Civilians should never be targeted in any armed conflict, of whatever nature and whatever its root causes. This is the most basic rule that exists in international humanitarian law or the law that should govern hostilities in any armed conflict.

This rule is derived from treaties, such as the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Times of War.

This convention has been ratified by both Israel and Palestine. Moreover, it also binds states or entities which are not parties given that it is a well-established rule that has the status of a rule of customary international law that binds all states, irrespective of whether they ratified this treaty.

This fundamental rule applies to both international armed conflict (that is, armed conflicts between states) as well as civil wars (or non-international armed conflict). In summary, there is no getting away from this rule. States, entities, or individuals that violate this rule are breaching an important rule of international law. Full stop.

While these states, entities or individuals may evade punishment, they are (and should be considered as) international lawbreakers, nonetheless. Is it a defence to argue that the other party to the conflict have attacked or targeted civilians? The answer is a straightforward no.

International humanitarian law (unlike, say, diplomatic law) is not based on a framework of reciprocity or tit-for-tat. It is based on the need to protect human dignity, which should not be up for discussion, argument, or compromise. Again, this is clearly stated in the law. In the very first provision of the Geneva Convention, the parties “undertake to respect and to ensure respect for the present convention in all circumstances”. No ifs, no buts.

This fundamental rule for protection of human dignity has been and is being blatantly violated by the parties to the armed conflict that has erupted in Israel and Gaza. Israel and Palestine are both parties to the Convention, Israel having ratified it in 1951 while Palestine ratified the same convention in 2014.

Both Hamas, as a de facto authority in Gaza, and the Israeli government have failed to abide by the rule that establishes the protection of civilians. In 2021, the UN established an Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel. On October 10, this commission declared that it is collecting evidence of war crimes committed by all sides to the conflict:

Reports that armed groups from Gaza have gunned down hundreds of unarmed civilians are abhorrent and cannot be tolerated. Taking civilian hostages and using civilians as human shields are war crimes.

The commission is gravely concerned with Israel’s latest attack on Gaza and Israel’s announcement of a complete siege on Gaza involving the withholding of water, food, electricity and fuel that will, undoubtfully, cost civilian lives and constitutes collective punishment.

Since October 10, the situation has escalated and the evidence of war crimes have mounted. The chief prosecutor of the International Criminal Court has stated that his office is investigating war crimes committed in and from Gaza. He has clearly articulated the fact that Hamas’s attacks on October 7 are being investigated as war crimes and that Israel’s impeding of humanitarian aid reaching Gaza is also being investigated as a war crime.

It is also essential to recall that these serious violations of international humanitarian law, as the commission states are war crimes, are recognised as such under international criminal law. It seems clear that, in terms of international criminal law, the leaders of Hamas and of Israel have both committed war crimes.

It seems clear that the leaders of Hamas and of Israel have both committed war crimes- Omar Grech

The right to self-defence, which Israel is exercising, is indeed allowed under the rules of international law that regulates the use of force. It is a right recognised by the Charter of the United Nations in article 51. No one should deny this right, in the same way that no one should deny the inalienable right to self-determination of the Palestinian people. Sadly, this right has been denied for over 60 years.

However, the exercise of these rights is not unlimited. Like all rights, this right is confined by other rules of law, which impose responsibilities. The exercise of the right to self-defence does not permit the Israeli leadership to violate the rules of international humanitarian law, which bind Israel (and its leaders).

Israel accepted these duties when it ratified the Geneva Conventions in 1951. Israel is also bound by rules of customary international law that exist in respect of humanitarian law. Killing thousands of Palestinian civilians in Gaza, destroying hundreds of homes and blocking access to water and power are criminal acts.

These same rules also bind the leadership of Hamas as a de facto authority within the Gaza Strip. The targeting of Israeli civilians by Hamas on October 7 is a flagrant breach of international humanitarian law and also of international criminal law.

Killing, kidnapping and mutilating Israeli civilians is abhorrent to law and morality. Targeting civilians is never excusable in international law. It is a crime under international law.

Neither Israel’s right to self-defence nor the inalienable right to self-determination belonging to the Palestinian people may ever justify, at law, the commission of war crimes. Israel claims to be a liberal democracy that observes the rule of law. It promotes itself as the only such State in the Middle East. Blatantly violating the fundamental rules of international humanitarian law and international criminal law shows otherwise.

Omar Grech

Hamas is an organisation that has harmed the Palestinian cause and its actions on October 7 were despicable. Attacking defenceless civilians is one of the most acute violations of international law. We cannot pick and choose when to apply international law. Its violations must be condemned whether committed by friend or foe.  

Omar Grech is a senior lecturer within the Department of International Law, University of Malta.