faq
Following the Hamas attack, Israel has declared a state of war, is bombing targets in the Gaza Strip and is considering a ground offensive. What does international law allow and what answers does it have to Hamas’ crimes?
Can Israel defend itself after the attacks?
The prohibition of the use of force is fundamental in the Charter of the United Nations. Armed conflicts should be avoided. The 193 states that belong to the United Nations have agreed on this. But: If a state is attacked, it has the right to “self-defense”. This is guaranteed by Article 51 of the UN Charter towards other states.
“It shouldn’t apply here because Hamas is a terrorist organization and not a state. And yet Israel has the right to self-defense in this case too. This follows from customary international law,” explains Christoph Safferling, professor of international law at the Friedrich-Alexander University. University of Erlangen-Nuremberg and director of the International Nuremberg Principles Academy. Israel can therefore defend itself against Hamas’ attacks. However, according to the rules and within the limits set by international humanitarian law, to which Israel is bound as a state.
Where are the limits?
A common principle in international law is the greatest possible protection of the civilian population. Everything Israel does must respect this principle and not target civilians. The hostilities must therefore be limited to the Hamas terrorists. In addition, the actions must be proportionate. Israel may only ever use violence in self-defense. So do what is necessary to actually end the threat and the existing attack.
How clearly can this be delineated?
The question of what exactly is required to finally stop the attack cannot be easily answered. After the attacks of September 11, 2001, there was a mandate from the UN Security Council for the operation in Afghanistan. “There will not be such a mandate at the moment due to the situation in the Security Council. But this shows that international law has allowed relatively much in a similar situation,” said international law expert Safferling.
What does maximum protection mean? Civilian population?
As cruel as it is, international humanitarian law recognizes civilian victims as so-called collateral damage of an armed conflict. But one thing is clear: civilian objects such as hospitals, homes or schools must not be attacked. But here too, demarcation is often difficult during a war.
For example, if a warring party partially uses a hospital as a weapons depot or if rockets are fired from a residential building, it is no longer a civilian object, even if there are still civilians in the building. Nevertheless, the attack must be proportionate, but this shows the difficulty in individual cases.
Is the closure of electricity and water proportionate?
Israel quickly announced that it would blockade the Gaza Strip and cut off electricity, water, gasoline and food. A measure that of course also or especially affects the civilian population. If Israel does this over a longer period of time, it would likely violate the principle of protecting the civilian population as much as possible.
“I think this is overall contrary to international law,” says Christoph Safferling. “As soon as there is a risk that people will die because they cannot be treated in hospitals or because they will starve, it even becomes a crime.” Because: The Rome Statute clearly states that it is a war crime to intentionally starve the population. At best, this is permissible for a few days in order to prepare an attack, according to the international law expert.
Is an Israeli ground offensive covered by international law?
If the ground offensive is actually absolutely necessary for self-defense because Hamas’ attack from the air cannot be eliminated, then international law should also allow the ground offensive. Of course, always taking into account the greatest possible protection of the civilian population and proportionality.
What is Hamas’ approach? international law consider?
Hamas is a terrorist organization and not a state. “In my view, Hamas is still bound to international humanitarian law according to customary international law, just as IS is recognized,” explains Safferling. The targeted killings and abductions of civilians are of course a clear violation of international humanitarian law. Furthermore, for all we know, the attacks also constitute clear war crimes.
Can violations of international humanitarian law have consequences?
Legally, one could think of proceedings before the International Court of Justice (ICJ) in The Hague. There, one state can sue another for violations of international law if both warring parties have submitted to the court. But Israel has not submitted and Palestine is not even recognized as a state. Punishment could only take place politically through a UN Security Council resolution.
Can violations also be punished criminally?
The first thing to think of here is the International Criminal Court (ICC), which also sits in The Hague. At the ICC, states are not prosecuted, but rather individuals can be prosecuted if they are accused of war crimes.
The Roman Statute regulates which acts are covered. Israel has not yet recognized the statute, but Palestine has. And the ICC has also recognized this. This means that the ICC can actually investigate war crimes committed in the Gaza Strip, but also Hamas’ war crimes in Israel. Of course, the prerequisite is always that the individual perpetrators are identified and that they are caught at some point so that they can be brought to justice.
Can criminal proceedings also arise in Germany?
Yes, according to the so-called universal legal principle, war crimes can be prosecuted all over the world. So also in Germany and even without there being a specific connection to Germany. Neither perpetrators nor victims have to come from Germany. The Federal Prosecutor General has already initiated criminal proceedings against unknown persons. However, convictions can only occur if the perpetrators happen to come to Germany at some point and are caught here. And you have to identify possible perpetrators beforehand, for example by evaluating the many videos of the crimes.