War crimes and their accountability: The case against Israel’s military operations in the Gaza Strip – JURIST – Commentary

The author, who is the first to head the UN Special Tribunal for Sierra Leone, argues that Israel, as a UN member, has an obligation to comply with international humanitarian law. However, he suggests that recent actions by the Israel Defense Forces (IDF) demonstrate a disregard for key principles such as military necessity, discrimination and proportionality.

United Nations member states are bound by the rule of law, both within their borders and in their interactions on the global stage. This legal framework includes international humanitarian law, the aim of which is to protect civilians in times of armed conflict. Israel, as a member state, is obliged under the Fourth Geneva Convention to ensure the safety of civilians. In particular, it should observe the Convention’s prohibition on deliberately committing attacks against civilians or civilian objects, as well as the prohibition on forcibly displacing civilians from their homes.

The principles of the laws of war are clear: military necessity, discrimination, proportionality and the prohibition of unnecessary suffering are the guiding principles for the parties to an armed conflict. Ideally, the armed forces should train their troops to respect these principles. Recent military operations by the Israel Defense Forces (IDF) have demonstrated a disturbing disregard for these principles and raised serious legal and ethical concerns, as well as questions of possible criminal liability.

Military necessity and targeted attacks on civilians

Military necessity requires that only targets that offer a clear military advantage may be attacked. The attacks by the Israeli armed forces on civilians and civilian infrastructure do not comply with this principle. Attacks that appear to have little or no military necessity constitute war crimes because they cause unjustified suffering among the civilian population. Air strikes on densely populated areas with a known civilian presence, for example, have no justifiable military objectives and thus violate the principle of military necessity.

Discrimination and indiscriminate attacks

The principle of discrimination requires warring parties to distinguish between combatants and civilians and to attack only legitimate military targets. The use of weapons systems that cause great damage to civilian areas, hospitals and cultural sites shows that no distinction is made between military and civilian targets. Such indiscriminate attacks are clearly war crimes under international law. The destruction of cultural heritage sites and important infrastructure causes not only immediate damage but also long-term harm to the affected population.

Proportionality and harm to the civilian population

Proportionality in armed conflict requires that the harm inflicted on civilians and civilian property must not be excessive in relation to the expected military advantage. The disproportionate use of force by the Israeli army, which results in numerous civilian casualties and destruction, violates this principle. When military operations cause more harm to civilians than the military gain justifies, they cross the line into illegality and immorality and can be punished as war crimes.

The use of heavy artillery and air strikes by Israeli forces in populated areas inflict far more suffering on civilians than is necessary to achieve legitimate military objectives. The enormous collateral damage caused by these operations shows a blatant disregard for the well-being of civilians and thus reinforces the suspicion of war crimes.

Accountability and the role of the International Criminal Court

The International Criminal Court (ICC) has rightly begun investigating these alleged violations and is seeking those responsible. The laws of war make clear that the actions of one belligerent do not justify the unlawful conduct of another. Even if Hamas does not comply with international humanitarian law, this does not give Israel the right to ignore the laws of war. The obligation to protect civilians and to conduct hostilities lawfully remains paramount and binding.

The continued violation of international humanitarian law by Israeli forces undermines Israel’s standing as a nation that once prided itself on law and order in the Middle East. The deliberate targeting of civilians, the indiscriminate nature of their attacks and the disproportionate use of force, as well as the forced displacement of civilians, are all acts that undermine respect for international norms and destroy the moral fabric of military action. The International Criminal Court’s pursuit of accountability is a necessary step towards restoring justice and upholding the principles of the laws of war. The international community must hold all actors to these standards and ensure that the rule of law prevails over the chaos and destruction of war.

David M. Crane is the first Chief Prosecutor of the UN Special Court for Sierra Leone. He is also the founder of the Global Accountability Network.