Noot 11/Astrid Essed pakt VOMAR




27 OCTOBER 2023

Since the start of the war, Israel has dropped thousands of bombs on the Gaza Strip. Gaza is an enclave enclosed on all sides. There are no safe rooms, no shelters, no safe spaces. Residents have no way to protect themselves. They wait, in terror and fear, hoping to survive. Over a million people have already left their homes in an attempt to find a safe place; some have been killed while fleeing, others where they sought shelter. 

Israel, like Hamas and like every country in the world, must follow international humanitarian law. These legal provisions were not enacted by human rights or pro-Palestinian organizations. They were accepted by all nations – including Israel – out of a shared understanding that even during war, there must be rules that minimize the suffering caused to civilians and ensure that they are kept outside the cycle of hostilities to the extent possible. 

Two key principles enable the achievement of this goal. First – the principle of distinction – determines what legitimate targets are: according to Article 52(2) of Additional Protocol (I) to the Geneva Conventions, only military objects are legitimate targets for attack. They are defined as objects that make an effective contribution to military action and whose destruction would offer a definite military advantage to the attacking side. The second principle – the principle of proportionality – limits how attacks are to be carried out: according to Article 51(5)b of the Protocol, legitimate targets must not be attacked if the expected harm to civilians would be excessive in relation to the anticipated military advantage. Whether or not an attack is proportionate is not determined by the actual harm inflicted but by the information those responsible for it had or should have had. 

Israel’s airstrikes since the start of the war are an abject violation of these principles and constitute a war crime. The massive scale of destruction in the Gaza Strip is unprecedented. Entire residential neighborhoods have been destroyed, and, according to Gaza authorities, at least 16,000 residential units have been completely destroyed, while an additional 11,000 have been rendered uninhabitable. The horrifying death toll, which rises every day, is unfathomable: according to the Gaza Health Ministry, more than 7,000 people have been killed, including almost 3,000 minors, more than 1,700 women, and dozens of families who were killed together when their houses collapsed on them. More than 17,000 people have been injured, about 2,000 are still missing under the rubble. 

These figures cannot be reconciled with the provisions of international law described above: neither with the requirement for each of the thousands of targets bombed to have made “an effective contribution” to Hamas’s activities and their destruction to have offered a “definite military advantage” to Israel; nor with the requirement that even if the targets did meet these conditions, the massive loss of life and damage to property was proportionate. Such an interpretation would be not only legally mistaken but also morally unacceptable. 

Israel says Hamas is to blame for these figures because it uses civilians as human shields, conceals weapons in their homes, and fires at civilian targets in Israel from within a civilian population, allegedly leaving Israel with no choice but to harm civilians in its war against Hamas. According to this view, assigning full responsibility to Hamas means that every action taken by Israel, however horrific the outcome, would be considered legitimate. Such a claim is baseless. Respect for the law, international humanitarian law included, is not subject to reciprocity: failure by one side to comply does not give the other license to do the same.

Fighting Hamas poses difficult challenges to Israel: How to distinguish between legitimate military targets and civilian ones, when Hamas does not distinguish itself from the rest of the population? How to avoid harming civilians who are not taking part in the hostilities when Hamas members continue to fire on Israeli communities from within population centers? B’Tselem does not pretend to advise the government or the military how to conduct the fighting in Gaza, nor is this the role of a human rights organization. But one thing is clear: The choice whether or not to obey the law is Israel’s. The government and the military must stay respect the law and maintain humanity as they search for the answers.  

On October 7, Hamas committed horrific war crimes. Hundreds of Hamas militants and other residents of Gaza entered Israeli territory, firing at anyone who passed by. They entered communities and homes, shot and killed entire families and party-goers, set homes on fire, and committed atrocities. More than 1,300 people were killed, thousands more were injured, and many are still missing. More than 200 people – including babies, children, women, and the elderly – were kidnapped to the Gaza Strip and are being held hostage. 

There is no way, nor can there be a way, to justify these crimes, and any attempt to do so must be rejected and denounced. But these crimes cannot justify the death and destruction Israel is now inflicting on Gaza’s more than two million residents. Targeting civilians, their property and civilian infrastructure is always prohibited, and Israel must end this immediately. 

Israel, like any other country, is obligated to protect its citizens. However, Israel, like any other country, is also obligated to comply with the restrictions set by international humanitarian law. 


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