By Natalie Hmelar
Following the events of October 7th, 2023, when Hamas initiated an assault on Israel, Gaza has endured extensive destruction as Israel has relentlessly continued in its objective to eliminate every member of Hamas. Considering the failures of international law to adequately safeguard civilians in conflict zones, there is a pressing need for the revitalization of these norms. The United States, historically a beacon of democracy and Israels staunchest ally, can play a decisive role in this revitalization of international humanitarian legal standards. By enforcing the provisions outlined within the Leahy Laws to ensure aid recipients are abiding by international law, endorsing and advocating for the Rome Statue, and promoting humanitarian law as customary law, the United States can play a pivotal role in bolstering the safety of civilians in war zones. In doing so, the United States can reaffirm its commitment to a rules-based world order while simultaneously ensuring that Israel is acting accordingly as they pursue their retaliation on Hamas, thereby setting a persuasive precedent for the international community.
Both Israel and Hamas have violated International Humanitarian Law. How?
First, I must preface that despite Hamas not being an internationally recognized government, they are still bound by IHL. IHL is universal: all parties fighting in a conflict are obliged to respect IHL, be they governmental forces or non-State armed groups. The ¹
Additionally, under IHL “Violations – such as deliberately targeting civilians or imposing collective punishment in international law describes any form of sanction that is imposed on targeted individuals or groups for actions they did not personally commit. For example, an entire group of people is punished for alleged actions committed by members of the group.” Collective punishment can never be justified by claiming that another party has committed violations, or that there are power imbalances or other injustices.²
Collective punishment in international law describes any form of sanction that is imposed on targeted individuals or groups for actions they did not personally commit. For example, an entire group of people is punished for alleged actions committed by members of the group.” Therefore, when Hamas launched an assault on innocent Israeli civilians on October 7th, 2023, they committed a war crime.
Conversely, Israel has committed countless violations of IHL in their retaliation against Hamas’s initial attack. Israel’s deliberate restriction of food, water, medical and medical supplies from innocent Palestinian’s is considered a war crime. Furthermore, Israel’s distribution of white phosphorus, a powerful chemical, is prohibited under IHL.³
Moreover, Hamas’s use of humans as shields is also prohibited under International Humanitarian Law.⁴ Nevertheless, “the fact that Hamas operates from a densely populated territory does not strip the civilian population in that territory of legal protection.”⁵ Therefore, what this means of warfare has unveiled is that the current legal framework devised to protect non-combatants, is no longer sufficient.
How can the United States help promote and revitalize IHL and norms to protect innocent civilians in conflict zones?
It is imperative that the United States exercise its leverage over Israel and ensure that Israel obliges by International Humanitarian Law. The United States and Israel, who are both signatories of the 1949 Geneva Convention, should begin to respect the protocols that they once endorsed, rather than undermining and eroding customary international law. By denying that Israel has violated international humanitarian law in Gaza, Washington is discrediting itself and the order that it claims to uphold. Oona Hathaway, Professor of Law at Yale, asserted that ‘we can’t apply these rules differently to our friends and to our enemies.’ If President Joe Biden or the next administration does not choose to make aid to Israel contingent on abiding by international humanitarian law, then it is vital that the U.S. Congress must enact the Leahy Law. The United States has the power to promote this revitalization of international norms and create a new framework that could save more lives in the context of modern warfare. Therefore, for the sake of democracy and upholding international norms, the United States must treat Israel the same way it treats any other aid recipients or allies.
Further Reading
American Red Cross. “Summary of the Geneva Conventions of 1949 and Their Additional Protocols.” International Humanitarian Law, April 2011. https://www.redcross.org/content/dam/redcross/atg/PDF_s/International_Services/International_Humanitarian_Law/IHL_SummaryGenevaConv.pdf
“How does international humanitarian law apply in Israel and Gaza?” | Human Rights Watch. (2023, October 27). https://www.hrw.org/news/2023/10/27/how-does-international-humanitarian-law-apply-israel-and-gaza
The US is expected to block aid to an Israeli military unit. What is Leahy law that it would cite? (2024, April 22). AP News. https://apnews.com/article/lsrael-us-military-aid-leahy-law-e11fafa09029262a89aa8f8c5b6deae7
Vindman, Y. (2024, August 15). It’s time for the united states to join the icc. Foreign Policy. https://foreignpolicy.com/2023/04/11/russia-putin-ukraine-war-icc-united-states-crimes-arrest-warrant/
The US is expected to block aid to an Israeli military unit. What is Leahy law that it would cite? (2024, April 22). AP News. https://apnews.com/article/lsrael-us-military-aid-leahy-law-e11fafa09029262a89aa8f8c5b6deae7
Sources
1 International Committee of the Red Cross, “Who is bound by IHL,” International Committee of the Red Cross, accessed July 15, 2024, https://blogs.icrc.org/ilot/2017/08/13/who-is-bound-by-ihl/
2 Human Rights Watch, “How Does International Humanitarian Law Apply to Israel and Gaza?” Human Rights Watch, October 27, 2023, https://www.hrw.org/news/2023/10/27/how-does-international-humanitarian-law-apply-israel-and-gaza.
3 Human Rights Watch, “How Does International Humanitarian Law Apply to Israel and Gaza?” Human Rights Watch, October 27, 2023, https://www.hrw.org/news/2023/10/27/how-does-international-humanitarian-law-apply-israel-and-gaza.
4 Rule 97. Human Shields.” Customary IHL Database, International Committee of the Red Cross, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule97
5 Weller, Marc. “What International Law Has to Say About the Israel-Hamas Conflict.” The Economist, October 27, 2023. Accessed July 2024. https://www.economist.com/by-invitation/2023/10/27/marc-weller-on-what-international-law-has-to-say-about-the-israel-hamas-conflict.