parties to take all reasonable measures to prevent, and minimize, if necessary, harm to civilians and civilian objects. Additionally, Article 52(1) of Additional Protocol I prohibit parties to a conflict from utilizing civilian objects for military purposes, except under specific circumstances.

It is clear from examining these claimed violations of international law that Israel and Hamas are subject to legal consequences for their roles in the Israel-Hamas conflict. International tribunals and courts can decide whether certain episodes and conduct patterns qualify as war crimes or violations of international legal norms by applying recognized legal concepts to the analysis. In order to ensure that those responsible are held accountable for their conduct under international law, future attempts to resolve these crimes must place a high priority on accountability, justice, and the protection of civilian lives.

Upon considering further, navigating accountability for violations of international law in the Israel-Hamas conflict requires analyzing political dynamics, jurisdictional issues, and collaboration among relevant parties. Political factors often overshadow legal requirements, as the complex web of diplomatic relations and geopolitical interests driving the conflict influences accountability initiatives. States with vested interests may prioritize political allegiance over legal compliance, leading to reluctance in accepting accountability measures. Political entanglements can impede unbiased investigations and court proceedings by undermining the impartiality of legal procedures through prejudices and diplomatic maneuvers (Smith, 2018).

Accountability in the Israel-Hamas conflict is complicated by jurisdictional concerns. The dispute involves multiple territories with different legal systems and levels of authority. This fragmentation makes it challenging to establish clear legal chains of authority for prosecuting those who violate international law. Additionally, territorial sovereignty disputes further hinder the implementation of accountability mechanisms. Gaps in accountability arise from the lack of universal jurisdiction for certain crimes and a legal framework ill-suited to the dynamics of the conflict. Consequently, offenders have more avenues to evade justice (Schabas, 2011).

Efforts to establish accountability are severely hindered by the unwillingness of the involved parties to cooperate. Both Israel and Hamas have faced allegations of obstructing investigations into alleged violations of international law, hindering efforts to gather evidence and prosecute offenders. Israel often cites national sovereignty and security concerns as reasons for limiting access to information and the activities of foreign organizations within its borders. Similarly, Hamas’s control over the Gaza Strip and its hostility towards external scrutiny impede unbiased inquiries into its activities. Reluctance to engage in accountability processes undermines the legitimacy and effectiveness of court cases, fostering a culture of impunity and obstructing victims’ access to justice (Fontanelli, 2016).

International organizations, particularly the International Criminal Court (ICC) and the United Nations (UN), play a vital role in promoting justice and accountability in the Israel-Hamas conflict. The UN provides a forum for diplomatic attempts to address human rights abuses and resolve the conflict. The UN can compel parties to adhere to international law and collaborate with accountability procedures by using platforms such as the Security Council and General Assembly (Hurd, 2011). Furthermore, UN organizations that chronicle purported violations of international law and promote accountability, including the Office of the High Commissioner for Human Rights (OHCHR), perform monitoring and investigative functions (Hammarskjöld Foundation, 2019).

As the first permanent international criminal court in history, the ICC is tasked with prosecuting cases involving the most serious crimes of global concern, such as crimes against humanity, war crimes, and genocide. Palestine is not a party to the Rome Statute, which created the ICC; however, crimes committed by citizens of member nations as well as crimes committed on their soil are subject to the court’s jurisdiction (Schabas, 2017). As a result, the ICC has begun preliminary investigations into alleged crimes related to the Israel-Palestine conflict, including those involving Israeli forces and Hamas (ICC, 2021).

Nonetheless, there are numerous challenges that could compromise the efficiency of the current procedures for looking into and prosecuting suspected violations of international law in the Israel-Hamas conflict. The politicization of accountability initiatives is a major obstacle that threatens the objectivity and legitimacy of inquiries and court cases. Resolutions intended to address violations of human rights and promote accountability may be hampered by political factors inside the UN Security Council, such as the exercise of veto power by certain member states (Tawil-Souri, 2012). In a similar vein, the ICC’s capacity to prosecute all of the guilty depends on its jurisdictional restrictions and lack of widespread recognition.

A significant obstacle to the effective implementation of accountability procedures is the parties’ reluctance to cooperate. According to HRW (2020), both Israel and Hamas have been accused of obstructing investigations and limiting access to evidence, complicating efforts to gather sufficient data for legal action. When parties involved fail to cooperate meaningfully, accountability mechanisms struggle to fulfill their mandates and provide justice to victims of human rights violations.

In discussions surrounding the Israel-Hamas conflict, skepticism often arises regarding the application of international law and accountability procedures. This skepticism is fueled by concerns about bias, politicization, sovereignty, and practical challenges in implementation. Critics argue that the legitimacy of legal processes may be compromised, alleging that international authorities could exhibit bias by focusing disproportionately on Israel for legal scrutiny while downplaying the actions of Hamas.

There are also concerns raised about national security and sovereignty, with arguments asserting that Israel’s rights to self-defense against security threats from Hamas are compromised by external interference, including judicial scrutiny. Critics also highlight practical challenges, such as the necessity for diplomatic negotiations and evidence collection, which they argue make accountability measures unrealistic and potentially detrimental to conflict resolution efforts.

Nevertheless, it is crucial to understand that, notwithstanding these arguments, all parties to an armed conflict are subject to the same international legal standards, independent of their political opinions. It is essential to uphold these standards through accountability systems in order to promote human rights, security, and peace. Furthermore, international cooperation and technical aid could help assure accountability while acknowledging implementation challenges. The international community can preserve the rule of law and defend the rights of civilians impacted by the conflict by placing legal norms ahead of political concerns and working together to overcome practical obstacles. This will help bring about a more just and long-lasting resolution.

Various measures can be proposed to improve accountability systems and ensure adherence to international law in the Israel-Hamas conflict. Firstly, establishing an impartial and independent international commission of investigation is crucial. This commission would examine allegations of human rights violations and breaches of international humanitarian law raised by all involved parties. It should have the authority to gather evidence, conduct interviews, and recommend accountability measures.

Additionally, efforts to strengthen national legal systems to prosecute individuals responsible for war crimes and human rights abuses should be prioritized. This may involve providing support to national judicial systems to enhance their capacity in handling complex matters of international law, as well as offering technological assistance. Furthermore, fostering communication and reconciliation between Israel and Hamas is essential for addressing remaining issues and building trust. Confidence-building measures, such as prisoner exchanges and humanitarian actions, can contribute to creating an environment conducive to peace talks and accountability. Ultimately, a comprehensive strategy integrating institutional, legal, and diplomatic measures is necessary to enhance accountability and promote lasting peace in the region.

The Israel-Hamas conflict remains a complex and enduring issue with significant humanitarian consequences. This article examined the intricate dynamics of the conflict, addressing concerns regarding accountability, violations of international law, and recommendations for future actions. The analysis demonstrates the importance of upholding international law and accountability frameworks to address the underlying causes of the conflict and prevent similar violations in the future. Achieving justice and preserving civilian rights necessitates holding all parties accountable for their actions. Therefore, it is imperative for the international community to intensify efforts to promote accountability, justice, and respect for human rights in the region.

About the Author
Kavindu Peiris, graduated with the degree of Bachelor of Laws (Honors) from the School of Law at Staffordshire University in the United Kingdom. Currently, he is reading for the degree of Master of Arts in International Relations and International Security in the Department of Politics and International Relations at the University of Westminster, London, United Kingdom. His research interests are on Counter-Terrorism, Violent Extremism, International Security, Defence and Strategic Studies and International Humanitarian Law (IHL).
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