Explained: What kind of war crimes laws apply to the Israel-Hamas war?

The war between Israel and Hamas since the sudden cross-border attack launched by the militants on October 7 has led to a large civilian death toll.

The war and the humanitarian losses come under a complex international system of justice which has emerged since World War II. The system is mainly aimed at protecting civilians.

Even if the states claim that they are taking steps in self-defence, international rules related to armed conflict remain applicable to all participating nations in a war.

In the 1949 Geneva Conventions, the internationally accepted laws of armed conflict were laid down which were ratified by all the member states of the United Nations and supplemented by rulings delivered by international war crimes tribunals.

Treaties govern the treatment of soldiers, civilians and prisoners of war in a system which is known as the “Law of Armed Conflict” or “International Humanitarian Law”. It is applicable to the government forces as well as organised, non-state armed groups, including Hamas.

The medical facilities in Gaza, especially Al Shifa Hospital, have been a centre of the Israel-Hamas war. Hamas has been accused of using medical facilities and establishing command and control centres beneath them to keep safe from air strikes, which they have denied.

Canadian lawyer Carolyn Edgerton, who had dealt with several cases at the International Criminal Tribunal, stated that although they did not look into the hospital attacks specifically, the jurisprudence emphasised the need to balance the principles of humanity and military necessity.

“Attacking hospitals and other medical units is prohibited under the first Geneva Convention, and that protection extends to the wounded and the sick, the staff of those establishments and ambulances. And that protection doesn’t end unless those establishments are used by a party to the conflict to commit an act … harmful to the enemy,” she stated, reported Reuters.

The deliberate targeting of civilians and taking of civilians as hostages by Hamas militants, indiscriminate firing of rockets and counter-strikes in Gaza have been cited by Human Rights Watch as possible war crimes.

Under the Geneva Conventions, torture, murder and hostage-taking have been explicitly banned, while the response of Israel can also be investigated for war crimes.

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What does the Geneva Conventions advocate?

The overarching goal of the Geneva Conventions is to protect civilians in wartime. Under the armed conflict’s laws, combatants include military and volunteer forces, non-state armed groups and members of state armed forces.

It is forbidden to directly target civilians or civilian objects. It is considered a separate war crime to intentionally attack material and personnel involved in humanitarian assistance as long as those carrying the humanitarian aid are civilians.

A siege can also be seen as a war crime if the civilians are targeted. International Criminal Court prosecutor Karim Khan stated that the Israeli army needs to show that “any attack that impacts innocent civilians or protected objects” such as schools, churches, hospitals or mosques must be carried out in accordance with the armed conflict’s laws, reported Reuters.

As per these laws, civilian objects can be considered legitimate military targets if they are effectively contributing to military action. “The burden of proving that the protective status is lost rests with those who fire the gun, the missile or the rocket in question,” Khan stated.

According to the laws, if a legitimate military target is attacked by a combatant, a proportional assault must be carried out and it must be ensured that there is no excessive loss of civilian life or that civilian objects do not suffer much damage.

The Geneva Conventions as well as international tribunals’ subsequent rulings have explained that proportionality is not a numbers game where one can compare one side’s death toll with the other side, rather the death casualties need to be proportionate to the direct military advantage which is likely to be the outcome of that specific attack.

The local jurisdictions are the first in line to try alleged war crimes. In the case of the Israel-Hamas war, it is the case courts in Israel and the Palestinian Territories.

The International Criminal Court (ICC) in The Hague is the only legal organisation on the global level to bring charges.

The ICC’s founding Rome Statute has given it the legal authority to carry out an investigation of alleged crimes which take place on the territory of its member states or are carried out by their nationals if the domestic authorities are “unwilling or unable” to try.

Hamas has been blamed by Israel for civilian deaths in Gaza as Tel Aviv claims it is using Palestinians as human shields in Gaza and hiding arms and command centres in the residential areas and hospitals.

International humanitarian law has forbidden the use of human shields in war and such cases are seen as a grave breach of the Geneva Conventions.

The human shields’ alleged presence does not mean automatically that the warring nation cannot consider the site as a legitimate military target.

However, any attack which is launched on such a site needs to be weighed the country against the principle of proportionality, and the number of civilian casualties needs to be compared to the estimated military advantage.

(With inputs from agencies)