The attacks carried out by Hamas and other Palestinian armed groups on 7 October 2023 in Southern Israel and Israel’s military operation in the Gaza Strip are governed by international humanitarian law (IHL) and international human rights law. In particular, the military operations have to comply with the standards for the conduct of hostilities (ius in bello) laid out in IHL treaty and customary law provisions. These include the rules set forth in the 1907 Hague Convention (IV), the four Geneva Conventions of 1949 and their two Additional Protocols of 1977, which outline permissible methods and means of conducting hostilities, as well as fundamental protections for civilians and combatants no longer participating in hostilities. Most of these rules have gained the status of customary international law, meaning that even states and non-state armed groups that have not ratified them must still abide by them. In this regard, even though Israel is not a party to the 1977 Additional Protocol I to the Geneva Conventions, Israel’s High Court of Justice has explicitly accepted the status of its key provisions as customary international law applicable to its conduct. Organized non-state armed groups that are parties to a conflict are bound by conventional and customary international law and must respect the principles that regulate armed conflicts. The rules of IHL are not reciprocal, meaning that one party to the conflict cannot invoke the IHL violations of the other party to justify its own violations of IHL. 

IHL applies to “international armed conflicts” (IACs) and “non-international armed conflicts” (NIACs). The classification of a conflict as either IAC or NIAC is often the subject of debate. In light of the current circumstances, the current hostilities in the Gaza Strip have been predominantly classified as an IAC. While disagreement among states and experts exists as to whether the current hostilities constitute an international armed conflict (IAC) or a non-international armed conflict (NIAC), ultimately, categorizing the armed conflict between Hamas and other Palestinian armed groups and Israel as either international or non-international is largely a matter of theoretical concern, given that the bulk of IHL rules applies to either situation. At a minimum, the standards laid out in Common Article 3 of the Geneva Conventions apply, as they serve as common standards applicable in all armed conflicts. 

The current hostilities are taking place on the Palestinian territory, which has been occupied by Israel since 1967, namely the Gaza Strip and West Bank, including East Jerusalem. Israel, as the occupying power, maintains additional legal obligations towards the Palestinian people under its jurisdiction, governed by the rules of belligerent occupation as set forth in the 1907 Hague Convention (IV) and the Fourth Geneva Convention of 1949. Although Israel does not consider itself to be the occupying power in Gaza, following its so-called “disengagement” from the Gaza Strip in 2005, the majority of states, international organizations and scholars hold that Israel remains the occupying power due to its continued effective control over Gaza’s land borders, airspace, territorial waters, civilian infrastructure, including water and electricity, and the Palestinian population registry. Key actors that support this position include the United Nations General Assembly, the International Criminal Court, the International Committee of the Red Cross, the European Union, the African Union, and states including Germany and the United States.

Finally, international human rights law also continues to apply. Even in situations of armed conflict, states maintain their obligations, in compliment to IHL rules, to respect, protect and fulfill the human rights of all people under their jurisdiction, including in territory beyond their borders but under their effective control, such as occupied territory.  

The principle of distinction

The principle of distinction is a cornerstone of IHL and part of customary law. It requires parties to an armed conflict to distinguish between the civilian population and combatants, as well as between civilian objects and military objectives, at all times. This is fundamental because civilians and civilian infrastructure are protected from the effects of hostilities. Only direct attacks against military targets, meaning “those objects which by their 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,” are permissible under IHL. Military targets include combatants, who are defined as “all members of the armed forces of a party to the conflict, except medical and religious personnel.” Civilians are always protected in armed conflict, as long as they do not directly participate in hostilities. 

Indiscriminate attacks, meaning attacks which strike military objectives and civilians or civilian objects without distinction, constitutes a grave breach of IHL and can amount to a war crime under Article 8 of the Rome Statute. This applies when intentional attacks are directed against (1) the civilian population or individual civilians and (2) civilian infrastructure and civilian property. A violation of IHL can also constitute an internationally wrongful act which triggers state responsibility when the violation is attributable to a state.

Military necessity

As one of the primary founding principles of IHL and part of customary international law, military necessity restricts the admissible use of force to the amount and type of minimum force necessary to accomplish a legitimate military purpose: “the only legitimate military purpose is the weakening of the military capacity of the other parties to the conflict.” IHL attempts to strike a balance between military necessity and humanitarian exigencies. Certain IHL principles, such as the ban on using weapons that cause “superfluous injury or unnecessary suffering,” are based on the understanding that they do not meet the principle of military necessity.

Precaution

The principle of precaution requires that parties to the armed conflict must take all feasible precautionary measures to protect the civilian population and civilian objects against the effects of attacks. They must take the presence of civilians and civilian objects into account and prevent or minimize the civilian harm that may result from their operations. The precautionary principle implies that in case of doubt on the military nature of an objective, it is presumed to be civilian. If precautionary warnings to civilians are not heeded, civilians do not lose their protected status.

Proportionality

IHL clearly prohibits attacks against civilians and civilian objects. Yet, IHL also provides for the case that a target on a military object may cause civilian injuries or death (so-called “collateral damage”). The principle of proportionality, which is part of customary law, outlaws attacks which are likely to result in incidental loss of civilian lives and injury to civilians and/or civilian objects which would be excessive in relation to the concrete and direct overall military advantage anticipated. Therefore, not all “collateral damage” is lawful under IHL, and commanders must ensure that they do not launch attacks which they know will cause excessive civilian losses. A violation of the principle of proportionality would constitute a grave breach of IHL that can amount to a war crime under Article 8 of the Rome Statute.  When attributable to a state, violating the principle of proportionality can also lead to state responsibility.

The huge number of civilians killed, the daily death rate – unprecedented in the 21^st century – as well as the mass destruction of civilian infrastructure in the Gaza Strip, possibly making the area “uninhabitable,” have raised serious concerns worldwide about the possibility of IHL violations and other possible international crimes, including war crimes, crimes against humanity, and genocide committed by Israeli forces. Gaza is one of the most densely populated regions in the world, yet IHL rules of distinction, precaution and proportionality must be respected at all times, including when armed conflict takes place in densely populated areas. Accordingly, methods and means employed by conflict parties need to be chosen in a way that they be directed at a specific military target and are adequate to distinguish between civilians and civilian objects and military objectives.

IHL mandates that conflicting parties exercise constant care during military operations to spare civilians and civilian objects. It is crucial to "take all feasible precautions" to prevent or minimize incidental loss of civilian life and damage to civilian objects (see question 3). These precautions involve diligently verifying that the targets of attack are military objectives rather than civilians or civilian objects. Additionally, effective advance warning of attacks should be provided when circumstances permit, and refraining from an attack is essential if it violates the rule of proportionality. In populated areas with structures both above and below ground, parties to the conflict must take into account the heightened challenges of identifying civilians – especially when using advanced surveillance technology – and ensure that indiscriminate violence does not occur. 

Forces stationed in populated areas should, to the extent possible, avoid situating military objectives, including fighters, ammunition, weapons, equipment and military infrastructure, in or near densely populated areas. It is also imperative to make efforts to relocate civilians away from military objectives. Simultaneously, in carrying out an attack, a party is not exempt from its obligation to minimise the risk to civilians, even if it alleges the responsibility of the other party in positioning military targets in densely populated areas.

Therefore, the alleged presence of Hamas or other Palestinian armed group members in a residential building or area, or the fact that a military-relevant facility is allegedly situated in a densely populated area, does not justify attacking the area without taking the civilian population into account. This includes the duty to distinguish between combatants and civilians and to adhere to the principle of proportionality (see question 3). 

The use of explosive weapons with wide-area effects – meaning weapons that possess a large destructive radius, inherent inaccuracy, or deliver multiple munitions simultaneously – in populated areas constitutes one of the most severe threats to civilians in contemporary armed conflict and may likely to constitute a violation of the prohibition of indiscriminate attacks.

The scale of the damage inflicted on the civilian population of Gaza “is characteristic of the use of explosive weapons with wide-area effects in such a densely populated area.”

Furthermore, rockets launched by Palestinian armed groups from Gaza, whether fundamentally inaccurate or designed for widespread saturation, pose a foreseeable threat, likely impacting civilians and civilian infrastructure within Israel. Notably, violations by one party to the conflict with respect to the use of human shields or wide-area-effect weapons in densely populated areas can never justify violations by other parties to the conflict.

Large-scale attacks, besiege and occupation of medical infrastructure by Israel have shut-down the majority of hospitals and services in the Gaza Strip. . Most medical care has had to be suspended or can only be continued under the most difficult conditions. The widespread attacks on medical infrastructure, medical personnel and ambulances have raised great concern worldwide of violations of IHL and possible international crimes. Hospitals, medical personnel and ambulances that are exclusively engaged in medical duties must be respected and protected in all circumstances. They receive heightened protection from violence and other attacks in conflict. Intentionally launching an attack against medical personnel, medical units and ambulances using a distinctive emblem may constitute a war crime under Article 8 of the Rome Statute. 

Medical personnel and medical units must be able to carry out their functions. Parties to an armed conflict shall not obstruct medical personnel from providing health care, and access to medical facilities cannot be limited. 

Medical personnel, units and vehicles can only lose their protection “when they commit, outside of their humanitarian function, acts that are harmful to the enemy.” The presence of a sick or injured member of an armed force in a hospital does not lead to the loss of the protective status under IHL. Neither does the presence of small arms belonging to those combatants.   Therefore, medical units providing refuge to combatants in good health or holding weapons and ammunition only lose their protection “after due warning has been given with a reasonable time limit and only after that warning has gone unheeded.” Also, the presence of armed guards outside the medical facility, with sole the purpose to defend the facility, its personnel and the injured people under their care, does not lead to a loss of protection.  

Since October 7, more than 390 educational institutions in the Gaza Strip have been destroyed. 9 in 10 of the schools in the Gaza strip have at least suffered “significant damage.” Historical, religious and archaeological sites, such as the Anthedon Harbor and the Ibn Othman Mosque, have been damaged or leveled to the ground. All of these buildings which are dedicated to religion, art, science, education or charitable purposes, as well as historical monuments, fall under the category of cultural property. Parties to the armed conflict are obliged to treat cultural property that is not used for military purposes with special care to avoid causing damage. 

Furthermore, educational facilities, places of worship and other cultural property are considered civilian objects when not used for military purposes. Accordingly, they enjoy protection from direct attacks. Moreover, it is a misconception to assume that a civilian object, such as a residential building, a university or a religious site retains a permanent designation as a military target solely based on its past use for combat purposes. Rather, these facilities only lose their protected status as long as they are used for military purposes. Under the Rome Statute, intentionally directing attacks against civilian objects may amount to war crimes in international armed conflict. This includes intentionally launching an attack directed against cultural property (Article 8(b)(ix) and Article 8(e)(iv) Rome Statute). 

The number of journalists and media personnel killed in the Gaza Strip since 7 October is unprecedented in recent history. This raises serious concerns of IHL violations, possibly amounting to war crimes and crimes against humanity. Journalists are considered civilians and must be respected and protected while on professional mission in areas of armed conflict. Like other civilians, they cannot be the target of an attack, but they can lose their protection from direct attacks when and for as long as they directly participate in hostilities. 

Intentionally directing attacks against civilians, including journalists, is a war crime under Article 8(b)(i) and Article 8(e)(i) of the Rome Statute and, when part of a widespread or systematic attack directed against the civilian population, may be classified as a crime against humanity. Similarly, media outlets, including radio and television stations and journalistic equipment, are civilian objects so long as they are not used for military purposes. Like any civilian object, they cannot be the direct target of an attack. Intentional attacks against civilian objects constitute a war crime under Article 8(b)(ii) of the Rome Statute.

The term “human shields” refers to civilians or other protected persons under IHL that are placed or moved to points or areas that would otherwise be considered military objectives in order to render these locations immune to military operations. 

The prohibition of the use of human shields is a norm of customary IHL and has been included in the Geneva Conventions and the Additional Protocol I. It is applicable both in international and non-international armed conflict. In international armed conflicts, the violation of this prohibition amounts to a war crime under Article 8(2)(xxiii) of the Rome Statute. In non-international armed conflicts, it can amount to a war crime under Article 8(e)(i) of the Rome Statute.

The Israeli army explicitly justifies its military actions by stating that Hamas units deliberately take cover in civilian buildings and intentionally use the population as human shields. In the Gaza war of 2009, the UN investigative commission identified several incidents in which Israeli forces used Palestinian civilians as human shields. Although the Israeli military has repeatedly assured the public that this practice has been discontinued, the use of Palestinians as human shields by the IDF has been documented in Gaza and in the West Bank particularly. 

Advance warnings are part of the precautions that warring parties must take to protect civilian populations from military attacks. This rule is part of customary IHL and is also included in the Additional Protocol I of the Geneva Conventions. The Additional Protocol further specifies that the advance warnings must be effective, meaning they have to give civilians the chance to protect themselves from the upcoming attacks. Warnings that do not give civilians enough time to leave a certain area to find protection are thus considered ineffective.  Warnings, which instead of being effective instigate terror in a civilian population, would thus breach the prohibition on “acts or threats of violence the primary purpose of which is to spread terror among the civilian population.” (Additional Protocol I, Art. 51(2) 

Civilians may not be able to leave an area after an advance warning due to reasons of age, disability, lack of safe escape routes or refuges; or they may simply refuse to leave. Regardless of this, they still enjoy the protections that IHL bestows upon them. The presumption of civilian status under the Additional Protocol I, Art. 50, is still maintained. Further, an attacking party, which has given an advance warning, still has to respect the principle of distinction and take other precautionary measures for conducting military attacks. 

In practice, this means that civilians in Gaza who have received an advance warning from IDF and remained in attacked, or soon-to-be-attacked, areas are still civilians and thus attacks must not be directed against them. Entire areas in Gaza that have received advance warning do not instantly turn into legitimate military targets, and all requirements established by IHL norms have to be respected. 

Individual and mass forcible transfer is prohibited under IHL, which also provides clear limits to State’s conduct and safeguards to the displaced population, including the obligation to “provide the evacuees with “satisfactory conditions of shelter, hygiene, health, safety and nutrition. 

The mass evacuation orders issued by Israel covering over two-thirds of the territory and the subsequent forcible transfer of more than 85 per cent of the Gazan population, crammed more than 1.9 million people into an ever shrinking space that is “no place safe for civilians”. The UN described the conditions formed by Israel both preceding and during its assaults and the closure of Gaza as a humanitarian catastrophe signalling the breakdown of societal structures.

Collective punishment encompasses the imposition of sanctions, harassment, administrative action on or the criminal punishment of an individual or individuals of a group as retaliation to actions for which they do not hold individual criminal responsibility. Collective punishment can include various measures that can be regarded as punishment and deprivation of rights guaranteed under international humanitarian law, such as the civilian population's right to humanitarian aid, including food, the right to medical care and shelter and protection from the elements. The collective punishment of prisoners of war and other protected groups such as civilians is prohibited under IHL without exceptions allowed.

Human rights experts consider the systematic destruction of public buildings such as private homes and agricultural land in Gaza, unless they are an explicit military target (such as municipal facilities, libraries or universities), to be collective punishment of the civilian population in violation of international law. In 2009, the UN Fact-Finding Mission on the Gaza Conflict found that the closure of the Gaza Strip imposed by Israel since 2007 (see question 10) violates the prohibition of collective punishment under IHL.

In regard to the current situation, indiscriminate military attacks, the cutting of the UNRWA funding, the blockade of humanitarian aid, as well as the use of starvation as a weapon of war have been discussed as actions possibly amounting to the collective punishment of the civilian population.

Inflicting a collective penalty on a protected group constitutes a war crime and, as part of a widespread or systematic attack against a civilian population, may also be classified as a crime against humanity. 

The more than 17-year-long closure of the Gaza Strip imposed by Israel has been found to amount to the collective punishment of the Palestinian population by the UN Fact Finding Mission. The Mission further concluded, that the severe restrictions on the passage of goods violate Israel’s obligation as occupying power to “allow free passage of all consignments of medical and hospital objects, food and clothing that were needed to meet the urgent humanitarian needs of the civilian population” (Art. 23 GC IV). The years-long closure of the Gaza Strip may amount to persecution as a crime against humanity under Article 7(i)(h) of Rome Statute.

It is against the backdrop of the years-long comprehensive closure of the Gaza Strip, with the severe humanitarian impact it had on the Palestinian population, that the denial of humanitarian aid and possible use of starvation as warfare have given rise to the concern of possible war crimes committed. 

While sieges and blockades are not defined under IHL, both are understood to be operational strategies in warfare, with the notion of siege describing the encirclement and isolation of a locality or an area for the purpose of attacking. For the sole purpose of achieving a military objective and provided that “they are directed exclusively against combatants,” a siege is considered to be lawful. However, IHL imposes restrictions on siege warfare, such as the prohibition of starvation of a civilian population as warfare that has attained customary status. Furthermore, civilians in a besieged area do enjoy protection “against excessive incidental civilian harm under the proportionality principle.” The proportionality of harm inflicted on a civilian population has to be assessed continuously as well as prior to its imposition.  

Obligations under IHL for those not party to a specific conflict include (1) the responsibility to respect and ensure respect for the Geneva Conventions; (2) a general duty to investigate and prosecute violations of the Conventions; and (3) a duty to investigate, search for, and prosecute individuals who have committed or ordered grave breaches under the Conventions. 

The obligation to respect and ensure respect for the Geneva Conventions is broad, imposing this obligation on all states party to the Conventions “in all circumstances” (Additional Protocol I, Article 1(1); ICJ, 2004, para. 159). This obligation is also generally understood to require states to both refrain from violations and to take actions to ensure that the rules of IHL are respected. Accordingly, third states should neither encourage nor aid or assist in a violation of the Conventions. Additionally, third states are required to take all reasonable measures to end violations of the Conventions (ICRC 2004, p.2). 

Should states manifestly fail to do everything in their power to end violations, they may be in breach of their obligations and could incur international responsibility. The Fourth Geneva Convention includes a general obligation, requiring states to take “all measures necessary” to suppress violations (Article 146 GC-IV). Furthermore, each party shall be under the obligation to search for persons alleged to have committed, or have ordered the commission of, such grave breaches and shall bring such persons, regardless of their nationality, before its own court (Arts. 146(1), (2) GC-IV).

In addition to the International Criminal Court (see Question 18), states can also take legal action against individuals for the commission of international crimes (war crimes, crimes against humanity, genocide). This is possible under the principle of universal jurisdiction (UJ), in which a state can determine that they have jurisdiction over crimes against international law even when the crimes did not occur on that state’s territory, and neither the victim nor the perpetrator is a national of that state. 

Countries such as Argentina, Austria, France, Germany, Sweden and the Netherlands have legislation that enable them to apply the principle of UJ and thus could open investigations and, eventually, bring individuals responsible for international crimes committed in Israel/Palestine to trial.

In Germany, the Code of Crimes Against International Law (Völkerstrafgesetzbuch), which came into effect in 2002, defines the legal framework for such situations. In 2014, ECCHR and the Palestinian Center for Human Rights (PCHR) filed a criminal complaint in Germany on behalf of a German-Palestinian citizen whose family was killed in a bombardment by Israel’s armed forces in Gaza City in 2014 during the so-called military operation “Protective Edge.” However, in August 2021 the German Federal Prosecutor decided not to open an investigation.

In light of the deaths of German nationals in the current Gaza war, ECCHR has requested that the Federal Public Prosecutor's Office conduct a criminal investigation into the alleged killing of the German-Palestinian Abdujadallah family during an Israeli attack in Gaza. The request for an investigation supports the criminal investigation by the local prosecutor's office, but is critical of the Federal Public Prosecutor's statement that there are no indications of violations of the Code of Crimes Against International Law. ECCHR has therefore called on the Federal Public Prosecutor's Office to conduct structural investigations and, if necessary, person-specific investigations into offenses under the German International Criminal Code regarding the events on and after 7 October 2023.

Former ICC Prosecutor Fatou Bensouda opened an investigation into the Situation in the State of Palestine on 3 March 2021. The situation is currently in the active investigation stage, and the Office of the Prosecutor is gathering evidence, including hearing witnesses, and analyzing the material collected with the purpose of building specific cases and issuing arrest warrants. The ICC has jurisdiction over alleged crimes committed on Palestinian territory since June 2014 and by Palestinian citizens, thus likely including possible crimes committed on October 7 by Hamas and other Palestinians.

On 29 October 2023, the current ICC Prosecutor Karim Khan visited the Rafah Border Crossing between Egypt and Gaza, and in late November/early December 2023, he traveled to Israel and Palestine for the first time. Human rights organizations have called on the prosecutor for many years to investigate and deter multiple crimes under the ICC jurisdiction, including war crimes and crimes against humanity. In the current context, submissions have been made to the OTP also regarding possible cases of incitement to genocide. 

The Court will continue to work on building cases in the present situation and will issue arrest warrants accordingly. Some states have asked the court to investigate the current situation and have pledged financial support for the investigations.

South Africa submitted a petition to the International Criminal Court (ICJ) in The Hague on 29 December 2023 against Israel concerning the accusation of genocide and incitement to commit genocide, requesting the court to take provisional measures. In bringing this case to the ICJ, South Africa asserts that Israelit has a legal obligation to prevent genocide under the UN Convention on the Prevention and Punishment of the Crime of Genocide (1949). The arguments put forward by South Africa are based on the concrete danger that Israel has been committing genocide through its military operation in Gaza since 7 October 2023.

South Africa is not directly affected in this case. However, all states parties to the Convention are also its "guardians" and can bring a case before such a body in the interest of the rule of law or legal certainty if they see indications that another state is violating the Convention. 

The arguments brought forward by South Africa are based on what is deemed to be a concrete risk of commission of genocide by Israel by means of its military operation in Gaza since 7 October 2023. An urgent hearing for the decision on the provisional measures was held on 11 and 12 January 2024 where extensive arguments respectively for and against the accusation of genocide were made by the representatives of South Africa and of Israel.

The decision on provisional measures was issued on 26 January 2024. In its ruling, the ICJ ordered Israel to take immediate measures to prevent genocide against the Palestinians in Gaza. Furthermore, Israel is required to take protective measures to ensure that its military actions do not violate Art. II of the Genocide Convention. Israel is also called upon to improve the situation with regards to the provision of aid in Gaza. In a further order, the court ordered the state of Israel to prevent public incitement to genocide against the Palestinians and to punish such incitement when necessary.

Israel must document the protective measures to be taken in a report within one month. The order was issued with a large majority of the judges voting 15 to 2 and 16 to 1 respectively, with German judge Georg Nolte also voting in favor. The ICJ thus considers it plausible that some or more of the genocidal acts listed in Art. II of the Convention are taking place. 

The main point of contention in genocide proceedings is usually – and thus also here – the question of genocidal intent. According to the Convention, the partial extermination of an ethnic group is sufficient. Art. II Letter A theoretically already covers the killing of a single person. What is required, however, is the intention to destroy an ethnic group “as such.” This is difficult to prove – but according to the ICJ, South Africa has presented plausible evidence in this regard. 

The decision on the merits of the case however will take much longer, foreseeably years, and will be based on a higher standard of evidence compared to what is required at the state of provisional measures. 

Germany is the only state that formalized its intention to file arguments opposing the genocide claim raised by South Africa. This step was widely criticized internationally, especially in connection with similar actions of the German government in the past, such as the recognition of Palestine as a member of the International Criminal Court or the German position on the opinion of the International Court of Justice regarding the illegality of the Israeli border fence in the West Bank under international law. In both cases, the final decisions of the aforementioned legal bodies were contrary to the German position.  

Orders of the International Court of Justice are binding on the parties and they must comply with them. However, the orders are not binding on Hamas, because the addressees of provisional measures can only be parties to the proceedings, i.e. the parties to the respective legal dispute, who are also bound by the subsequent judgment. The Court cannot issue measures against third parties, and only states can participate in ICJ proceedings – thus the ICJ could not bind Hamas with a judgment or any ordered measures.

In this respect, neither Hamas nor other Palestinian groups in Gaza are the addressees of the ICJ's measures. Nonetheless, they must also comply with international law and may not pursue any measures that could amount to genocide. For formal reasons, they cannot be held accountable before the ICJ, but can nevertheless be held accountable before the ICC. 

However, there is a special feature with regard to the possible crime of genocide: all states parties are obliged to refrain from any acts that could facilitate or support genocide. This applies not only to direct participation in hostilities, but also to the supply of weapons, technology transfer and other measures that can be regarded as support.