Armed conflict and the law
Discover more from A Lawyer Writes
Armed conflict and the law
What’s allowed — and what’s not
As MPs return to Westminster for the last session of this parliament, Sir Keir Starmer is coming under increasing pressure from some of his own party members to abandon the position on Israel and Gaza that he explained a week ago.
“While I understand calls for a ceasefire,” the Labour leader said on 31 October, “at this stage I do not believe that is the correct position”. As he explained, a ceasefire “would leave Hamas with the infrastructure and the capability to carry out the sort of attack we saw on 7 October”.
A Labour spokesperson added yesterday that “international law must be followed at all times and innocent civilians must be protected”.
In the circumstances, I thought that now would be a good time to summarise my understanding of international law as it applies to the conflict. I may update this piece online in the coming weeks.
I write as a journalist, rather than a lawyer: this account is based on what I have been told by a number of legal specialists whose expertise I respect. It is also consistent with the speech made by Lord Verdirame KC in the House of Lords on 24 October, which I reported in full a few hours later.
And it’s worth adding that Starmer is not alone. What’s striking about this conflict is the number of world leaders who have visited Israel over the past 30 days to demonstrate their support for its military action against Hamas.
“Above all, I’m here to express my solidarity with the Israeli people,” said Rishi Sunak on arriving in Israel last month. “You have suffered an unspeakable, horrific act of terrorism and I want you to know that the United Kingdom and I stand with you,” the prime minister added.
The law
The law governing hostilities is known as the law of armed conflict. It is also referred to as international humanitarian law. Some of it is customary law — observed by states over the centuries for the benefit of both sides in an armed conflict — and much of it is to be found in international agreements, such as the Geneva Conventions.
7 October
According to the latest available figures from the Israeli government, the Hamas attack on 7 October 2023 involved:
the slaughter of over 1,400 Israelis and foreign citizens
wounding more than 5,500 people
widespread acts of torture and maiming, burning alive, beheading, rape and sexual violence and mutilation of corpses to the extent that more than 40 Israelis are still unaccounted for
the abduction of at least 247 hostages
the indiscriminate firing of rockets and other projectiles
the use of Palestinian civilians as human shields
Hammas attackers disguising themselves as Israeli soldiers or civilians
looting and destroying civilian property
killing animals
There can be no doubt that these attacks, taken together, amount to grave violations of international law. They include war crimes and crimes against humanity. If it can be shown that they were carried out with “an intent to destroy in whole or in part, a national, ethnical, racial or religious group”, they would also amount to genocide.
It may prove difficult to bring those responsible to justice. But there can be no suggestion that the attacks on 7 October are in any way justified by international law.
Self-defence
Rocket attacks on Israel have continued since 7 October and more than 240 hostages are still missing. A state is entitled — indeed, obliged — to defend itself against an external enemy. Self-defence is not “retaliation”.
Israel’s declared military objective is to secure the release of the hostages and neutralise the threat it faces from Hamas and Islamic Jihad. Until those objectives are met, any cease-fire would be a dereliction of Israel’s duty to defend its citizens.
The right to self-defence does not allow Israel to act in the way its enemies did on 7 October. Both sides must comply with the law of armed conflict.
That can be expressed in a number of core principles. They include:
distinction
proportionality
mitigating civilian harm
humanitarian assistance
Distinction
A state must distinguish between military and civilian targets. It can lawfully target members of organised armed groups, civilians directly taking part in hostilities and structures that qualify as military objectives.
Genuine civilian objects — hospitals and places of worship, for example — must not be attacked. However, these buildings become legitimate military targets when they make an effective contribution to military action
It is well known, for example, that Hamas conceals its most valuable military assets underneath the Al-Shifa hospital, the largest hospital in Gaza. It follows that attacks on such targets may be lawful.
Proportionality
An attack will be unlawful if the expected incidental loss of civilian life, injury to civilians or damage to civilian objects is excessive compared to the concrete and direct military advantage that the attack is expected to achieve.
The assessment of proportionality is based on the military commander’s judgement at the time — not on hindsight. Civilian casualties that were impossible to foresee will not render the operation disproportionate; nor will an unexpected failure to achieve the intended military advantage.
Israel has specified the military advantages it seeks to achieve. They include:
destroying enemy military assets
targeting militants
degrading and denying enemy ability to command and control operations
neutralising underground tunnels used for military purposes
denying positions — such as sniper, anti-tank and surveillance posts — that endanger its ground forces
Mitigating civilian harm
Parties to a conflict must take such precautions as are feasible in operational circumstances to minimise the incidental loss of civilian life, injury to civilians and damage to civilian property.
When giving advance notice would allow a targeted militant to escape — or when there is not enough time to give one — a warning is not legally required.
Humanitarian assistance
Parties to an armed conflict must permit consignments of supplies that are essential for the survival of the civilian population. But this requirement does not apply if there are serious reasons for fearing that the consignments will be diverted from their civilian destination or provide other definite advantages to the enemy’s military efforts.
Compliance with the law
During the fighting, it is difficult for outsiders to assess whether a specific incident breaks the law of armed conflict. The BBC wrongly attributed an explosion at a hospital to Israel. But other attacks on apparently benign targets may be lawful for the reasons I have explained.
And it is not unknown for soldiers to disobey orders. A public inquiry in London is currently investigating whether, more than a decade ago, UK special forces “carried out a policy of executing Afghan males of fighting age in circumstances where they posed no immediate threat or were hors de combat”.
Israel’s Military Advocate General Corps provides legal advice to the Israel Defence Forces on operational matters, including targeting, weaponry and detainees. Its legal advisers do not form part of the chain of command when giving legal advice, reporting instead to the military advocate general.
The country’s attorney general, who heads the public prosecution system and is the chief legal advisor to the government of Israel, provides civilian supervision of the military justice system. Decisions by the military advocate general and the attorney general may be overturned by the Israeli Supreme Court.
No legal structures of this kind are believed to exist within Hamas.
Comments have been disabled for this article