Operation Iron Swords - Law of War

Human suffering is “an unfortunate and tragic, but unavoidable consequence of war”, as observed by the US Department of Defense [US Department of Defense (DoD), Law of War Manual, 205, p. 7, para. .4.2.]. “War is always inhumane,” says Marco Sassoli, professor of international law at the University of Geneva. “But if international humanitarian law is respected, it would be less inhumane.”

On 20 May 2024 International Criminal Court Prosecutor Karim A.A. Khan stated "I am filing applications for warrants of arrest before Pre-Trial Chamber I of the International Criminal Court in the Situation in the State of Palestine....

"I have reasonable grounds to believe that Yahya SINWAR (Head of the Islamic Resistance Movement (“Hamas”) in the Gaza Strip), Mohammed Diab Ibrahim AL-MASRI, more commonly known as DEIF (Commander-in-Chief of the military wing of Hamas, known as the Al-Qassam Brigades), and Ismail HANIYEH (Head of Hamas Political Bureau) bear criminal responsibility for the following war crimes and crimes against humanity committed on the territory of Israel and the State of Palestine (in the Gaza strip) from at least 7 October 2023:

1. Extermination as a crime against humanity, contrary to article 7(1)(b) of the Rome Statute;
2. Murder as a crime against humanity, contrary to article 7(1)(a), and as a war crime, contrary to article 8(2)(c)(i);
3. Taking hostages as a war crime, contrary to article 8(2)(c)(iii);
4. Rape and other acts of sexual violence as crimes against humanity, contrary to article 7(1)(g), and also as war crimes pursuant to article 8(2)(e)(vi) in the context of captivity;
5. Torture as a crime against humanity, contrary to article 7(1)(f), and also as a war crime, contrary to article 8(2)(c)(i), in the context of captivity;
6. Other inhumane acts as a crime against humanity, contrary to article 7(l)(k), in the context of captivity;
7. Cruel treatment as a war crime contrary to article 8(2)(c)(i), in the context of captivity; and
8. Outrages upon personal dignity as a war crime, contrary to article 8(2)(c)(ii), in the context of captivity.

"I have reasonable grounds to believe that Benjamin NETANYAHU, the Prime Minister of Israel, and Yoav GALLANT, the Minister of Defence of Israel, bear criminal responsibility for the following war crimes and crimes against humanity committed on the territory of the State of Palestine (in the Gaza strip) from at least 8 October 2023:

1. Starvation of civilians as a method of warfare as a war crime contrary to article 8(2)(b)(xxv) of the Statute;
2. Wilfully causing great suffering, or serious injury to body or health contrary to article 8(2)(a)(iii), or cruel treatment as a war crime contrary to article 8(2)(c)(i); Wilful killing contrary to article 8(2)(a)(i), or Murder as a war crime contrary to article 8(2)(c)(i);
3. Intentionally directing attacks against a civilian population as a war crime contrary to articles 8(2)(b)(i), or 8(2)(e)(i);
4. Extermination and/or murder contrary to articles 7(1)(b) and 7(1)(a), including in the context of deaths caused by starvation, as a crime against humanity;
5. Persecution as a crime against humanity contrary to article 7(1)(h);
6. Other inhumane acts as crimes against humanity contrary to article 7(1)(k).

"Israel, like all States, has a right to take action to defend its population. That right, however, does not absolve Israel or any State of its obligation to comply with international humanitarian law. Notwithstanding any military goals they may have, the means Israel chose to achieve them in Gaza – namely, intentionally causing death, starvation, great suffering, and serious injury to body or health of the civilian population – are criminal."

Many of the Arab public have high expectations regarding legal tools, and the truth is that they will not liberate the country, would not stop the war in the Gaza Strip, and the Palestinian people will not obtain their rights through them. However, this does not diminish the importance of these tools in international politics and the system of international relations. The decision itself is important, but not because Israel will implement it - there are dozens of decisions issued by international institutions that Israel has not implemented - but because it may represent pressure on Israel’s international policy, and constitute a societal incubator that stands with the Palestinian right.

"The State of Israel embarked on the most just war after a massacre by a terrorist organization against its citizens," said the chairman of the state camp, Minister Benny Gantz. "The State of Israel is fighting in the most moral way in history, while adhering to international law, with an independent and strong judicial system. Placing the leaders of a country that went into battle to protect its citizens, in the same line with bloodthirsty terrorists - is moral blindness and a violation of its duty and ability to protect its citizens. Accepting the prosecutor's position will be a historical crime that will not be erased." Minister of National Security Itamar Ben Gabir issued a statement to the media in which he confused the High Court of Justice in The Hague with the Criminal Court in The Hague, which the State of Israel is confiscating. "The statement of the Chief Prosecutor in The Hague, which puts the Prime Minister and the Minister of Defense on the same page as the leaders of Hamas, shows that sending representatives of Israel to the hearing at the Anti-Semitic Court was a serious mistake from the beginning," said the minister. "The Prime Minister and the Minister of Defense must ignore the anti-Semitic prosecutor of the Anti-Semitic Court And to order an increase in the attack against Hamas, until it is completely defeated." Finance Minister Bezalel Smotrich called the event "a display of hypocrisy and hatred of Jews not seen since Nazi propaganda," and said that the Palestinian Authority was behind the move. "The Nazis also spoke in the name of 'morality', and even then there was nothing there but good old-fashioned anti-Semitism as we have experienced in all generations," said the minister. Daniel Greenfield wrote "A recent poll of Arab Muslim residents of the West Bank and Gaza, known as ‘Palestinians’ circa 1967, conducted by the Arab World for Research and Development (AWRAD) asked them. 74% supported the Hamas atrocities of Oct 7. Of these 59% “extremely” support them and another 15% only “somewhat”. Only 7% were “extremely against” and 5% somewhat against.... 98% in Gaza and the West Bank said that they felt ‘pride’ as ‘Palestinians’ over the war. 74% expect the fighting to end with the defeat of Israeli forces in Gaza.... Are there innocent civilians in Gaza? Probably a lot fewer than in Berlin or Tokyo in 1944. The Germans supported Hitler and the Japanese backed the Imperial war machine.... In the Book of Genesis, Abraham pleads with G-d to spare Sodom. The Lord agrees if some righteous people can be found in the infamous city." Civilians and civilian objects enjoy legal protection unless and for such time as they directly participate in hostilities. International human rights law, comprising of both treaty and domestic law, establishes certain rights on States to acknowledge, safeguard and uphold the human rights of all citizens. It is unlawful to direct attacks against civilians or civilian objects. It is unlawful to conduct an attack that may be expected to cause collateral damage excessive in relation to the concrete and direct military advantage anticipated.

No single document in international law codifies all war crimes. Lists of what may count as a war crime can be found in various branches of international law: humanitarian, criminal and customary law. According to the UN, a war crime occurs during armed conflict and is a breach of the Geneva Conventions and a violation of international humanitarian law – the set of rules, also known as the “law of war”, that seek to limit the effects of armed conflict. International humanitarian law recognises “principles of proportionality”, which states that an attack is in violation if the damage to civilian life is greater than any military advantage that is gained.

The Rome Statute is a treaty that established the International Criminal Court (ICC), the body responsible for investigating and prosecuting Geneva Convention violations. Although Israel does not recognise the ICC, Palestine does, and an attack occurring on Palestinian territory means the ICC has the jurisdiction to investigate and prosecute the perpetrators of the incident.

While pledging to give more military assistance to Israel, U.S. President Joe Biden warned the nation to follow the rules of war. "And there are rules of war. And I believe Israel is doing everything in its power to pull the country together. Stay on the same page. And we're going to do everything in our power to make sure Israel succeed."

Military necessity requires combat forces to engage in only those acts necessary to accomplish a legitimate military objective. Attacks shall be limited strictly to military objectives. In applying military necessity to targeting, the principle generally means U.S. military forces may target those facilities, equipment, and forces which, if destroyed, would lead as quickly as possible to the enemy's partial or complete submission.

The Principle of Distinction refers to discriminating between lawful combatant targets and noncombatant targets such as civilians, civilian property, prisoners of war, and wounded personnel who are out of combat. The central idea of the principle of distinction is to engage only valid military targets. An indiscriminate attack is one that strikes military objectives and civilians or civilian objects without distinction. Distinction requires defenders to separate military objects from civilian objects to the maximum extent feasible.

The Principle of Proportionality compares the military advantage gained to the harm inflicted while gaining this advantage. Proportionality requires a balancing test between the concrete and direct military advantage anticipated by attacking a legitimate military target and the expected incidental civilian injury or damage. Under this balancing test, excessive incidental losses are prohibited. Proportionality encourages combat forces to minimize collateral damage. Many agree that the mere presence of civilians does not immunize military objectives from direct attack, but rather presents a question of proportionality (not distinction).

History shows that in most cases the law of armed conflict works. The conventional rules of international humanitarian law regulating humanitarian relief operations are found in different treaties, depending on whether the conflict is international or non-international in character. The rules applicable in international armed conflicts, including situations of occupation, are found principally in Articles 23 and 59 GC IV, and Articles 69-71 Additional Protocol I. The rules applicable in non-international conflicts are Common Article 3(2) of the four Geneva Conventions (GCs) and Article 18 AP II.

The law of armed conflict (LOAC) largely predates international human rights law [IHRL] and, therefore, was never intended to comprise a sub-category of human rights law. Scholars and States disagree over how the two bodies of law interact. This view notes that LOAC includes very restrictive triggering mechanisms which limit its application to specific circumstances. As such, LOAC is cited as the lex specialis to situations of armed conflict and therefore applies in lieu of, not alongside, IHRL. The argument is becoming increasingly hard to maintain though.

On 10 October 2023 the UN High Commissioner for Human Rights, Volker Türk, issued an urgent plea today to all States with influence to take steps to defuse the "powder keg" situation in Israel and the occupied Palestinian territories. He stressed that international humanitarian law and international human rights law must be respected in all circumstances. He said that all parties must immediately cease attacks targeting civilians and attacks expected to cause disproportionate death and injury of civilians or damage to civilian objects. The High Commissioner called on Palestinian armed groups to immediately and unconditionally release all civilians who were captured and are still being held. And he added that the imposition of sieges that endanger the lives of civilians by depriving them of goods essential for their survival is prohibited under international humanitarian law.

On October 10, the UN Commission of Inquiry said it was “collecting and preserving evidence of war crimes committed by all sides”. That same day, US President Joe Biden called Hamas’s attack on Israel an act of “terrorism”, claiming it “brought to the surface painful memories and the scars left by millennia of anti-Semitism and genocide of the Jewish people”. Three days later, Palestinian ambassador to the UN Riyad Mansour appealed for the organisation to do more to prevent Israel from carrying out a “crime against humanity”.

Turkish President Recep Tayyip Erdogan has drawn attention to the humanitarian situation in Palestine's Gaza, emphasising that there is no water, bread and food in Gaza right now, which is against the Universal Declaration of Human Rights. Speaking at a Türkiye Youth Foundation (TUGVA) gathering in the capital Ankara on 12 October 2023, Erdogan stressed that unlike organisations, states are obligated to abide by laws of war and human rights.

US Defense Secretary Lloyd J. Austin held negotiations with his Israeli counterpart, Yoav Gallant, and noted that Israel should adhere to the law of war to address the humanitarian crisis caused by Israeli strikes on the Gaza Strip, the US Department of Defense said on 14 October 2023. "Today, Secretary of Defense Lloyd J. Austin III spoke with Israeli Minister of Defense Yoav Gallant to continue consultations on Israel’s response to Hamas’ terrorist attack, following his visit to Israel yesterday … During the call he discussed the importance of adhering to the law of war, including civilian protection obligations, and addressing the worsening humanitarian crisis in Gaza while Israel continues its operations to restore security," the department said in a statement.

On 18 October 2023, hundreds of pro-Palestinian protesters gathered outside the headquarters of the International Criminal Court (ICC) in the Hague demanding action against what they call genocide against Palestinians.

One jurisdictional prerequisite relates to the time at which a potentially delictual act is performed. The International Criminal Court (ICC) has jurisdiction only over acts committed after the Rome Statute came into force, which was 1 July 2002. ‘No person’, reads a key provision, ‘shall be criminally liable under this Statute for conduct prior to the entry into force of the Statute’.

The International Criminal Court [ICC] investigates and, where justified, tries individuals charged with the “gravest crimes of concern to the international community.” It is a permanent court, unlike the ad-hoc criminal tribunals established for Yugoslavia and Rwanda, among others. As an international court, the ICC is a court of last resort and seeks to complement the national courts but does not replace them. To-date, 123 states have become state parties to the Rome Statute. One should not confuse the ICC with the the International Court of Justice (ICJ). The ICJ is also located in The Hague, Netherlands, but is an organ of the UN. Contrary to the ICC, the ICJ settles disputes between states.

The International Criminal Court (ICC) has jurisdiction for crimes specified in its founding treaty, the Rome Statute of the International Criminal Court, as falling within its subject matter jurisdiction. Four categories of crime are specified: aggression, genocide, war crimes, and crimes against humanity. On one particular sub-category within crimes against humanity is the crime of persecution.

Beyond subject matter, however, other requisites of jurisdiction must be met before persons can be prosecuted. The criminal conduct must have occurred at a point in time when the Rome Statute was in force, and when it applied to relevant states. Jurisdiction over persons at the ICC is limited by reference to the adherence of relevant states to the Rome Statute.

The ICC has jurisdiction over persons committing crimes within its subject-matter jurisdiction on a worldwide basis only if a particular situation is referred to the Court by the United Nations Security Council.5 Otherwise, its jurisdiction over persons is limited by the adherence of particular states to the Rome Statute. Israel has not ratified the Rome Statute. As a result, at least at present, the ICC has no jurisdiction based on a person’s Israeli nationality or on the fact of conduct taking place in Israel.

In the investigation of forcible deportation of population from Myanmar into Bangladesh, chamber of the Court said that the Court has prescriptive jurisdiction ‘if at least one legal element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party’. The chamber referred to general international law as supporting that conclusion.

The chamber noted that ‘following their deportation’: "the authorities of Myanmar supposedly impede their return to Myanmar. If these allegations were to be established to the required threshold, preventing the return of members of the Rohingya people falls within article 7(1)(k) of the Statute. Under international human rights law, no one may be arbitrarily deprived of the right to enter one’s own country. Such conduct would, thus, be of a character similar to the crime against humanity of persecution, which ‘means the intentional and severe deprivation of fundamental rights contrary to international law".

As applied to the situation of the Palestine Arabs, the rule on territoriality in relation to crimes having impact in another jurisdiction means that territorial jurisdiction obtains, at least for conduct prohibiting the return of those inhabiting Palestine or Jordan.

The elements of the crime of persecution are schematized in Elements of Crimes, a document composed by a committee of experts, as called for by the Rome Statute: "Article 7 (1) (h) Crime against humanity of persecution Elements 1. The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights. 2. The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such...."

The Director-General of the HAMAS Government Information Office in the Gaza Strip , Ismail Al-Thawabta, stated 18 February 2024 "The occupation army targeted and destroyed more than 200 archaeological and heritage sites out of 325 sites in the Gaza Strip, including ancient mosques, churches, schools, museums, ancient archaeological houses, and various heritage sites. The heritage and archaeological sites that he destroyed, some of which date back to the Phoenician era, and others to the Roman era, and the construction of some of them dates back to 800 years BC, some to 1400 years, and others to 400 years, and it is a clear indication of the entrenchment of the Palestinian right in the Palestinian land that the occupation is trying to establish. Changing its features through bombing and direct targeting.""

The HAMAS government media office in Gaza confirmed 28 February 2024 that the occupation army committed nineteen types of war crimes against Palestinian civilians in the Gaza Strip, including murder, starvation, arrest, forced transfer, and the destruction of residential buildings, using prohibited weapons.

First: crimes against persons

1. The occupation killed approximately 30,000 Palestinians, 72% of whom were women and children
2. Crimes of torture and inhuman treatment
3. Deportation and forced transfer of 2 million Palestinians and forcing them to forcibly move from their homes and places of residence.
4. Taking civilians hostage and using them as human shields
5. Attacking civilians or civilian targets, especially against hospitals, schools, mosques and churches
6. Thousands of attacks on the dignity of people, women and children
7. Starvation as a method of war, especially in North Gaza and Gaza Governorates
8. The illegal use of weapons and the use of internationally banned weapons by dropping 70,000 tons of explosives on Gaza.
9. Enforced disappearance crimes

   Second: Crimes against protected civilian objects

10. Random and deliberate destruction of cities, villages, and educational, scientific, and religious buildings
11. Looting public or private property
12. Targeting and destroying cultural property and historical monuments
13. Targeting hospitals and medical units

    Third: Crimes against justice, represented by:

14. Illegal changes in the basic law of the occupied country
15. And attacks on humanitarian relief crews

    Fourth: Other crimes

16. Arbitrary arrest and deprivation of fair trial guarantees
17. Clearly spying around the clock on civilians and all institutions in an illegal and immoral manner
18. Treachery, by calling on civilians to go to areas that he falsely said were safe, then bombing them and killing the displaced people there.
19. Finally, the use of prohibited weapons

The head of the Israeli Break the Silence whistleblower group details the myth of the Israeli military's morality in an op-ed for Foreign Affairs. Avner Gvareyahu, the Executive Director of the "Israel"-based non-profit Breaking the Silence, details the myth of the Israeli military's morality. In his piece, Gvareyahu calls out the disproportionate response "Israel" has opted to impose on Gaza. To highlight the severity of the tragedies in Gaza, Gvareyahu compares it with the stance of the United States, which has, willingly and fiercely, supported the Israeli response since October 7.

He points out that "Israel" has not exercised what has been required of it by the United States in terms of showing restraint in killing civilians. He revisits Prime Minister Benjamin Netanyahu's claims of "Israel" having the "most moral army in the world" after he asserted that the occupation is working tirelessly to minimize civilian deaths, and denies it.

Gvareyahu details that the occupation forces have not followed war protocols or restrictions [which he had deemed insufficient] that had been set to curtail civilian deaths, but instead, had disregarded them. The author goes through previous wars "Israel" launched against the Gaza Strip and affirms that in all instances, the IOF did not operate morally and did not engage with legitimate military targets, opposing what the occupation had always claimed.

Although Israeli veterans recognized the confines of what constitutes a military target, they did not actively stick to them. In 2014, "Israel" categorized civilian homes as "militants' houses", and although Israeli intelligence, whose integrity Gvareyahu doubts, pinpointed one apartment used by a Palestinian Resistance freedom fighter, the IOF flattened entire buildings and complexes to eliminate that single target.

Gvareyahu then reveals that there is no tangible explanation for demolishing whole structures for one apartment that is not defined as a military target, probably did not house a freedom fighter at the time of the attack, and not even used for military activities. But when condemnations arose, an IOF spokesperson coined these apartments as "Hamas headquarters", justifying their destruction. In 2021, Israeli soldiers interviewed by Gvareyahu's NGO said targeted complexes were regular residential buildings, refuting all that had been claimed by the occupation.

Israeli intelligence has also been fraudulent in assessing the size of threats, where they are located, and the formula that determines whether the elimination of the threat is worth sacrificing the accompanying "collateral damage". In recurrent inadequacy, Gvareyahu says, Israeli intelligence fails to accurately determine military targets. He explains that during large-scale wars, "Israel" forces the displacement of entire neighborhoods, towns, and cities, shifting the demography of the Gaza Strip. However, its intelligence does not account for that shift and does not update its targets, killing Palestinians seeking shelter in supposedly safe facilities, and causing mass casualties.

Looking at previous wars, "Israel" did not efficiently try to minimize civilian deaths in Gaza. In the current, 5-month genocide on Gaza, it has tried even less, Gvareyahu notes. Reports by CNN and the New York Times back the allegations and detail how since October 7, Israel dropped 2,000-pound bombs that extend destruction up to over 1,000 feet (305 meters) away from the point of contact, causing mass destruction, and mass killings. "Israel" has also massively utilized "dumb bombs", that are not guided to specific targets, and dropped them in indiscriminate fashion, contributing to the colossal death toll in Gaza.

Gvareyahu traces this back to one reason: The occupation's prioritization of "managing the conflict" above all else, even civilian deaths. The author also pointed out that in its roots, "Israel" does not discriminate between Palestinian civilians or Israeli settlers, and cares more about the conflict than preserving either of their lives.

Previously, Israeli soldiers gave testimonies to Breaking the Silence, saying that they were instructed to "shoot anything that moves" if a setting was cleared of civilians. Avner Gvaryahu discusses these instructions, based on what has been documented in Gaza since October 7. "How many Palestinians were shot like this?" he asked, echoing the illegal executions of Palestinians throughout the years, such as Eyad Hallaq, Shireen Abu Akleh, and countless more across Gaza and the West Bank, throughout the war and preceding it.