Legal Obligations in a Time of War
by Tom Dannenbaum, Associate Professor of International Law
It is impossible to observe the events of the past two weeks in Israel and Palestine with anything other than horror. The Hamas assault beginning on the 7th of October involved shocking massacres, abductions, physical abuse, and sexual violence, implicating multiple war crimes, some of which are ongoing. Given the attacks’ widespread nature and systematicity, they almost certainly constitute crimes against humanity. There is also reason to believe that Hamas combatants in Gaza have sought to render military objectives immune from attack through locating them in the vicinity of civilians, thus perpetrating the war crime of using human shields.
Violations of international humanitarian law by one party, including the use of human shields, do not release the other from its legal obligations. Concretely, the fact of the aforementioned violations does not in any way diminish the clear reasons to investigate whether the Israeli Air Force’s bombardment of Gaza has included the use of indiscriminate attacks, disproportionate attacks, or attacks directed at protected persons or objects, each of which is a war crime under customary international law, and some of which are codified in the Statute of the International Criminal Court. Indeed, although one must always exercise caution in evaluating the conduct of hostilities from afar, it has become increasingly difficult to believe that these operations have been conducted in full compliance with international law.
Moreover, the war crime of starvation of civilians as a method of warfare is, in my view, clearly implicated by the actions that have been undertaken pursuant to Israeli Minister of Defense Yoav Gallant’s October 9th order of “a complete siege on the Gaza Strip.” As he specified, “There will be no electricity, no food, no fuel, everything is closed. We are fighting human animals and we are acting accordingly.” This practice, which has been applied to the population of Gaza as a whole, may also satisfy the legal threshold for the crime against humanity of inhumane acts.
Following pressure from the United States, Israel announced on October 19th that it would allow aid to pass through the Rafah crossing—the only border crossing connecting Gaza to Egypt. However, the announcement included significant caveats and the aid allowed through at the time of writing amounts to less than a drop in the ocean of what is needed. Meanwhile, the humanitarian situation in Gaza is deteriorating rapidly. It is not yet clear what to make of the October 29th announcement by the United States and Egypt of a “significant acceleration and increase” in aid to Gaza. Certainly, the proof of whether this indicates a genuine reversal of the current catastrophic trajectory will be in action, not words. The combination of Minister Gallant’s initial framing of the siege, the rejection of calls for a ceasefire (or even a humanitarian pause) to allow aid to be delivered safely, and the continued cutoff of fuel and electricity provide a sobering context in that regard.
Ultimately, the law of armed conflict applies with equal force to both sides. The atrocities perpetrated by Hamas actors beginning on the 7th of October were and remain horrifying. However, they cannot justify the starvation of a civilian population or its indiscriminate bombardment. Just as Hamas must release the hostages, the Israeli government must allow the full necessary flow of food, water, and all other essentials into Gaza and must conduct its military operations as required by international humanitarian law. Governments friendly to Israel have a duty to use their influence to insist that it do so.
This piece was submitted for publication on October 30th, 2023.