Israel Journal of Foreign Affairs, 2023

Vol. 17, No. 3, 260–264, https://doi.org/10.1080/23739770.2023.2289272

International Law and the Conflict in Gaza

Robbie Sabel

Robbie Sabel is Professor of International Law at the Hebrew University of Jerusalem and
Visiting Professor at the Department of Political Science at Tel Aviv University. He served
for eight years as the legal adviser to Israel’s Ministry of Foreign Affairs and later as the
Deputy Director General for Arms Control and Disarmament. He is a member of the
Permanent Court of International Arbitration at the Hague. Prof. Sabel’s latest book is
International Law and the Arab–Israeli Conflict (Cambridge University Press, 2022).

Winston Churchill’s six-volume history of World War II contains, as far as I can

recall, no reference to problems of international law. Churchill’s lengthy wartime
correspondence with President Franklin D. Roosevelt did not involve the
interpretation of the laws of military conflict. Apparently, when countries are
engaged in critical battles, consulting law professors or jurists is not always a
top priority.

It can legitimately be asked, therefore, whether Israel’s military campaign in Gaza

should be subject to such a legal examination. The question is even more relevant
given that one party to the conflict, Hamas, blatantly ignores every norm of inter-
national law, deliberately killing civilians, taking hostages, putting military instal-
lations in hospitals, and using Palestinian civilians as human shields. The behavior
of that party includes the slaughter in cold blood of over 1,200 Israelis and foreign
citizens and the wounding of over 5,500; widespread acts of torture and maiming,
burning alive, beheading, rape and sexual assault, and mutilation of corpses; the
abduction of at least 247 hostages including infants, the elderly, entire families,
persons with disabilities, and Holocaust survivors; and the indiscriminate firing
of thousands of rockets into Israel. Hamas’s military infrastructure, command,
personnel, communications, and weapons are deliberately located within residen-
tial, commercial, and other civilian buildings, including specially protected sites—
for the most part in the densest sections of Gaza. Hamas purposefully conceals
some of its most valuable and extensive military bases and assets in and under-
neath hospitals, including the largest one in Gaza, Al-Shifa. Hamas prepared
and initiated the October 7 attacks from within civilian neighborhoods adjacent

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 Robbie Sabel

to Israeli territory and used them as a base from which to continue raids into Israel
in the following days.

Nevertheless, the answer to the question posed above is that international law is
indeed relevant to the conflict. It is relevant for Hamas, since the organization and
its members have carried out grave war crimes, which makes them hostis humani
generis [enemies of mankind]—criminals who, under international law, can be
tried by any state and by the International Criminal Court at the Hague. In
reality, the only Hamas members likely to ever stand trial are those who have
been captured by Israel or are unwise enough to travel to a democratic, law-
abiding country.

The laws of war reflect basic humanitarian principles; reciprocity plays little part
in those laws. If one party commits atrocities, this does not allow the other side to
do the same. Israel is bound by the laws of war1 despite the fact that Hamas has
flouted them. Israel is a democratic, law-based society; customary international
law is part of the law of the land and is thus enforced by Israeli courts. Inter-
national law is, moreover, highly relevant in Israel’s foreign relations. Legitimacy
grants political power. As a small state, Israel is dependent on foreign trade and on
good relations with other states; therefore, if an action is branded as illegitimate or
illegal under international law, Jerusalem has a problem. Israel’s Arab adversaries
are perfectly aware of this, and that is why they are making an effort to charac-
terize Israeli military activities as illegal. If they achieve that, they will have
gained a tremendous political victory.

As Israel does not exercise effective control over the Gaza Strip, the legal frame-
work governing the present hostilities is not the law of belligerent occupation, but
rather the rules of the laws of war. There are six major issues in the international
law of war that are relevant to Israel’s present military campaign, which are liable
to be used as a part of “lawfare” against the Jewish State. They are the rules
relating to distinction, proportionality, the use of human shields, the use of
disproportionate force, the destruction of civilian buildings, and humanitarian
aid to the enemy.

Distinction

The rule of distinction is that only enemy combatants are legitimate targets.
Civilians are not, unless they are directly participating in hostilities. This
common-sense rule was not controversial in classical war situations, but becomes
problematic when a group such as Hamas wears civilian clothing and operates
from civilian neighborhoods. It then becomes very difficult to distinguish
between combatants and civilians. Nevertheless, the Israel Defense Forces (IDF)
go to great lengths to avoid harming civilians out of sincere humanitarian concerns,

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because harming civilians gives Israel no military advantage. It fact, when collateral
damage is caused, it actually serves the public relations of Hamas.

When conducting attacks, parties to a conflict must take precautions that are feas-
ible under the operational circumstances to minimize civilian death or injury as
well as damage to civilian structures. Accordingly, the IDF takes various
measures, including the issuance of advance warnings. In attempting to miniminze
harm to noncombatants, the IDF has repeatedly called on them to temporarily
evacuate areas of combat. Hamas has sought forcibly to prevent them from
leaving areas of hostilities in order to cynically exploit the inevitable casualties
that will result. The IDF also drops leaflets over areas that are expected to
come under attack with instructions to evacuate and how to do so; broadcasts
messages over the radio and through social media warning civilians to distance
themselves from Hamas operations; and in some instances, even makes phone
calls to occupants of targets warning them of impending attacks.

When circumstances do not permit the provision of effective advance warning

before an attack—such as when the strike is aimed at a militant who may
exploit the warning to escape, or when there is not enough time—there is no
legal requirement to do so. In the current war, the fighting is made even more dif-
ficult due to the fact that Hamas uses the IDF’s advance warnings in order to
prepare ambushes and defenses.

Proportionality

The rule regarding proportionality is that it is prohibited to carry out an attack

against a military target when the expected incidental loss of civilian life, injury
to civilians, or damage to civilian objects would be excessive in relation to the con-
crete and direct military advantage that is anticipated from the attack. A tragic
result of the fact that Hamas operates from civilian facilities is that when the
IDF attacks Hamas military targets, nearby civilians are liable to be hurt. The
fact that noncombatants have been killed does not indicate a violation of law
unless they were deliberately or recklessly targeted—something that Hamas
does and the IDF does not. If the IDF is attacking Hamas rockets that are
placed in close proximity to civilians, the commander has to weigh on the spot
if the foreseeable harm would be excessive in relation to the military advantage
of attacking the target. Is it proportional? There can be cases in which foreseeable
civilian casualties would be considered excessive. For instance, in the recent fight-
ing in Gaza, Hamas put a military command post under a hospital. Under the laws
of war, Israel could have attacked it but did not do so, as the IDF came to the con-
clusion that such a move would be liable to cause excessive damage to non-
combatants even in relation to the military advantage of taking out the
command post.

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 Robbie Sabel

This dilemma becomes most acute when we discover a rocket that is about to be
launched. In weighing its response in such cases, Israel has to take into account
not only the civilian casualties that might be sustained on the enemy’s side, but
also our own. The proportionality assessment—with respect to both civilian
harm and military advantage—is based on the facts as they are understood in
real time, and on the military commanders’ judgment in the field, not on hindsight.

Human Shields

The use of human shields is a war crime, and Hamas does so as a matter of policy.
The rule of the laws of war on this issue, although not explicit, is that individuals
who are used as human shields not of their own volition do not in and of them-
selves become legitimate targets. When Hamas uses a school as a base for its
rockets, as it has done in the past, the children are not legitimate targets, and
the rule of proportionality still applies. Whether the harm to the children would
be excessive in relation to the military advantage must be considered. Hamas
exploits this rule, knowing Israel’s reluctance to attack civilian buildings such
as schools. If, however, civilians voluntarily serve as human shields, then their
actions can be taken into account against them when weighing the rule of
proportionality.

Disproportional Force

Israel has been accused of using disproportionate force in combat. Anyone with
experience in armed conflict knows that you want to hit the enemy’s forces
harder than they hit you. They should understand that striking you is dangerous.
There was once a cartoon regarding Israel in a French magazine that showed an
animal in a cage. Underneath it was the caption: “Be careful! This animal is
dangerous: When attacked, it defends itself.” Our enemies should know that if
they attack us, we will strive to hit back harder than they did. Every army in
the world knows that if you are attacked with a rifle, there is no rule that stipulates
that you can only shoot back with a rifle, but using a machine gun would not be
fair, or that if you are attacked with only one tank you cannot shoot back with
two. Nevertheless, Israel has a serious public relations problem and is being pil-
loried for the purported use of disproportionate force.

Destruction of Civilian Buildings

It is illegal to deliberately destroy civilian buildings unless there is a military

necessity to do so. These structures lose their protection, however, when they
are used to make an effective contribution to military action. The large-scale
damage to civilian structures in Gaza was justified by Israel as a military necessity,

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as the buildings were being used by Hamas fighters, and attacks from these build-
ings posed a threat to Israeli soldiers.

Humanitarian Aid to the Enemy

The rule of law is that a state may not use the starvation of enemy civilians as a
means of warfare. However, there is no rule that obliges a party to the conflict
to provide supplies to the enemy. If possible, that party should allow the enemy
civilian population to receive humanitarian relief from a third party or humanitar-
ian organization. This is what Israel did recently in allowing relief convoys to
enter the Gaza Strip from Egypt even during periods of intense fighting. Israel
went beyond its legal obligations and provided water from Israeli sources.

No army can have a perfect record of behavior during intense fighting. Still, the
IDF’s compliance with the laws of war has received nearly unanimous praise from
Western military law experts (though not necessarily also from the foreign min-
istries of those countries). The IDF receives real-time guidance and advice
from legal experts on the laws of war. This is done to ensure humanitarian behav-
ior, but also, frankly, for the sake of Israel’s self-interest.

It is distressing for us in Israel that after cursory condemnation of the Hamas

attack, many international bodies now ignore the terror organization’s current
actions and call on Israel to cease its military campaign. There was no such call
on Western states to cease actions against the Taliban after 9/11 or against
ISIS, and there should be none in Israel’s case.

Note

1
Israel is a party to the four 1949 Geneva Conventions. These, together with the 1907
Hague Regulations and parts of the 1977 Additional Protocol to the Geneva Conven-
tions, are regarded as customary law and therefore even bind states that are not
parties to it.

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