War crimes in the 2023 Israel–Hamas war

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Damage from an Israeli airstrike on the El-Remal area in Gaza City on 9 October 2023.
Aftermath of the Be'eri massacre

Since the start of the 2023 Israel–Hamas war on 7 October 2023, the UN Human Rights Council identified "clear evidence" of war crimes by both Hamas and the Israel Defense Forces.[1] A UN Commission to the Israel-Palestine conflict stated that there is "clear evidence that war crimes may have been committed in the latest explosion of violence in Israel and Gaza, and all those who have violated international law and targeted civilians must be held accountable."[2][3][4] On 27 October, a spokesperson for the OHCHR called for an independent court to review potential war crimes committed by both sides.[5]

The International Criminal Court confirmed that its mandate to investigate alleged war crimes committed since June 2014 in the State of Palestine extends to the current conflict.[6][1] Independent United Nations experts[a] stated that the Israel Defense Forces' actions in Gaza constituted "indiscriminate military attacks" and "collective punishment."[8] The UN experts stated that Hamas was responsible for "deliberate and widespread killing and hostage-taking of innocent civilians".[7] Israel's forced evacuation of northern Gaza drew international condemnation. Paula Gaviria Betancur, UN Special Rapporteur on the human rights of internally displaced persons, stated that the evacuation would constitute a crime against humanity.[9] Francesca Albanese, the United Nations Special Rapporteur on the occupied Palestinian territories, described it as a "repeat of the 1948 Nakba."[10]

By Palestinian militant groups

See also: Palestinian political violence

The UN Independent International Commission of Inquiry on the Occupied Palestinian Territory said that "Reports that armed groups from Gaza have gunned down hundreds of unarmed civilians are abhorrent and cannot be tolerated" and that "Taking civilian hostages and using civilians as human shields are war crimes",[11] and Human Rights Watch said that "Palestinian armed group's apparent deliberate targeting of civilians, indiscriminate attacks, and taking of civilians as hostages amount to war crimes under international humanitarian law. "[12]

Massacres and genocidal intent

Further information: Re'im music festival massacre, Netiv HaAsara attack, Be'eri massacre, Kfar Aza massacre, Nahal Oz massacre, Nir Oz massacre, and Holit massacre
Image from Be'eri following Hamas's attack on the village

Current Hamas leader Yahya Sinwar has stated, “Gone is the time in which Hamas discussed recognition of Israel. The discussion now is about when we will wipe out Israel.”[13] According to The Atlantic, Hamas expressed "genocidal" intentions in its 1988 charter, though they note its 2017 rewrite explicitly stated the group was not anti-Jewish, but were instead opposed to Zionism.[14]

Jens David Ohlin's assessment of Hamas's attacks explained the following Rome Statues: Article 6 was violated "if the perpetrators acted with genocidal intent...It would appear that the 'manifest pattern' requirement applies to this case"; Article 7 about "crimes against humanity" was violated if there was "evidence that the attacks were carried out pursuant to an organizational 'plan or policy' ... each killing, kidnapping, and inhumane act constituted a separate predicate act"; and Article 8 was violated due to the "core prohibition against killing innocent civilians" and "the taking of hostages. The failure to release the hostages makes this a continuing and ongoing crime."[15]

During their initial incursion, Palestinian groups targeted civilians, shooting at civilian cars as they moved through Israel,[16] and then upon reaching their targets carried out massacres; at the Re'im music festival they killed over 260 civilians, while at Be'eri and Kfar Aza they killed at least 112 and 73, respectively. The victims included babies and children; many were immolated, dismembered, and beheaded. The reports of beheaded babies have not been independently confirmed.[17][18][19][20][21][22][23] Videos released on social media, primarily by Hamas, documented torture, sexual violence, violence towards children, and molestation of bodies.[24] Under international humanitarian law these are war crimes and crimes against humanity.[15][25][26][27]

Hostage taking and threats to execute hostages

See also: Kidnappings during the 2023 Israel–Hamas war

Taking hostages is prohibited by international law, and the Geneva Convention describes it as a "grave breach".[28][29] As the militants retreated, they kidnapped approximately 200 people, predominantly civilians, to be used as hostages; armed men were later seen parading a half-naked 22-year-old female hostage through the streets of Gaza as bystanders spat on her, in images that Amnesty International described as a "scene from a nightmare".[30][31][32]

Hamas has threatened to execute hostages every time Israel strikes a home in the Gaza Strip, and live-stream the executions on the internet.[33] Such executions, if carried out, would constitute a war crime.[34][35]

Human Rights Watch Israel and Palestine Director Omar Shakir said, "Deliberate killings of civilians, hostage-taking, and collective punishment are heinous crimes that have no justification."[36] Amnesty International said, "Hamas and other Palestinian armed groups flagrantly violated international law and displayed a chilling disregard for human life by carrying out cruel and brutal crimes including mass summary killings, hostage-taking, and launching indiscriminate rocket attacks into Israel."[37] According to over 100 international legal experts, as these acts appeared to have been carried out with an "intent to destroy, in whole or in part" a national group in line with the explicit goals of Hamas, these acts "most probably" amounted to genocide.[24][38]

Palestinian civilians as human shields

Hamas fighters operate in built-up residential areas, positioning tunnels, rocket launchers, and command and control infrastructure in near proximity to mosques, schools, and homes. Many sources say they do so to benefit from protections afforded to noncombatants during war, effectively using civilians as human shields.[39][40][41]

Regarding the urban combat environment Richemond-Barak, senior fellow at the Lieber Institute for Law and Land Warfare and the Modern War Institute at West Point said, “It’s always difficult to deal with tunnels,... but when they are urban area, then everything is more complicated – the tactical aspects, strategic aspects, the operational aspects, and of course, the protection that you want to ensure for the civilian population.”[42] The IDF has repeatedly alleged that Hamas is hiding inside passages “underneath houses and inside buildings populated with innocent Gazan civilians”[42]

European Commission spokesman Eric Mamer,[43] UK defense secretary Grant Shapps,[44] UK foreign secretary James Cleverly,[45] US Air Force scholar David Deptula,[46] and analysts from the Australian Strategic Policy Institute have all said Hamas is using hostages or Palestinian civilians as human shields.[47][48] In addition while the taking of hostages is itself a war crime, the use of hostages in this manner is also forbidden and a violation of the Rome Statute, which says that using civilians to render "certain points, areas or military forces immune from military operations" is a war crime.[29][49][50]

Indiscriminate rocket attacks

Further information: Palestinian rocket attacks on Israel

Hamas' initial attack included the launching of at least 3,000 rockets from the Gaza Strip towards Israel,[51] and in subsequent days continued the barrage. These rockets have struck as far away as Tel Aviv and the outskirts of Jerusalem, having overwhelmed the Iron Dome defensive system.[52] Such rocket attacks are an indiscriminate attack against civilians and thus constitute a war crime.[53][25][12][54]

By the Israeli government

See also: Allegations of war crimes against Israel § 2023 Israel–Hamas war

Numerous charges of war crimes have been levied against Israel for its actions against civilians. These charges have come from Human Rights Watch, Amnesty International, B'tselem, and human rights groups and experts, including UN rapporteurs.[55] Critics argue the Biden administration has given tacit approval to Israeli war crimes.[56] Antony Blinken indicated the Biden administration has a "high tolerance" for whatever happens in Gaza.[57] On 27 October, the White House stated it had no red lines for Israeli actions.[58]

Medical neutrality

Palestine Red Crescent ambulance destroyed by an Israeli airstrike.

Israel is alleged to have broken medical neutrality, a war crime under the Geneva Conventions.[59][60] According to Gaza officials, the IDF deliberately targeted ambulances and health facilities with airstrikes.[61][62] In a statement, the Palestine Red Crescent demanded "accountability for this war crime."[63] The International Federation of Red Cross and Red Crescent Societies, UNRWA, and Medecins Sans Frontieres reported the deaths of their medical personnel.[64][65] On 14 October, the World Health Organization said the killing of health care workers and the destruction of health facilities "denies civilians the basic human right of life-saving health" and is prohibited by International Humanitarian Law.[66][67] On 17 October, the World Health Organization stated 51 health facilities in Gaza had been attacked by Israel.[68][69] On 21 October, the Ministry of Health noted Israel had attacked 69 health facilities, 24 ambulances, put 7 hospitals out of commission, and killed 37 medical staff.[70]

Forced evacuation

Main article: Evacuation of northern Gaza

On 13 October, the Israeli army ordered the evacuation of 1.1 million people from north Gaza.[71] Gazan officials initially asked residents to ignore the order, with the Interior Ministry claiming Israel sought to "displace us once again from our land."[72] The Israeli evacuation order was characterized as a forcible transfer by Jan Egeland, a Norwegian diplomat involved with the Oslo Accord.[73] Egeland stated, "There are hundreds of thousands of people fleeing for their life — [that is] not something that should be called an evacuation. It is a forcible transfer of people from all of northern Gaza, which according to the Geneva convention is a war crime."[73] UN Special rapporteur Francesca Albanese warned of a mass ethnic cleansing in Gaza.[74] Israeli historian Raz Segal termed it a "textbook case of genocide."[75] The action was condemned by the UN, Doctors Without Borders, UNICEF, and the International Rescue Committee.[76]

On 14 October, the World Health Organization issued a statement condemning Israel's order to evacuate 22 hospitals in northern Gaza, calling it a "death sentence."[77][78] Doctors noted both the southern Gaza Strip's lack of hospital beds and the impossibility of transporting patients, such as newborns in incubators and patients on ventilators.[79] Nevertheless, on 22 October, the IDF dropped leaflets in northern Gaza stating anyone who did not comply with the evacuation would be considered a "terrorist."[80]

White phosphorus

Human Rights Watch and Amnesty International's Crisis Evidence Lab shared evidence that Israeli military units striking in Gaza and Lebanon have employed white phosphorus artillery rounds; Israel denied the report.[81][82]

White phosphorus is used in smoke, illumination, and incendiary munitions, and ignites when exposed to atmospheric oxygen. Upon contact, it can cause deep and severe injuries, potentially leading to multiple organ failure, and even minor burns can be fatal. White phosphorus is considered an incendiary weapon, and Protocol III of the Convention on Certain Conventional Weapons prohibits their use against military targets located among civilians, although Israel is not a signatory.[83] According to Human Rights Watch, the use of white phosphorus is "unlawfully indiscriminate when airburst in populated urban areas, where it can burn down houses and cause egregious harm to civilians", and "violates the requirement under international humanitarian law to take all feasible precautions to avoid civilian injury and loss of life."[84] According to Amnesty International weapons investigator Brian Castner, whether this particular case constitutes a war crime depends on "the intended target of this attack, and the intended use," but that, "generally, any attacks that fail to discriminate between civilians and military forces can potentially be a violation of the laws of war."[85]

Indiscriminate attacks

Further information: Jabalia camp market airstrike, Al-Shati refugee camp airstrike, October 2023 UNRWA school airstrike, and Church of Saint Porphyrius airstrike
A mosque destroyed by an Israeli airstrike, Khan Younis, 8 October

In the first week of the war, the IDF carried out 6,000 airstrikes across Gaza, killing over 3,300 civilians and injuring over 12,000.[86][87] The strikes hit specifically protected locations, including hospitals, markets, refugee camps, mosques, educational facilities, and entire neighborhoods.[88] A group of UN special rapporteurs asserted Israel's indiscriminate airstrikes are "absolutely prohibited under international law and amounts to a war crime."[89] Israeli army spokesperson Daniel Hagari said that "the emphasis is on damage and not on accuracy."[90]

On 9 October, the IDF carried out a mass-casualty airstrike on the Jabalia refugee camp market.[91] The attack resulted in the deaths of over sixty civilians and extensive damage to the market.[92] As a result of Israeli airstrikes in other areas, displaced individuals sought refuge in the camp, causing the market to be densely populated at the time of the strike.[93]

On the same day, the IDF carried out an airstrike on the densely populated Al-Shati refugee camp.[94] Palestinian media reported that this strike resulted in numerous civilian casualties and the destruction of four mosques, including the al-Gharbi mosque, Yassin mosque, and al-Sousi mosque, all of which were confirmed destroyed by satellite footage.[95] Under the Rome Statute, it is a war crime to intentionally attack places of worship in non-international conflict.[96] The airstrikes in the Al-Shati refugee camp were described as a "massacre against an entire neighborhood" by the Palestinian Ministry of Health.[97][98]

On 17 October, the IDF carried out an airstrike on a UNRWA school sheltering 4,000 refugees in the Al-Maghazi refugee camp, killing six and injuring dozens. Philippe Lazzarini, the UNRWA Commissioner-General, called the attack "outrageous" and showing "a flagrant disregard for the lives of civilians."[99][100] On 19 October, the Israeli Air Force bombed the Church of Saint Porphyrius, where hundreds of Christians and Muslims were sheltering, killing 16 people.[101] The Greek Orthodox Patriarchate of Jerusalem condemned it as a "a war crime that cannot be ignored."[102] On 24 October, UN Secretary-General Antonio Guterres called for an immediate ceasefire, after stating Israel had committed "clear violations" of international humanitarian law.[103]

Collective punishment

Main article: October 2023 Israeli blockade of the Gaza Strip

It is an entire nation out there that is responsible. It is not true this rhetoric about civilians not being aware, not involved. It’s absolutely not true. They could have risen up. They could have fought against that evil regime which took over Gaza in a coup d’etat.

— Isaac Herzog[104]

Several actions taken by the Israeli army, including its blockade on electricity, food, fuel and water, were characterized as collective punishment, a war crime prohibited by treaty in both international and non-international armed conflicts, more specifically Common Article 3 of the Geneva Conventions and Additional Protocol II.[105][106] Israel's president Isaac Herzog accused the residents of Gaza of collective responsibility for the war.[107][b][109] Doctors Without Borders international president Christos Christou said millions of civilians in Gaza faced "collective punishment" due to Israel's blockade on fuel and medicine.[110][111] Tufts University law professor Tom Dannenbaum wrote that the siege order "commands the starvation of civilians as a method of warfare, which is a violation of international humanitarian law and a war crime."[112] On 25 October, Oxfam stated Israel's use of "starvation as a method of war" was a violation of international law, and that Gaza was being "collectively punished in full view of the world."[113]

As part of Israel's blockade on Gaza, all access to water was shut off.[114][115] Article 51 of the Berlin Rules on Water Resources bars combatants from removing water or water infrastructure to cause death or force its movement.[116] The EU's chief diplomat Josep Borrell called Israel's cutting off water, electricity and food as "not in accordance with international law."[117] On 14 October, the UNRWA announced Gaza no longer had clean drinking water, and two million people were at risk of death from dehydration.[118] On 15 October, Israel announced it had resumed supplying water to a single location in southern Gaza to "encourage" movement.[119][120] Aid workers in Gaza refuted water was available.[121] By 16 October, civilians drank seawater and water contaminated with sewage to survive.[122]

In an interview with The New Yorker, human rights expert Sari Bashi noted the historical uniqueness of Israeli officials openly admitting they are engaging in collective punishment.[123] On 18 October, UN Secretary-General Antonio Guterres stated Hamas' attacks "cannot justify the collective punishment of the Palestinian people."[124] On 24 October, Human Rights Watch criticized Israel's refusal to allow fuel or water into a Gaza, terming it a war crime.[125]

Executing surrendered Palestinians

On 10 October, the Israeli Defence Force published a video that appeared to show IDF soldiers shooting four surrendering Palestinians.[126][127] Footage analysis indicated the men appeared to be surrendering, with three men getting on the ground with their arms raised, one waving piece of white clothing. None of them appeared to be armed at the time of the shooting, while a subsequent video showed the bodies had been moved, with weapons placed near them on the ground. The analysis concluded the four men were unarmed Palestinians that left Gaza through a breach in the separation wall.[126] An IDF spokesman said he had no comment.[126] Killing surrendered civilians or combatant is a war crime.[128][129]

Allegations of genocide

This section is an excerpt from Genocide against Palestinians § Discourse on the 2023 Israel–Hamas war.[edit]

On 17 October, 10 days after the start of the 2023 Israel–Hamas war, 880 scholars of international law and genocide signed a public statement saying: "As scholars and practitioners of international law, conflict studies, and genocide studies, we are compelled to sound the alarm about the possibility of the crime of genocide being perpetrated by Israeli forces against Palestinians in the Gaza Strip."[130]

The statement called on UN bodies, including the UN Office on Genocide Prevention and the Responsibility to Protect, as well as the Office of the Prosecutor of the International Criminal Court to "immediately intervene, to carry out the necessary investigations, and invoke the necessary warning procedures to protect the Palestinian population from genocide."[130]

On 19 October 2023, amid the 2023 Hamas–Israel war, 100 civil society organizations and six genocide scholars sent a letter to Karim Khan, Prosecutor of the International Criminal Court, calling on him to issue arrest warrants to Israeli officials for cases already before the prosecutor; to investigate the new crimes committed in the Palestinian territories, including incitement to genocide, since 7 October; to issue a preventative statement against war crimes; and to remind all states of their obligations under international law.[131]

The letter noted that Israeli officials, in their statements, had indicated "clear intent to commit war crimes, crimes against humanity and incitement to commit genocide, using dehumanizing language to describe Palestinians." The six specialist genocide scholars that signed the document were Raz Segal, Barry Trachtenberg, Robert McNeil, Damien Short, Taner Akçam and Victoria Sanford.[131]

The same day, lawyers at the Center for Constitutional Rights stated that Israel's tactics were "calculated to destroy the Palestinian population in Gaza", and warned the Biden administration that “U.S. officials can be held responsible for their failure to prevent Israel’s unfolding genocide, as well as for their complicity, by encouraging it and materially supporting it."[132]

International reactions

Government officials around the world criticized what they termed Israel's war crimes. Turkish president Recep Tayyip Erdoğan criticized Western countries for their complicity as Israel committed war crimes.[133] President Gustavo Petro of Columbia termed Israel's campaign in Gaza as a genocide.[134] Egyptian President Abdel Fattah al-Sisi and King Abdullah II of Jordan both condemned the collective punishment of Gaza.[135] President Michael D. Higgins of Ireland demanded the al-Ahli Arab Hospital explosion be investigated as a war crime.[136] Chilean President Gabriel Boric stated Israel's attacks "primarily" affect unarmed civilians, and potentially constitute a war crime.[137] South African President Cyril Ramaphosa condemned the collective punishment of Gaza.[138] Brazilian President Luiz Inácio Lula da Silva stated, "It's not a war, it's a genocide."[139] China Foreign Minister Wang Yi stated Israel's bombing were the collective punishment of Gaza.[140] Syrian Foreign Minister Faisal Mekdad termed Israeli actions as a genocide.[141]

Ione Belarra, the Spanish minister of social rights, accused the EU and the US of "being complicit in Israel's war crimes."[142] Belarra further called for Israel to be denounced before the ICC for genocide in the Gaza Strip.[143] Retno Marsudi, Indonesia's Minister for Foreign Affairs, described Israeli actions in Gaza as crimes against humanity.[144] Abdulla Shahid, Foreign Minister of the Maldives, warned the evacuation of northern Gaza could amount to the "war crime of forcible transfer."[145] Iranian Foreign Minister Hossein Amirabdollahian described the events in Gaza as genocide and a crime against humanity.[146] The Workers Party of Brazilian president Luiz Inácio Lula da Silva officially classified Israeli actions in Gaza as genocide.[147] U.S. officials reported alarm at Israeli claims of the "inevitability" of civilian deaths, after they used the atomic bombings of Hiroshima and Nagasaki as historical examples.[148]

In a joint statement, the Foreign Ministers of nine Arab countries — the United Arab Emirates, Jordan, Bahrain, Saudi Arabia, Oman, Qatar, Kuwait, Egypt and Morocco — described Israeli actions as the collective punishment of Gaza.[149]

See also

Notes

  1. ^ Francesca Albanese, Pedro Arrojo-Agudo, Balakrishnan Rajagopal [de], Aua Baldé, Gabriella Citroni, Angkhana Neelapaijit, Grażyna Baranowska, Ana Lorena Delgadillo Pérez, Reem Alsalem [de], Mama Fatima Singhateh, Morris Tidball-Binz [de], Ian Fry [de], Javaid Rehman, Siobhán Mullally [de], Ashwini K. P. [de], Tomoya Obokata, Fernand de Varennes [de], Michael Fakhri [de], Irene Khan, Mary Lawlor, Dorothy Estrada-Tanck [de], Ivana Radačić [hr], Elizabeth Broderick, Meskerem Geset Techane, Melissa Upreti, Farida Shaheed, Mohamed Abdelsalam Babiker [de], Clément Nyaletsossi Voule, Attiya Waris, Vitit Muntarbhorn, Barbara G. Reynolds [de], Bina D'Costa, Catherine S. Namakula, Dominique Day, Miriam Ekiudoko, Isha Dyfan, Alexandra Xanthaki [de], José Francisco Calí Tzay, Richard Bennett [de], Obiora C. Okafor, David Richard Boyd, Livingstone Sewanyana, Alice Jill Edwards, Muluka-Anne Miti-Drummond [de], Ravindran Daniel, Sorcha MacLeod, Chris Kwaja, Carlos Salazar Couto, and Surya Deva [de].[7]
  2. ^ The Financial Times later silently deleted Herzog's quote from its article, cf. archive copy of the article from the evening of October 13.[108]

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