The War Crimes Debate Over Israel’s Attack on Gaza Is Missing Something

The War Crimes Debate Over Israel’s Attack on Gaza Is Missing Something
Palestinians walk outside buildings destroyed in the Israeli bombardment on al-Zahra, on the outskirts of Gaza City, Oct. 20, 2023 (AP photo by Ali Mahmoud).

In the debate over Israel’s military offensive in Gaza, two questions about the laws of war have driven the discussion. First, is Israel intentionally targeting civilians, as Hamas did in its attack on Oct. 7? Second, assuming Israel is not intentionally targeting them, is its “incidental” killing of civilians “disproportionate” relative to the military gains it seeks to obtain? But there is a third question to ask about Israel’s actions in Gaza, one largely absent so far from the conversation: Is Israel using inherently indiscriminate means and methods of warfare? If so, even if any resulting deaths might be arguably “proportionate” and “incidental,” they could still be considered war crimes.

The laws of war on civilian targeting are laid out in the Geneva Conventions of 1949 and their Additional Protocols, and war crimes as well as crimes against humanity are further defined by the Rome Statute founding the International Criminal Court. Even though Israel has not signed the Rome Statute, its actions and the conflict more broadly still come under the ICC’s jurisdiction, because Palestine is a state party to the treaty and the court. Moreover, even though Israel is one of just a few states that has not ratified the Additional Protocol to the Geneva Conventions that contains the codified rules on civilian immunity, these rules are among those considered by the International Committee of the Red Cross to be customary law—meaning that, based on their widespread legitimacy as evidenced in public statements, state practice and codification in military manuals, these rules are considered binding on all countries.

Those rules on civilian immunity are both weaker and stronger than is often believed. It is true that the rules don’t entirely outlaw killing civilians, which often surprises and outrages those who wish innocents could be fully spared from war’s destruction. But nor is war a matter of “anything goes if you didn’t mean to do it.” Under the laws of war, one must actually mean not to harm civilians, and respect for this stricture is demonstrated by the choice not only of targets but also of methods of attack.

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