In the fight against Hamas, Israel is accused by various sides of committing war crimes. What crimes fall under this term and how are they prosecuted?
In recent days, the World Health Organization (WHO) has again complained about “appalling conditions” in the largest hospital in the Gaza Strip, which is ruled by the terrorist organization Hamas. There are at least 2,300 people in the Al-Shifa clinic, including probably more than 600 patients and around 1,500 displaced people. The WHO relies on figures from the Hamas-controlled Palestinian Ministry of Health. Although these numbers have often been accurate in the past, they cannot be verified.
As a result, accusations were made in social networks and international politics that Israel’s handling of the Shifa Hospital amounted to war crimes. It is repeatedly claimed that Israel attacked the clinic. The government in Jerusalem accuses Hamas of operating a command center under the hospital – but denied allegations of attacks. Similar allegations have already been made following an Israeli air attack on a refugee camp.
South Africa’s Foreign Minister Naledi Pandor of the ruling African National Congress (ANC) called the response to Hamas’ October 7 terrorist attack a “collective punishment” of Palestinians and condemned the “continuous killing of children and innocent civilians.” Jordan’s Foreign Minister Ayman Safadi and Turkish President Recep Tayyip Erdoğan also accuse Israel of war crimes. And after the attack on the Jabaliya refugee camp, EU foreign policy chief Josep Borrell was horrified by the many people who died in the explosion of a rocket.
Amnesty International accuses Israel of inadequately distinguishing between enemy combatants and civilians. The non-governmental organization called for an investigation into Israeli bombings on suspicion of war crimes in an Oct. 20 report. Amnesty International and most international law experts consider Hamas’ war crimes, in particular the terrorist acts of October 7th with 1,400 deaths, to be proven.
In principle, after the major attack by Hamas on October 7th, Israel has the right to defend itself according to Article 51 of the UN Charter. The many rockets that continue to be fired at Israel from the Gaza Strip by radical Palestinian groups and the more than 200 hostages still held continue to justify Israel’s right to self-defense. LUnder international law, both constitute permanent aggression that can justify attacks on Hamas.
What counts as a war crime anyway?
What counts as war crimes is governed by international norms. Violations that occur in internal conflicts or during a war between two states are considered war crimes. The precise definition of war crimes is regulated in the Geneva Conventions. A war crime therefore includes the intentional killing, torture or serious bodily harm of civilians and prisoners of war. The arbitrary destruction or appropriation of objects is also defined as a war crime. In addition, there are expulsions, hostage-taking and “other serious violations of the (…) laws and customs applicable in international armed conflicts”.
These include targeted attacks on civilian objects and humanitarian aid missions, looting, the use of poison weapons, rape, slavery, forced prostitution, the use of child soldiers and the targeted starvation of civilians. The general waging of a war of aggression can also be considered a war crime.
What doesn’t count as a war crime?
Not every form of violence against civilians falls under the law of war, which means that not every dead civilian was necessarily killed unlawfully. Attacks on cities, villages and schools or even targeted killings are not war crimes if they are militarily justified. Only when these acts result in unnecessary destruction, suffering and casualties that exceed the military benefit are they considered war crimes.
How are war crimes prosecuted?
That is the task of the International Criminal Court in The Hague. Individuals can be accused and convicted here. This is what is laid down in the so-called “Roman Statute”. The document is based on the idea of holding individuals responsible for the actions of a state or military.
International humanitarian law decides whether a war crime is committed based on the three indicators of distinction, proportionality and protective measures. The principle of distinction states that warring parties must always try to distinguish between civilian and belligerent populations. The principle of proportionality prohibits armed forces from responding to an attack with disproportionate force. For example, if a fighter is killed, it is not proportionate to bomb an entire city. The principle of protective measures requires the parties to prevent or minimize harm to the civilian population.
In addition to war crimes, the International Criminal Court also decides on the punishment of genocide, crimes against humanity and crimes of aggression. Unlike war crimes, these acts can also be committed in peacetime or during unilateral actions by armed troops against unarmed people.
Could potential war crimes in Gaza be prosecuted?
The Israeli military calls the Shifa Hospital a military target. According to Israel, Hamas deliberately uses mosques, schools and clinics, such as Shifa Hospital, as hiding places for weapons and fighters. If this is true, there would be no war crime under United Nations international law as long as proportionality is maintained.
Israel’s goal must always be to ensure that as few civilians as possible are harmed. It is particularly important to warn the population, including through leaflets, short messages or the “knock on the roof” method, in which non-exploding ammunition is dropped. Israel says it has fulfilled these obligations. It is said from the Gaza Strip that not everyone found out about the attack in time. The government in Jerusalem blames Hamas for this.
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The Israeli blockade of the Gaza Strip of drinking water and food is not covered by the right to defense. The International Red Cross complains that Israel’s call to leave the north of the Gaza Strip and to cut off food, drink and electricity is inconsistent with international humanitarian law. In addition to Israel, Egypt is also at least partially responsible for the emergency situation faced by many Palestinians. Aid transports are backed up in front of the border crossing with Gaza. These are rarely allowed through for humanitarian reasons. Israel has now responded to international criticism and pledged to provide water and food to Palestinians who have fled to the south of the Gaza Strip.
The decisive factor in this issue is whether Israel is viewed as the occupying power of the Gaza Strip. According to international law, occupiers have a duty to provide the population with food. A widespread blockade of an area violates the prohibition of collective punishment. While the United Nations considers Gaza to be Israeli-occupied territory even after the withdrawal of troops in 2005, Israel’s government contradicts this legal opinion. After the destruction of Hamas, a new security order should be introduced in Gaza, said Prime Minister Netanyahu.
Will there be a court case?
It is extremely questionable whether Palestinian or Israeli suspects will ever be brought to justice in cases of specific war crimes. Although there are already attempts to involve the International Criminal Court, Israel does not recognize its competence and has not ratified the court’s Rome Statute.
Since the Gaza Strip is not an independent country, it remains questionable whether the International Criminal Court has any jurisdiction over the area. Israel denies this, but the International Criminal Court assumes that Palestine has effectively joined. In any case, criminal proceedings could only be introduced if a state extradites suspects. However, it is considered impossible for the Israeli government to hand over Hamas prisoners or its own soldiers to the court.
A complaint has already been submitted to the International Criminal Court. The organization Reporters Without Borders had officially submitted this due to the deaths of several Palestinian and Israeli journalists. The United Nations is collecting evidence against both warring parties. The exit remains open.
Sources: Geneva Conventions, Roman Statute, ARD, German wave, THE TIME, Reporters Without Borders,Amnesty International (I), Amnesty International (II)