The relentless bombardment of Gaza continues to escalate, with schools, universities, shelters, hospital areas, and refugee camps becoming frequent targets. Israel intensifies the attacks day by day while forgetting that even war has rules.
By Martina Biral
The current situation
In the current hostilities involving Israel and Palestinian armed groups there is an ongoing debate, both among experts and politicians, regarding the application of international humanitarian law (IHL), which governs armed conflicts and military occupations. The responses are very divisive as it is the condemnation on behalf of the international community. On one side, in the aftermath of the Hamas attacks, a joint statement held by the leaders of France, Germany, Italy, the United Kingdom and the United States of America was immediately delivered to express the steadfast and united support to the State of Israel and its right to self-defense.
On the other side, the condemnation of the international community against the alleged genocide, crimes against humanity and war crimes that Israel is perpetrating against Palestinians has been slow to arrive and the response of States is still scattered. At this point a question arises spontaneously: is everything acceptable in self-defense against terrorists?
International Humanitarian Law and Applicability
International humanitarian law, rooted in the Geneva Conventions of 1949 and the 1977 Additional Protocols, is a binding legal framework applicable to both states and non-state armed groups involved in conflicts. This body of law is applicable in any conflict, including scenarios where a state exercises effective control over a territory without sovereign title,  such as the Israeli occupation of Palestine.
Despite Israel’s withdrawal from Gaza in 2005, its continued control over various aspects of life in Gaza, including territorial waters, airspace, infrastructure, and the movement of people and goods, implies an ongoing obligation to ensure the humane treatment of the population. [] This responsibility encompasses providing for their basic needs, such as food and medical care, as outlined in Article 55 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War. In the event of conflict, the Convention also stipulates that civilians and civilian objects should never be targeted, authorizing parties to strike only combatants and military targets.
Violations of international law: the principle of non-reciprocity and the Geneva Conventions
Israel’s indiscriminate attacks on the Gaza population breach international law in several aspects, due to the total absence of differentiation between Hamas and Palestinian civilians as underscored by statements from Prime Minister Netanyahu who stated, “what we will do to our enemies in the coming days will reverberate with them for generations”. [] Notably, international humanitarian law is rooted in the principle of non-reciprocity, which obligates states not to use their opponents’ actions as an excuse to evade their duties to protect civilians. On the contrary, they are mandated to take precautionary measures according to Article 57(2)(c)) and protect the population as provided by Article 51(8) of the Additional Protocol I to the Geneva Conventions.
Israel’s actions are also in violation of Common art. 3 of the Conventions, which requires states to distinguish between combatants and civilians, preserve civilian infrastructure, give prior warning of attacks, refrain from harming medical staff, allow the passage of impartial humanitarian aid, leave civilians and captured combatants unharmed and it forbids to commit murder, cruel treatment, torture and the taking of hostages. Furthermore, recent reports of Israeli warplanes circling closer to hospitals in Gaza City and the bombing of areas in their vicinity raise significant concerns. [] Sixteen out of 35 hospitals are no longer functioning. The 1977 Additional Protocols to the Conventions provide specific provisions for hospitals, with Article 12 emphasizing that medical units must be respected and protected at all times, making them off-limits to attack.
Moreover, Israel’s warning to Egypt to block relief supplies crossing the border and the systematic air strikes on the Rafah border [] contradict Article 59 of Convention IV, which requires the occupying power to agree to relief schemes for inadequately supplied occupied populations, and to “facilitate them by all the means at its disposal.”
The stance adopted by Israel and the statements of the Defense Minister Yoav Gallant, who informed the troops that they had “released all restraints”[], appear to lean more towards collective punishment rather than self-defense.
Application of the Rome Statute: the alleged violations of Articles 7 and 8
War crimes are serious violations of jus cogens norms committed by individuals with criminal intent. From the beginning of the conflict Israeli forces have carried out indiscriminate attacks toward residential buildings, refugee camps, schools, and hospitals where Amnesty International found no evidence of the presence of fighters or other military objectives in the vicinity at the time of the attacks.
There is also evidence that during some of these attacks Israeli forces have used white phosphorous whose use is governed by Protocol III of the Convention on Conventional Weapons (CCW) which forbids its use in the form of airdropped incendiary weapons toward “concentrations of civilians”. For the modalities and the consequences these acts are in clear breach of art. 8 of the ICC Statute.
Moreover, Israel is using starvation as a method of warfare, depriving civilians of essential resources and intentionally blocking relief supplies, a war crime under Article 8(2)(b)(xxv) of the ICC Statute. Even if the aim is to coerce or starve a specific group in this case, Israel’s actions are extending beyond Hamas, targeting the entire population, violating also Article 54(1) of the 1977 Additional Protocol I and Article 14 of the 1977 Additional Protocol II. However, this may also satisfy the legal threshold for the crime against humanity of inhumane acts (art. 7(1)(k)) and, depending on what happens from here, it could be held responsible for other crimes against humanity, such as those relating to killing (murder and extermination) under art. 7(1)(a-b). Additionally, deliberate and indiscriminate attacks against civilians are also considered reprisals, expressly forbidden under Article 51(6) of the Protocol Additional to the Geneva Conventions, now accepted as customary law.
The response of the international community
Self-defense and permissibility of violence must not be confused, and the international community is called to provide both legal and moral answers. The UN Security Council Resolution calling for “humanitarian pauses” has been adopted with 120 votes in favor, 14 against and 45 abstentions. [] Despite the positive outcome, the resolution has been entirely disregarded by Israel, a stark illustration of the frailty of the United Nations and the limitations in enforcing its decisions. In the meantime, the Prosecutor of the International Criminal Court, Karim Khan, has announced that an investigation has been opened into the war crimes perpetrated in Gaza. The international community is now called to provide clear legal response to break the “global silence” [] denounced by some Arab leaders.
 The White House, Joint Statement on Israel, October 09, 2023. https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/09/joint-statement-on-israel/
 Art. 49 of the Protocol Additional to the Geneva Conventions of 12 August 1949.
 Common art. 2 to the Four Geneva Conventions of 1949.
 CUYCKENS, H., “Is Israel Still an Occupying Power in Gaza?”, Neth Int Law Rev 63, 2016, pp. 275–295.
Le Monde, Israel strikes and seals off Gaza, Netanyahu says retaliation will ‘reverberate’ for generations, October 10th, 2023. https://www.lemonde.fr/en/international/article/2023/10/10/israel-strikes-and-seals-off-gaza-netanyahu-says-retaliation-will-reverberate-for-generations_6160330_4.html
 Aljazeera, Palestinians fear Israel will strike Gaza’s al-Quds Hospital, October 31st, 2023. https://www.aljazeera.com/program/newsfeed/2023/10/31/palestinians-fear-israel-will-strike-gazas-al-quds-hospital
 Aljazeera, Israeli siege forces Gaza’s only cancer hospital to shut amid fuel shortage, November 1, 2023. https://www.aljazeera.com/news/2023/11/1/gazas-only-cancer-treatment-hospital-shuts-down-after-running-out-of-fuel#:~:text=The%20suspension%20of%20operations%20at,Gaza’s%2072%20primary%20healthcare%20clinics.
 Reuters, Who controls the Rafah crossing and why is it so important to Gaza?, November 1st, 2023. https://www.reuters.com/world/middle-east/why-gazas-rafah-border-crossing-matters-why-egypt-is-keeping-it-shut-2023-10-17/
 EFE:, Israel announces ‘full offense’ against Gaza without ‘restraints’, October 10th, 2023. https://efe.com/en/latest-news/2023-10-10/israel-announces-full-offense-against-gaza-without-restraints/#:~:text=%E2%80%9CI%20have%20released%20all%20the,You%20fought%20with%20great%20courage.
 UN News, UN General Assembly adopts Gaza resolution calling for immediate and sustained ‘humanitarian truce, October 26, 2023. https://news.un.org/en/story/2023/10/1142847
 OHCHR, Commission of Inquiry collecting evidence of war crimes committed by all sides in Israel and Occupied Palestinian Territories since, 7 October 2023. https://www.ohchr.org/en/press-releases/2023/10/commission-inquiry-collecting-evidence-war-crimes-committed-all-sides-israel
 The New Arab, Jordan King Abdullah denounces global silence on Israel’s ‘war crimes’ in Gaza, October 21, 2023. https://www.newarab.com/news/jordan-king-denounces-israeli-war-crimes-gaza
Foto copertina: The End does not Justify the Means: Israel’s violations of international law