by Michael Pushenko
For over a year, the world has seen Israel face relentless accusations and condemnation. Men in fancy suits have joined the chorus of protesters wearing keffiyehs, waving their Palestinian and terrorist flags, and shouting about Israel’s alleged war crimes. Recently, much of the outrage has focused on Israel’s blockade of humanitarian aid. However, when pressed on what constitutes a justified war, or where exactly Israel has violated international law, many activists find themselves at a loss.
International law formulated strict rules about wars after World War Two. The devastation of two consecutive global conflicts led the world to institute a legal order aimed at preventing indiscriminate violence, while still recognising the necessity of military action under specific circumstances. The UN Charter, one of the most influential documents in international law, prohibits the use of force “in any manner inconsistent with the Purposes of the United Nations.” However, it explicitly permits the use of force in self-defence.
International law governing warfare is further divided into two key Latin terms: Jus ad bellum, ‘the right to go to war’, and Jus in bello, the proper conduct during a war. These principles form the foundation for evaluating whether war is justified and whether a military abides by the rules of war.
International Law & Hamas
To understand the legal framework of the current war, it is important to clarify who is subject to international law. While international law primarily applies to states, non-state actors, including terrorist organisations, can also be held accountable. As a result, Hamas, like state militaries, is bound by the laws of war and can be held accountable for violations under international humanitarian law.
Jus ad Bellum (right to war)
Israel’s right to self-defence in response to Hamas’ attack on October 7, 2023, is incontestable. Hamas violated international law by infiltrating Israel, murdering, raping, torturing and kidnapping civilians. Hamas’ barbaric aggression has not been a singular incident. From 2005 to 2021, Hamas fired over 20,000 rockets into Israel and has launched a further 26,000 since October 7, indiscriminately targeting any city or town that contains Israelis. Hamas’ covenant declares its genocidal desire to kill all the Jews (Article 7). The continued threat and aggression provide Israel with the right to respond under the principles of self-defence.
Despite this, anti-Israel activists justify Hamas’ actions by labelling them “freedom fighters.” but even if the terrorist organisation was seen as fighting for its people’s ‘freedom’, their targeting of civilians through indiscriminate rocket fire, mass killings, and kidnappings is explicitly prohibited under international law. There is no justification for Hamas’ actions, making their war against Israel unlawful from the outset.
Jus in Bello (right conduct in a war)
The significant outcry from political activists and university students focuses on the legality of Israel’s conduct during its war-fighting. Anti-Israel protesters learn buzzwords such as ‘war crimes’, and use them to relentlessly demonise Israel. There seems to be, however, a singular lack of knowledge regarding justified conduct in a war. I will address some of the allegations individually:
Firstly, with regard to the incessant accusations that Israel targets schools, hospitals and mosques: Under international law, hospitals and religious buildings are protected from military attacks. However, the protection of such buildings is stripped away when they are used for military purposes (Article 8(2)(b)(ix)). The IDF has published videos and photos of Hamas placing their military weapons within mosques and schools. Hamas has also constructed tunnels with entrances hidden within hospitals. The terrorist organisation uses protected buildings to shift weaponry around Gaza, to contain combatants, to hide the hostages, and to fight. They thus effectively turn civilian sites into military targets, legally authorising Israel to strike them under the principles of international law. The IDF has taken extensive precautions, using precision strikes and intelligence-gathering to minimise harm to non-combatants.
Furthermore, international law requires warring parties to take all feasible precautions to protect civilians. The IDF implements several measures to minimise non-combatant deaths. It has dropped pamphlets, sent messages and fired dummy shots to warn civilians of pending attacks. Civilians are given enough time to evacuate before the IDF strikes its target. Despite this, Hamas has actively prevented civilians from evacuating. Reports have shown Hamas blocking civilians from leaving conflict zones, using them as human shields and firing at civilians attempting to flee. Hamas has an equal responsibility to protect the Palestinian civilians as does the IDF. The terror group’s tactics completely violate the Geneva Conventions, making them fully responsible for civilian casualties in Gaza.
International law requires combatants to distinguish themselves from civilians. According to Article 48 of Additional Protocol I of the Geneva Convention, military personnel must wear identifiable uniforms, clearly mark their vehicles and carry their weapons openly. Hamas blatantly disregards these rules. Its fighters, wearing civilian clothing to blend in, hide among civilian populations and use this unidentifiability to inflate the number of purported ‘innocent’ civilian deaths. In so doing, Hamas puts civilian lives at risk and also breaches its duties during active warfare. The IDF, on the other hand, is always seen in uniform in Gaza; their tanks and military vehicles are marked with their military symbols.
Humanitarian Aid
The world’s repeatedly focuses on Israel’s alleged prevention of the delivery of humanitarian aid to Gaza. International law requires humanitarian aid to be delivered to a place at war, but only if the aid is not diverted for military use. Under Article 23 of the Geneva Convention, aid must go directly to civilians, not combatants. There is substantial evidence that Hamas has hijacked humanitarian aid and stashed the aid for its own use, preventing civilians from receiving it. Furthermore, reports have indicated that Hamas, in some circumstances, has fired at Palestinians trying to retrieve humanitarian aid. Until Hamas ensures the delivery of humanitarian aid directly to the civilians, Israel is under no obligation to continue feeding and equipping the very army they are fighting. Hamas has a responsibility to ensure humanitarian aid is delivered for the sole purpose of providing necessities to civilians, not combatants.
Many have cited Article 59 of the Fourth Geneva Convention to argue that Israel has a legal obligation to provide humanitarian aid to Gaza. However, Article 59 applies explicitly to occupied territories where the population is under the authority of an occupying military. Gaza is not occupied. Under an occupation, the conflict is not ongoing, and the IDF would maintain a permanent presence within Gaza. Moreover, Israel is not itself obliged under Article 59 to provide aid but merely to facilitate its provision by others, subject to its own military conditions. Article 23 of the Geneva Convention governs the passage of humanitarian aid into conflict zones and requires that medicines, food and clothing be allowed to pass into the conflict zone for the benefit of civilians. Again, military conditions apply to the passage of these goods, including the prevention of the risk that they give any advantage to Hamas. Of course, it is fully proven that Hamas diverts humanitarian aid to benefit its military and economic position.
On top of all this, Hamas has mistreated Israeli hostages, violating multiple provisions of the Third and Fourth Geneva Conventions. The Fourth Geneva Convention, Relative to the Protection of Civilians in Times of War, requires a military power holding hostages to provide medical aid (Article 16). Furthermore, the third Geneva Convention, Article 125, requires passage for third-party organisations to visit and check up on the hostages. During the earlier stages of the war, the IDF found medical aid intended for the hostages in Nasser Hospital. Furthermore, the reports from freed hostages demonstrate the animal-like treatment they received for their wounds. Hamas also did not allow international organisations to visit the hostages and check on them. We saw the terrible example of the mistreatment at the return of Or Levy, Ohad Ami and Eli Sharabi. Hamas has failed to obey international law by providing the hostages with the medical resources sent for them, has failed to take appropriate care of them, and has prevented international organisations from reaching them.
Israel, under international law, is not obliged to allow aid that sustains Hamas’ war effort. As long as Hamas continues to steal humanitarian resources, Israel has the justified right to regulate and inspect aid shipments.
Conclusion
The past year has seen widespread misinformation regarding Israel’s military operations. While activists scream about ‘war crimes,’ few can articulate what those crimes are, or how international law works.
The truth is that Hamas initiated this war illegally. Over the last year, the terror group has unceasingly committed war crimes, while continuously using civilians as pawns. Meanwhile, Israel, despite fighting a military entity that has for decades threatened the Jewish state, has gone to extraordinary lengths to abide by international law.
Those who claim to support human rights should start by holding Hamas accountable for its glaring violations of international law. Israel, meanwhile, has every legal and moral right to ensure the defeat of the Hamas terrorists, and to secure the hostages’ return.
Michael Pushenko is presently pursuing a Masters of International Law and Diplomacy at Australian National University
