As the death toll in Gaza rises to over 730 Palestinians and 32 Israeli soldiers, legal definitions of what is permissible in war have been bitterly contested. International law defines war crimes and crimes against humanity in the Geneva Conventions and the Rome Statute, but in the Israeli-Palestinian conflict, though both sides are guilty of violations, the classifications are difficult to apply.
The exceedingly high and disproportionate number of civilian casualties in Gaza has prompted Palestinian calls to seek redress from the International Criminal Court (ICC). But legally, proportionality is not determined by a comparison of the number of casualties on different sides of a conflict, even if the world makes legal and moral judgments based on such statistics. Any potential future ICC action hinges on whether the United Nations would define Hamas—as a member of the Palestinian unity government—as a state actor and Israel as an occupying force of Gaza.
These hefty legal questions are subject to interpretation and often manipulated by both sides as a political tool. On Wednesday, the U.N. Human Rights Council launched a commission of inquiry into alleged Israeli war crimes in Gaza; the Palestinian-drafted resolution was supported by 29 votes in the 46-member council, with 17 abstentions and one “no” vote, by the United States. Such condemnation is a slap on the wrist for Israel, if a severe one, since judicial action by U.N. bodies is necessary to prosecute war crimes. But although the Palestinian Authority has continuously threatened to turn to the ICC for such relief, it has yet to do so, because acceding to the Rome Statute would open it up to prosecution for Hamas’ war crimes. Still, the mere threat of U.N. judicial action is enough to delegitimize Israel’s actions in Gaza in the international arena—a big win for Palestine in the media war, without the legal ramifications of an actual trial.