Michael Pushenko
Michael Pushenko is presently pursuing a Masters of International Law and Diplomacy at Australian National University
For over a year, the world has watched Israel face relentless accusations and condemnation. Men in fancy suits join 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 WWII. The devastation of two global wars led the world to establish 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 force abides by the rules of war.
International Law and 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 law 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 non-contentious. 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 ability to respond under the principles of self defence.
Despite this, anti-Israel activists often justify Hamas’ actions by labelling them as “freedom fighters.” However, even if the terrorist organisation was seen as fighting for their ‘freedom’, their targeting of civilians through indiscriminate rocket fire, mass killings, and kidnappings is explicitly prohibited under international law. There has been 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 Israel’s legality of conduct during the war. Anti-Israel protesters learned key buzzwords such as ‘war crimes’ and use them to demonise Israel continuously. However, there seems to be a lack of knowledge regarding justified conduct during a war. We will address some of the allegations individually.
Firstly, to address the recurring condemnation of Israel targeting 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 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 hold military combatants, to hide the hostages and to fight. This effectively turns civilian sites into military targets, legally permitting 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 has implemented several measures to minimise non-combatant deaths. The IDF dropped pamphlets, sending messages and firing dummy shots to warn civilians of an upcoming attack. The IDF then gives enough time for civilians to evacuate before striking the target. Despite this, Hamas actively prevents 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 just as the IDF does. Hamas’ tactics violate the Geneva Conventions and are responsible for the 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 this, with fighters wearing civilian clothing to blend in, hiding within civilian populations, and using the lack of identifiable Hamas fighters to increase the ‘innocent’ civilian deaths. In doing this, Hamas both puts civilian lives at risk and also breaches their duties during active warfare. The IDF, on the other hand, are always seen in their uniform within Gaza, and their tanks and military vehicles are marked with their military symbols.
Humanitarian Aid
The world’s focus has now shifted to Israel’s prevention of humanitarian aid being delivered 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 themselves, preventing civilians from receiving it. Furthermore, reports have indicated that Hamas, in some circumstances, have 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.
Additionally, 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 them with the medical resources sent for the hostages, appropriately looking after them and providing them support from international organisations.
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 reality is that Hamas initiated this war illegally. Over the last year, they have continuously committed war crimes and have continued to use civilians as pawns. Meanwhile, Israel, despite fighting an army that has posed a threat for decades, has gone to extraordinary lengths to uphold international law.
Those who claim to support human rights should start by holding Hamas accountable for its apparent violations of international law. Until then, Israel has every legal and moral right to ensure the defeat of the terrorist organisation and the return of the hostages.
This article was originally published by the Israel Institute of New Zealand.
