Even Wars Have Rules

According to the laws of war as established by, among others, the Geneva Conventions, the use of force by a state is only permitted for the purpose of self-defence, may only be directed at enemy combatants and military targets, and must be proportionate and cautious — especially if such action might cause harm to civilians.

Since the brutal attack on Israeli civilians Hamas militants on 7 October of this year, debates have raged both in Israel and around the world as to the legality of Israel’s military response and particularly its six-week bombing campaign in the Gaza Strip. Is it proportionate? Are civilian casualties being avoided?

In early November, Michael Sfard, one of Israel’s most well-known human rights lawyers, spoke with Yifat Mehl of the Rosa Luxemburg Foundation’s Tel Aviv Office about the Israeli campaign in Gaza, the laws of war, and whether he believes Israel is abiding by them.

As a lawyer specializing in the laws of war, what do you think the public should know about those laws and their applicability in the current context?

Already in biblical times, humanity rejected the idea that everything is allowed in war. Detailed legal rules were created after the world wars, especially World War II. Today we have an extensive body of law that determines what is and what is not allowed on the battlefield. The overarching goal of the laws of war is to reduce the suffering among the civilian population. This goal cannot be fully achieved — but it is the reason for the existence of the laws of war. Three principles derive from that goal.

The first is the principle of distinction, according to which combatants may only aim their weapons at enemy combatants and military objects. Targeting civilians and civilian objects is therefore illegitimate. Deliberate attacks on civilians, intentional starvation of civilians, intentional deprivation of drinking water to civilians, and intentional attacks on civilian infrastructure are war crimes.

The second principle of the laws of war is that of proportionality. Even when aiming the weapon at a legitimate target, the attack may still be illegal if the action is likely to cause harm to civilians and that likely harm is expected to be greater than the benefit of eliminating the military target. There is of course broad agreement on clear-cut cases, while there is controversy over cases in the grey area.

If, for example, a single enemy combatant is hiding in a school, the benefit of eliminating him is disproportionate to the terrible harm that the children in his surroundings will suffer if the school is attacked. Therefore, such an attack is illegal and constitutes a violation of the laws of war. By contrast, if it is known that shelling the enemy’s high command will end the war, then most experts in international law will agree that this is a legitimate attack, even if there is an innocent civilian in the building who will be harmed. For this reason, a combat force is not allowed to take up position in a civilian environment. Hiding among the civilian population is a violation of the laws of war.

The subject of criminal responsibility for war crimes is the person whose decision is necessary to carry out an illegal action and who knows the details that make it illegal.

The third principle of the laws of war is the duty to take precautionary measures. The principle states that even if the weapon is aimed at a legitimate target and even if the attack is considered to be proportionate, the attacking force still has the duty to take precautionary measures to reduce the risk of harming civilians, such as by informing the civilian population in advance that a certain area will become a combat zone. Of course, telling a population of 1.5 million civilians to go to a place where there is no possibility for them to receive humanitarian aid that will meet their basic needs raises other issues. Another example for the obligations deriving from the third principle is the obligation of the attacking party to select the most accurate weapon possible in order to reduce the risk of harm to civilians and civilian facilities adjacent to the target.

These three principles define the obligations of the belligerent parties and their violation may constitute a war crime. They apply to all parties involved in the armed conflict.

You recently wrote that you thought the Israeli response to the events of 7 October would not limit itself to what the laws of war allow. Could you elaborate?

The State of Israel has the right and the duty to defend itself and its citizens. It was brutally attacked and is obliged to do what is necessary to restore security, but within the limits of international law.

There is reason to be concerned that the Israeli army will deviate from the rules of engagement established by international law. I suspect, for example, that the shelling of the Jabalia refugee camp is such a case, but I must qualify my assessment as a suspicion since I do not know the details.

A representative of the press office of the Israeli Defence Forces was interviewed on CNN and confirmed that the army knew that there were many civilians in the targeted area who had not evacuated. He also confirmed that the target of the bombing was a Hamas battalion commander. On the face of it, this looks like a classic case of a disproportionate attack. Although the target is legitimate, the estimate that dozens of civilians will be harmed makes the attack apparently illegal. Of course, this can only be determined with certainty after a thorough investigation, but at first glance this is an example of disproportionality.

Hamas, as well, should be mentioned in this context. On 7 October, they committed some of the most terrible and atrocious war crimes and crimes against humanity in the Gaza envelope [the approx. 7-kilometres-deep area adjacent to the Gaza Strip], possibly even on the scale of genocide, provided their intention was to kill all of the people living in the Gaza envelope.

What are the differences between war crimes, crimes against humanity, and the crime of genocide?

War crimes are serious violations of the laws of war. Shooting at people carrying a white flag, shooting at civilians, and shooting at a hospital are violations of prohibitions enshrined in the laws of war.

Crimes against humanity are a category of criminal acts committed as part of a widespread attack against a civilian population — for example, murder committed as part of a comprehensive and systematic campaign. Kidnapping and making people disappear is a crime against humanity if committed in a systematic manner. The deprivation of basic rights based on group affiliation can be a crime against humanity, categorized as persecution — and when it is part of a government system, it can be a crime against humanity, categorized as apartheid. In addition, other crimes are considered crimes against humanity, if they are committed on a large scale, such as deportation and certain types of sexual assault.

The third category is the crime of genocide, which stands on its own and is sometimes referred to as the “crime of crimes”. The crime of genocide, which only entered international law in 1952, has a different psychological basis than the crime of extermination, which is included in the list of crimes against humanity. In the crime of genocide, the crime must be committed with the intent to destroy, in whole or in part, a national, ethnic, religious, or racial group.

If the ICC tried to mess with Israel, it would endanger its own existence.

To discuss the crime of genocide, one has to prove the specific intent — without such intent, it is murder or even the crime of extermination, but not genocide. The specific intention is to physically destroy the group, in whole or in part. The definition of the crime enumerates the manner in which it may be carried out: systematic murder, starvation and deprivation of basic living conditions with the aim of destruction, as well as harming the ability to reproduce.

I have to say that I currently [2 November 2023] see no evidence that Israel is committing genocide in the Gaza Strip. When Israel orders the population of the northern Gaza Strip to move south so that they will not be harmed, this is evidence that contradicts the suspicion that Israel’s intention is extermination. I notice a tendency in the international discourse to use the most serious term, as if the other crimes were not serious enough. There is a suspicion that Israel is violating the laws of war. I have mentioned the bombing of Jabalia as an example, but there are other cases as well.

Incitement to genocide is a crime in itself, and incitement to genocide is undoubtedly happening in Israel these days: calls to raze Gaza, to wipe out Gaza, to crush it, to carry out a second Nakba, and so on. But in order to claim that Israel is committing the crime of genocide, mere statements are not enough. For that purpose, there needs be someone with the authority to give orders in the military or political hierarchy, who gives orders aimed at destroying a people — and I don’t think this is happening.

A fourth category next to war crimes, crimes against humanity, and the crime of genocide, is the crime of aggression. This crime occurs when a party to the conflict violates the laws of initiation of war. According to the laws of war, the use of force is only allowed for self-defence. Everyone may consider whether Hamas had a reason to use violence or whether it was acting in self-defence. I think it is quite clear that Israel has the right to defend itself after what happened on 7 October. Therefore, Israel’s use of force does not constitute a violation of the prohibition of aggression.

Who bears criminal responsibility for violations of the laws of war? Against whom will an investigation, if there is one, be conducted?

International crimes are committed by humans — neither by organizations nor by states. The subject of criminal responsibility for war crimes is the person whose decision is necessary to carry out an illegal action and who knows the details that make it illegal. The responsibility can lie with the soldier in the field, a pilot who knows what he is bombing, and it may even reach the level of the prime minister.

On the part of Hamas, the bearers of responsibility are all the armed men who are part of a clear hierarchical structure, and the civilian leadership that is also part of the organization. It is clear that everyone who was involved in the attack on 7 October as well as those involved in firing missiles are responsible for international crimes and should therefore be prosecuted before the International Criminal Court (ICC). Commanders bear principle responsibility as far as it can be proven that they did not prevent the crimes. Proof that the commanders did not give an order not to kill civilians is sufficient for the commanders to be held legally responsible.

Have actors from powerful Western states ever been prosecuted by the ICC?

There was an investigation by the chief prosecutor of the ICC that dealt with suspicions that US forces engaged in the practice of torture in Afghanistan. The files were shelved. International law is sensitive to political power, especially when it concerns superpowers.

Would you say that Israel has political power?

Definitely. Israel has enormous political power. If the ICC tried to mess with Israel, it would endanger its own existence. The ICC bases its power on support from two main sources: the developing world (Asia, Africa, and Latin America) and Western Europe. The sources of its budget are the countries of Western Europe and Canada. If it deals with Israel, the court risks losing the support of Western Europe. Israel is able to exert significant influence on Western Europe, both directly and through the US — mainly on Germany.

There is currently no discussion in Israel about what is happening to the civilian population in the Gaza Strip.

By the way, avoiding dealing with Israel/Palestine also endangers the court. If countries in the Global South come to the conclusion that the court avoids engaging with the West, and in particular with the US and those seen as its stooges (e.g., Israel), there is a risk that they will withdraw from the court. No court in the world is completely independent. A court is a political body in the broadest sense of the term, and as an institution, political forces bring their power to bear on it.

Could you elaborate on Germany’s role?

For Germany, the ICC represents the culmination of the lessons learned from World War II and the Holocaust and is therefore of enormous importance. Yet, in my view, the pathology of diplomatic relations between Germany and Israel leads to a situation where Germany is unable to embark on even the most basic act of friendship and criticize Israel when it is necessary and appropriate to do so.

In the event that an international arrest warrant is issued against an Israeli Jew, Germany will be obliged to comply with the warrant and hand that person over to the ICC. Would Germany be able to extradite an Israeli Jew for war crimes or crimes against humanity? Would Germany disregard the arrest warrant? Would Germany withdraw from the ICC so that it will not have to comply with the warrant? Or would it perhaps choose to harm the court so that the court will change its position?

In the proceedings at the ICC dealing with the question of the legality of the Israeli occupation of Palestinian territories, Germany submitted to the court an opinion that, to my mind, is shameful and contrary to the entire European and German conception regarding the status and importance of international law after World War II. Germany’s message was that the court should not get involved in the Israeli–Palestinian conflict because this would be a politicization of the law. That’s like saying: We grant Israel immunity.

From your writings, it is clear that you are very concerned about Israel’s moral corruption. You wrote that moral corruption is a mechanism that feeds itself that, without powerful and persistent intervention, can go on forever. In your opinion, is there a non-judicial international body that can help stopping this deterioration?

Moral corruption is as dangerous to our existence as Hamas. Moral corruption is a process that can be stopped in two ways. One way would be for society to find the internal forces to stop the process. The other would be that the moral corruption will run into the wall of enforcement of international law.

The problem is that if we ourselves do not understand that certain actions are wrong, international pressure is seen by many Jewish Israelis as stemming from anti-Semitic or anti-Israeli motives. And yet, external pressure may play an empowering positive role in stopping these processes when it comes together with a legitimate internal force that holds the same position.

There is currently no discussion in Israel about what is happening to the civilian population in the Gaza Strip. The established news networks do not talk about the issue, and the Israeli media avoids running interviews and reports about the Gaza Strip from a human point of view. Therefore, it is no wonder that despite the thousands of dead in the Gaza Strip, there is almost no voice in Israel asking whether we have done enough to prevent harm to innocent civilians. Maybe we’ll start talking about it when more time has passed since 7 October.

There is no solution to the bloody conflict that does not ultimately include respecting the right of all people, in Gaza and in Sderot, to live in security and human dignity. This begins with complying with the most basic rules of the laws of war, which are aimed at reducing harm to civilians.

Translated by Ursula Wokoeck Wollin.