August 3, 2014

The following questions and answers address issues relating to international humanitarian law (the laws of war) governing the conflict between Israel and Hamas and other Palestinian armed groups in Gaza that began on July 7, 2014. Israel began a ground invasion of Gaza on July 17. The purpose here is to provide analytic guidance for those who are examining the fighting, as well as for the parties to the conflict and those with the capacity to influence them.

This Q&A focuses on international law governing the conduct of hostilities by each party to the conflict. It does not address whether Hamas forces and other Palestinian armed groups or Israel were justified in their attacks, in breaching ceasefires, or other matters concerning the legitimacy of resorting to armed force, such as under the United Nations Charter. In accordance with our institutional mandate, Human Rights Watch maintains a position of neutrality on these issues of jus ad bellum (law concerning acceptable justifications to use armed force), because we believe it is the best way to promote our primary goal of encouraging all sides in armed conflicts to respect the laws of war, or jus in bello (law concerning acceptable conduct in war).

1. What international humanitarian law applies to the current conflict between Israel and Hamas?
The current armed conflict between Israel and Hamas and other Palestinian armed groups is governed by international treaty as well as the rules of customary international humanitarian law. The treaty law, most importantly Common Article 3 to the Geneva Conventions of 1949, to which Israel and Palestine are parties, sets forth minimum standards for all parties to an armed conflict, both states and non-state armed groups.

Customary laws of war set out the protections to civilians and other noncombatants from the hazards of armed conflict. They address the conduct of hostilities–the means and methods of warfare–by all sides to a conflict. Foremost is the rule that parties to a conflict must distinguish at all times between combatants and civilians. Civilians may never be the deliberate target of attacks. As discussed below, warring parties are required to take all feasible precautions to minimize harm to civilians and civilian objects. Attacks may target only military objectives. Attacks targeting civilians or that fail to discriminate between combatants and civilians, or would cause disproportionate harm to the civilian population compared to the anticipated military gain, are prohibited.

Common Article 3 provides a number of fundamental protections for civilians and persons who are no longer taking part in hostilities, such as captured combatants, and those who have surrendered or are unable to fight because of wounds or illness. It prohibits violence against such persons - particularly murder, cruel treatment, and torture - as well as outrages against their personal dignity and degrading or humiliating treatment.

States are also obligated to respect international human rights law in areas where they have effective control unless it is superseded by more specific international humanitarian law.

2. Who is subject to military attack?
The laws of war limit permissible means and methods of warfare by parties to an armed conflict and require them to respect and protect civilians and captured combatants. The fundamental tenets of this law are "civilian immunity" and the principle of "distinction." While the laws of war recognize that some civilian casualties are inevitable during armed conflict, they impose a duty on warring parties at all times to distinguish between combatants and civilians, and to target only combatants and other military objectives.

Combatants include members of a country’s armed forces and commanders and fighters in non-state armed groups. They are subject to attack at all times during hostilities unless they are captured or incapacitated. Civilians lose their immunity from attack when and only for such time as they are directly participating in hostilities. According to the International Committee of the Red Cross, the laws of war distinguish members of the organized fighting forces of a non-state party, who may be targeted when there is fighting, from those who assume exclusively political, administrative or other non-combat functions, who may not be targeted even when there is fighting. An individual recruited, trained and equipped by a non-state armed group is considered integrated into that group even before carrying out a hostile act at a time of fighting. Such fighters who leave the armed group, as well as regular army reservists who reintegrate into civilian life, are civilians until they are called back to active duty.

As discussed below, mere membership or affiliation with Hamas, which is a political entity with an armed component, is not a sufficient basis for determining an individual to be a lawful military target. Israel’s labeling of certain individuals as “terrorists” does not make them military targets as a matter of law, so attacks on such persons may be deliberate attacks on civilians or indiscriminate on the grounds that there was no military target, in violation of the laws of war.

The laws of war also protect civilian objects, which are defined as anything not considered a military objective. Prohibited are direct attacks against civilian objects, such as homes and apartments, places of worship, hospitals, schools, and cultural monuments - unless they are being used for military purposes. Civilian objects become subject to legitimate attack when they become military objectives - that is, when they are making an effective contribution to military action and their destruction, capture, or neutralization offers a definite military advantage. This would include the deployment of military forces in what are normally civilian objects. Where there is doubt about the nature of an object, it must be presumed to be civilian.

The laws of war prohibit indiscriminate attacks. Indiscriminate attacks are of a nature to strike military objectives and civilians or civilian objects without distinction. Examples of indiscriminate attacks are those that are not directed at a specific military objective or that use weapons that cannot be directed at a specific military objective. Prohibited indiscriminate attacks include area bombardment, which are attacks by artillery or other means that treat as a single military objective a number of clearly separated and distinct military objectives located in an area containing a concentration of civilians and civilian objects.

Also prohibited are attacks that violate the principle of proportionality. Disproportionate attacks are those that may be expected to cause incidental loss of civilian life or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated from the attack.

3. What are the obligations of Israel and Hamas with respect to fighting in populated areas?
Gaza is one of the most densely populated areas in the world. International humanitarian law does not prohibit fighting in urban areas, although the presence of many civilians places greater obligations on warring parties to take steps to minimize harm to civilians.

The laws of war require that the parties to a conflict take constant care during military operations to spare the civilian population and to "take all feasible precautions" to avoid or minimize the incidental loss of civilian life and damage to civilian objects. These precautions include doing everything feasible to verify that the objects of attack are military objectives and not civilians or civilian objects, and giving "effective advance warning" of attacks when circumstances permit.

Forces deployed in populated areas must avoid locating military objectives – including fighters, ammunition and weapons -- in or near densely populated areas, and endeavor to remove civilians from the vicinity of military objectives. Belligerents are prohibited from using civilians to shield military objectives or operations from attack. "Shielding" refers to purposefully using the presence of civilians to render military forces or areas immune from attack.

At the same time, the attacking party is not relieved from its obligation to take into account the risk to civilians, including the duty to avoid causing disproportionate harm to civilians, simply because it considers the defending party responsible for having located legitimate military targets within or near populated areas. That is, the presence of a Hamas commander or military facility in a populated area would not justify attacking the area without regard to the threatened civilian population.

4. Should belligerent parties give warnings to civilians in advance of attacks? What constitutes an "effective" warning?
On many occasions since the beginning of the Israeli air offensive on July 7, 2014, Israel has issued purported warnings of attacks to the civilian population in Gaza. These have taken the form of small “knock on the roof” missiles and messages conveyed by telephone.

The laws of war require, so long as circumstances permit, that warring parties give "effective advance warning" of attacks that may affect the civilian population. What constitutes an "effective" warning will depend on the circumstances. Such an assessment would take into account the timing of the warning and the ability of the civilians to leave the area. A warning that does not give civilians adequate time to leave for a safer area would not be considered "effective."

Civilians who do not evacuate following warnings are still fully protected by international law. Otherwise, warring parties could use warnings to cause forced displacement, threatening civilians with deliberate harm if they did not heed them. Moreover, some civilians are unable to heed a warning to evacuate, for reasons of health, fear, or lack of anyplace else to go. So, even after warnings have been given, attacking forces must still take all feasible precautions to avoid loss of civilian life and property. This includes canceling an attack when it becomes apparent that the target is civilian or that the civilian loss would be disproportionate to the expected military gain.
 
The laws of war also prohibit "acts or threats of violence the primary purpose of which is to spread terror among the civilian population." Statements calling for the evacuation of areas that are not genuine warnings, but are primarily intended to cause panic among residents or compel them to leave their homes for reasons other than their safety, would fall under this prohibition. This prohibition does not attempt to address the effects of lawful attacks, which ordinarily cause fear, but rather those threats or attacks on civilians that have this specific purpose.

5. What are the legal protections for hospitals, medical personnel and ambulances?
Medical units are civilian objects that have special protections under the laws of war. They include hospitals, clinics, medical centers and similar facilities, whether military or civilian. While other presumptively civilian structures become military objectives if they are being used for a military purpose, hospitals lose their protection from attack only if they are being used, outside their humanitarian function, to commit “acts harmful to the enemy.” Several types of acts do not constitute “acts harmful to the enemy,” such as the presence of armed guards, or when small arms from the wounded are found in the hospital. Even if military forces misuse a hospital to store weapons or shelter able-bodied combatants, the attacking force must issue a warning to cease this misuse, setting a reasonable time limit for it to end, and attacking only after such a warning has gone unheeded.

Under the laws of war, doctors, nurses and other medical personnel must be permitted to do their work and be protected in all circumstances. They lose their protection only if they commit, outside their humanitarian function, acts harmful to the enemy.

Likewise, ambulances and other medical transportation must be allowed to function and be protected in all circumstances. They lose their protection only if they are being used to commit acts harmful to the enemy, such as transporting ammunition or healthy fighters.

6. May Israel attack mosques or schools in Gaza?
Mosques, like all houses of worship, and schools are presumptively civilian objects that may not be attacked unless they are being used for military purposes, such as a military headquarters or a location for storing weapons and ammunition. All sides must take special care in military operations to avoid damage to houses of worship and other cultural property.

7. Is Hamas's firing of rockets at Israel lawful?
As parties to the armed conflict, Hamas and other Palestinian armed groups are obligated to abide by international humanitarian law. The targeting of military installations and other military objectives is permitted under the laws of war, but Hamas must take all feasible precautions to avoid civilian harm and is prohibited from targeting civilians, or launching indiscriminate attacks or attacks that would cause disproportionate harm to civilians compared to the expected military advantage. Hamas commanders must choose such means of attack that it can direct at military targets and minimize incidental harm to civilians. If the weapons it uses are so inaccurate that it cannot direct them at military targets without imposing a substantial risk of civilian harm, then it should not deploy them.

The rockets fired by Palestinian armed groups–locally made short and upgraded long-range rockets and some Russian-designed "Grad" rockets–are considered so inaccurate as to be incapable of being aimed in a manner to discriminate between military targets and civilian objects when, as has been the case, they are launched toward populated areas. This inaccuracy and inability to target military objectives is exacerbated at the longer ranges that some rockets are being fired into Israel.

Statements from Palestinian armed groups indicate that they are directing their rockets at Israeli population centers. The use of such rockets against civilian areas violates the prohibition on deliberate and indiscriminate attacks. Likewise, a party that launches rockets from densely populated areas - thus making civilians vulnerable to counterattacks–may be failing to take all feasible precautions to protect civilians under its control against the effects of attacks.

8. Is it lawful to target leaders of Hamas and their offices and homes?
International humanitarian law allows the targeting of military commanders in the course of armed conflict, provided that such attacks otherwise comply with the laws that protect civilians. Normally, political leaders not taking part in military operations, as civilians, would not be legitimate targets of attack.

Hamas leaders who are commanding belligerent forces would be legitimate targets. However, as Hamas engages in civil governance beyond its military component, merely being a Hamas leader in and of itself does not in itself make an individual lawfully subject to military attack.

Combatants do not have immunity from attack in their homes and workplaces. However, as with any attack on an otherwise legitimate military target, the attacking force must refrain from attack if it would disproportionately harm the civilian population or be launched in a way that fails to discriminate between combatants and civilians. Under this duty to take all feasible precautions to avoid civilian harm, the attacking force should also consider whether there may be alternative sites where the combatant can be targeted without endangering civilians.

Attacking the home of a combatant who was not present at the time would be an unlawful attack on a civilian object that if carried out intentionally would constitute a war crime. A civilian home does not lose its protected status as a civilian object merely because it is the home of a militant who is not present there. Insofar as the attack is designed to harm the combatants’ family, it would also be a prohibited form of collective punishment (see below).

9. What is meant by "collective punishment" of the civilian population?
The laws of war prohibit the punishment of any person for an offense other than one that they have personally committed. Collective punishment is a term used in international law to describe any form of punitive sanctions and harassment, not limited to judicial penalties, but including sanctions of "any sort, administrative, by police action or otherwise," that are imposed on targeted groups of persons for actions that they themselves did not personally commit. The imposition of collective punishment is a war crime. Whether an attack or measure could amount to collective punishment depends on several factors, including the target of the measure and its punitive impact, but of particular relevance is the intent behind a particular measure. If the intention was to punish, purely or primarily as a result of an act committed by third parties, then the attack is likely to have been collective punishment. 
 

10. How must captured combatants and civilians in custody be treated?
The laws of war do not prohibit warring parties from detaining captured combatants during an armed conflict.

Common Article 3 to the four Geneva Conventions of 1949, applicable during non-international armed conflicts, requires protecting anyone in custody, including captured combatants and civilians, against “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” No sentences may be handed down except by a “regularly constituted court” that meets international fair trial standards.

The ban against torture and other ill-treatment is one of the most fundamental prohibitions in international human rights and humanitarian law. No exceptional circumstances can justify torture.

The laws of war require a party to a conflict to permit persons deprived of their liberty to correspond with their families and not to refuse arbitrarily a request by the International Committee of the Red Cross to visit detainees.

Common Article 3 of the Geneva Conventions bans hostage taking. The International Criminal Court’s “Elements of Crimes” defines a hostage taking as the seizure or detention of a combatant or civilian, combined with threatening to kill, injure or continue to detain the individual, with the intention to compel a government, international organization or group to act or to refrain from acting as a condition for the safety or release of this individual. It is the specific intent that characterizes hostage taking and distinguishes it from lawful deprivation of someone’s liberty.

11. May Israel attack Hamas radio and television stations?
Military attacks on broadcast facilities used for military communications are legitimate under the laws of war, but such attacks on civilian television or radio stations are otherwise prohibited because they are protected civilian structures and not legitimate military targets. Moreover, if the attack is designed primarily to undermine civilian morale or to psychologically harass the civilian population, that is also a prohibited war purpose. Civilian television and radio stations are legitimate targets only if they meet the criteria for a legitimate military objective; that is, if they are used in a way that makes an "effective contribution to military action" and their destruction in the circumstances ruling at the time offers "a definite military advantage." Specifically, Hamas-operated civilian broadcast facilities could become military targets if, for example, they are used to send military orders or otherwise concretely to advance Hamas's armed campaign against Israel. However, civilian broadcasting facilities are not rendered legitimate military targets simply because they spout pro-Hamas or anti-Israel propaganda. Just as it is unlawful to attack the civilian population to lower its morale, it is unlawful to attack facilities that merely shape civilian opinion; neither directly contributes to military operations.

Should stations become legitimate military objectives because of their use to transmit military communications, the principle of proportionality in attack must still be respected. This means that Israeli forces should verify at all times that the risks to the civilian population in undertaking any such attack do not outweigh the anticipated military benefit. They should take special precautions in relation to buildings located in urban areas, including giving advance warning of an attack whenever possible.

12. What are Israel's and Hamas's obligations to humanitarian agencies?
Under international humanitarian law, parties to a conflict must allow and facilitate the rapid and unimpeded passage of impartially distributed humanitarian aid to the population in need. The belligerent parties must consent to allowing relief operations to take place and may not refuse such consent on arbitrary grounds. They can take steps to ensure that consignments do not include weapons or other military materiel. However, deliberately impeding relief supplies is prohibited.

In addition, international humanitarian law requires that belligerent parties ensure the freedom of movement of humanitarian relief personnel essential to the exercise of their functions. This movement can be restricted only temporarily for reasons of imperative military necessity.

13. Who can be held responsible for violations of international humanitarian law?
Serious violations of the laws of war that are committed with criminal intent are war crimes. War crimes, listed in the "grave breaches" provisions of the Geneva Conventions and as customary law in the International Criminal Court statute and other sources, include a wide array of offenses, including deliberate, indiscriminate, and disproportionate attacks harming civilians, hostage taking, using human shields, and imposing collective punishments, among others. Individuals also may be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding or abetting a war crime.

Responsibility also may fall on persons planning or instigating the commission of a war crime. Commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.

States have an obligation to investigate and fairly prosecute individuals within their territory implicated in war crimes.

14. Can alleged war crimes be brought before the International Criminal Court?
The International Criminal Court (ICC) is a permanent international court with a mandate to investigate, charge, and try people suspected of genocide, crimes against humanity, and war crimes committed after July 1, 2002. This can include individuals suspected of ordering or assisting such crimes, or political or military commanders whose subordinates commit such crimes and who fail to take reasonable steps to prevent them. However, the court can only exercise jurisdiction over these crimes if:

  1. The crimes occurred in the territory of a state that is a party to the ICC treaty;
  2. The person accused of the crimes is a citizen of a state that is a party to the ICC treaty;
  3. A country that is not a state to the ICC treaty accepts the court’s authority for the crimes in question by submitting a formal declaration to the court; or
  4. The UN Security Council refers the situation to the ICC prosecutor.

Neither Israel nor Palestine is a party to the Rome Statute, the treaty establishing the ICC. Israel signed, but has not ratified the Rome Statute, and in 2002 announced that it did not intend to become a state party.

Palestinian officials submitted a declaration accepting the court's jurisdiction in January 2009, but the Office of the Prosecutor determined in April 2012 that the declaration “was not validly lodged” because of Palestine’s unclear status as a state at the time.

Later the UN General Assembly voted to accord the state of Palestine “non-member state observer” status in November 2012, after which the ICC prosecutor has said that “the ball is now in the court of Palestine” to seek the ICC’s jurisdiction.

Since obtaining upgraded UN status, the state of Palestine has ratified numerous human rights treaties and the Geneva Conventions. However, it has not sought to ratify the Rome Statute or filed a declaration accepting the court's jurisdiction. Leading ICC member states, including the United Kingdom and France, have at different times publicly opposed Palestine seeking access to the ICC, a stance at odds with their support for universal ICC membership. The United States, which is not a party to the treaty, has taken a strong public position against ICC membership for Palestine.