Legal Brief on the 2023 Hostilities in Israel and Gaza5 December 2023
Legal Brief on the 2023 Hostilities in Israel and GazaLegal Brief on the 2023 Hostilities in Israel and Gaza
This legal brief examines the actions of the parties to the hostilities that broke out in Israel and Gaza on 7 October 2023 with an attack mounted by Hamas forces and a counteroffensive launched by Israel in the period lasting until 8 November 2023.
Drawing on a factual account of events derived from a range of publicly available sources of information, which the authors have endeavoured to verify primarily by cross-referencing from a large and diverse set of credible sources, the brief assesses the opposing belligerents’ actions on the basis of fundamental provisions of IHL that all parties to any armed conflict must respect.
The brief’s main findings include the following:
There is clear evidence – emanating from witness testimonies, photographs, audio recordings, video footage, often recorded by the perpetrators themselves, forensic analysis, and the accounts of first responders – that the attacks by Hamas forces starting on 7 October 2023 entailed serious violations of the most fundamental norms of IHL, which amount to war crimes. Hamas forces have fired thousands of indiscriminate rockets towards Israeli population centres. Members of these forces infiltrated southern Israeli towns and cities, where they directly targeted and killed hundreds of civilians and soldiers hors de combat, and injured thousands more. These acts were in clear violation, respectively, of the prohibitions against indiscriminate attacks, direct attacks against civilians and civilian objects, and acts of violence whose primary purpose is to spread terror among the civilian population; the killings perpetrated constituted the war crime of murder or wilful killing. Evidence further compellingly indicates that Hamas forces committed acts of torture, cruel, inhuman, or degrading treatment, mutilation, rape, and mistreatment of the dead. They also abducted more than 200 Israeli and foreign nationals to Gaza as hostages; indiscriminately attacked and destroyed civilian objects; and carried out acts of pillage. Finally, Hamas forces failed to comply with their obligation to take precautions against the effects of attacks, and there are indications that they violated the prohibition on the use of human shields.
In response, Israel has been carrying out large-scale aerial and ground attacks on Gaza since 7 October, which have killed thousands, injured many more, destroyed entire neighbourhoods, and displaced around 1.5 million Gaza residents. There are serious grounds for concern that in the course of these attacks, the Israeli military has acted in disregard of the IHL rules on the conduct of hostilities. This emanates from public statements by political and military officials of various ranks that imply permission to use unconstrained force, as well as the high number of casualties and extensive damage inflicted on large swathes of Gaza’s civilian infrastructure: in the span of just a few weeks, more than 10,000 people have been killed, many thousands more injured, and over 1 million displaced; entire residential blocs, places of worship, hospitals, and schools, including those serving as shelters, have been laid to waste. Specifically, there are serious concerns that the Israeli military has carried out indiscriminate attacks and failed to distinguish between civilians and civilian objects on the one hand, and military objectives on the other. There are also serious grounds for concern that Israeli forces have carried out attacks that foreseeably caused excessive civilian casualties and damage to civilian objects, in breach of the principle of proportionality. Finally, the Israeli military has failed to comply with the duty to take precautions in attack, including by means of giving several purported ‘warnings’ to the residents of north Gaza to relocate south that would expose civilians to significant additional harm.
In addition to heavy bombardment and ground incursions, Israel also imposed what it called a ‘complete siege’ on Gaza and cut off the entry of food, water, electricity, and fuel, plunging the more than 2 million residents of the Strip, long mired in a state of poverty and deprivation since Israel’s imposition of a closure in 2007, further into humanitarian catastrophe. The disastrous impact of this measure, taken together with statements by Israeli officials which suggest that the entire population of Gaza is being held responsible for the 7 October attacks by Hamas forces, strongly support the conclusion that Israel has imposed a collective punishment, which is absolutely prohibited under international law and constitutes a war crime. Furthermore, there are grounds for concern that Israel has been using starvation as a method of warfare and rendered useless objects indispensable for the survival of the civilian population, both courses of conduct that IHL interdicts; the intentional starvation of civilians is a war crime under the Rome Statute of the International Criminal Court (ICC). Finally, Israel has failed to comply with its obligation to allow for the safe passage of humanitarian relief to all civilians in need.
The brief concludes with recommendations for the parties to the armed conflict, i.e., Israel and Hamas forces; third States; the ICC Prosecutor; and other monitoring and accountability bodies, including the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel.
Cover Photo: Mohammed Zaanoun/ActiveStills Photo Collective (Gaza City), 11 October 2023. Photo in centre: Yahel Gazit/ActiveStills Photo Collective (Tel Aviv), 14 October 2023. ALL RIGHTS RESERVED.