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Hamas and Israel have been accused of violating international law during the conflict sparked by the former’s surprise attack on the Jewish state on October 7. The UN says it is gathering evidence of war crimes committed by both sides. Attacks like the one on Al Ahli al Arabi hospital in Gaza on Tuesday test international law. It is difficult to enforce the law in the heat of conflict, but there are what are known as the rules of war, which theoretically govern the behavior of the warring parties. More importantly, they protect the civilian population, who international humanitarian law says it should never be a target of war or used as safeguards (human shields) by either side to prevent enemy attack.
According to local authorities, the attack on the Al Ahli al Arabi hospital in Gaza violates international law. The facility was filled with patients as well as people taking refuge from Israeli bombing. Both sides accuse each other of being responsible for the attack: Hamas blames Israel, and Israel claims the explosion was the result of a failed Islamic Jihad rocket attack.
The responsibility of perpetrators of war crimes is often difficult to establish, which has led to the creation of special tribunals such as those in the former Yugoslavia, Rwanda and Sierra Leone. Just three days after Hamas’ attack on Israel on October 7, the UN Human Rights Council announced that one of its independent commissions of inquiry had already gathered “clear evidence” of the crimes. of war perpetrated by both camps. Forced displacement of civilians (following Israel orders northern Gaza residents to evacuate), their relocation to the south of the Gaza Strip and the denial of basic supplies (electricity, water, food) to Gaza civilians are also under investigation.
The International Criminal Court (ICC) was established in 2002 and is based in The Hague, Netherlands. It is the only body authorized to prosecute war crimes, international crimes of genocide and crimes against humanity. The ICC recognized Palestine as a member state in 2015. Israel, like the United States, China, Russia and Egypt, is not part of it, so they do not recognize its jurisdiction or respect its judgments . Former ICC prosecutor Luis Moreno Ocampo said this week that the total blockade of Gaza constitutes a crime against humanity and genocide; as such, the ICC could investigate this matter.
What are the rules of war?
The rules of armed conflict follow a set of internationally recognized laws and resolutions, including the United Nations Charter, which prohibits wars of aggression but grants countries the right to defend themselves. Conduct on the battlefield is governed by international humanitarian law, including the Geneva Conventions, drawn up after World War II. Almost all nations have signed them.
Concluded in 1949 in the Swiss city, the four conventions establish that civilians, the wounded and prisoners must be treated humanely in times of war. They prohibit murder, torture, hostage-taking and “humiliating and degrading treatment” and require fighters to care for the sick and wounded on the opposing side.
The rules apply both to wars between nations and to asymmetric conflicts, in which one side is not a state, as in the war between Israel and Hamas.
What is a war crime?
A key document of the law of war is Article Eight of the Rome Statute, founding the International Criminal Court, which builds on the 1949 Geneva Conventions and defines war crimes as intentional attacks against civilians, civilian settlements or aid workers, destruction of property when not militarily necessary, sexual violence and illegal evictions.
“Intentionally attacking civilians and civilian targets without a necessary military reason is a war crime,” says David Crane, chief prosecutor of the United Nations Special Court for Sierra Leone, quoted by the AP. “And that is a standard that both sides must respect under international law. »
The legal concept of “war crime” is distinct from the concepts of “crimes against humanity” or “genocide”. If war crimes are limited to internal conflicts or between two States, the latter two can also be committed in times of peace.
Are all attacks against civilians considered war crimes?
This is a controversial issue. The classification of a military act as a war crime during a conflict depends on whether it is justified or not. Thus, the bombing of a school or residential building cannot be qualified as a war crime if it is considered militarily necessary. But what about Tuesday’s bombing of a hospital, like the one attacked – intentionally or accidentally, according to different reports and versions – which left hundreds dead? Most experts say it is impossible to bomb Gaza, one of the most densely populated areas in the world, without killing some of the 2.2 million civilians who live there. In such circumstances, determining the target of an attack is essential to determining whether a war crime has been committed.
What principles should govern the use of force?
The fundamental guiding principle is proportionality, which prohibits parties from responding to an attack with excessive violence. This distinction requires the military to constantly attempt to differentiate between civilians and combatants. Furthermore, the so-called precautionary principle calls for doing everything possible to avoid harming civilians, and the principle of distinction calls for clearly distinguishing targets (in short, excluding civilians).
Does the order to evacuate Gaza violate international law?
According to some experts, Israel’s order last Friday for northern Gaza residents to move to the southern Gaza Strip is just a “precaution” – a warning to avoid harm – but most Human rights groups, as well as the UN and the International Committee of the Red Cross (ICRC) believe this violates international humanitarian law.
“A warning to flee when there is no safe place to flee or safe way to move is not an effective warning,” the NGO Human Rights Watch criticized on Friday. “The Israeli army should warn civilians in Gaza before an attack if it would actually allow them to leave for a safer area. »
The most critical observers say that this is an attempt at forced displacement bordering on ethnic cleansing, like that which occurred in the Balkans in the 1990s.
Has Hamas committed war crimes?
According to Israel, Hamas’ coordinated attacks on towns have killed 1,400 people; in addition, 199 hostages were taken to Gaza and their whereabouts are unknown. According to the Geneva Conventions, “civilians should never be taken hostage. If this is done, this action can be considered a war crime,” says Jeanne Sulzer, lawyer at Amnesty International France. Other experts also include intentional massacres of civilians, such as those carried out at the music festival and kibbutzim.
Has Israel committed war crimes?
Most view the Israeli bombardment of Gaza, the order to evacuate the northern Gaza Strip and the deprivation of basic supplies as “collective punishment” of the region’s two million residents. The International Committee of the Red Cross said the evacuation order, “coupled with a complete siege that explicitly deprives (civilians) of food, water and electricity, is incompatible with international humanitarian law. »
The Israeli military says it respects international law and only attacks legitimate military targets in an effort to eradicate Hamas militiamen, who it says are hiding among the civilian population. Human Rights Watch has accused Israel of using munitions containing white phosphorous. This substance is not banned, but its use in densely populated areas is widely condemned. The Israel Defense Forces (IDF) denies using it.
How do they investigate war crimes?
A United Nations commission of inquiry is “already gathering evidence of war crimes committed by all sides.” This evidence could be added to an ongoing ICC investigation into the situation in the Palestinian territories. The ICC can prosecute a country’s officials for human rights violations and order compensation for victims, but it does not have a police force to execute arrest warrants; instead, it relies on police from countries that recognize the jurisdiction of the ICC (which is not the case with Israel).
Can victims seek compensation?
While the ICC is the only permanent international tribunal established to try war crimes, other tribunals, such as the International Court of Justice and the European Court of Human Rights, can prosecute cases of alleged war crimes. National courts in Israel and other countries can also do this. Under U.S. law, American victims could seek redress against Hamas in U.S. courts. French and Franco-Israeli victims of Hamas attacks have already filed complaints in court in France.
Violations of international law can also lead to sanctions, such as those imposed on Russia by the United States, the European Union and other countries for its invasion of Ukraine. In exceptional cases, the UN Security Council can approve UN military intervention, although it can be blocked by a veto from any of its five permanent members, including the United States, Israel’s traditional ally.
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