Image Credits: Reuters

Key Takeaways 

  • Both Israel and Hamas have flagrantly violated International Humanitarian Law (IHL) in the Israel-Palestine conflict, with actions such as deliberate attacks on civilians, hostage-taking, and indiscriminate firing of rockets, potentially constituting war crimes and crimes against humanity.
  • The United Nations Security Council’s structural weaknesses, particularly the veto power of certain member states, hinder meaningful action and accountability in addressing IHL violations in the Israel-Palestine conflict.
  • Urgent reforms within the UNSC are essential to mitigate veto-wielding powers’ influence, enhance IHL enforcement mechanisms, and facilitate accountability through avenues such as referrals to the International Criminal Court, reinforcing the Responsibility to Protect principle and striving for a just and lasting peace in the region.

Almost six months into the most protracted and entrenched humanitarian crisis happening in Israel and Palestine, recent news reports indicate that around 33,000 Palestinians have been killed by Israeli forces, along with 1410 Israelis killed by Hamas. Witnessing the blood shedding conflicts between Israel and Hamas take the lives of innocent human beings is heartbreaking. UN Secretary-General António Guterres declared “clear violations of International Humanitarian Law” in Gaza two weeks after the horrific attack by the Hamas militant group. As the death toll continues to rise and atrocities mount, it becomes imperative to analyse the breach of IHL by the warring parties and reassess the effectiveness of international mechanisms in addressing such flagrant violations of International Humanitarian Law.

The rules governing the conduct of ongoing hostilities and military assaults between Israel and Hamas are based on International Humanitarian Law. The conflict involves breaches of both ‘jus ad bellum’ (law towards war) and ‘jus in bello’ (law in war). This clearly shows that both parties have transgressed fundamental IHL principles—Humanity, Distinction, Proportionality, and Military Necessity. 

Hamas attacked Israeli civilians on October 7 and 8, resulting in a significant loss of life and injuries. These deliberate acts of violence, which also included taking hostages, clearly violate principles of international humanitarian law, particularly Common Article 3 of the Geneva Conventions, which explicitly prohibits hostage-taking in non-international armed conflicts. The armed groups’ indiscriminate firing of rockets into civilian areas further exacerbates the situation, posing grave risks to innocent lives and civilian infrastructure. Such actions not only contravene the fundamental tenets of IHL, which mandate the protection of civilians and the distinction between combatants and non-combatants, but also constitute potential war crimes under the Rome Statute of the International Criminal Court. The intentional targeting of Israeli civilians, the wanton destruction of civilian objects, and the use of human shields underscore the gravity of these violations, potentially amounting to crimes against humanity.

Looking at Israel, it is obvious that there has been a total violation of IHL. Basic norms of international humanitarian law have not been adhered to by Israel in its occupation of Gaza and the West Bank. Occupying a territory during a conflict is intended to be temporary under IHL. The occupying force must manage the territory while attempting to preserve the pre-occupation situation in order to serve the interests of the occupied population. However, given the 50 years of Israel’s occupation as well as the illegal official annexation of occupied East Jerusalem and the de facto annexation of large areas of the West Bank, Israel intends for a permanent occupation. According to Roman Statute Article 7(1), Israel is also guilty of crimes against humanity because it uses forced disappearances, imprisonment, apartheid, and persecution as part of its extensive and systematic attacks against the civilian population. Israel’s denial of Gaza humanitarian aid and essential supplies violates the Roman Statute. They intentionally starve civilians, depriving them of vital survival objects and obstructing relief supplies as  per the Geneva Conventions. This blockade and siege on Gaza amount to collective punishment, breaching military necessity. According to a recent WHO report, Israeli forces have murdered an average of 100 Palestinian children every day since the conflict started. The daily death toll and injury toll of  journalists, medical personnel, and civilians fleeing are rising, and a great number of civilian objects are being destroyed, which blatantly violates the cardinal principle of distinction and proportionality according to Article 51(5)(b) of Additional Protocol I. In addition, the use of prohibited weapons such as white phosphorus, dumb bombs and recurrent airstrikes is another serious allegation against the Israeli force that questions the violation of International Humanitarian Law.

Though both parties are seriously violating IHL, the UN’s inability to address it stems from structural weaknesses in its governing bodies, notably the Security Council. Veto power wielded by single member states, notably the United States in favour of Israel, obstructs meaningful action for ceasefires and accountability. Despite broad support from the General Assembly and international outcry, resolutions are often thwarted. This power dynamic impedes IHL enforcement and shields parties from accountability, including the prevention of referrals to the International Criminal Court.

After more than five months of fighting and five vetoed draft resolutions, in March 2024, the UNSC members successfully passed a resolution calling for an immediate ceasefire, potentially marking a turning point to halt the deadly war between Israel and Hamas in Gaza. However, Israel continues its attacks on the Palestinian population, ignoring the resolution passed by the UNSC. Israel’s compliance with this resolution, allowing urgent humanitarian assistance to Gaza, and engaging in peace talks mediated by international actors with Hamas could provide a temporary solution to the ongoing conflict. There is also an urgent need to have a permanent ceasefire as conflict becomes ferocious. Additionally, to effectively address the ongoing violations of IHL in the Israel-Palestine conflict, comprehensive reforms within the UNSC are imperative. These reforms should aim to mitigate the influence of veto-wielding powers, enhance the enforcement mechanisms of IHL, and facilitate avenues for accountability, including referrals to the ICC. The international community must reaffirm its commitment to the Responsibility to Protect principle, emphasising the obligation to prevent and protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. States should refrain from exacerbating human rights violations or international crimes by providing military or financial support to conflicting parties. Diplomatic efforts should prioritise de-escalation and peaceful resolutions. 

The Israel-Palestine conflict serves as a sobering reminder of the urgent need for international action to uphold the principles of International Humanitarian Law and protect civilian populations from the horrors of war. Only through concerted efforts and meaningful reforms within the UNSC can the cycle of violence and suffering be brought to an end, paving the way for a just and lasting peace in the region.

This article is authored by Fathima Mehak Adham, research intern, Centre for Public Policy Research

Views expressed by the author are personal and need not reflect or represent the views of the Centre for Public Policy Research.

Fathima Mehak Adham

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