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Guilty As Charged? Is Israel Committing War Crimes In Gaza?

Uri Pilichowski
Jan 11, 20247 min read

A look into Israel’s actions in Gaza and whether or not they constitute war crimes 


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International law covers wars between nations. These laws were primarily developed to protect non-combatants. In the current Israel-Hamas war in Gaza, civilians have been killed at alarmingly high rates. With civilian death rates at such high numbers, is Israel targeting Palestinian civilians in Gaza?


In this article we’ll cover:

  • International law prohibits the targeting of non-combatants during war

  • Hamas claims high numbers of civilian deaths caused by Israel 

  • Israel Defense Forces (IDF) policy on warfare and civilian casualties 

  • Efforts by the IDF to limit civilian casualties

  • Targeting of civilians by Hamas and the use of human shields


 

International Humanitarian Law And Its Protection of Civilians During War


International Humanitarian Law (IHL) is a set of rules that seek to limit the effects of armed conflict. IHL lays out the responsibilities of states and non-state armed groups during an armed conflict. One major area that IHL covers is the protection of civilians during combat. IHL is based on the 1949 Fourth Geneva Convention and the 1977 and 2005 additional protocols. 


Under IHL, the category of civilians is opposable to that of “combatants.” In an international armed conflict, all persons who are not combatants are civilians. Persons with civilian status may not be directly targeted in attacks. Civilians who directly participate in hostilities, however, lose that protection for the duration of their participation in hostilities. In non-international armed conflicts, there is no combatant status. Members of armed groups with a continuous fighting function may, according to doctrine, be targeted like combatants. All other persons must not be directly targeted. The civilian population is a term that refers to groupings of civilian persons. The presence of some combatants within the general civilian population does not render the civilian population as a whole targetable.


According to the Principle of Distinction between Civilians and Combatants, parties to a conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians. In addition to individuals, like non-combatants, protected under IHL, there are also places, like schools and hospitals, that armies are expected not to target during conflicts. 



Hamas Claims of Civilian Casualties In Gaza 


War in Gaza is messy and disorganized. Chaos ensues constantly as Israeli bombing, tank attacks, and infantry soldiers wage war against Palestinian members of Hamas and other Palestinian terrorist organizations. Israel has banned reporters from entering Gaza and Non-Government Organizations have pulled most of their staff out of the war zone. These factors have made gathering data on civilians killed during the war increasingly difficult. 


Almost all casualty figures reported out of Gaza are based on the Gaza Ministry of Health, a division of the Hamas terrorist organization. As of the writing of this article at the end of 2023, the Gaza Ministry of Health has reported 20,424 dead. It is important to note the ministry does not differentiate between armed men and civilians, nor does it denote the people killed by Israeli strikes and those felled by errant rockets fired by Hamas and other Palestinian factions. The Hamas-controlled Gaza Ministry of Health’s numbers are often met with skepticism because of the lack of distinction between civilians and combatants, as well as the bias it naturally has to inflate the numbers of casualties. In addition, Hamas-employed Palestinian health officials in Gaza said they have lost the ability to count the dead because of the collapse of parts of the health system and the difficulty of retrieving bodies from areas in the war zone. 


A recent Amnesty International report quoted Agnès Callamard, Amnesty International’s Secretary General: “In their stated intent to use all means to destroy Hamas, Israeli forces have shown a shocking disregard for civilian lives. They have pulverized street after street of residential buildings killing civilians on a mass scale and destroying essential infrastructure, while new restrictions mean Gaza is fast running out of water, medicine, fuel, and electricity. Testimonies from eyewitnesses and survivors highlighted, again and again, how Israeli attacks decimated Palestinian families, causing such destruction that surviving relatives have little but rubble to remember their loved ones by.”  


American President Joe Biden has repeatedly expressed concern over civilian deaths in Gaza, and his concern has been reiterated by American Secretary of State Anthony Blinken. While supporting Israel’s right to defend itself by waging war in Gaza against Hamas and other Palestinian terrorist organizations, they have urged Israeli Prime Minister Netanyahu to ensure that Palestinian civilians are protected. President Biden has also stated that he has “no confidence” in the casualty numbers released by the Hamas-controlled Gaza Ministry of Health.



Israel Defense Forces’ Policy on Civilian Populations During War


The IDF is Israel’s military, and it has been guided by a written set of values since its inception. The IDF’s “Purity of Arms” requires that “An IDF soldier will only exercise their power or use their weapon in order to fulfill their mission and only when necessary. They will maintain their humanity during combat and routine times. The soldier will not use their weapon or power to harm uninvolved civilians and prisoners and will do everything in their power to prevent harm to their lives, bodies, dignity, and property.”


Israel is a democracy and operates under civilian laws that hold soldiers and officers responsible if they violate international law during operations and war. All IDF orders are given in accordance with the Geneva Conventions and IHL. All IDF personnel, especially combat soldiers, are given instruction on the international rules of warfare. Soldiers are instructed to disobey orders that contradict international laws. 


When allegations are made against Israeli soldiers that claim soldiers have violated international law, the allegations are investigated by the Israeli military and are subject to review by Israeli civilian courts, including the Israeli Supreme Court. 


In the same report quoted above, Amnesty International focused on five alleged unlawful attacks that struck residential buildings, a refugee camp, a family home, and a public market. The Israeli army claims it only attacks military targets, but in a number of cases, Amnesty International found no evidence of the presence of fighters or other military objectives in the vicinity at the time of the attacks. Amnesty International also found that the Israeli military failed to take all feasible precautions ahead of attacks including by not giving Palestinian civilians effective prior warnings – in some cases they did not warn civilians at all and in others, they are said to have issued inadequate warnings.



Efforts By The IDF to Limit Civilian Casualties

Colonel Richard Kemp, who was the commander of British Forces in Afghanistan has stated that Israel goes above and beyond doing more to safeguard the rights of civilians than any other army in the world. Kemp was responding to myriad allegations made against the IDF for targeting civilians during wars and operations in Gaza. 


According to the IDF, it does everything possible to limit civilian casualties in Gaza. Hamas exploits these efforts by encouraging Palestinian civilians to ignore the IDF’s warnings. As part of its efforts to minimize civilian casualties in Gaza, the IDF makes phone calls and sends text messages to civilians residing in buildings designated for attack. The Israel Air Force has dropped leaflets over Gaza that warn civilians to avoid being present in the vicinity of Hamas operatives. These leaflets urge civilians to move away from Hamas targets, making clear Israel’s intention to minimize civilian casualties.


“Roof knocking” is when the Israel Air Force targets a building with a loud but non-lethal bomb that warns civilians that they are in the vicinity of a weapons cache or other target. This method is used to allow all residents to leave the area before the IDF targets the site with live ammunition. The IDF has also aborted aerial strikes seconds before they were to be carried out, due to civilians being present at the site of the target. 



Targeting of Civilians By Hamas And The Use of Human Shields


Despite the IDF’s efforts to avoid civilian casualties, Hamas continues to operate from within civilian areas, encouraging Gazans to avoid IDF warnings in an apparent deliberate attempt to create civilian casualties. Israel has cited what it says are numerous examples of Hamas using human shields as a tactic in the current war. It claims Hamas has placed parts of its military tunnel system and command network under civilian objects including Gaza City’s Dar al-Shifa Hospital. Footage from an interrogation of two members of Hamas’s armed wing who they said had infiltrated Israel on October 7th during the massacre of 1,200 Israelis confirmed that Hamas militants were using hospitals in the Gaza Strip to protect themselves from IDF strikes.


It is important to note that the war started with Hamas targeting Israeli civilians on October 7 by drone, rocket fire, and armed killings. Documents found on the bodies of Hamas terrorists by Israeli first responders show that Hamas created detailed plans to target elementary schools and a youth center in the Israeli kibbutz of Kfar Sa'ad, to "kill as many people as possible," seize hostages and quickly move them into the Gaza Strip.



Israel Committing War Crimes Is A Hard Case to Make 


Benjamin Wittes, the editor-in-chief of the Lawfare publication and a senior fellow in Governance Studies at the Brookings Institution, wrote that it would be “a grave analytic and legal error to conflate an apparently large number of Palestinian civilian casualties in Gaza with war crimes.” Wittes wrote that although some strikes “may be war crimes to the extent the civilian death was the result of intentional targeting,” other incidents in which Palestinian civilians have been killed “may reflect mere error, bad intelligence, or collateral damage permissible under the laws of war.”


In the chaotic war that Israel and Hamas are waging against each other in Gaza, more factors that question casualty numbers being reported by Hamas must be taken into account. While unusually high numbers of civilians seem to have been killed in this war, it is just as plausible to claim the cause of the high numbers is due to Hamas’s cynical use of their own people as human shields from IDF bombings. 

 

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Uri Pilichowski

Uri Pilichowski


Uri Pilichowski is an author, speaker, and senior educator at institutions around the world. 

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