Crimes of War in Gaza

The vitriolic disputes taking place around the world over the war between Israel and Hamas in Gaza result in part from disagreements about the moral perspective from which to evaluate it. One way to find common ground is to analyze the conflict from a stance that is neither pro-Israeli nor pro-Palestinian but pro-civilian. To do so we can use the standards of international humanitarian law, also called the laws of war. Largely codified in the Geneva Conventions of 1949 and their Additional Protocols of 1977, those standards are not merely aspirational rules. They were drafted by the world’s leading militaries, reflecting their view of the best way to protect civilians. Virtually every government, including the United States, Israel, and Palestine, has endorsed them, either by formally ratifying them or by incorporating their standards into their military codes.

Hamas’s October 7, 2023, attack on Israel, in which some 1,200 people were killed and 240 taken hostage, was a blatant violation. International humanitarian law prohibits killing or abducting civilians. It considers such acts “grave breaches,” or war crimes. Some have tried to justify the attack as a response to Israel’s decades-long occupation of Palestinian territory, the system of apartheid that the Israeli government has imposed there, and Israel’s own war crimes. (Building settlements in the occupied West Bank and East Jerusalem, for instance, violates Article 49 of the Fourth Geneva Convention, which prohibits an occupying power from transferring its population to occupied territory.) But that confuses ends and means. The perceived justness of one’s cause is distinct from the legality of how one fights. International humanitarian law makes clear that no cause justifies war crimes—including war crimes committed by the other side.

In response to Hamas’s attack, Israel has invaded Gaza and embarked on a military operation that has caused an enormous loss of life and leveled much of the enclave, which had been home to 2.1 million Palestinians. The Gaza Ministry of Health, which has generally proved reliable, reports that more than 37,000 Palestinians have been killed in the Strip since October 7, of which a large number are women and children. Is this death toll an unfortunate byproduct of war or a reflection of Israeli misconduct?

Some people defend Israel’s behavior in Gaza by pointing to Hamas’s atrocities of October 7, its indiscriminate rocket attacks on populated areas in Israel, and its calls for the eradication of Israel, but these, too, bear on the country’s reasons for fighting, not the means by which it fights. None of Hamas’s actions justifies Israeli violations of the laws of war. Assessing the extent of those violations is difficult while Israel’s military assault continues and the Israeli government limits the access of international journalists and human rights investigators to Gaza. Still, by talking to witnesses there, using satellite imagery, and analyzing photos and videos that Israeli soldiers and Palestinian civilians have posted on social media, it is possible to determine that the Israeli government has repeatedly violated international humanitarian law in ways that amount to war crimes.

A first principle of international humanitarian law is that civilians, as well as civilian structures that are not in active use for military purposes, should never be targeted and must be presumed civilian unless evidence suggests otherwise. Defenders of the Israeli government like to contrast its behavior with Hamas’s deliberate targeting of civilians on October 7, but the contrast is less stark than they would have us believe.

Israeli forces regularly sidestep this crucial rule. Among the civilian structures they have attacked with little if any military justification are all twelve of Gaza’s universities and 80 percent of its schools, as well as libraries, museums, and cultural heritage sites. They justified destroying Gaza’s Islamic University, for instance, by claiming it had been used “as a Hamas training camp for military intelligence operatives”—a rationale that in wartime would turn many American universities that send graduates to US intelligence agencies into legitimate military targets. In November the Israeli magazine +972 reported that the Israeli army was destroying high-rise apartment buildings and public infrastructure to “create a shock” in Palestinian society—another unlawful use of military force.

People have also been needlessly killed because Israel failed to presume they were civilians. According to Haaretz, Israel has created “kill zones” where soldiers shoot anyone who enters, armed or not. There have even been some reports of Israeli soldiers summarily executing Palestinians. In April +972 reported that Israel had been using an artificial intelligence system called Lavender to select human targets for air strikes. Army personnel can choose whether or not “to adopt Lavender’s kill lists,” but +972 suggested that, at least early in the war, this oversight was a perfunctory “rubber stamp,” meaning that an algorithm of uncertain reliability was making life-and-death decisions.

“Moreover,” the report noted,

the Israeli army systematically attacked the targeted individuals while they were in their homes—usually at night while their whole families were present—rather than during the course of military activity.

Those families often included relatives displaced from elsewhere. International humanitarian law requires taking “all feasible precautions” to minimize harm to civilians. An alleged Hamas operative’s family home should therefore have been the last place to target him, since his family members are presumed to be civilians, but the army found it easier to locate suspects there. To make matters worse, it has often used so-called dumb bombs, not precision weapons, which require larger explosives to reliably hit their targets and so increase the likelihood of harm to nearby civilians.

The April 1 attack that killed seven World Central Kitchen workers illustrates Israel’s permissive rules of engagement, which allow its military to use lethal force without any certainty that the target is military. The Israeli military denies knowing that it was killing humanitarian workers and explained the attack by saying that a drone operator thought he saw someone with a gun board one of the workers’ three vehicles. That easily could have been a security guard rather than a member of Hamas, but this fleeting glimpse—which proved wrong in any case—was deemed enough to launch discrete attacks on three cars that had just left a known aid warehouse and were separated by a total distance of 1.5 miles.

Even when one or more people or structures are known to be legitimate military targets, international humanitarian law prohibits treating an entire populated area in which they might be located as a target. The Israeli Air Force claims that all of its attacks are “precise” and “focused,” but judging from the widespread destruction they have caused, they seem regularly to have been indiscriminate. Entire neighborhoods have been pulverized. Analysis of satellite imagery shows that up to 57 percent of the buildings across the Gaza Strip are damaged or destroyed.

In December even President Joe Biden referred to Israel’s “indiscriminate bombing.” The White House tried to walk back the comment as if Biden had misspoken, but it seems likelier that he was repeating what aides had described in private. As if to confirm the accuracy of the description, Biden said that Israeli prime minister Benjamin Netanyahu tried to justify the bombing by noting that America had “carpet-bombed Germany” and “dropped the atom bomb.” Biden rightly responded that the institutions of international humanitarian law had subsequently been established so that such abuses “didn’t happen again.”

International humanitarian law also prohibits firing even on a known military target when the harm caused to civilians “would be excessive in relation to the concrete and direct military advantage anticipated.” This rule of proportionality obviously leaves room for interpretation, but it is hardly without meaning. Israel regularly violates it, most notably in its extensive use of enormous 2,000-pound bombs to attack Hamas’s tunnels, such as in the densely populated Jabalia refugee camp. These bombs can kill anyone within six hundred feet of impact—a radius of two football fields. Even when delayed fusing ensures that the bomb will explode underground, somewhat limiting the blast radius, these bombs are so devastating that the US military has largely stopped using them in populated areas. But a December analysis by The New York Times found that Israel had used them 208 times since early October.

The US government has provided alternatives: thousands of 250-pound bombs. A military expert whose government employment precludes comment on the record told me that since Israel is usually targeting mere tunnels rather than heavily reinforced military bunkers, these bombs—or at most a 500-pound bomb—should suffice. Israel’s use of 2,000-pound bombs, the expert told me, seems to reflect a “shake and bake” strategy by which the military hopes to damage tunnels, with little regard for the civilian devastation above. Such indifference to civilian lives and structures is prohibited, whether motivated by an effort to reestablish what The New York Times called the Israeli military’s “aura of power” after October 7 or by a policy of collective punishment. Civilians in Gaza have no capacity to change the conduct of a regime as dictatorial as that of Hamas.

Biden rightly suspended delivery of additional 2,000-pound bombs this past May, as the Israeli government prepared to invade Rafah, the southern Gaza city where roughly 1.4 million Palestinians had been sheltering. In a May interview with The Sunday Times, Karim Khan, the chief prosecutor of the International Criminal Court (ICC), cited Israel’s use of 2,000-pound bombs as an example of something “you can’t do,” suggesting that war crime charges may be forthcoming. One part of the problem appears to be that, according to The New Republic, the Israeli military’s legal office approves attacks that result in ratios of civilian to combatant deaths “of 15-to-1 or 20-to-1—even for the lowest-ranking members of Hamas.” Few would consider such attacks proportionate.

Disproportionate harm has also resulted from the Israeli military’s takeover and destruction of most of Gaza’s hospitals. In November Israeli troops stormed Gaza’s largest hospital, al-Shifa, in Gaza City, even though it was filled with sick, wounded, and displaced people, hundreds of whom were forced to flee. Hospitals lose their protected status under international humanitarian law if used for acts that are “harmful to the enemy,” but any attack must still be assessed under the rule of proportionality. That’s why the Israeli government, attempting to justify denying the people of Gaza access to their largest hospital in the midst of a war, claimed that Hamas maintained a military command center there. Soon after the storming, Israeli forces released a video from the hospital showing a handful of weapons and some combat gear. The New York Times also reported on a tunnel that it said had been “hardened” and “supplied with water, power and air-conditioning.”

Given Hamas’s extensive tunnel network in Gaza, it would be surprising if tunnels did not run under hospitals, and former Israeli prime minister Ehud Barak said that tunnels under Shifa, which he referred to as “bunkers,” were actually built by Israel during its occupation of Gaza. But to date the army has shared no evidence remotely suggesting that this important medical facility had been used as a command center. A Washington Post analysis found that “the evidence presented by the Israeli government falls short of showing that Hamas had been using the hospital as a command and control center.” Yet the damage had been done. (A Hamas tunnel that the Israeli army claimed to have found under another hospital it attacked turned out to be an underground water reservoir.)

After Israeli troops reentered Shifa in March, a firefight largely destroyed what remained of the hospital. Four mass graves were later discovered on the site as well as one in Nasser Hospital in Khan Younis, which had also been occupied by Israeli forces. Israel has rejected calls for an independent investigation.

By late November thirty of Gaza’s thirty-six hospitals had been attacked, many repeatedly. By the end of March only ten were “minimally functioning,” according to the World Health Organization; by the end of May that number had risen, though only to fourteen. Israel’s military operations in Rafah beginning in May led all three of the city’s hospitals to close. The New York Times reported that aid groups and international bodies increasingly call these attacks “systematic.” The result is that, just as Israel’s bombing and starving of Palestinian civilians have created an acute need for health care, most Palestinians have been deprived of it. They have also been left without more routine forms of medical attention, such as dialysis, cancer treatment, or maternity care, and have only limited, if any, access to basic medication.

When confronted with these war crimes, Israeli authorities often blame Hamas for using civilians as “human shields” and fighting from populated areas. Under international humanitarian law, using noncombatants “to render certain points, areas or military forces immune from military operations” is indeed a war crime. The laws of war also, as I have noted, require warring parties to take “all feasible precautions” to minimize harm to civilians. Hamas often disregards these requirements, but that does not relieve Israel of its responsibilities to comply with its own duties under international humanitarian law. Notably, it does not justify attacks that are indiscriminate or cause disproportionate harm to civilians. Palestinian civilians are still civilians even if Hamas is endangering them.

Defenders of the Israeli government also cite the evacuation warnings that Israeli forces have given to Palestinian civilians before attacks. International humanitarian law requires “effective advance warning” of an attack if possible. But Israel’s evacuation warnings have often sent civilians to parts of Gaza that are not safe because they continue to be bombed and lack the food and other essentials needed to sustain a large influx of displaced people. When Israel invaded Rafah in May, for example, many of those forced to flee went to a designated beachfront called al-Mawasi, where, according to Philippe Lazzarini, the commissioner general of the UN agency tasked with providing essential services to Palestinian refugees, “people are left out in the open with little to no buildings or roads” and the area “lacks the minimal conditions to provide emergency humanitarian assistance in a safe and dignified manner.” After analyzing eighty of Israel’s evacuation orders between October and December 2023, a UN Independent International Commission of Inquiry found that evacuees “were targeted along the evacuation routes and in designated safe zones.”

The International Court of Justice cited conditions in al-Mawasi as part of the justification for its May 24 order in South Africa’s genocide case that Israel “immediately” curtail the Rafah operation and allow humanitarian aid into the Strip unhindered. To make matters worse, on May 26 an Israeli air strike said to be targeting two Hamas fighters in western Rafah killed forty-five displaced people in an adjacent tent camp. The Israeli government stressed that the attack was a mile from a declared “humanitarian zone,” but Israel had not ordered people to evacuate this part of Rafah, so the displaced Palestinian civilians who had taken shelter there had thought they were safe.

Even when Palestinians are detained rather than killed, their ordeal has not stopped. There have been multiple accounts, from released Palestinian detainees and Israeli whistleblowers, of Palestinian men being bound for lengthy periods in scant clothing, given minimal food and water, and subjected to brutal violence. At least twenty-seven detainees from Gaza are reported to have died in military custody. Some detainees have reportedly needed to have their limbs amputated due to injuries sustained from prolonged handcuffing. Such treatment violates the requirement of international humanitarian law to treat detainees humanely.

International humanitarian law also requires warring parties to allow humanitarian aid to reach civilians in need. The Israeli government blames everyone but itself for the severe shortage of food in Gaza, but Israeli authorities have been the primary impediment. They have imposed enormous obstacles to the delivery of aid, particularly food—a policy that amounts to using starvation as a weapon of war. For much of the war, Israel has allowed just enough food into Gaza to avoid widespread death but not enough to prevent pervasive hunger and, in some parts of Gaza, according to both USAID Administrator Samantha Power and World Food Programme Executive Director Cindy McCain, famine. In April Oxfam calculated that hundreds of thousands of people in northern Gaza were receiving on average only 245 calories a day, less than 12 percent of normal requirements. The World Health Organization reported at the end of May that 85 percent of children said they had gone a full day without food over the previous three days. As of June 12 at least thirty-two people were reported to have died of malnutrition.

Israel understandably wants to stop the smuggling of arms to Hamas, but its convoluted procedures for inspecting aid trucks can take three weeks. In many cases trucks have been rejected and forced to start the process all over again because they were carrying a single innocuous item that Israel deemed of military value. Items rejected included anesthetics, cardiac catheters, chemical water quality testing kits, crutches, maternity kits, oxygen cylinders, surgical tools, ultrasound equipment, wheelchairs, and X-ray machines. When UN Secretary-General António Guterres visited the Egyptian side of the Gaza border in March, he saw “long lines of blocked relief trucks waiting to be let into Gaza.” Israel has allowed much-publicized airdrops and sea deliveries of food, but they provide only a tiny fraction of what ground transport could deliver.

Only on April 4, after the World Central Kitchen killings, when President Biden finally threatened to condition future US military aid and arms sales on ending this imposed deprivation, did Netanyahu finally open an additional border crossing and briefly allow somewhat more aid into Gaza. But this concession only underscored the deliberateness of the starvation strategy, and it was largely negated in early May, when Israel’s invasion of Rafah effectively closed the two main border crossings through which most aid had been delivered.

Beyond blocking food at Gaza’s border, Israel has made it difficult to distribute the food that it permits in. Netanyahu’s refusal to allow non-Hamas Palestinian civilian rule in Gaza, evidently out of fear that it would become a prototype for the Palestinian state that he abhors, has contributed to this difficulty by preventing the emergence of a local civil authority that could coordinate aid distribution effectively. The Israeli army’s actions, meanwhile, have caused further chaos. Air strikes have targeted civilian police officers who were guarding food convoys, and in one incident Israeli troops fired on people seeking food from a convoy. The gunshots and the subsequent panic killed more than one hundred people and injured seven hundred.

The Netanyahu government has also pursued a vendetta against the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), even though its 13,000 staff members in Gaza “far outstrip the collective capacity of the rest of the humanitarian sector in the territory” to deliver food and other humanitarian aid, as other groups working there wrote in a joint statement this past February. The pretext was Israel’s claim in January that twelve UNRWA staff members had taken part in the October 7 attack. UNRWA did everything one would have wanted in response to this serious allegation, dismissing the ten staff members who were still alive and launching an investigation. (An independent UN probe suspended its investigation of four of the people accused because Israel failed to provide sufficient evidence; the other eight remain under investigation, as do six staff members Israel named later.)

But Israel also charged that UNRWA was complicit with Hamas in a broader sense: according to The Wall Street Journal, Israeli intelligence estimated that 10 percent of UNRWA’s staff is “affiliated” with Hamas or Islamic Jihad and that half of the staff have “a close relative with an active membership in the militant groups.” This allegation persuaded many Western donors to suspend funding, despite the agency’s crucial work averting famine. On April 22 an independent international investigation found that Israel had largely failed to support these accusations, and most governments have now resumed funding. But when, in April, Congress adopted legislation to provide aid to Ukraine, Israel, and Taiwan, Republicans insisted on adding a clause prohibiting the US government, traditionally UNRWA’s largest donor, from funding the agency until at least March 2025.

Israeli officials and their partisans have long detested UNRWA, contending that, by offering humanitarian services, including education, to the nearly six million Palestinian refugees in the region, it sustains Palestinian identity and nurtures their desire to return to their ancestral homes in Israel or even to Palestine. Netanyahu evidently deemed worsening starvation among Palestinian civilians in Gaza a small price to pay for destroying UNRWA.

Israel’s starvation strategy was the focus of the arrest warrants sought by ICC prosecutor Khan on May 20 for Netanyahu and Israel’s defense minister, Yoav Gallant. (Khan also sought arrest warrants for three senior Hamas officials for the atrocities of October 7 and the mistreatment of hostages since.) In his interview with The Sunday Times, Khan cited the

number of bakeries targeted…the fact that water was turned off, water purification tablets not allowed in, desalination plants not allowed membranes, wells targeted, the fact that people queuing for food [were] targeted, that people from aid agencies have been killed.

Rather than address the merits of the charge, Netanyahu invoked the common last resort for defenders of Israel, accusing Khan of “callously pouring gasoline on the fires of antisemitism that are raging across the world” and claiming that “Khan takes his place among the great antisemites in modern times.” Such misuse of charges of antisemitism to deflect criticism of Israeli misconduct cheapens the concept at a moment when defending against antisemitism is urgent and necessary. Khan has said that his investigation “continues.” I expect more charges to come.

Given the war crimes committed by both sides in Gaza, what can be done? In theory, each side can prosecute its own war criminals, and the International Criminal Court is supposed to defer to conscientious national prosecutions of war crimes. But it is inconceivable that Hamas would do so, and the Israeli government has no history of prosecuting senior officials for abusive wartime practices.

After Khan requested arrest warrants, the Israeli government announced that it had opened “around 70 criminal investigations” into possible wartime misconduct, The New York Times reported. But the announcement didn’t mention Israel’s starvation strategy, which is at the heart of the ICC’s current case. Khan had twice visited the region and warned that Israel’s obstruction of humanitarian aid could lead to war crimes charges, but that didn’t persuade the Netanyahu government to stop the obstruction or to open an investigation.

Moreover, according to +972, Israel’s foreign intelligence agency, the Mossad, secretly monitored communications from the ICC prosecutor’s office “to retroactively open investigations into incidents that were of interest to the ICC, to try to prove that Israel’s legal system is capable of holding its own to account.” The Guardian reported that Mossad’s director threatened the former ICC prosecutor Fatou Bensouda. The agency then launched a smear campaign against her and a sting operation against her husband, and delivered hundreds of dollars of cash to her in an apparent effort to compromise or buy her off, all with the aim of subverting the ICC investigation of Israeli officials. That is hardly a conscientious commitment to justice.

The US government’s response to the ICC prosecutor’s announcement has been deeply disappointing. Biden called it “outrageous” and claimed that it equated Hamas and Israel, though the prosecutor did no such thing; he merely pursued officials on both sides for their own alleged war crimes. Given the severity of the offenses, it would have been outrageous had Khan ignored one side’s crimes. US Secretary of State Antony Blinken said without explanation that the court lacked jurisdiction. He could have been referring to the old US position that the court lacks jurisdiction over nationals of states that have not joined the court even when their alleged crime is on the territory of a court member, but the court’s founding statute explicitly provides for such territorial jurisdiction, and Biden called it “justified” when it was used to charge Vladimir Putin. Blinken could also have had in mind the US’s view that Palestine is not enough of a state to join the court, but an ICC pretrial chamber rejected that argument based on the UN General Assembly’s recognition of Palestine in 2012 as a “non-member observer state.” Palestine has used that status not only to join the court but also to ratify a host of other human rights treaties, which should be welcomed as a statement of commitment, even if it has fallen short in practice.

Assuming that the ICC pretrial chamber grants Khan’s request for arrest warrants, which is likely, Netanyahu’s and Gallant’s worlds will suddenly become much smaller. The Israeli government is unlikely to surrender them voluntarily, but they will be unable to travel to the 124 ICC member states, including all of Europe, without risking arrest and being sent to The Hague for trial. War crime charges will also, of course, be deeply stigmatizing—all the more so if the accused Israeli officials refuse to answer the charges in court.

Justice is significant, but it is even more important to stop the killing and starvation now. The person with the greatest capacity to do that is Joe Biden. He and members of his administration have said repeatedly that the Israeli military should take greater care to avoid killing Palestinian civilians and allow more humanitarian aid into Gaza, but aside from suspending delivery of additional 2,000-pound bombs, he has largely refused to put conditions on the $3.8 billion the US offers Israel in annual military aid (now supplemented by $15 billion in new funds) or the regular arms sales between the two countries. That reluctance to impose consequences on Netanyahu for flouting international humanitarian law has made Biden’s entreaties sound like empty words.

Biden is under considerable political pressure to take a tougher stand. Progressive Democrats are deeply uncomfortable with his nearly unconditional support for Israel. University campuses have been in turmoil over it. Although progressives are unlikely to vote for Trump, they may vote for a third-party candidate or not vote at all. That inadvisable step would be an effective vote for Trump, but discontent is so profound that some might take it unless Biden finds a way to correct course. The fate of Palestinian civilians in Gaza facing bombardment and starvation depends on his doing so.

—June 20, 2024

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Kenneth Roth