The following describes the law of armed conflict (LOAC), also known as international humanitarian law, that applies to the ongoing Israel-Hamas war. We identify where the law is well settled and clear, and where it is less so.
17 October 2023// JustSecurity.org
We do not apply the law to any alleged facts. Indeed, whether any conduct violates the law would generally require a fact-driven, case-by-case analysis.
We hope this guidance will assist policymakers, diplomats, analysts, reporters, scholars, and the public at large.
1. Equal Application Principle
A bedrock principle is that the laws of war apply equally to all belligerent parties. Both sides must comply with LOAC.
That principle holds regardless of which side attacked first, whether the initial attack complied with international law, which side is acting in lawful self-defense, and irrespective of the relative justice of the causes involved.
2. Sources
LOAC treaties and customary international law govern the conflict between Israel and Hamas. Customary international law involves rules that States accept as binding international obligations that have not been codified in a treaty between the parties.
Every State in the world has ratified the Geneva Conventions of 1949. While some may dispute if or when exactly Palestine became a State for those purposes, the ICRC website includes Palestine’s accession to the 1949 Geneva Conventions (as well as other LOAC treaties). Common Article 3 to the Geneva Conventions sets out minimum standards for all parties to an armed conflict, including State forces and non-State armed groups. Those include key protections for civilians and for combatants who are no longer taking part in hostilities, such as detainees and the sick and wounded. Common Article 3 prohibits murder, cruel treatment, torture, outrages against personal dignity, and degrading or humiliating treatment for civilians and for combatants who have been captured or wounded.
Customary international law further regulates the conduct of hostilities by all belligerents, and provides protections for civilians and civilian objects (such as medical facilities, schools, etc. that are not in military use). The law requires belligerents to distinguish at all times between combatants and civilians (who can never be made the object of attack) and take all feasible precautions to minimize harm to civilians and civilian objects. Attacks that aim to target civilians, or that would cause excessive harm to the civilian population compared to the anticipated military gain (i.e., disproportionate attacks) are prohibited.
3. What body of LOAC applies to the conflict?: International versus non-international armed conflict
LOAC distinguishes between two types of conflict:
- International armed conflict – a declared war or any other armed conflict between two or more States
- Non-international armed conflict – an armed conflict between a State and a non-State organized armed group or an armed conflict between non-State armed groups
The distinction is important because the LOAC rules for a non-international armed conflict are less detailed (e.g., no prisoner of war status or combatant immunity for non-state armed groups) and there is a shorter list of war crimes applicable in a non-international armed conflict. For a comparison, scan the shorter list of war crimes for non-international conflicts versus international conflicts in the treaty of the International Criminal Court (Article 8).
