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War crimes in the Gaza war

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Damage from an Israeli airstrike on the El-Remal area in Gaza City on 9 October 2023.
Aftermath of the Be'eri massacre

Since the start of the 2023 Israel–Hamas war on 7 October 2023, the UN Human Rights Council identified "clear evidence" of war crimes by both Hamas and the Israel Defense Forces.[1] A UN Commission to the Israel–Palestine conflict stated that there is "clear evidence that war crimes may have been committed in the latest explosion of violence in Israel and Gaza, and all those who have violated international law and targeted civilians must be held accountable."[2][3][4] On 27 October, a spokesperson for the OHCHR called for an independent court to review potential war crimes committed by both sides.[5]

The International Criminal Court confirmed that its mandate to investigate alleged war crimes committed since June 2014 in the State of Palestine extends to the current conflict.[6][1]

By Palestinian militant groups

See also: Palestinian political violence

Determining the applicability of laws of war to militant groups is a difficult question, as both the Council of Europe and International Committee of the Red Cross note that international law treats war and terrorism as separate legal categories.[7][8] While the term "international law" pertains to states, it also applies to insurgent and terrorist armed forces. Even if an insurgency is deemed lawful — meaning it meets the criteria of "just cause", it must adhere to the principles of "just means." Regarding Hamas and its combatants, even if they have a presumptive right to fight against what they term as an "Israeli occupation," they must still abide by legal rules of "discrimination," "proportionality," and "military necessity."[9]

The Israeli government has portrayed Hamas as a terrorist group, but other international bodies have interpreted its actions through the frame of the laws of war.[10] On 9 October, Human Rights Watch stated that Hamas's apparent targeting of civilians, indiscriminate attacks, and taking of hostages amounted to war crimes.[11] On 10 October, OHCHR stated the taking of hostages and use of human shields were war crimes.[12] United Nations Human Rights chief Volker Türk noted that militant groups' "horrifying mass killings" were violations of international law.[13]

Massacres

Further information: Re'im music festival massacre, Netiv HaAsara attack, Be'eri massacre, Kfar Aza massacre, Nahal Oz massacre, Nir Oz massacre, and Holit massacre
Image from Be'eri following Hamas's attack on the village

On 12 October, Jens David Ohlin argued Hamas's attacks potentially violated Articles 6-8 of the Rome Statute.[14] Ohlin asserted the attacks might violate Article 6, if it could be proved the perpetrators had "genocidal intent."[14] On 7 October, as his forces were massacring civilians, Ismail Haniyeh, the head of the Hamas Political Bureau, stated in a speech the intent of Operation Al-Aqsa Flood, saying, "We want to liberate our land, our holy sites, our Al-Aqsa mosque, our prisoners." He concluded with the statement "To [the enemy], we have only one thing to say to you: get out of our land. Get out of our sight. Get out of our city of Al-Quds [Jerusalem] and our al-Aqsa mosque. We no longer wish to see you on this land. This land is ours, Al-Quds is ours, everything [here] is ours. You are strangers in this pure and blessed land. There is no place of safety for you."[15][16]

According to Ohlin, militant groups violated Article 7 if there was evidence the attacks had been part of an organized "plan or policy."[14] Finally, Ohlin argued, the militant groups violated Article 8 by killing civilians.[14] On 7 October, the militant groups massacred civilians.[17] 260 were killed at the Re'im music festival, 112 at Be'eri, and 73 at Kfar Aza.[18] Victims were reportedly subject to immolation, dismemberment, and beheading.[19] On 15 October, a group of 100 Israeli and international law experts argued videos released on social media showed war crimes.[20]

At the Re'im music festival massacre, Hamas militants massacred 270 civilians and injured many more, methodically shooting fleeing and hiding attendees, as well as taking hostages, in the largest terror attack against concerts in history. Witnesses have reported that some of the captured women have been raped.[21][22][23]

At the Be'eri massacre, approximately 70 Hamas militants massacred at least 130 people, approximately 10% of the population of Be'eri, including women, children, and infants.[24] When inside the kibbutz they went house to house, shooting or capturing the residents.[25] [26]

Allegations of genocide

Hamas has long been considered to harbor aspirations of genocide against Israel and its Jewish population, with their 1988 charter including a call kill Jews.[27][28][29] Their incursion into Israel on October 7 has been described by many scholars as implementing these aspirations, with over 100 international scholars describing the actions as likely meeting the definition of genocide, saying "As these widespread, horrendous acts appear to have been carried out with an ‘intent to destroy, in whole or in part’ a national group – Israelis – a goal explicitly declared by Hamas, they most probably constitute an international crime of genocide, proscribed by the Genocide Convention and the Rome Statute of the International Criminal Court".[30]

Other groups, including Genocide Watch, have supported these allegations, saying "Hamas targeted Israelis simply because they were Israelis. It was the deadliest massacre of Jews since the Holocaust. Iran, Hamas, Hezbollah, and Palestinian Islamic Jihad have expressed their genocidal intent to destroy the nation of Israel. The massacres by Hamas constituted acts of genocide."[31]

Hostage taking

See also: Kidnappings during the 2023 Israel–Hamas war

Hostage-taking is outlawed in non-international armed conflicts as per Article 1(b) of Common Article 3 of the Geneva Conventions and customary international humanitarian law, and is recognized as a war crime under the Rome Statute of the International Criminal Court. Hostage-taking is defined as detaining a person with threats to harm them to compel a third party to act or abstain from acting as a condition for the hostage's safety. Hostages can be civilians or individuals not actively partaking in hostilities, including surrendered or detained armed forces members.[32]

During the Hamas attack approximately 200 people were taken hostage by militants.[33] Under the Geneva Convention, taking hostages is described as a "grave breach."[34][35] In response to Israeli airstrikes on civilian residences, Hamas threatened on 13 October to execute a hostage every time Israel bombed a home without giving advance warning.[36] These actions were not followed through. Omar Shakir, Israel and Palestine Director of Human Rights Watch, asserted hostage taking was a "heinous crime" with no justification.[37] Amnesty International noted the militant groups' actions — including hostage-taking — "flagrantly violated international law."[38]

Human shields

The Israel Defense Forces allege that Hamas uses civilians as human shields.[39][40] This allegation has received support from Israeli allies, including the UK, the US, Australia, and European Commission.[41] The Israeli army further argued the militant groups' hostages were being used as human shields.[35] Human Rights Watch noted that using hostages, or any other person held in custody, as human shields is illegal.[32]

All combatants, including insurgents, are bound by the law of war. Louis René Beres has analyzed the placing of military assets amid Palestinian civilian populations, categorizing it as a clear and punishable crime under international law. The act of perfidy, described as a "grave breach" in Article 147 of the Fourth Geneva Convention, is forbidden by the Hague Regulations, which forbid placing military assets or personnel in civilian populated areas. Additionally, Protocol I of 1977, supplementing the Geneva Conventions of August 12, 1949, contains related prohibitions on perfidy. These regulations are enforced not only through the mentioned treaties but also via customary international law, as indicated by Article 38 of the Statute of the International Court of Justice. A, as underlined in Article 3, shared across the four Geneva Conventions of 1949.[9].

Medical facilities

During war time, medical facilities are considered protected objects, and the use of them for military purposes is a war crime. However, Hamas has been documented to use hospitals and other medical facilities such as ambulances, including allegedly operating a major command and control center beneath Al-Shiba hospital. Ghassan Abu-Sittah, a resident doctor at al-Shifa called the assertion of Hamas using the hospital an "outlandish excuse" to bomb it.[42] In response to the IDF allegations, Norwegian doctor Mads Gilbert stated Israel had a well-documented history of attacking civilian healthcare facilities without ever providing real evidence they were used in military capacities.[43][44] According to Amer Abu Awash, a member of Hamas' elite Nukhba Force, much of Hamas' underground infrastructure is beneath hospitals, placed there so that Israel "won’t strike them".[45][46] Abu Awash made this claim while handcuffed and undergoing IDF interrogation.[47]

Indiscriminate rocket attacks

Further information: Palestinian rocket attacks on Israel

The 7 October attack included at least 3,000 rockets aimed toward Israel, with over 8000 being fired since the war began.[48][49] The rockets hit as far away as Tel Aviv and the outskirts of Jerusalem.[50] Human Rights Watch termed the rocket attacks as indiscriminate.[11][51] These have included repeated direct strikes on medical facilities, such as the Barzilai Medical Center in Ashkelon, including pediatric facilities at the Child Development Institute.[52] Human right organizations and scholars have condemned indiscriminate rocket attacks as a war crime.[51][53]

Child soldiers

Hamas has been accused of using and recruiting child soldiers.[by whom?] In addition, Iran's Revolutionary Guard has been attempting to recruit volunteers, including children, to fight alongside Hamas against Israel.[54] The use and recruitment of children under 16 is a war crime, and previously groups like Amnesty International had called on Hamas and other Palestinian militant groups to "put an immediate end to the use or involvement of any kind of children in armed activity".[55][56][57]

By the Israeli government

See also: Israeli war crimes

Numerous charges of war crimes have been levied against Israel for its actions against civilians. These charges have come from Human Rights Watch, Amnesty International, B'tselem, and human rights groups and experts, including UN rapporteurs.[58] Critics argue the Biden administration has given tacit approval to Israeli war crimes.[59] Antony Blinken indicated the Biden administration has a "high tolerance" for whatever happens in Gaza.[60] On 27 October, the White House stated it had no red lines for Israeli actions.[61]

Indiscriminate attacks

Further information: Jabalia camp market airstrike, Al-Shati refugee camp airstrike, October 2023 UNRWA school airstrike, Church of Saint Porphyrius airstrike, 31 October 2023 attack on Jabalia, and Al-Shifa ambulance airstrike
A mosque destroyed by an Israeli airstrike, Khan Younis, 8 October

In the first week of the war, the IDF carried out 6,000 airstrikes across Gaza, killing over 3,300 civilians and injuring over 12,000.[62][63] The strikes hit specifically protected locations, including hospitals, markets, refugee camps, mosques, educational facilities, and entire neighborhoods.[64] A group of UN special rapporteurs asserted Israel's indiscriminate airstrikes are "absolutely prohibited under international law and amounts to a war crime."[65] Israeli army spokesperson Daniel Hagari said that "the emphasis is on damage and not on accuracy."[66]

On 9 October, the IDF carried out a mass-casualty airstrike on the Jabalia refugee camp market.[67] The attack resulted in the deaths of over sixty civilians and extensive damage to the market.[68] As a result of Israeli airstrikes in other areas, displaced individuals sought refuge in the camp, causing the market to be densely populated at the time of the strike.[69]

On the same day, the IDF carried out an airstrike on the densely populated Al-Shati refugee camp.[70] Palestinian media reported that this strike resulted in numerous civilian casualties and the destruction of four mosques, including the al-Gharbi mosque, Yassin mosque, and al-Sousi mosque, all of which were confirmed destroyed by satellite footage.[71] Under the Rome Statute, it is a war crime to intentionally attack places of worship in non-international conflict.[72] The airstrikes in the Al-Shati refugee camp were described as a "massacre against an entire neighborhood" by the Palestinian Ministry of Health.[73][74]

On 17 October, the IDF carried out an airstrike on a UNRWA school sheltering 4,000 refugees in the Al-Maghazi refugee camp, killing six and injuring dozens. Philippe Lazzarini, the UNRWA Commissioner-General, called the attack "outrageous" and showing "a flagrant disregard for the lives of civilians."[75][76] On 19 October, the Israeli Air Force bombed the Church of Saint Porphyrius, where hundreds of Christians and Muslims were sheltering, killing 16 people.[77] The Greek Orthodox Patriarchate of Jerusalem condemned it as a "a war crime that cannot be ignored."[78] On 24 October, UN Secretary-General Antonio Guterres called for an immediate ceasefire, after stating Israel had committed "clear violations" of international humanitarian law.[79]

On 1 November, following two airstrikes on the Jabalia refugee camp, the United Nation Human Rights Office stated, "We have serious concerns that these are disproportionate attacks that could amount to war crimes."[80] On 3 November, Israel bombed a medical convoy outside Al-Shifa Hospital, claiming it was targeting Hamas.[81] In response, Yanis Varoufakis noted, "Even if the ambulance was carrying a Hamas overlord, bombing it violates the Geneva Convention."[82] UN chief Antonio Guterres stated he was "horrified" by the attack.[83]

Collective punishment

Main article: October 2023 Israeli blockade of the Gaza Strip

It is an entire nation out there that is responsible. It is not true this rhetoric about civilians not being aware, not involved. It’s absolutely not true. They could have risen up. They could have fought against that evil regime which took over Gaza in a coup d’etat.

— Isaac Herzog[84]

Several actions taken by the Israeli army, including its blockade on electricity, food, fuel and water, were characterized as collective punishment, a war crime prohibited by treaty in both international and non-international armed conflicts, more specifically Common Article 3 of the Geneva Conventions and Additional Protocol II.[85][86] Israel's president Isaac Herzog accused the residents of Gaza of collective responsibility for the war.[87][a][89] Doctors Without Borders international president Christos Christou said millions of civilians in Gaza faced "collective punishment" due to Israel's blockade on fuel and medicine.[90][91] Tufts University law professor Tom Dannenbaum wrote that the siege order "commands the starvation of civilians as a method of warfare, which is a violation of international humanitarian law and a war crime."[92] On 25 October, Oxfam stated Israel's use of "starvation as a method of war" was a violation of international law, and that Gaza was being "collectively punished in full view of the world."[93]

As part of Israel's blockade on Gaza, all access to water was shut off.[94][95] Article 51 of the Berlin Rules on Water Resources bars combatants from removing water or water infrastructure to cause death or force its movement.[96] The EU's chief diplomat Josep Borrell called Israel's cutting off water, electricity and food as "not in accordance with international law."[97] On 14 October, the UNRWA announced Gaza no longer had clean drinking water, and two million people were at risk of death from dehydration.[98] On 15 October, Israel announced it had resumed supplying water to a single location in southern Gaza to "encourage" movement.[99][100] Aid workers in Gaza refuted water was available.[101] By 16 October, civilians drank seawater and water contaminated with sewage to survive.[102]

In an interview with The New Yorker, human rights expert Sari Bashi noted the historical uniqueness of Israeli officials openly admitting they are engaging in collective punishment.[103] On 18 October, UN Secretary-General Antonio Guterres stated Hamas' attacks "cannot justify the collective punishment of the Palestinian people."[104] On 24 October, Human Rights Watch criticized Israel's refusal to allow fuel or water into a Gaza, terming it a war crime.[105] On 29 October, Karim Ahmad Khan stated Israel's impeding aid to Gaza may constitute a crime under the International Criminal Court.[106]

Medical neutrality

Palestine Red Crescent ambulance destroyed by an Israeli airstrike.

Israel is alleged to have broken medical neutrality, a war crime under the Geneva Conventions.[107][108] According to Gaza officials, the IDF deliberately targeted ambulances and health facilities with airstrikes.[109][110] In a statement, the Palestine Red Crescent demanded "accountability for this war crime."[111] The International Federation of Red Cross and Red Crescent Societies, UNRWA, and Medecins Sans Frontieres reported the deaths of their medical personnel.[112][113] On 14 October, the World Health Organization said the killing of health care workers and the destruction of health facilities "denies civilians the basic human right of life-saving health" and is prohibited by International Humanitarian Law.[114][115] On 17 October, WHO stated 51 health facilities had been attacked by Israel.[116][117] On 4 November, the Gaza Health Ministry stated 105 medical facilities had been deliberately targeted.[118]

On 21 October, the Ministry of Health noted Israel had attacked 69 health facilities, 24 ambulances, put 7 hospitals out of commission, and killed 37 medical staff.[119] Health workers and aid groups said several hospitals in Gaza were hit by airstrikes and shelling. The Palestine Red Crescent Society accused Israel of "deliberately" carrying out airstrikes "directly around" Gaza's second-largest hospital, al-Quds Hospital, in north Gaza, to force them to evacuate the facility. The World Health Organization (WHO) found it impossible to evacuate the hospital. According to CNN, even those who evacuated south have not been safe.[120] On 30 October 2023, a Turkish-Palestinian Friendship Hospital, located at the south of Gaza, was struck by a "direct hit", causing damage and injuries.[121][122]

On 3 November, an Israeli airstrike hit an ambulance convoy departing from al-Shifa Hospital carrying 15-20 critically injured patients.[123] The Israeli military confirmed the strike, claiming one of the ambulances was being used by a "Hamas terrorist cell", and was close to their position.[81] In prior weeks, Israel had released an animated video claiming Al-Shifa hospital contained a hidden, top-secret underground military center.[124] This has been flatly denied, with Hamas stating Israel was using "prefabricated" evidence to pre-empt a military strike on a hospital.[125] Laws of war provide limited protections to medical facilities used in such capacities.[126]

Forced evacuation

Main article: Evacuation of northern Gaza

On 13 October, the Israeli army ordered the evacuation of 1.1 million people from north Gaza, saying that they needed to separate the civilian population from the militants embedded among them, and that the population would be allowed to return after the war.[127] Gazan officials initially asked residents to ignore the order, with the Interior Ministry claiming Israel sought to "displace us once again from our land."[128] The Israeli evacuation order was characterized as a forcible transfer by Jan Egeland, a Norwegian diplomat involved with the Oslo Accord.[129] Egeland stated, "There are hundreds of thousands of people fleeing for their life — [that is] not something that should be called an evacuation. It is a forcible transfer of people from all of northern Gaza, which according to the Geneva convention is a war crime."[129] UN Special rapporteur Francesca Albanese warned of a mass ethnic cleansing in Gaza.[130] Israeli historian Raz Segal termed it a "textbook case of genocide."[131] The action was condemned by the UN, Doctors Without Borders, UNICEF, and the IRC.[132]

On 14 October, the World Health Organization issued a statement condemning Israel's order to evacuate 22 hospitals in northern Gaza, calling it a "death sentence."[133][134] Doctors noted both the southern Gaza Strip's lack of hospital beds and the impossibility of transporting patients, such as newborns in incubators and patients on ventilators.[135] Nevertheless, on 22 October, the IDF dropped leaflets in northern Gaza stating anyone who did not comply with the evacuation would be considered a "terrorist."[136]

White phosphorus

Human Rights Watch and Amnesty International's Crisis Evidence Lab shared evidence that Israeli military units striking in Gaza and Lebanon have employed white phosphorus artillery rounds; Israel denied the report, calling the accusation "unequivocally false".[137] White phosphorus munitions are allowed on battlefields for specific purposes such as creating smokescreens, generating illumination, and marking targets. They are not banned as chemical weapons under international conventions due to these legitimate uses.[137][138]

White phosphorus is used in smoke, illumination, and incendiary munitions, and ignites when exposed to atmospheric oxygen. Upon contact, it can cause deep and severe injuries, potentially leading to multiple organ failure, and even minor burns can be fatal. White phosphorus is considered an incendiary weapon, and Protocol III of the Convention on Certain Conventional Weapons prohibits their use against military targets located among civilians, although Israel is not a signatory.[139] According to Human Rights Watch, the use of white phosphorus is "unlawfully indiscriminate when airburst in populated urban areas, where it can burn down houses and cause egregious harm to civilians", and "violates the requirement under international humanitarian law to take all feasible precautions to avoid civilian injury and loss of life."[140] According to Amnesty International weapons investigator Brian Castner, whether this particular case constitutes a war crime depends on "the intended target of this attack, and the intended use," but that, "generally, any attacks that fail to discriminate between civilians and military forces can potentially be a violation of the laws of war."[141] On 31 October, after an investigation, Amnesty International stated that an October 16 Israeli white phosphorus attack was indiscriminate, unlawful, and "must be investigated as a war crime", due to its use on the populated Lebanese town of Dhayra, which injured at least nine civilians.[142][143]

On 2 November, Amnesty International stated its investigations into four incidents on October 10, 11, 16 and 17 showed Israel had used white phosphorus munitions.[144]

Executing surrendered Palestinians

On 10 October, the Israeli Defence Force published a video that appeared to show IDF soldiers shooting four surrendering Palestinians.[145][146] Footage analysis indicated the men appeared to be surrendering, with three men getting on the ground with their arms raised, one waving piece of white clothing. None of them appeared to be armed at the time of the shooting, while a subsequent video showed the bodies had been moved, with weapons placed near them on the ground. The analysis concluded the four men were unarmed Palestinians that left Gaza through a breach in the separation wall.[145] An IDF spokesman said he had no comment.[145] Killing surrendered civilians or combatant is a war crime.[147][148]

Abuse and sexual humiliation of detainees

Video evidence surfaced of what is described as a “flagrant violation of international laws related to the protection of civilians”. Israeli soldiers were shown surrounding detainees in Yatta, Hebron being dragged and assaulted by the Israeli soldiers. Many of the detainees had been stripped naked as a form of sexual humiliation, having both their arms and feet bound, and beaten with the butts of rifles and trampled. [149]

Allegations of genocide

Main article: Palestinian genocide accusation
Section 'Allegations of genocide' not found

International reactions

Government officials around the world criticized Israel's war crimes. Turkish president Recep Tayyip Erdoğan criticized Western countries for their complicity as Israel committed war crimes.[150] Colombian President Gustavo Petro termed Israel's campaign as a genocide.[151] Egyptian President Abdel Fattah al-Sisi and King Abdullah II of Jordan both condemned the collective punishment of Gaza.[152] Irish President Michael D. Higgins demanded the al-Ahli Arab Hospital explosion be investigated as a war crime.[b][156] Chilean President Gabriel Boric condemned Israel's "collective punishment" the Gazan civilian population[157][158] South African President Cyril Ramaphosa condemned the collective punishment of Gaza.[159] Brazilian President Luiz Inácio Lula da Silva stated, "It's not a war, it's a genocide."[160] Cuban President Miguel Diaz-Canel stated Israel's actions violated the Geneva Convention.[161]

China Foreign Minister Wang Yi stated Israel was collectively punishing Gaza.[162] Indonesian Foreign Minister Retno Marsudi described Israeli actions in Gaza as crimes against humanity.[163] Abdulla Shahid, Foreign Minister of the Maldives, warned the evacuation of northern Gaza could amount to the "war crime of forcible transfer."[164] Iranian Foreign Minister Hossein Amirabdollahian described the events as genocide and a crime against humanity.[165] Russian Foreign Minister Sergei Lavrov criticized Israel's "indiscriminate" force, stating the conflict risked creating a crisis that would last "many decades, if not centuries."[166] Syrian Foreign Minister Faisal Mekdad termed Israeli actions as a genocide.[167] In a joint statement, the Foreign Ministers of nine Arab countries — the United Arab Emirates, Jordan, Bahrain, Saudi Arabia, Oman, Qatar, Kuwait, Egypt and Morocco — described Israeli actions as collective punishment.[168] Oman's Foreign Minister, Sayyid Badr Albusaidi, called for a war crimes investigation into Israeli action in Gaza.[169]

Ione Belarra, the Spanish minister of social rights, accused the EU and the US of "being complicit in Israel's war crimes."[170] Belarra further called for Israel to be denounced before the ICC for genocide in the Gaza Strip.[171] The Workers Party of Brazilian president Luiz Inácio Lula da Silva officially classified Israeli actions in Gaza as genocide.[172] U.S. officials reported alarm at Israeli claims of the "inevitability" of civilian deaths, after they used the atomic bombings of Hiroshima and Nagasaki as historical examples.[173]

By all parties

Targeting of journalists

See also: Violence against journalists in the 2023 Israel–Hamas war

On 1 November, Reporters without Borders asked the International Criminal Court to begin a priority war crimes investigation into the killing of nine journalists.[174]

See also

Notes

  1. ^ The Financial Times later silently deleted Herzog's quote from its article, cf. archive copy of the article from the evening of October 13.[88]
  2. ^ The perpetrator of this alleged war crime is disputed. While not a definitive conclusion, as of 23 October 2023, independent analysts asserted the explosion was caused by an errant rocket fired from within Gaza.[153][154][155]

References

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