Status: 06.12.2023, 15:40 PM
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An Israeli military helicopter flies near the border between Israel and Gaza, the Gaza Strip. The Israeli army continues its attacks on the coastal strip. © Ariel Schalit/AP/dpa
The conditions in the Gaza Strip have become unbearable for many people. But Israel is not letting up in the fight against the Islamist Hamas. What is the legal situation?
Vienna - At first glance, the answer seems simple to many. The suffering of civilians in the Gaza Strip is so great that Israel's bombardment is blatantly violating international humanitarian law.
The United Nations (UN) also sees many signs that such an accusation is justified. At the same time, it is undisputed under international law that Israel has a right to self-defense after the bloody terrorist attack organized by the Islamist Hamas on October 7. Whether the requirements of international law are complied with depends on information that is currently difficult to obtain independently.
Is the bombing of the Gaza Strip with thousands of civilian casualties a violation of international humanitarian law?
The answer requires a precise analysis. Currently, the assessment of the situation is mainly based on information from the warring parties. In principle, international humanitarian law protects civilians and civilian objects. When it comes to military action, military personnel must, among other things, pay strict attention to the proportionality of the means. There is no formula for when the proportionality between civilian casualties and the military objective achieved is violated. The attempt to eliminate the Hamas leadership may justify more civilian casualties than an attack on ordinary soldiers.
Palestinians fleeing the Israeli ground offensive arrive in Rafah in the Gaza Strip. The suffering of civilians in the war is great. © Hatem Ali/AP/dpa
What is the assessment of the fact that, according to its own statements, Israel is trying to limit the number of civilian casualties through escape corridors and warnings?
Under international law, there is an obligation to warn civilians that a military strike is imminent. This can be done through text messages or flyers or other means. If civilians do not heed the warning and the request to leave the area, this does not change their status. They always remain civilians. The effectiveness of warnings and offers of escape, and the question of whether they meet the requirements of international humanitarian law, is currently the subject of controversy and discussion among international law experts. A comprehensive assessment requires a precise analysis of the specific circumstances and course of military operations.
How should the use of human shields be assessed?
The use of human shields is widely regarded as a serious violation of international humanitarian law. The use of civilians to protect military targets is a war crime. Condemnation of the use of human shields is widespread internationally.
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Is there absolute protection for hospitals or can civilian casualties be accepted if military opponents entrench themselves there?
The principle of absolute protection of medical facilities means that they must not be attacked - unless they are misused for hostile acts. A hospital from which fighters shoot or fire missiles can become a military target. If the opponent entrenches himself in or under the building, it must not be attacked, says Yvonne Karimi-Schmidt, an international law expert from Graz. The protection of civilians and civilian facilities is a priority, and parties to the conflict are expected to do everything possible to protect medical facilities and their personnel.
What is the current Israeli view?
Former Attorney General Avichai Mandelblit points out that the question of the proportionality of attacks looks at each attack individually, not the total number of civilians killed. He speaks of an "asymmetric war" with Hamas. As a democratic state, Israel is committed to the rules of war, while Hamas violates them, for example by using civilians as human shields or firing rockets at Israeli population centers. Decisions on Israeli attacks are always made by legal experts who can make statements about proportionality. The final decision, however, is made by a commander.
Israeli airstrikes on the Gaza Strip also repeatedly kill civilians. © Abed Rahim Khatib/dpa
What about the delivery of relief supplies?
Whether as an occupying power or as a party to the war, Israel must in any case allow the delivery of humanitarian aid such as food, water and medicine. However, such measures do not replace the basic protection and observance of human rights. Israel's approval of the delivery of aid is a positive step towards meeting the humanitarian needs of the population in the Gaza Strip, Karimi-Schmidt said.
What legal or political dangers does Israel see?
Mandelblit emphasizes that killing civilians is not in Israel's interest, on the contrary, it plays into the hands of Hamas. Hamas therefore prefers a war in densely populated residential areas to a conflict in an open area. "If you kill civilians, attack hospitals and mosques that enjoy special protection, you have to prove that they were military targets, if not, you lose the war, you lose in the media and on the legal front," he says. If the legitimacy of military action is questioned, "the world will stop you." Dpa