War crimes are among the gravest offenses under international law, representing serious violations of the laws and customs applicable in armed conflict. These laws, primarily codified in the Geneva Conventions and their Additional Protocols, and further elaborated in the Rome Statute of the International Criminal Court (ICC), aim to minimize human suffering during wartime by protecting civilians, combatants no longer participating in hostilities, and essential civilian infrastructure. Understanding what constitutes a war crime is crucial for upholding accountability and preventing atrocities in armed conflicts.
At their core, war crimes involve acts committed against protected persons or objects, or through the use of prohibited methods and means of warfare. Key elements that typically constitute a war crime include:
- Wilful Killing and Serious Harm: Intentionally causing death, torture, or inhuman treatment, including biological experiments, to protected persons such as civilians, prisoners of war, or wounded and sick combatants.
- Attacks on Civilians and Civilian Objects: Deliberately targeting the civilian population, individual civilians not directly participating in hostilities, or civilian objects like homes, schools, hospitals, cultural sites, and places of worship, unless they are being used for military purposes. Even then, attacks must be proportionate to the military advantage gained and precautions taken to minimize civilian harm.
- Indiscriminate Attacks: Launching attacks that are not directed at a specific military objective or that employ methods or means of combat which cannot be directed at a specific military objective, leading to widespread civilian casualties or damage.
- Cruel or Inhuman Treatment: Acts such as mutilation, rape, sexual slavery, forced pregnancy, or any other form of sexual violence, as well as pillaging and the taking of hostages.
- Prohibited Weapons: The use of weapons that are inherently indiscriminate or cause superfluous injury and unnecessary suffering, such as chemical weapons, biological weapons, anti-personnel landmines, and blinding laser weapons.
- Denial of Humanitarian Aid: Intentionally impeding relief supplies for civilians in need, or using starvation of civilians as a method of warfare.
- Conscription of Children: Enlisting or conscripting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities.
Allegations of war crimes are frequently made in various conflicts around the world, and the ongoing conflict in Gaza has brought a significant number of such claims against Israel. International human rights organizations, United Nations bodies, and legal institutions have documented numerous incidents and issued reports alleging that actions taken by Israeli forces constitute war crimes.
Specific allegations against Israel in Gaza often revolve around:
- Disproportionate and Indiscriminate Attacks: Human rights groups like Amnesty International and Human Rights Watch have accused Israel of using powerful weapons in densely populated areas, resulting in high civilian casualties, including women and children, raising questions about proportionality and distinction, which are fundamental principles of international humanitarian law. Reports detail attacks on residential areas, refugee camps, schools, and hospitals where, according to the accusers, there was no clear military objective or where the civilian harm was excessive in relation to any military advantage.
- Collective Punishment and Starvation: There have been allegations of collective punishment of the Palestinian population, particularly through restrictions on humanitarian aid, water, and electricity, leading to widespread starvation and a humanitarian crisis. The International Criminal Court (ICC) Prosecutor has sought arrest warrants for Israeli leaders, citing, among other charges, starvation as a method of warfare.
- Attacks on Civilian Infrastructure and Protected Sites: Reports from the UN Commission have documented the extensive destruction of educational, religious, and cultural sites in Gaza, alleging deliberate targeting and unnecessary destruction that could amount to war crimes and crimes against humanity.
- Mistreatment of Prisoners and Detainees: Claims of abuse, humiliation, and torture of Palestinian prisoners have also been reported by various human rights organizations.
Beyond Gaza, broader allegations against Israel, historically and currently, can sometimes be linked to actions in the West Bank or in previous conflicts, often concerning issues of occupation, settlement expansion, demolition of homes, and the use of force against civilians, which some legal experts argue could also fall under the purview of international law violations. It is important to note that Israel maintains it adheres to international law and that its actions are in self-defense against terrorist organizations. Although, under international law an illegal military occupation does not have any said rights to self-defense where there is a prohibition on the use of force. By blocking international investigations and journalists, Israel by such actions confirms culpability. Investigations into these allegations by international bodies are ongoing, and definitive legal conclusions are subject to due process in international courts.
War crimes encompass a range of severe violations of the laws governing armed conflict, designed to protect humanity amidst the brutality of war. The numerous allegations against Israel, in the context of the Gaza conflict and other historical instances, underscore the urgent need for adherence to international humanitarian law and for thorough, impartial investigations to ensure accountability for those who commit such grave offenses.
Arguments on "Self-Defense" claims:
- Traditional View (State vs. State): Customary international law and Article 51 of the UN Charter generally frame the right to self-defense as applying to an armed attack by one state against another state. This perspective argues that an occupying power cannot claim self-defense against the population of the territory it occupies, as it is already in control of that territory. Instead, its actions would fall under the laws of belligerent occupation, which prioritize the security and well-being of the occupied population and limit the use of force to policing actions to maintain law and order, rather than waging war.
- The "Occupied Territory" Argument: Many legal scholars and international bodies, including some UN special rapporteurs, argue that an occupying power's "right to self-defense" against an occupied population is illegitimate.
They assert that since the occupying power exercises effective control over the territory, any threat emanating from that territory is an internal security issue to be handled under the laws of occupation, not through the broader right of self-defense against an external state. From this viewpoint, the resistance of an occupied people to occupation is a recognized right under international law (provided it adheres to the laws of armed conflict, i.e., not targeting civilians). - Israel's Stance and Counterarguments: Israel, often invokes the right to self-defense, arguing that attacks from Gaza (which it considers a separate entity from which it unilaterally disengaged in 2005, though many international bodies still consider it occupied due to continued control over borders, airspace, and sea) or other Palestinian territories constitute armed attacks against its sovereign territory and citizens. They contend that the nature of the threat, particularly from groups like Hamas, necessitates a military response consistent with self-defense.
- International Court of Justice (ICJ) Perspectives: The ICJ has touched upon this in various advisory opinions. For instance, in its 2004 Advisory Opinion on the Wall, the ICJ did not accept Israel's self-defense argument regarding the construction of the barrier, partly because the threats originated from territory over which Israel exercised control.
More recently, the ICJ's 2024 Advisory Opinion on the legality of Israel's policies in the Occupied Palestinian Territory has further underscored that the prolonged occupation and certain policies violate international law, and while it didn't explicitly address self-defense in great detail for an occupying power in the context of ongoing attacks, some judges' separate opinions and scholarly interpretations suggest that an occupation deemed illegal due to its duration and nature could undermine a claim of self-defense for its continuation or actions within that territory. The concept is that if an occupation itself violates international law (e.g., through annexation, undermining self-determination), it fundamentally alters the legal framework for the use of force within that territory.
