What Do the Laws of War Really Say About IDF Actions in Gaza?

Here’s a look at the text of international treaties that codify the laws of armed conflict.

AP/Moti Milrod, Haaretz
Israeli soldiers at Gaza City's Shijaiyah neighborhood, December 8, 2023. AP/Moti Milrod, Haaretz

How does the complaint South Africa lodged against Israel in the World Court stack up against the actual text of those treaties negotiated by the international community to codify the laws of armed conflict? The 1907 Hague Regulations Respecting the Laws and Customs of War on Land are considered the baseline authority on what means and methods are permissible and impermissible in warfighting.

Article 42 of the Hague Regulations states: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” Israel withdrew entirely from Gaza in 2005, dismantling all its military bases and evicting 8,600 Jewish civilians from 17 farming and residential communities.

Two years later, Hamas seized absolute power at gunpoint and transformed Gaza into a launching pad for terrorist attacks against Israel. Per the Hague Regulations, Gaza was not occupied territory before October 7, but a foreign enclave controlled by a terrorist army waging war against Israel. South Africa’s blather about Israel’s soi-disant “belligerent occupation” is thus negated.

This means that, from a strictly legal perspective, Israel is no more obligated to supply the enemy territory of Gaza with humanitarian supplies in 2024 than Britain was obligated to feed Nazi Germany in 1944. Yet the IDF goes above and beyond the threshold demands of international law when it facilites the delivery of any medicines, food, water, and shelter to Gaza’s civilians.

What about Israel’s air and ground offensive against Hamas? How does the IDF measure up to the standards set by the law of war regarding the balance of military necessity against the imperative to protect non-combatants from harm?

Israel’s detractors point to Palestinian Arab casualty figures as definitive proof of IDF criminality. The ethical flaw of this argument becomes evident when applied to WWII. The Nazis were not the good guys, despite suffering 430,000 German civilians dead from Allied bombing while only 70,000 Britons were killed by the Luftwaffe.

Lest we forget the 25,000 French men, women, and children killed — mostly by Anglo-American bombing — during the three-month battle for the liberation of Normandy in 1944. Would any rational person argue that D-Day should have been canceled for fear of civilian deaths from RAF or USAAF airstrikes?

In great measure, Palestinian non-combatant casualties in Gaza are directly attributable to the longstanding Hamas tactic of hiding weapons and command centers at civilian locations. The UN has lodged numerous complaints over the years about repeated instances in which Hamas and Palestinian Islamic Jihad stored weapons within school buildings throughout Gaza.

We’ve also seen video footage of Palestinian terrorists abusing UN ambulances to transport armed fighters around the battlefield. And since October 7 Israel has documented the discovery of numerous weapons caches in hospitals throughout Gaza.

Each of these Palestinian tactics violates the “rule of distinction” that forms a central pillar in the modern law of armed conflict. As defined by the International Committee of the Red Cross, this rule is intended to protect non-combatants during war by ensuring their physical separation from military targets that are legally subject to attack.

Then, what does the law of war say about the misuse of civilian facilities for military purposes during warfighting? Article 19 of the 4th Geneva Convention states: “The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy.”

In other words, hospitals, schools, or residential buildings used to conduct military operations lose their legal immunity from attack and become legitimate targets of war. That same rule of distinction also explains Israel’s call for Palestinian civilians to vacate areas in Gaza where fighting is likely to occur.

As Section 5.14.2 of America’s Department of Defense Law of War Manual explains: “The evacuation of civilians from areas likely to be attacked is advisable when there is immediate danger and where it would be likely to involve less hardship and danger to civilians than leaving them in place.” Thus, Israel’s effort to preserve civilian lives by encouraging Gazan non-combatants to leave active battle zones is in accord with the laws of war.

Israel is also accused of violating the prohibition against “collective punishment,” in Article 33 of the 1949 Geneva Convention (IV) on the Protection of Civilians in Time of War. Yet the Convention’s procès-verbal, meaning drafting notes, clearly show that Article 33 was crafted to address crimes of collective reprisal such as the massacre committed by the SS at Lidice.

This clause has nothing to do with legitimate military operations conducted in compliance with the law of armed conflict against valid targets of war. British Nobel Peace Prize laureate Lord Robert Cecil once ruefully observed that “international law is not less, but more, political than any other type of law.”

The South African complaint to the ICJ is little more than a gossamer web of dubious politicized arguments glued together by partisan hostility toward Israel. It ignores the most basic imperative of all sovereign nations — the safety and security of their people.

The New York Sun

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