The law limits Israel’s response to Hamas

The appalling nature of the Oct. 7 Hamas attack on Israeli civilians, killing more than 1,400, abducting at least 200, and firing rockets indiscriminately into civilian neighborhoods, has understandably prompted an Israeli military response.

It has also prompted passionate discussions on campus. I urge Princeton students attempting to make sense of the conflict to look at the unfolding situation through the lens of international humanitarian law (IHL). That law, which makes it a war crime for Hamas to target civilians, also restricts how Israel wages war. Those limits apply regardless of the justice of Israel’s decision to take military action. They are unconditional requirements, not contingent on the behavior of the other side. The most serious violations are subject to prosecution by the International Criminal Court, whose involvement is urgently needed.

The Israeli military and its supporters like to say that, unlike Hamas, Israel does not deliberately target civilians. But IHL requires far more — a series of steps designed to spare civilians as much as possible from the hazards of war. Israel’s compliance with these broader requirements has been spotty.

IHL was codified in the Geneva Conventions of 1949 and their additional protocols of 1977. The key provisions are also part of customary international law. They apply to all warring parties, whether governmental or not. Although these requirements consume hundreds of pages, their essence is straightforward. In addition to prohibiting deliberate attacks on civilians, IHL requires attacking forces not to fire indiscriminately into civilian areas even if legitimate military targets can be found there. The Israeli military’s flattening of certain Gaza neighborhoods appears to violate this rule.

IHL also requires warring parties to refrain from attacking even a legitimate military target if the anticipated civilian harm will be disproportionate — a rule that the Israeli military’s destruction of large apartment buildings, rendering hundreds of families homeless, seems to violate. In the past, the Israeli military has cited a Hamas presence in these large complexes to justify the destruction, but it is hard to see how the military advantage justifies the enormous civilian cost. The point seems to be the destruction.

In addition, warring parties are required to allow humanitarian aid to civilians in need. But immediately after Oct. 7, the Israeli government blocked all food, water, medicine, fuel, and electricity to the 2.2 million people of Gaza — an act of prohibited collective punishment. By Oct. 21, a trickle of food, water, and medicine was being allowed in, but nowhere near the 100 trucks per day that the United Nations says is required. Nor had the Israeli military allowed in the fuel needed to run desalination plants and the generators that hospitals require to treat the many civilians injured by Israeli bombing.

Finally, IHL requires warring parties to give effective advance warning of an attack if possible to enable civilians to flee. But Israel’s evacuation order for the 1.1 million civilians of northern Gaza made a mockery of the humane purpose of this requirement, because the Israeli military continued to bomb southern Gaza as well as the route to get there, and Israel’s siege left southern Gaza with no resources to receive this huge influx of people.

The Israeli military is also threatening that civilians who do not flee northern Gaza “may be identified as a partner in a terrorist organization.” That is what Israel did in southern Lebanon in 2006 against Hezbollah before attacking and killing civilians who remained. But there are many reasons that civilians do not flee — poverty, disability, fear, or simply a reluctance to leave their homes. None of that turns them into a legitimate military target.

The Israeli military and its backers like to cite Hamas’s use of civilians as human shields to justify the large civilian toll in Gaza, but that is an inadequate defense. IHL does prohibit using the presence of civilians to deter an attack, and it requires warring parties to take all feasible precautions to spare civilians. But even when Hamas violates these provisions, the duty remains on the attacker — Israel — to refrain from firing if the rules against indiscriminate or disproportionate attacks are violated.

These are not pie-in-the-sky rules concocted by human rights groups or pacifists. They were written by the world’s leading militaries, including the United States. These are not nice rules to follow until the going gets tough — they are designed for a nation’s most trying circumstances, when its troops are at war and its citizens are being killed.

They reflect an evolution from the “total war” approach to armed conflict in which an opponent’s civilian population was viewed as fair game. That, for example, is how Russian President Vladimir Putin has fought wars in Chechnya, Syria, and Ukraine, but few embrace that approach.

These rules also have a pragmatic dimension — targeting an opponent’s military is the best way to deploy scarce military resources. In addition, in the case of Gaza, it is the best way for the Israeli military to avoid inflaming the civilian population, leaving it determined to replicate Hamas even if the current leadership is killed or captured.

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Hamas has no record of prosecuting its war criminals, and Israel has a poor record, but the International Criminal Court (ICC) provides a new option. Israel has never joined the ICC, but since 2021, the ICC has had an open investigation of the ”Situation in the State of Palestine,” meaning any war crime committed in the occupied territory or by a national of that territory. Palestine was able to join the court because in 2012, the U.N. General Assembly accepted it as a non-member observer state.

That a state can subject its own nationals to ICC jurisdiction is uncontroversial. Yet for years, the U.S. government opposed the ICC’s ability to prosecute crimes on the territory of an ICC member state if the alleged perpetrator’s government had not joined the court. That was the basis for President Donald Trump’s outrageous imposition of sanctions on former ICC chief prosecutor Fatou Bensouda for opening investigations in Afghanistan (which might have implicated U.S. torturers there) and Palestine (which could ensnare Israeli officials). But the Biden administration lifted those sanctions and has now even abandoned that objection by applauding the ICC’s charges against Putin for alleged war crimes in Ukraine. Ukraine has conferred jurisdiction, but Russia has not joined the court.

Even so, the current ICC chief prosecutor, Karim Khan, undoubtedly wary of Washington’s reaction, has been slow walking the Palestine investigation since he took office in June 2021. That ongoing impunity can only encourage more war crimes. I hope the surge of war crimes by both sides in Gaza will light a fire under the ICC prosecutor’s office to promptly investigate and file charges for war crimes.

There may be no situation anywhere that elicits more discord and debate on the Princeton campus than the decades-long Israeli-Palestinian conflict. Finding a political solution has proven extraordinarily difficult. But we should all be able to agree on the importance of both sides respecting IHL. That will reduce the civilian toll and enhance the prospect of someday finding a solution.

Kenneth Roth, former executive director of Human Rights Watch (1993-2022), is a visiting professor at Princeton’s School of Public and International Affairs. He can be reached at kr9870@princeton.edu or @KenRoth on X, formerly known as Twitter.