Since the Geneva Conventions were adopted following World War II, international laws have governed armed conflicts in an effort to limit the devastation of war on humanity. This is true in Gaza, where international laws apply to Israel, the State of Palestine, and the non-state actor Hamas in the ongoing war in Gaza.
The legal frameworks governing the conflict are complex. To help clarify some of the legal issues, we asked Duke Law Professor Mara R. Revkin, an expert in armed conflict, peace-building, and transitional justice, to answer our questions about the basics of the international laws and agreements that are applicable in the Israel-Hamas conflict. Her answers reveal the challenges in applying legal frameworks that were designed in and for 20th-century warfare to modern-day conflicts and the limitations of international law especially when it comes to enforcement.
Judicature International: What are the key international laws governing armed conflict that apply to the current situation between Israel and Hamas?
Prof. Mara R. Revkin: The current war in Gaza is only the latest iteration of a multi-generational conflict that cannot be adequately summarized in this short conversation, but I will start with just the most recent context. Israel launched the current military operation in Gaza, the fifth major armed conflict in Gaza since 2008 now entering its second year, in response to Hamas’ attack on Israel on October 7, 2023, in which more than 1,200 people were killed and more than 250 taken hostage. Since then, many thousands of Palestinian civilians have been killed amid growing concerns about both parties’ compliance with international law.
The primary legal framework governing the conduct of armed forces in the conflict between Israel and Hamas is International Humanitarian Law (IHL), sometimes described as the Law of Armed Conflict (LOAC), which seeks to regulate and limit the harmful consequences of war. IHL is based on treaties, particularly the Geneva Conventions, as well as customary law.
The four Geneva Conventions of 1949 are a set of rules intended to protect civilians and others not participating in hostilities including medical personnel, humanitarian personnel, and prisoners of war. The Additional Protocols to the Geneva Conventions, adopted in 1977, expanded protections for civilians with the principles of distinction and proportionality. Additional Protocol I applies to international armed conflicts (IACs) between two or more states while Additional Protocol II applies to non-international conflicts (NIACs) between a state and one or more non-state actors.
The Geneva Conventions were designed for inter-state wars and some provisions may not fully bind non-state actors such as Hamas.
The International Criminal Court and most scholars consider the Israel-Hamas conflict to be both a non-international armed conflict between Israel and Hamas and an international armed conflict between Israel and the State of Palestine such that both Additional Protocols apply, although this view is not universally accepted. The Geneva Conventions were designed for inter-state wars and some provisions may not fully bind non-state actors such as Hamas. However, customary international humanitarian law — which is based on patterns of consistent state practices over time that give rise of a sense of legal obligation (opinio juris), of which 161 rules have been codified by the International Committee of the Red Cross (ICRC) — does apply equally to states and non-state actors.
Judicature International: How does international humanitarian law define the principles of distinction and proportionality in the context of the Israel-Hamas conflict?
Revkin: The IHL principles of distinction and proportionality provide important protections for civilians as well as humanitarian and medical personnel and prisoners of war. Distinction requires that attacks be directed only at military objectives and not at civilians or civilian objects such as schools and hospitals. Proportionality prohibits attacks that would cause excessive civilian damage in relation to the anticipated military advantage. Although both principles apply to the Israel-Hamas conflict, they are more difficult to apply in asymmetric urban warfare than in the conventional battles between regular armed forces during World Wars I and II, which tended to be fought outside of cities, that the drafters of the Geneva Conventions had in mind. Urban warfare in large cities like Gaza presents particular challenges for distinction because armed forces are operating among civilians, and in some cases intentionally use civilians as human shields or dress in civilian clothing to deceive enemy combatants — violations of IHL that both Hamas and Israel have been accused of to varying degrees.
In addition to the difficulty of distinguishing between civilians and combatants, it is often difficult to distinguish between civilian and military objects because of the nature of dense urban infrastructure and high-rise buildings, which often put residential housing units in close proximity to commercial, industrial, government, or military facilities. Israel has justified attacks on hospitals and schools by claiming that parts of these buildings have been used by Hamas for military purposes and are therefore “dual-use,” but I argue in a forthcoming article coauthored with Professors Oona Hathaway (Yale Law School) and Azmat Khan (Columbia Journalism School) that the rise of the concept of dual-use objects has put civilians at greater risk.
Proportionality is often contested because it requires an inherently subjective balancing test between military decision-makers’ predictions of anticipated future military advantages to be gained from an attack and their judgments about what number of civilian casualties and level of destruction to civilian objects would be “excessive” in comparison. In this case, Israel’s stated military objectives are to free the remaining hostages and defeat Hamas, but as the war in Gaza has continued for more than a year with many thousands of Palestinian civilian casualties, the destruction of critical civilian infrastructure including hospitals and schools, and an escalating humanitarian crisis, international observers have increasingly questioned whether these two objectives are mutually incompatible and even if either can be achieved, whether the enormous cost to civilians can be justified under any standard of proportionality.
Another concern is that the principle of proportionality was developed with conventional inter-state ground wars in mind and may not be well-suited to account for new forms and frequencies of harm that have been enabled by major technological changes in warfare since the Geneva Conventions, particularly the rise of air wars fought with missiles and drones that can launch multiple attacks simultaneously at targets that are hundreds or even thousands of miles away. Each of these individual attacks might satisfy the traditional proportionality test, but over time, hundreds of attacks on the same city may have additive long-term effects beyond immediate civilian casualties and property damage including harm to educational and healthcare systems, economic development, cultural heritage, and the environment. In an ongoing research project with coauthors at Essex, Oxford, and Georgetown, we are exploring potential legal and policy reforms to better regulate these “cumulative civilian harms” that are not captured by traditional proportionality assessments.
An overarching challenge is that IHL lacks an enforcement mechanism, and compliance depends largely on the extent to which individual militaries have internalized the rules through training and disciplinary procedures, and their sensitivity to criticism or public shaming by the international community including allies.
An overarching challenge is that IHL lacks an enforcement mechanism, and compliance depends largely on the extent to which individual militaries have internalized the rules through training and disciplinary procedures, and their sensitivity to criticism or public shaming by the international community including allies. For example, the Biden administration has publicly called on Israel to exercise more restraint and threatened to withhold military aid and weapons shipments, but the effects of this pressure have been limited and temporary.
Judicature International: What responsibilities do state and non-state actors have under international law to protect civilians during the conflict between Israel and Hamas?
Revkin: The different IHL frameworks mentioned above bind state and non-state actors to varying extents. Israel, as the state party to the conflict with Hamas, a non-state actor, is bound by the Geneva Conventions and customary IHL to ensure the protection of civilians. This includes compliance with the principles of distinction and proportionality, providing warnings to civilians of impending attacks when feasible, humane treatment of prisoners of war, and allowing access for humanitarian personnel and aid.
Hamas, despite being a non-state actor, is bound by customary IHL to the same extent as Israel and is also bound by key provisions of the Geneva Conventions despite not having the ability to ratify treaties, particularly Common Article 3 and Additional Protocol II. These provisions impose fundamental humanitarian obligations on Hamas to protect civilians by complying with the principles of distinction and proportionality and also expressly prohibit the taking of civilian hostages and use of civilians as human shields. It is important to keep in mind that these obligations are absolute and non-reciprocal, meaning that IHL violations by one party do not relieve the opposing party’s obligation to comply, and cannot be used to justify similar violations in response.
Judicature International: How does international law address the issue of humanitarian access and the delivery of aid in conflict zones like Gaza?
Revkin: The two major international legal frameworks governing humanitarian access and delivery of aid to Gaza are the Geneva Conventions with their Additional Protocols and Customary IHL. The Geneva Conventions require parties to a conflict to allow and facilitate the rapid and unimpeded passage of humanitarian aid to civilians in need. Customary IHL further reinforces the obligation to ensure that humanitarian relief can reach affected civilian populations. Blocking or severely restricting humanitarian aid, as the UN and other humanitarian actors claim Israel has done in Gaza, is considered a violation of these requirements and may constitute a war crime.
Judicature International: What legal frameworks govern the use of military force and the right of self-defense in the context of the ongoing conflict between Israel and Hamas?
Revkin: The use of military force and the right of self-defense in the Israel-Hamas conflict are governed by several legal frameworks. The most important of these are the UN Charter and the law of occupation, which is based on the Fourth Geneva Convention. As noted above, core IHL principles including distinction and proportionality also apply to both Israel and Hamas under customary IHL.
Article 51 of the UN Charter recognizes the inherent right of individual or collective self-defense if an armed attack occurs against a member state. This provision allows Israel to defend itself against attacks from Hamas. However, the right to self-defense is limited by the principles of necessity and proportionality. Any defensive measures must be necessary to repel the attack and must not be excessive in relation to the threat posed. These principles are meant to ensure that self-defense actions are not used as a pretext for disproportionate or unwarranted military force
The law of occupation, based on the Fourth Geneva Convention, is also relevant. Israel is recognized as an occupying force in the West Bank and many scholars believe that Israel is also effectively occupying Gaza despite its formal withdrawal after Hamas won elections in 2005, citing Israel’s effective control over Gaza’s borders, airspace, and coastal waters, as well as its periodic military incursions including the ongoing invasions of Gaza and Rafah.
Assuming that Israel’s control of Gaza can be considered an occupation, then Israel is obligated under the Fourth Geneva Convention to ensure the safety and welfare of the civilian population in Gaza. This includes providing essential services, maintaining public order, and ensuring humanitarian relief access. It also limits Israel’s use of force to law enforcement and generally does not permit military operations. Any use of military force must be justified by immediate security needs and must be proportionate to the threat. Occupation law also prohibits the deliberate targeting of civilian infrastructure, collective punishment, and other measures that harm the civilian population are prohibited under occupation law.
Any use of military force must be justified by immediate security needs and must be proportionate to the threat. Occupation law also prohibits the deliberate targeting of civilian infrastructure, collective punishment, and other measures that harm the civilian population are prohibited under occupation law.
Judicature International: How does international law view the blockade of Gaza and its impact on the civilian population?
Revkin: Blockades are a type of military operation in which naval and sometimes air forces are used by one party to completely prevent movement by water from or to a port or coast controlled by an opposing party. Israel has severely restricted movement of people and goods in and out of Gaza since the early 1990s and imposed a complete blockade in 2007 after Hamas won elections and assumed control of Gaza. Although blockades can be lawful under IHL under a narrow set of conditions including prior notification and allowing time for neutral ships to pass through safely, it is never permissible to impose blockades that lead to the starvation of civilians. The blockade of Gaza has severely restricted access to essential goods and services, contributing to the humanitarian crisis, and the UN has warned that famine is “imminent.” In an ongoing investigation, the ICC’s charges against Israeli officials include the use of starvation as a method of warfare, which is defined as a war crime under the Rome Statute of the ICC.
Judicature International: How are war crimes defined under international law, and what mechanisms exist for addressing alleged war crimes in the Israel-Hamas conflict?
Revkin: Whereas IHL seeks to limit the effects of war on civilians and civilian objects and prevent harm before it happens, international criminal law deals with accountability in the aftermath of major international crimes that may be committed during armed conflicts including genocide, war crimes, crimes against humanity, and aggression.
Judicature International: What role does the International Criminal Court (ICC) play in investigating and prosecuting alleged violations of international law in the context of the Israel-Hamas conflict?
Revkin: The ICC is playing an important role in investigating alleged violations of international law in the Israel-Hamas conflict, but its efforts are constrained by several limitations including lack of enforcement mechanisms, jurisdictional challenges, and non-cooperation from key states including Israel and the United States — neither is a member of the ICC and both have attacked its credibility. President Biden and Secretary of State Blinken have both denounced the charges against Israeli officials for suggesting what they view as a “false equivalence” between Israel and Hamas.
The ICC has jurisdiction over crimes committed in the territories of states parties to the Rome Statute including the State of Palestine, which has been recognized as a non-member observer state at the UN since 2012 and is governed by the Palestinian National Authority based in the West Bank. However, the ICC’s jurisdiction over the part of Palestine controlled by Hamas — the Gaza Strip — is contested. The ICC has initiated investigations into alleged war crimes by both Hamas and Israeli officials and in May 2024 requested arrest warrants for three Hamas officials, who have since been killed by Israel, and two Israeli officials, Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. These requests are currently still pending with the ICC’s Pre-Trial Chamber, which must determine whether there are “reasonable grounds to believe” that the person has committed crimes within the ICC’s jurisdiction and that arrest “appears necessary” to meet certain criteria including to prevent the person from continuing to commit crimes.
Even if the ICC’s Pre-Trial Chamber decides to issue warrants, the ICC does not have its own police force or other enforcement mechanism to execute arrest warrants and relies on the cooperation of member states to arrest and surrender individuals or their voluntary surrender — the latter has occasionally happened but is extremely unlikely in this case.
In conclusion, although the Israel-Hamas war is governed by numerous international legal frameworks intended to mitigate the impact of war on civilians and ensure accountability for violations, both parties have been accused of significant breaches, highlighting the limitations of international law and particularly its lack of enforcement mechanisms.
In conclusion, although the Israel-Hamas war is governed by numerous international legal frameworks intended to mitigate the impact of war on civilians and ensure accountability for violations, both parties have been accused of significant breaches, highlighting the limitations of international law and particularly its lack of enforcement mechanisms.
The United States, as a major ally and provider of military assistance to Israel, does have domestic legal obligations under the Leahy Laws to withhold such aid from foreign security forces that violate human rights and block the movement of humanitarian assistance. The Biden administration has faced growing criticism and scrutiny for continuing to provide weapons to Israel despite evidence that its forces have committed major human rights violations. Several government oversight bodies including the State Department’s Office of the Inspector General are currently investigating whether the Biden administration’s arms transfers to Israel have violated U.S. laws.
