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III. International Humanitarian Law

International humanitarian law (IHL), also called the laws of war, governs fighting between Israel and non-state armed groups in the Gaza Strip that rises to the level of armed conflict. International humanitarian law limits permissible means and methods of warfare by parties to an armed conflict, and requires them to respect and protect civilians and captured combatants.

Though not a sovereign state, the Palestinian Authority has explicit security and legal obligations set out in the Oslo Accords, a series of agreements concluded by the Israeli government and the Palestinian Liberation Organization from 1993 to 1996. The Palestinian Authority is obligated to maintain security and public order in the Gaza Strip and the areas of the West Bank under its control, including by bringing to justice those accused of perpetrating attacks against Israeli civilians.²⁵The Palestinian Authority is also obliged to ensure respect for international law by armed groups operating from territory under its effective control.

The international community has consistently affirmed the applicability of the Fourth Geneva Convention to the Gaza Strip and the West Bank and Israel’s responsibilities as an occupying power.²⁶ Israel has long disputed the applicability of the Fourth Geneva Convention to Gaza and the West Bank, although it claims to abide by its humanitarian provisions. Israel has stated that its withdrawal from Gaza in September 2005 relieved it of all responsibility for the welfare of Gaza’s residents. Because Israel has retained effective day-to-day control over key aspects of life in Gaza, including cross-border movement and thus the economy, it retains the responsibility of an occupying power under the Fourth Geneva Convention.²⁷ Under its provisions, Israel has an obligation, among other things, to ensure the basic safety and well-being of civilians in the occupied territories.²⁸

In addition to the Fourth Geneva Convention, customary international humanitarian law is applicable to the conduct of hostilities between Israel and non-state armed groups in Gaza. Customary rules of international law are based on established state practice and bind all parties to an armed conflict, whether they are state actors or non-state armed groups. The content of customary international humanitarian law is codified in, among other sources, the First Additional Protocol of 1977 to the Geneva Conventions (Protocol I)²⁹ and the 1907 Hague Regulations.³⁰ Most of the provisions of both treaties are considered reflective of customary law.³¹

Of particular relevance to the artillery and rocket attacks between Israel and armed groups in Gaza are the customary rules concerning the means and methods of warfare. The “means” of combat refers generally to the weapons used, while “methods” refers to the manner in which such weapons are used.

The keystone of the law regulating conduct of hostilities is the principle of distinction, which requires parties to a conflict to distinguish at all times between combatants and civilians. Civilians and civilian objects may not be attacked, and operations may be directed against only military objectives.³²

Military objectives are combatants and those objects which “by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”³³ In general it is prohibited to direct attacks against what are by their nature civilian objects, such as homes and apartments, places of worship, hospitals, schools, or cultural monuments, unless they are being used for military purposes. An area of land can constitute a military objective if it fulfills the above criteria.³⁴

Parties to a conflict are prohibited from employing threats or acts of violence, the primary purpose of which is to spread terror among the civilian population.³⁵ Nor may they carry out attacks against the civilian population or civilians by way of reprisals.³⁶

In addition to direct attacks against civilians, international humanitarian law prohibits indiscriminate attacks. These are attacks “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 means that “cannot be directed at a specific military objective.”³⁷

One form of prohibited indiscriminate attack is area bombardment. Any attack, whether by aerial bombardment or other means, that treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village, or other area containing a similar concentration of civilians and civilian objects is regarded as an indiscriminate attack and prohibited. Similarly, if a combatant launches an attack against a populated area without attempting to aim properly at a military target, it would amount to an indiscriminate attack.³⁸

Also prohibited are attacks that violate the principle of proportionality. These are attacks that are “expected to cause incidental loss of civilian life, injury to civilians [or] damage to civilian objectives...which would be excessive in relation to the concrete and direct military advantage anticipated” from that attack.³⁹ The anticipated danger to the civilian population and civilian objects depends on various factors: their location (possibly within or near a military objective), the terrain (landslides, floods, etc.), accuracy of the weapons used (greater or lesser dispersion, depending on the trajectory, the range, the ammunition used, etc.), and technical skill of the combatants (random dropping of bombs when unable to hit the intended target).⁴⁰

In the conduct of military operations, parties to a conflict must take constant care to spare the civilian population and civilian objects from the effects of hostilities.⁴¹ Parties to a conflict are therefore required to take precautionary measures with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians, and damage to civilian objects.

These precautions include:

• Doing “everything feasible to verify” that the objects to be attacked are military objectives and not civilians or civilian objects. If there are doubts about whether a potential target is of a civilian or military character, the assessment must be particularly scrupulous so as to dispel, to the maximum extent possible, any doubts about the civilian character of the person or object. The warring parties must do everything feasible to cancel or suspend an attack if it becomes apparent that the target is not a military objective. ⁴²
• Taking “all feasible precautions in the choice of means and methods” of warfare so as to avoid and in any event minimize “incidental loss of civilian life, injury to civilians and damage to civilian objects.”⁴³ In its Commentary on Protocol I, the International Committee of the Red Cross explains that the requirement to take all “feasible” precautions means, among other things, that the person launching an attack is required to take the steps needed to identify the target as a legitimate military objective “in good time to spare the population as far as possible.”⁴⁴
• When circumstances permit, giving “effective advance warning… of attacks which may affect the civilian population.”⁴⁵
• “When a choice is possible between several military objectives for obtaining the same military advantage,” carrying out the attack that may be “expected to cause the least danger to civilian lives and civilian objects.”⁴⁶
• Avoiding “locating military objectives within or near densely populated areas.”⁴⁷
• Endeavoring “to remove the civilian population… from the vicinity of military objectives.”⁴⁸

Parties to a conflict are also prohibited from using civilians “to shield military objectives from attacks” or using their presence “to shield, favor or impede military operations.”⁴⁹

With respect to individual responsibility, serious violations of international humanitarian law, including intentional, indiscriminate, and disproportionate attacks harming civilians, when committed with criminal intent are war crimes. Individuals may also be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding, or abetting a war crime. Responsibility may also fall on persons planning or instigating the commission of a war crime.⁵⁰ 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.⁵¹

Human Rights Watch found violations of humanitarian law by the Palestinian armed groups and Israeli forces where there was strong evidence of individual criminal intent, indicating the commission of war crimes. Statements by Palestinian armed groups that they fired rockets in order to instill fear in the Israeli population and their use of rockets against areas without any evident military targets is evidence of criminal intent. The continued IDF firing of 155mm artillery into the vicinity of the Nada Apartments complex after being informed of continuing civilian casualties without any offsetting concrete military gain also indicates criminal intent. Such incidents should be investigated and prosecuted as warranted.