On Oct. 7, Hamas militants ripped through a music festival and Israeli settlements in a series of attacks that killed hundreds.
Israel responded to the attacks with an aerial bombardment of the Gaza Strip, cutting off food, water, fuel and electricity to the region and ordering an evacuation that has displaced an estimated one million Palestinians. More than 3,478 Palestinians and 1,400 Israelis have been killed in the conflict so far, according to Israeli authorities and the Gaza Health Ministry.
A United Nations Commission of Inquiry stated last week that it has been “collecting and preserving evidence of war crimes committed by all sides since 7 October 2023, when Hamas launched a complex attack on Israel and Israeli forces responded with airstrikes in Gaza,” and that there is “clear evidence that war crimes may have been committed.”
Global Affairs Canada (GAC), as well as Canadian politicians including Prime Minister Justin Trudeau and Pierre Poilievre, have consistently stated that Canada “supports Israel’s right to defend itself in accordance with international law,” with GAC stating this as recently as Tuesday.
But what are the international laws that govern war?
THE LAWS OF WAR
The rules of armed conflict are governed by a set of internationally recognized laws and treatises, including the Geneva Conventions, the Hague Conventions and the United Nations charter.
These work together to address the rights of non-combatants during a war, set out the limitations of military methods, and guide the conduct of hostilities and the laws of occupation, as well as how to preserve humanitarian rights. Collectively, this is referred to as international humanitarian law.
The Geneva Conventions, ratified in 1949 by 196 countries, apply specifically to the rights and protections of civilians and other non-combatants during an armed conflict, stating that civilians, the wounded and prisoners of war have to be treated humanely.
The conventions state that civilians and other non-combatants cannot be subjected to murder, mutilation, cruel treatment, torture and “humiliating and degrading treatment.” They also state that hostage-taking is prohibited.
A protocol added in 1977 extended protection for the civilian population to military and civilian medical workers in international armed conflict.
HAMAS ATTACK AND INTERNATIONAL LAW
The Oct. 7 attack was a clear and horrific violation of international humanitarian law, legal and humanitarian experts say.
The Associated Press reports Hamas militants gunned down people at a music festival and stormed through Israeli towns near the border of Gaza, killing civilians and taking hostages.
“Hamas and other Palestinian armed groups flagrantly violated international law and displayed a chilling disregard for human life by carrying out cruel and brutal crimes including mass summary killings, hostage-taking and launching indiscriminate rocket attacks into Israel,” Amnesty International, a non-governmental human rights organization, stated Oct. 12.
“We verified chilling videos which show armed men shooting at civilians and dragging people away as hostages.”
Around 199 people were taken hostage, the Associated Press reports.
“Carrying out, or threatening to carry out, an act of hostage-taking during armed conflicts is prohibited under (international humanitarian law),” the International Committee of the Red Cross stated.
Hamas is designated as a terrorist organization by the Canadian government.
“These are war crimes,” Phillip Drew, assistant dean of Juris Doctor and Graduate Studies in the faculty of law at Queen’s University, told CTVNews.ca in a phone interview.
Using rockets that fire indiscriminately—meaning they can’t be directed towards a specific target—on a region with a known civilian population is also prohibited.
These rockets were used in the Oct. 7 attack, and have been used by Hamas previously. A report by the United Nations Independent International Commission of Inquiry on the Occupied Palestinian Territory which covers the period between May 2021 and August 2023 and was released Monday, stated that the use of indiscriminate rocket firing by Palestinian armed groups constituted a war crime. The report also found that the damage and casualties inflicted by Israeli attacks on Gaza were not proportionate to any military advantage and thus also constituted a war crime.
ISRAEL RESPONSE AND INTERNATIONAL LAW
In response to the attack by Hamas, Israel has cut off food, water, fuel and electricity to the already blockaded and impoverished Gaza Strip, increased aerial strikes and ordered civilians and aid groups in the north of Gaza to evacuate to the south ahead of a planned ground assault, the Associated Press reports.
There are around 2.3 million people in Gaza, and UNICEF estimates that nearly half are children.
More than 1,000 children have been killed in Gaza in the last 10 days, according to the Palestinian arm of the non-profit Defence for Children International.
As Israel’s siege of the Gaza Strip has progressed, numerous international organizations, including the United Nations, Amnesty International, Human Rights Watch and ICRC, among others, have stated that their actions amount to a violation of international law.
IS A SIEGE ALLOWED?
According to the laws of armed conflict, sieges are permitted, Drew said—but only up to a point.
Civilians cannot be purposefully starved and must be permitted to escape from a besieged area. It is prohibited to fire upon civilians fleeing a siege, according to the International Committee of the Red Cross (ICRC).
According to UNRWA, by Sunday water was on the brink of running out in many regions of Gaza.
“At this point in time, the humanitarian risks are so high, Israel can’t continue this policy,” Drew said Monday.
“The big thing is, is that when we are directing our military operations, we direct them at warring parties, we don’t direct them at civilians. So if you want to do a siege … you have to make provisions for humanitarian aid to get through or for the civilians to be allowed out. If you conduct a siege that harms civilians and do not allow them out, or even not allow aid in, you’re violating two tenets of the law of armed conflict.”
Israel said Wednesday that it would allow Egypt to deliver limited quantities of humanitarian aid, including food and water, to the Gaza Strip, the first crack in the siege.
CIVILIAN CASUALTIES
Drew, who is a former intelligence officer and military lawyer said targeting civilians would be a violation of international humanitarian law. But when it comes to airstrikes, prosecuting breaches of international humanitarian law can be difficult, even in the face of civilian casualties, he said. A national power may claim an area sheltering civilians had sustained damage only by accident while a legitimate military target nearby was being pursued.
The vast majority of Palestinian casualties have been civilians, The Associated Press says. Israel has claimed throughout the conflict that airstrikes are aimed only at Hamas military targets, and blame Hamas for Palestinian casualties. Israel Prime Minister Benjamin Netanyahu stated Tuesday in a meeting with U.S. officials that “Hamas seeks to maximize civilian casualties,” accusing the militants of using the civilian population of Gaza as human shields.
On Tuesday, a blast hit a Gaza City hospital packed with wounded and other Palestinians seeking shelter, killing around 500 people, according to the Hamas-run Gaza Health Ministry.
In an emailed statement to CTV News on Tuesday, Israeli Defense Forces said intelligence from “multiple sources” indicated the Palestinian armed group Islamic Jihad was responsible due to a failed rocket launch. Reuters is reporting a spokesperson for Islamic Jihad is denying the IDF’s claim.
“Another golden rule is that you don’t attack hospitals, or medical facilities,” Drew said.
On Tuesday, a United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) school in al-Maghazi refugee camp, in the central area of Gaza, was hit, killing at least six people. According to UNRWA, the damage occurred “during Israeli forces airstrikes and bombardment on the Gaza Strip.”
“This is outrageous, and it again shows a flagrant disregard for the lives of civilians,” UNWRA Commissioner-General Philippe Lazzarini said in a statement Tuesday. “At least 4,000 people have taken refuge in this UNRWA school turned shelter.”
The Israeli army knows the exact location of each UNRWA facility, the agency said, adding that it has provided co-ordinates of shelters on a daily basis to all relevant parties since Oct. 7. CTVNews.ca has reached out to the Israeli army for comment.
Read more: Human Rights Watch says Israel used white phosphorus in Gaza, Lebanon
The United Nations Human Rights Office has also stated that Israel’s order for more than one million Palestinians to evacuate the northern region of Gaza ahead of a ground assault could amount to a forcible transfer of civilians and be a breach of international law.
The evacuation order applies to 22 hospitals in northern Gaza, which amounts to “a death sentence” for patients who can’t be moved, according to the World Health Organization, which added that hospitals are overwhelmed in south Gaza and that denying “civilians the basic human right of life-saving health care … is prohibited under International Humanitarian Law.”
Drew added that it’s unusual, but not unheard of, for aid and health-care workers to be ordered along with civilians to evacuate an entire region.
“It’s not something that is done very regularly, because we all recognize that humanitarian access is required in armed conflict,” he said.
WHO PROSECUTES WAR CRIMES?
The perpetrators of war crimes can be prosecuted by local courts. But the International Criminal Court (ICC) weighs in when crimes against humanity are going unaddressed.
The Rome Statute, the treaty which established the ICC, was drawn up in 1998 and entered into force in 2002. A total of 123 countries or states have signed on to the ICC, including Canada.
The ICC is the first permanent criminal court, established to prosecute only serious international crimes: genocide, crimes against humanity, war crimes and the crime of aggression, which refers to the invasion of another territory.
If the ICC determines in a preliminary investigation that there is sufficient evidence of crimes that fall under their jurisdiction and that opening an investigation is justified, it will then issue arrest warrants or summons and bring the case before three trial judges.
Judges can sentence a person to up to 30 years of imprisonment, or even a life sentence, and can also order reparations for victims.
Israel has not signed on to the ICC, but the Palestinian territories have. This means war crimes committed by Palestinians anywhere in the world, as well as war crimes committed in Palestinian territories, would be eligible for scrutiny by the ICC.
GENEVA CONVENTIONS APPLICABILITY
The Geneva Conventions apply to international armed conflicts between nations, as well as cases where a nation is occupied partially or completely by soldiers of another nation.
Israel has long held that the Geneva Conventions do not apply to its conflict with Palestinians in the West Bank and Gaza due to there being no “legitimate sovereign” in the Palestinian territories, although Israel has stated it will voluntarily abide by the “humanitarian” provisions of the Fourth Geneva Convention.
But the United Nations Security Council and the ICRC have determined that the Geneva Conventions do apply to this conflict and others that involve the occupation of a territory, regardless of statehood.
The ICRC explains on its website that “since the 1967 international armed conflict between Israel and its neighboring States that triggered the application of the four Geneva Conventions of 1949, the Palestinian territory has been under the authority of the Israeli army. Thus, the ICRC considers the territories controlled by Israel as being under Israeli belligerent occupation, affirming the de jure applicability of the law of occupation (Hague Regulations of 1907 and the Fourth Geneva Convention of 1949). The application of the law of occupation is without prejudice to any underlying dispute concerning the sovereignty over the territory.”
Under the Geneva Conventions, building settlements in occupied territory is a violation of international law, calling the legality of Israeli settlements in the occupied West Bank under question, a debate which has roiled for years.
A year ago, the United Nations Independent International Commission of Inquiry on the Occupied Palestinian Territory stated in its first report investigating the Israeli occupation of Palestinian territories that there were “reasonable grounds to conclude that the Israeli occupation of Palestinian territory is now unlawful under international law due to its permanence and the Israeli Government’s de-facto annexation policies.”
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With files from The Associated Press
