Israel-Hamas War and International Law: "Hamas crimes on ICC's radar"

LTO: More than two weeks ago, the terrorist organisation Hamas attacked Israel and took hundreds of hostages. Since then, a bitter war has been raging that has already claimed numerous victims. Israel retaliated and is currently preparing a ground offensive in Gaza. Is this permitted under international law? 

If the expected ground offensive occurs: Does Hamas have a right of self-defence?  

Hamas, for its part, must take all steps to protect its own civilian population from avoidable harm. However, Hamas is the aggressor, is launching an armed attack against Israel and makes massive casualties among its own population part of its strategy. And the aggressor has no right to a military counterattack against a right of self-defence. 

"Right of self-defence until Israel has removed the threat of future attacks"  

How long may Israel exercise its right of self-defence?  

Until it has reliably removed the threat of future attacks. That would be the case if Hamas' potential for aggression were eliminated or if Hamas were to credibly indicate that it would permanently refrain from such attacks. But no one can count on that. 

That means that Israel could also invoke the right of self-defence when Hamas is no longer launching attacks but still holds hostages? 

Yes, by holding hostages, Hamas is expressing that it wants to continue the attack. The manner of the attack justifies the assumption that it will continue its armed operations as a sustained fight against Israel's right to exist. This continuing threat also indicates that the armed attack is ongoing. It is not necessary for a terrorist organisation to plan an attack every day or every week for a right of self-defence. Rather, it is sufficient that the terror potential, once activated, and the intention to commit further terror attacks again and again persist. 

"Israel is aware of the obligation to spare the civilian population" 

Which rules must Israel respect? 

Regardless of whether one qualifies the conflict as international armed conflict between Israel and Palestine or as non-international armed conflict between Israel and Hamas as a non-state actor, the rules of international humanitarian law apply.  

These include the duty to take constant care to spare the civilian population and the strict distinction between military targets and civilians. Civilians and civilian objects may only be affected as “collateral damage”, that means as an unintended consequence of lawful attacks. The core of the Additional Protocols to the Geneva Conventions is part of customary international law and therefore also applies for Israel, which has not ratified these protocols. 

In addition, the common Article 3 of the Geneva Red Cross Conventions applies, which is the "humanitarian minimum" in any conflict. Violence of life and person, the taking of hostages, outrages upon personal dignity and the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court are prohibited. One almost has the impression that Hamas has purposefully and quite deliberately made the systematic violation of each of these elementary prohibitions the leitmotif of its terrorist attack. 

The duty to spare the civilian population – Art. 57 para. 1 of Additional Protocol I to the Geneva Conventions – is one of the fundamental principles of international humanitarian law. How can Israel ensure this in the densely populated Gaza Strip? 

It is important to warn civilians and to tell them to leave the "battle zone". In the case of individual military strikes against specific buildings, this is often possible without any problems, for example through so-called "roof knocking", i.e., a short warning so that civilians can leave the building. Telephone warnings also seem to be part of Israeli practice. 

In a large-scale ground offensive, however, sparing civilians is considered extraordinarily difficult. Moreover, Hamas makes civilian cover a central element of its strategy. It conducts its attacks from a densely populated urban area and defends itself by using human shields. Such a strategy, however, cannot lead to a situation in which the other side can no longer exercise its right of self-defence at all.  

Israel remains obliged to spare the civilian population and has also issued corresponding warnings and calls. Hamas, however, does everything it can to thwart this warning and asks people to stay or even prevents them from leaving the combat zone. When one side deliberately carries out the conflict on the backs of its own civilian population, this is a serious breach of international humanitarian law and human rights. 

"Evacuation order does not violate international law" 

Israel has ordered more than one million people to leave the north of the Gaza Strip within 24 hours. Is this legitimate or a war crime of unlawful displacement or transfer within the meaning of Article 8(2a) VII of the Rome Statute of the International Criminal Court (Rome Statute), as some believe?  

Some accusations are rather preposterous. Some people also speak of ethnic cleansing or mass expulsions. These are forms of discussion that virtually pervert international law and what is actually happening. Now, I cannot see any behaviour on the part of Israel that violates international law in the warnings. The call is an attempt to combine a military response with the greatest possible protection of the civilian population in a very complex environment. 

For two weeks, the people of Gaza did not receive humanitarian aid because Israel is blocking access to the Gaza Strip and Egypt has closed the Rafah border crossing – the only one not controlled by Israel. On Saturday, it reopened the border. Has Egypt acted in violation of international law by refusing to open the border for two weeks? 

Even in the case of a blockade, there should be a kind of "humanitarian corridor" within the bounds of what is possible and militarily reasonable. Opening up a corridor to Egypt is one way of creating such a corridor. However, Egypt is not part of the conflict. In this respect, it is not obliged to open its own territory to the influx of refugees and thus also expose itself to the danger of Hamas terrorists entering the country.  

Politically, of course, it would be most desirable to ease the humanitarian situation of the civilian population in Gaza by opening the border crossing, which Egypt has actually done now. 

Israel has completely cut off food, water, electricity, and fuel supplies to Gaza, exacerbating the humanitarian problems. Legitimate? 

International humanitarian law is based on the premise that one must allow the population access to existential resources. These include water, medicine, and food. Any supplies of medicine and food that are available must therefore be forwarded. A few days ago, Israel made the water supply for the southern part of the Gaza Strip available again, which I consider a step in the spirit of international humanitarian law. 

When it comes to the supply of electricity and fuel, a differentiated view is called for. Here, there is possibly the risk that Hamas fighters will divert part of these resources again for military purposes. This limits Israel's humanitarian obligations, because international law does not require a party to feed the military potential of the enemy with resources. 

Could Palestine accede to the Rome Statute? 

How can Hamas' crimes be punished under international criminal law? 

Palestine has declared its accession to the Rome Statute. Whether this accession is effective is not answered uniformly in the world of states and in international law doctrine – just like the status of Palestine as a state in the sense of international law. In a decision from February 2021, a pre-trial chamber of the International Criminal Court (ICC) found this accession to be effective. Notwithstanding this case law, however, the question remains highly controversial. 

If one assumes that the accession is effective, it has consequences that the Palestinian government probably did not intend. In that case, Hamas' serious violations of international humanitarian law against its own population would also be on the ICC's radar. 

Unlike the ICC, the International Court of Justice (ICJ) is not concerned with the prosecution of individuals, but with the responsibility of states for wrongful acts. Can Hamas' crimes be attributed to Palestine? 

According to the available facts, we cannot assume that the Palestinian government in Ramallah directed Hamas' attack on Israel. The Hamas regime has a strong life of its own. Palestinian President Mahmoud Abbas has even explicitly distanced himself from the attack. The most interesting question, however, is whether Iran can be held partly responsible for what happened. 

"Very close cooperation between Hamas and Iran" 

It is well known that the Mullah regime supports Hamas financially – probably also in the context of the current attack. 

Yes, even if we don't know the details yet. We have gained the impression that Iran has also acted as a kind of sponsor in the attacks on Israel. There have also been meetings between representatives of the Iranian regime and the leadership of Hamas. Therefore, there can be little doubt that there is very close cooperation here between Hamas and the Iranian regime. 

What does this mean for attribution under international law? 

Even if a state does not carry out the attack itself or does not direct and control it, financial, logistical, or other support constitutes a violation of international law. It is a violation of the prohibition of the use of force according to Art. 2 No. 4 of the UN Charter.  

Furthermore, it could be a form of aiding and abetting serious violations of international humanitarian law. We do not know yet to what extent followed a script influenced concrete crimes, i.e., the taking of hostages, torture and killing of civilians are covered by an Iranian support plan. However, all this still requires further findings. 

Thank you very much for the interview! 

Prof. Dr. DDr. h.c. Matthias Herdegen is Director of the Institute for Public Law and Director of the Institute for International Law at the University of Bonn. 

This text is a translated and slightly revised version of the Interview published in German on 20 October 2023.