On the morning of October 7, 2023, more than 3,000 terrorists infiltrated Israel and massacred 1,200 women, children, men, the elderly, and people with disabilities. The infiltration was camouflaged by more than 3,600 rockets fired by the terrorists, indiscriminately targeting Israel’s civilian population. While Israel’s Iron Dome defense system intercepted most rockets, others fell on high-rise buildings, synagogues, and hospitals.
These were explicit acts of war and clear war crimes.1
As Israel responds to the atrocities, several basic principles of International Humanitarian Law (IHL) are essential to be familiar with.
In IHL, four basic principles are meant to guide the parties’ actions on the battlefield: Distinction; Military Necessity; Unnecessary Suffering; and Proportionality.
The principle of distinction is the foremost IHL protection for non-combatants. The code requires that the object/person being attacked is part of the enemy’s military apparatus and is, accordingly, a military objective. The term “military objective” includes all Gazan terrorists, from the lowest foot soldiers to the organization’s commanders and the entire terror infrastructure.
The “distinction” principle requires that all attacks be focused on military targets instead of purely civilian targets that do not contribute to the war effort. Military targets included objects that, by nature, location, purpose, or use, make an effective contribution to military action and whose total or partial destruction, capture, or neutralization, in the circumstances ruling at the time, offers a definite military advantage.
The principle of military necessity protects the warring combatants. The principle dictates that while IHL permits attacking combatants, those attacks must be necessary to forward the goals of achieving the military objective. Accordingly, the warring sides must avoid wounding or permanently injuring combatants except as part of the fight.
The principle of unnecessary suffering also protects the combatants and prohibits the warring sides from using weaponry that causes superfluous injury or unnecessary suffering.
The most commonly misunderstood principle of IHL is the principle of proportionality.
In IHL, proportionality refers to a situation in which a military target is attacked, and that attack causes incidental or collateral damage. Attacks of this nature are legitimate so long as the loss of life and damage to property incidental to the attack are not excessive in relation to the concrete and direct military advantage expected to be gained. As the value of the military target grows, so too does the extent of permitted incidental damage.
The following are several concrete examples of situations that may occur during the impending war and their basis in IHL:
1. The IDF attacks a military target, and civilians are also killed
While the deaths of civilians during war are, of course, regrettable, the deaths caused are not, per se, illegitimate or illegal unless they outweigh the concrete and direct military advantage expected to be gained by the IDF from the specific target. For example, when Hamas deliberately locates its operational headquarters in high-rise buildings, and the IDF places a high tactical military advantage on destroying that capability, no provision of IHL would prevent attacking that target, even if it means destroying the entire building. In this scenario, IHL considers that civilian property may be destroyed and civilians may be killed.
2. Why does the IDF plough roads as a precursory measure for troop movement?
It is well-known that the terrorists planted landmines on the roads critical for advancing the IDF troops. For this purpose, the IDF can use engineering equipment to neutralize the threat. This action is analogous to using engineering equipment to clear any other minefield. The fact that the terrorists planted land mines in the civilian environment does not negate the fact that clearing a minefield is a clear military objective and that IHL permits measures taken to support or facilitate achieving those objectives.
3. Is every attack on a mosque, medical facility, or UN installation inherently illegitimate?
In IHL, some sites enjoy specific safeguards and should not be attacked as a general rule. Medical facilities and places of worship are examples of these sites. However, when the enemy specifically abuses these sites and uses them to carry out or facilitate military operations – including using them as command centers or warehouses/storage areas to stockpile ammunition and weapons – the installations lose their special protection and become legitimate military targets.
The terrorists in Gaza are well versed in IHL and intentionally place their terror infrastructure near or directly in mosques, medical facilities, UN installations, and other sensitive sites, such as schools. In doing so, they hope to hinder and complicate the IDF operations while using the destruction of these sites to delegitimize Israel and promote anti-Israel propaganda.
4. Can civilians become legitimate military targets?
Generally, civilians should not participate in fighting and should not be directly targeted. But being a “civilian” is not necessarily synonymous with wearing civilian clothes or not wearing a uniform. IHL recognizes the fact that, in some cases, civilians participate in military operations. Civilians (irrespective of their dress code) who directly participate in hostilities are considered combatants and legitimate military targets. As a general rule, most of the terrorists in Gaza do not wear a uniform to feign civilian status.
5. Is Israel permitted to cut off the electricity to the Gaza Strip?
The electricity provided by Israel to the Gaza Strip is essential for the terrorist war effort. It allows the terrorists to operate command centers and other electricity-based capabilities, among other things, even minor things such as charging batteries for UAVs and drones that were also used in the initial attack on Israel.
Limiting the flow of electricity into Gaza from Israel would substantially impair the enemy’s military capabilities. Conversely, continuing the unhindered flow of electricity would mean that Israel is substantially contributing to the ability of the terrorists to continue attacking Israel and their attempts to murder Israelis.
In this context, it is necessary to recall that Israel agreed to provide electricity to the Gaza Strip as part of the Oslo Accords.2 At the time, thousands of Israeli citizens still lived in the Gaza Strip, and several IDF military bases existed. The electricity grids served both the Israelis and the Gazans. In 2005, Israel expelled the Israeli citizens from Gaza and redeployed its military personnel. In June 2007, Hamas seized the Gaza Strip. Instead of developing the Gaza Strip’s civilian infrastructure, including power plants, for the last 16 years, Hamas devoted its capital and capabilities to building its terror infrastructure.
The terrorist attack on Israel and the slaughter and kidnapping of hundreds of Israeli citizens breach the Oslo Accords, and there is no basis to argue that Israel is still bound by its Oslo Accord commitments while the terrorists and terrorist authorities in Gaza deny Israel’s right to exist, invade Israel, and massacre Israelis.
As Israel enters the war, no provision in IHL requires Israel to provide the enemy, which slaughtered 1,200 Israelis, injured thousands of others, and kidnapped scores more, with a resource essential to further its homicidal terrorist goals.
The argument has been made that Israel’s cutting electricity to the Gaza Strip is tantamount to starving the civilian population or could be considered collective punishment.
These arguments have no basis.
In this context, it must be understood that the Gaza Strip does not, even in regular circumstances, enjoy a steady and constant electricity supply by no fault of Israel. As part of the punitive actions implemented by Palestinian Authority Chairman Mahmoud Abbas against Hamas, the PA refused to pay for the electricity provided by Israel for extended periods. The decision caused a substantial reduction in the electricity supply to the Gaza Strip. Again, no provision in IHL or any other body of law requires Israel to provide free electricity to the Gaza Strip, including the homicidal terrorists and their terror infrastructure.
Cutting the flow of electricity from Israel is not designed to impose collective punishment and does not meet the definition of collective punishment under IHL.
In IHL, collective punishment assumes the imposition of a criminal-type sanction upon a group of persons for the acts of others.
As noted, Israel provides electricity to the Gaza Strip as part of its contractual agreement with the Palestine Liberation Organization. The Oslo Accords have been fundamentally and repeatedly breached by both the PLO and the terrorist leadership in Gaza, and there is no basis to require Israel to continue alone to fulfill its commitments.
Additionally, it should also be noted that some of the electricity of the Gaza Strip comes from a power plant in Gaza, and some comes from Egypt.
As regards the claim that cutting the flow of electricity to the Gaza Strip would breach the prohibition of starving the population, it must be understood that even in 2023, hundreds of millions of people worldwide do not have access to electricity grids. No one claims that these people are the subject of intentional starvation. Moreover, no one made this ludicrous argument when Abbas decided to stop paying for the Gazan electricity usage. Raising the argument solely against Israel as it responds to the heinous massacre of 1,200 people, the injury of thousands more, and the kidnapping of scores of others is purely hypocritical.
6. Is the death of every Palestinian child a “war crime”?
Some groups seeking to vilify Israel claim that the death of every Palestinian child is tantamount to a war crime. As noted above, IHL takes into account that civilians, including children, will be killed during an attack on a legitimate military target, and as such, in as much as Israeli forces do not knowingly and intentionally target a child who was not participating in the hostilities, the incidental death of a child during the fighting would certainly not constitute a crime of any nature.
Nonetheless, ignoring this reality, on May 28, 2021, the New York Times published a front-page spread containing 65 pictures of children supposedly killed earlier in the month after the Gazan terrorists fired rockets at Israel and Israel responded.
An in-depth investigation of the pictures revealed that at least nine of the children pictured were killed when errant Hamas rockets fell short of reaching Israel and hit Gazan civilians. Some of the children pictured by the Times were actually terrorist operatives. For example, Muhammad Suleiman,16, a member of Hamas’ Qassam Brigades, was killed with his father, Tsabar, a Hamas commander, on May 10, 2021.
Recent investigation3 has also exposed the deliberate recruitment by the terrorist organizations of Palestinian children to serve as “spotters” reporting on the movement of IDF forces. The abuse of children to perform military activities rescinds their protection and turns them into legitimate military targets.
The recruitment and deployment of children by Hamas and the Islamic Jihad is a fundamental international war crime.
The assumption that every death of a Palestinian child is tantamount to a war crime also ignores the documented history of the Palestinian terrorist groups in Gaza intentionally using Palestinian children as human shields.
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Appendix I, of Annex III of the Israel-Palestinian Interim Agreement↩︎