17 Oktober 2023

Solidarity with Israel, but no Blank Check

A Call for a More Nuanced Debate

The actions of Hamas have been called in a detailed declaration drafted by Israeli international lawyers, also signed by this author, for what they are: core crimes under international law, possibly even amounting to genocide directed against the Jewish population of Israel. This should be beyond dispute among international (criminal) lawyers. Nonetheless, especially in Germany we have to critically ask ourselves the follow-up question of how far our support for Israel’s military counterattack can go. Some political statements – assurances of unwavering support and “solidarity without limits1) – seem, taken literally, to attach little or no importance to the limits of Israel’s reaction under international law. Luckily, at least our Foreign Minister reminds us in a quite popular talk show of the “framework of international law”.

Of particular relevance here is, of course, the law of armed conflict (ius in bello), sometimes also referred to as international humanitarian law (IHL). This law has been significantly shaped and further developed by Israel’s Supreme Court (see generally here and here). As to Israel’s humanitarian responsibility with regard to the Gaza Strip, the Court stated in 2008 (Jaber Al-Bassiouni Ahmed), three years after Israel’s formal withdrawal from Gaza:2)

“The duty of the State of Israel derives from the essential humanitarian needs of the inhabitants of the Gaza Strip. The respondents [Israeli government, K.A.] are required to discharge their obligations under international humanitarian law, which requires them to allow the Gaza Strip to receive only what is needed in order to provide the essential humanitarian needs of the civilian population.” (para. 11, emphasis added).

The Israeli government did not dispute its obligations under IHL in these proceedings – as it doesn’t do either today3) – but rather referred in its submission to “basic obligations that govern combatants engaged in armed conflict, and require them to ensure the welfare of the civilian population and respect its dignity and basicrights” (ibid., para. 14). The Court therefore further stated:

“It transpires from the aforesaid that the respondents do not in any way deny the existence of their humanitarian obligations, which require the State of Israel to allow the passage of essential humanitarian goods to the Gaza Strip, and to refrain from deliberately inflicting damage on humanitarian facilities. According to the respondents‘ arguments … not only are the respondents allowing the transfer of essential goods to the civilian population in the Gaza Strip, but they also regard this as a humanitarian obligation for which they are liable pursuant to international law and to a cabinet decision.” (ibid., para. 15; emphasis added).

This decision only concerned the restriction (!) of the fuel and electricity (excluding water and food) supply to Gaza, i.e., a restriction not, as stressed by Israel itself, „detrimental to the basic humanitarian needs of the residents“ (ibid., para. 6). Thus, the “complete siege” of the Gaza Strip, as now declared and implemented (by Defense Minister Yoav Gallant), is inadmissible already by Israel’s own standards. International law is also clear in this respect: a complete closure, unless it is for an extremely brief period, is prohibited under IHL (Art. 54(1) First Additional Protocol to the Geneva Conventions [AP I]; see also Art. 23 Fourth Geneva Convention, Art. 70 AP I) and indeed has prompted the International Committee of the Red Cross (ICRC) to issue a rare statement (given the usual confidentiality of its activities):

“The instructions issued by the Israeli authorities for the population of Gaza City to immediately leave their homes, coupled with the complete siege explicitly denying them food, water, and electricity, are not compatible with international humanitarian law.”

At the same time, the measure amounts to the war crime of “intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies …” (Art. 8(2)(b)(xxv) Rome Statute of the International Criminal Court [ICCS]; cf. Dannenbaum; conc. Dill). This crime also applies in a non-international armed conflict (on the new Art. 8(2)(e)(xix) ICCHS, see here), at least under customary international law (see Dannenbaum again). However, the exact content of the mental element (“intentionally”) is controversial and its proof, as usual, rather difficult. Yet, certain statements by Israeli government officials provide strong indicia for an intent, for example the one by Energy Minister Israel Katz: “no electrical switch will be turned on, no water hydrant will be opened and no fuel truck will enter” until the kidnapped are released.

IHL further requires to distinguish between civil and military objectives (principle of distinction, Art. 48 AP I; see also Art. 51(1) and (2) AP I; Art. 13(1) and (2) AP II; ICRC Customary Rules 1, 7) and to adhere to the principle of proportionality in attack (ICRC, Customary Rule 14). As such, while former Hamas fighters may be attacked and killed, civilians who do not “take a direct part in hostilities” (Art. 51(3) AP I) must be spared. Of course, Hamas itself does not comply with the principle of distinction, and its combatants – typical of an asymmetrical conflict with a non-state actor – do not appear in uniform and deliberately hide amongst the civilian population.David French therefore argues that Hamas is responsible for the collateral damage caused by Israeli attacks (New York Times, October 12, 2023). But that goes too far and is inaccurate. Ultimately, the legality of an attack in such a scenario depends on whether, by the adversary’s (in this case Hamas’) lack of observance of the principle of distinction, the target as a whole becomes a military target (e.g. when a school – a per se protected civilian object – is converted into a military base). In any case, the adversary’s failure to observe the principle of distinction does not exempt the attacker (here Israel) from observing it. IHL obligations are not subject to the (otherwise often applicable) principle of reciprocity (ICRC, Customary Rule 140). Civilians remain categorically protected  “unless and for such time as they take a direct part in hostilities” (Art. 51(3) AP I). Their (ab)use as human shields (on the prohibition and possible criminal liability see ICRC, Customary Rule97 and Art. 8(2)(b)(xxiii) ICCS) does not count, in principle, as such an active participation in hostilities.4)

The concrete application of the principle of proportionality is also by no means trivial. It is already clear from the wording of ICRC Customary Rule 14 cited above that it is crucial that (collateral) civilian casualties or damage are only disproportionate and thus prohibited if they “would be excessive in relation to the concrete and direct military advantage anticipated”. French therefore argues that proportionality does not require that the Israeli armed forces “respond with the same degree of force or take the same proportion of casualties as Hamas.” It is clear that a targeted attack on a Hamas base near a civilian target is permissible in principle.Ultimately, each case needs to be assessed on its particulars.

Finally, warnings to the civilian population are necessary to minimize civilian casualties and damage in line with the obligation to take precautionary measures (cf. Art. 57, 58 AP I; ICRC Customary Rule 15). The respective measures by the Israeli Defence Forces (IDF) (for the call to evacuate, see here) are therefore to be welcomed in principle, but they leave the obligation not to harm the civilian population (not taking part in hostilities) intact; civilians do not have to leave their homes either. As rightly put by Dannenbaum:

“… civilians do not lose their protected civilian status by declining to leave their homes or their homeland, because such a declination does not amount to participating directly in hostilities.”

In fact, and this makes things worse, there are little or no escape options for the civilian population in Gaza, the largest “open-air prison” in the world. In particular, this population cannot be claimed collectively – as a kind of reprisal (prohibited according to Art. 51(6) AP I; also Dill) or collective punishment (critical Dill: „logic of collective punishment“) – for the horrendous actions of Hamas. To be sure, fighting Hamas in such a small and densely populated area as the Gaza Strip in accordance with international law and at the same time effectively presents the IDF with what is actually an insurmountable dilemma, since civilian casualties and damage are practically unavoidable. The call for an evacuation is therefore logical – at least from a purely military, Israeli perspective – but even if it is followed, civilian casualties cannot be avoided, as the attack on a civilian convoy coming from the north of Gaza on October 13th tragically showed.5) And even a ground offensive will cause many more casualties, not only among the (de facto) combatants, but also among the civilian population, accompanied by possible further IHL violations and war crimes.

At the time of writing this, the humanitarian situation in the Gaza Strip is becoming increasingly unbearable.6) The UN, the ICRC and other organizations have called for an end of the siege and a ceasefire.7) While a ceasefire might not be a realistic option without some kind of international military involvement, the German government should now support all efforts to achieve a humanitarian solution, not least for the sake of its credibility as a State guided by the principles and rules of international law. Further arms deliveries to Israel should be considered very carefully in this situation; they could have consequences under international (criminal) law for Germany and the persons involved.


1 I note in passing that Federal Chancellor Scholz once again invoked the diffuse and pre-democratic concept of „raison d’état“ (here), ignoring the criticism especially from Jewish intellectuals (see only Mendel, Über Israel Reden, 2023 (e-book), pp. 34 ff.) which does not seem to have reached the governmental speechwriters.
2 Note that there is a wider debate as to whether the occupation formally ended with Israel’s military withdrawal from Gaza in 2005. The gist of the issue is whether Israel still exercises sufficient effective control to speak of the continuation of the occupation (entailing the respective obligations under the law of occupation) or whether this control was effectively transferred to the Palestinian Authority with the disengagement. For this view e.g. Shany, Yearbook of International Humanitarian Law 8 (2005) at 369; in favour of continuing control see Human Rights Council, Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/77/328, 14 September 2022, fn. 10 and para. 19; for a nuanced, functional approach stressing the sui generis nature of Gaza Gross, The Writing on the Wall,2017, pp. 6 ff., 204 ff.
3 The spokesperson of the Israeli Defence Forces (IDF), Lieutenant Colonel Peter Lerner, stated in the BBC Global News Podcast of 15 October 2023 (from minute 9:50), that Israel operates within the framework of international law and complies with it.
4 On the controversial issue whether the protection also remains in place if civilians make themselves voluntarily available to serve as a humane shield see Ambos, Treatise on International Criminal Law. Volume II, 2nd ed. 2022, at 189-90 with further references.
5 At the time of writing it is not clear whether the IDF was responsible for the attack, see here and here.
6 In the meantime Israel seems to have restored the water supply (here).
7 See only the statement of Lynn Hastings, Deputy Special Coordinator, UN Resident and Humanitarian Coordinator of UNSCO (The Office of the United Nations Special Coordinator for the Middle East Peace Process), in BBC Global News Podcast of 15 October 2023, from minute 6:30.