Israel, the International Criminal Court & Universal Jurisdiction

The Law

Introduction
  • What is international humanitarian law?
  • Where is international humanitarian law to be found?
  • What if the parties are not bound by the Conventions or Protocols?
  • Who is obligated to follow international humanitarian law?
  • What are the basic rules and principles of international humanitarian law?
  • How does international humanitarian law apply to the 2014 Gaza War?
    (i) Israel
    (ii) Hamas

Israel and the Rules of International Humanitarian Law: Military Necessity, Humanity, Distinction, Proportionality and Precaution

  • Military Necessity
    • Applicable Law
      • A. Definitions
      • B. Learned jurists and commentary
    • Israeli Actions
  • Humanity
    • Applicable Law
      • A. Treaty Law
      • B. Customary Law
      • C. Learned jurists and commentary
    • Israeli Actions
  • Distinction
    • Applicable Law
      • A. Treaty Law
      • B. Customary Law
      • C. Jurisprudence
      • D. Learned jurists and commentary
    • Israeli Actions
  • Proportionality
    • Applicable Law
      • A. Treaty Law
      • B. Customary Law
      • C. Learned jurists and commentary
    • Israeli Actions
  • Precaution
    • Applicable Law
      • A. Treaty Law
      • B. Customary Law
      • C. Learned jurists and commentary
    • Israeli Actions

Hamas and the Rules of International Humanitarian Law: Distinction, Precaution, and Human Shields

  • Distinction
    • Applicable Law
      • A. Treaty Law
      • B. Customary Law
      • C. Learned jurists and commentary
    • Hamas Actions
  • Precaution
    • Applicable Law
      • A. Treaty Law
      • B. Customary Law
      • C. Learned jurists and commentary
    • Hamas Actions
  • Human Shields
    • Applicable Law
      • A. Treaty Law
      • B. Customary Law
      • C. Learned jurists and commentary
    • Hamas Actions

What is international humanitarian law?


"Advisory Service on International Humanitarian Law: What is International Humanitarian Law," International Committee of the Red Cross, July 2004:


"International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict."

Where is international humanitarian law to be found?


"Advisory Service on International Humanitarian Law: What is International Humanitarian Law," International Committee of the Red Cross, July 2004:


"A major part of international humanitarian law is contained in the four Geneva Conventions of 1949 [Geneva Conventions I-IV]. Nearly every State in the world has agreed to be bound by them."

"Treaties and State Parties to Such Treaties," International Committee of the Red Cross, April 13, 2015:


192 states are parties to the four Geneva Conventions, including Israel and the United States.

"Advisory Service on International Humanitarian Law: What is International Humanitarian Law," International Committee of the Red Cross, July 2004:


"The Conventions have been developed and supplemented by two further agreements: the Additional Protocols of 1977 to the Geneva Conventions relating to the protection of victims of armed conflicts [Additional Protocols I and II]".

"Treaties and State Parties to Such Treaties," International Committee of the Red Cross, April 13, 2015:

167 states are parties to Additional Protocols I and II of the Geneva Conventions. Israel and the United States are not state parties to the Additional Protocols of the Geneva Conventions.

Geneva Convention I, Article 2 ; Geneva Convention II, Article 2 ; Geneva Convention III, Article 2 ; and Geneva Convention IV, Article 2 each provide: "[T]he present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them." Additional Protocol I of the Geneva Conventions, Article 1 provides that it is applicable where the Geneva Conventions apply.


Geneva Convention I, Article 3 ; Geneva Convention II, Article 3 ; Geneva Convention III, Article 3 ; and Geneva Convention IV, Article 3 each provide for a set of minimum humanitarian rules to be applied "in the case of armed conflict not of an international character..." Additional Protocol II of the Geneva Conventions provides additional rules for non-international armed conflict



What if the parties are not bound by the Conventions or Protocols?


The Hague Convention IV of 1907 and the Regulations Respecting the Laws and Customs of War on Land, preamble (Martens Clause):


"Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience."

Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, July 8, 1996:


"It is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and 'elementary considerations of humanity' as the Court put it in its Judgment of 9 April 1949 in the Corfu Channel case . . ., that the Hague and Geneva Conventions have enjoyed a broad accession. Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law."

"Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balane," Virginia Journal of International Law, Vol. 50 Issue 4, Michael N. Schmitt, May 1, 2010:


"The 1907 Hague Convention IV, which the International Court of Justice (ICJ) has recognized as having matured into customary law..."

"To What Extent is Additional Protocol I Customary International Law?" International Law Studies Vol. 78, the Honorable Fausto Pocar, 2002:


"It is widely recognized that much of the Protocol [Additional Protocol I] is a codification of general international law. Even States that hesitate to accept the instrument or have decided not to ratify it, such as the United States, have expressed the view that many of its provisions are either settled customary international law or eligible for their ultimate recognition as customary international law."


Who is obligated to follow international humanitarian law?


"Customary International Humanitarian Law: Questions and Answers," International Committee of the Red Cross, August 15, 2005:


"A particular feature of international humanitarian law is that some of its rules regulate armed conflicts occurring between a State and an armed opposition group or between such groups. The rules that regulate such conflicts are applicable to all parties, whether a State or an armed opposition group. The analysis of State practice shows that many rules of customary international humanitarian law applicable in non-international armed conflicts bind States as well as armed opposition groups...

International conventions are clear about their intent to bind any party to a conflict – states and violent non-state actors alike – to International Humanitarian Law (IHL), that is, to the laws of armed conflict. Under Article 3 common ('Common Article 3') to the four Geneva Conventions of 1949 ('Geneva Conventions'), all parties who engage in armed conflict 'not of an international character' in the territory of a High Contracting Party are bound to follow the Geneva Conventions. The Conventions govern the actions between that Party and 'dissident armed forces or other organized armed groups."

Prosecutor v. Sam Hinga Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction Special Court for Sierra Leone, May 31, 2004:


"[I]t is well settled that all parties to an armed conflict, whether States or non-State actors, are bound by international humanitarian law, even though only States may become parties to international treaties."

"International Law and Armed Non-state Actors in Afghanistan," International Review of the Red Cross, Volume 93 Number 881, Dr Annyssa Bellal, Gilles Giacca, and Dr Stuart Casey-Maslen, March 2011:


"[I]t has now become uncontroversial, even 'commonplace', that ANSAs [armed non-state actors] are bound by international humanitarian law."

"Accountability of Hamas Under International Humanitarian Law," Jerusalem Center for Public Affairs, Sigall Horovitz, June 2011:


"[T]he rules that bind parties to non-international armed conflicts, including non-state actors, were codified in Article 3 common to the Geneva Conventions of 1949 (Common Article 3) and in the Second Additional Protocol of 1977. Some of these rules have become customary IHL norms, such as those contained in Common Article 3. Moreover, additional customary IHL norms applicable to non-international armed conflicts developed over the years.

Under international law, non-state actors are bound by customary IHL norms when they become a party to an armed conflict. Thus, the Appeals Chamber of the Special Court for Sierra Leone held as follows: 'it is well settled that all parties to an armed conflict, whether states or nonstate actors, are bound by international humanitarian law, even though only states may become parties to international treaties...'

The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY), in the Tadić case, defined the meaning of armed conflict as follows: "an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.'... For a conflict between governmental authorities and non-state armed groups to amount to an 'armed conflict,' the Tadić case set two additional requirements: that the non-state actors be sufficiently organized and the conflict sufficiently intense. Without meeting these conditions, explained the ICTY, the violence will merely amount to "banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law.'

In the Boškoski case, the ICTY considered crimes committed in connection with a conflict in Macedonia, between government forces and the Albanian National Liberation Army (NLA). Referring to the test established in the Tadić case, the defendants argued that since the acts of NLA were of a terrorist nature, there was no armed conflict. The ICTY rejected their argument, finding that the intense and protracted nature of the violence, and the level of organization of the NLA, rendered the conflict an (internal) armed conflict. The Tribunal explained that 'what matters is whether the acts are perpetrated in isolation or as part of a protracted campaign that entails the engagement of both parties in hostilities. It is immaterial whether the acts of violence perpetrated may or may not be characterized as terrorist in nature.'"

"Laurie Blank follow-up on Gaza, proportionality, and the law of war." The Washington Post, Kenneth Anderson and Laurie Blank, August 6, 2014


"The law of war applies equally to both sides fighting in a conflict, regardless of why they are fighting, who claims to be right or just, who is a state, who is a terrorist group, or any other such considerations. This equal application is essential to ensure the protection of civilians and maximize the law's effectiveness. As a result, the justness or unjustness of one side's resort to force (a jus ad bellum [right to war] question) does not change any obligations to follow the rules under the law of war. Imagine if it did: each side would simply justify any and all atrocities, including summary executions, indiscriminate attacks, even crimes against humanity, by saying it fights on the side of 'right'. The result: an invitation to unregulated warfare..."


What are the basic rules and principles of international humanitarian law?


"Basic Rules of IHL", International Committee of the Red Cross: December 31, 1988:


"The fundamental principle on which the law of armed conflicts is based is expressed as follows: In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited."

This fundamental principle may be broken down into four or five categories:

"Basic Principles of LOAC and Their Targeting Implications," U.S. Air Force LeMay Center for Doctrine Development and Education, January 10, 2014:


"(1) Military necessity/military objective; (2) distinction/discrimination; (3) proportionality; and (4) humanity/unnecessary suffering."

"2014 Gaza War Assessment: The New Face of Conflict," The Jewish Institute for National Security Affairs, JINSA-commissioned Gaza Conflict Task Force, March 10, 2015:


"...military necessity, precaution, humanity, distinction and proportionality."


How does international humanitarian law apply to the 2014 Gaza War?


The rules of international humanitarian law apply to both Israel and Hamas in the 2014 Gaza War.


(i) Israel


"Rule of Law in Armed Conflict Project," Geneva Academy of International Humanitarian Law and Human Rights:


"Israel is a party to the 1949 Geneva Conventions, but not to the first and second 1977 Additional Protocols."

"FAQ: The Operation in Gaza-Factual and Legal Aspects," Israel Ministry of Foreign Affairs, August 16, 2009:


"The Israeli High Court has ruled that these customary international law rules bind Israel under both international law and Israeli law. In particular, Israel's High Court of Justice has confirmed that in the ongoing armed conflict with Palestinian terrorist organizations, including Hamas, Israel must adhere to the rules and principles in (a) the Fourth Geneva Convention, (b) the Regulations annexed to the Fourth Hague Convention (which reflect customary international law), and (c) the customary international law principles reflected in certain provisions of Additional Protocol I to the Geneva Conventions of 1949."

"Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants," International Committee of the Red Cross:


"In principle, the IDF (Israel Defense Forces) accepts and applies the principle of distinction. Israel's Manual on the Rules of Warfare (2006) states that 'a distinction has to be made between combatants and non-combatants.' Although the State of Israel is not a party to the Additional Protocols to the Geneva Conventions, it accepts that this provision, as with certain others addressing the principles of distinction and proportionality, accurately reflects customary international law. See Public Committee against Torture in Israel v. Government of Israel, HCJ [High Court of Justice of Israel] 769/02 at § 20 (11 December 2005)."

"Behind the Headlines: Fighting Hamas Terrorism Within the Law," Israel Ministry of Foreign Affairs, August 7, 2014:


"Although Hamas and these other Jihadi organizations blatantly disregard international humanitarian law (also known as the laws of armed conflict), Israel is bound by these laws and, thus, committed to limiting itself to a lawful response... International humanitarian law requires each party to the armed conflict to abide to the fundamental and customary principles of 'distinction', 'proportionality', 'humanity' and 'precaution'. Israel fully complies with these principles and has consistently integrated them into its military orders, training, and operational planning. In its military attacks against Hamas and other Jihadi groups, Israel is doing everything in its power to adhere to these principles and thus minimize harm to the civilian population: Israeli troops use the most sophisticated weapons available today in order to pinpoint and target only legitimate military objectives and minimize collateral damage to civilians; advance notice is given to the civilian population located in the vicinity of military targets; attacks are called off in cases in which a sudden civilian movement in the targeted area; and humanitarian aid continues to flow on a regular and daily basis to the Gaza Strip.

Israel acknowledges that despite the precautions taken, military operations inevitably lead to a loss of civilian life and property. Yet civilian deaths and damage to property, no matter how regrettable and unfortunate, do not necessarily mean that violations of international law as such have occurred."


(ii) Hamas


"Economic, Social, and Cultural Rights in Armed Conflict," The Oxford Handbook of International Law in Armed Conflict, Eibe Riedel, Eds. Andrew Clapham and Paola Gaeta, Oxford University Press, March 13, 2014, pg. 458:


"[B]oth the Palestinian Authority and Hamas have declared their commitment to respect customary international human rights law. Moreover, both the Palestinian Authority and Hamas are bound to respect customary humanitarian law."

"Accountability of Hamas Under International Humanitarian Law," Jerusalem Center for Public Affairs, Sigall Horovitz, June 2011:


"Hamas does not amount to a legitimate government of a recognized state, and is therefore considered a non-state actor. However, it has a high level of organization, with a structured military force, political and social components, and de facto control over a defined territory, Gaza... [T]he Israeli Supreme Court considers that Israel has been in a state of armed conflict with Palestinian terrorist organizations, including Hamas, since the outbreak of the Second Intifada in September 2000... Because Hamas is involved in an armed conflict with Israel, it is obligated to observe certain norms of international humanitarian law."

"The Latest Hamas-Israel Confrontation - Some Pertinent Legal Points" Jerusalem Center for Public Affairs, Alan Baker, July 24, 2014:


"Hamas has its own structured military force, political and social institutions, and de facto control over a defined territory, and has launched thousands of rockets towards Israeli towns, terrorizing and jeopardizing the lives of thousands of Israelis. Hamas, even as a non-state entity, or part of a non-state entity, is considered by all accepted criteria, to be fully accountable under international humanitarian law for its actions in carrying out its terror attacks against Israeli civilians and for using its own civilians as human shields."

"Behind the Headlines: Fighting Hamas Terrorism Within the Law," Israel Ministry of Foreign Affairs, August 7, 2014:


"Hamas and other terrorist organizations' actions are in clear violation of the most fundamental principles of international humanitarian law. Hamas and the other terrorist groups working out of the Gaza Strip directly target civilians and civil property within the State of Israel... [A] cornerstone of Hamas' and other terrorist groups in Gaza's approach is to take advantage of the fact that Israel, as a democratic state, is bound by international law, and to use this fact to their own tactical and military advantage. This approach undermines the very effectiveness of the laws of armed conflict."