The Imprint of War: Cross-Examining Atrocities in Gaza and Israel Through the Prism of International Law
The Imperative of Legal Scrutiny
Since October 7, 2023, the conflict has resulted in a humanitarian catastrophe defined by a staggering loss of civilian life, the widespread destruction of critical infrastructure, and mass displacement. Thousands of civilians, including numerous women and children, have been killed. These devastating realities compel immediate legal action. Independent international bodies, including the International Commission of Inquiry, have initiated comprehensive investigations into alleged violations of IHL and IHRL and potential international crimes committed by all actors. Our legal position demands a strictly impartial application of the law, confirming breaches where the evidence is clear and explaining the specific legal duties violated.
The Dual Framework: IHL, IHRL, and Universal Accountability
The unfolding events are legally characterized by the overlap of two distinct frameworks: an intensification of a Non-International Armed Conflict (NIAC) between Israel and Hamas/other armed groups, overlaid by the International Armed Conflict (IAC) framework due to Israel’s ongoing status as the occupying power in Gaza. This duality means both IHL (jus in bello), which governs the conduct of hostilities, and IHRL, particularly its non-derogable obligations, apply concurrently.
This dual applicability mandates that prohibitions against war crimes, crimes against humanity, and genocide are universal. They apply equally to state and non-state actors. Consequently, the actions of Hamas-led groups and the Israeli Security Forces (IDF) must be subject to the same rigorous legal examination, with impartiality being the foundation of any credible scrutiny.
Flagrant Breaches by Non-State Armed Groups
The actions undertaken by Hamas and associated Palestinian armed groups on and since October 7, 2023, constitute explicit and severe breaches of IHL, forming the basis for multiple international crimes now under investigation by the International Criminal Court (ICC).
Deliberate Targeting and Indiscriminate Attacks
The Principle of Distinction, a foundational rule of IHL obliges all parties to differentiate between combatants and civilians at all times. Available evidence indicates that Hamas-led groups carried out attacks on Israeli civilian areas, resulting in the killing, abduction, and reported summary execution of civilians, including children and entire families. Allegations suggest that these acts were intended to spread terror among the civilian population, conduct which, if substantiated, would constitute war crimes and crimes against humanity such as murder and unlawful imprisonment.
The large-scale firing of unguided rockets into populated areas further raises concerns of indiscriminate attacks, as such weapons are inherently incapable of distinguishing between military objectives and civilian objects. This conduct, if proven, would violate the principles of distinction and military necessity.
Hostage Taking and Human Shielding
The abduction and continued detention of civilian hostages is prohibited in all circumstances under IHL and constitutes a grave breach of the Geneva Conventions. Public threats to execute hostages, if confirmed, would further compound these violations. Reports also indicate the use of human shielding practices, including embedding military assets within civilian infrastructure such as schools and mosques, and the failure of fighters to distinguish themselves from civilians. Such conduct, where established, would amount to a distinct war crime.
While investigations remain ongoing, the cumulative weight of available evidence points to serious violations by non-state armed groups. The nature of these alleged acts including direct attacks on civilians, hostage-taking, and the use of human shields places them among the most serious breaches of the laws of armed conflict.
The State’s Conduct of Hostilities and the Question of Proportionality
While the State of Israel invokes its inherent right to self-defence, that right cannot and does not eclipse the binding force of international humanitarian law. It does not confer licence to disregard the foundational duties to distinguish civilian life from military targets, to exercise constant precaution in attack, and to weigh every use of force against the proportionality of its human cost. These principles are not suspended in war they are the very limits that define whether the conduct of war remains lawful.
The Excessiveness of Civilian Harm
The Principle of Proportionality prohibits attacks expected to cause incidental civilian harm or damage that would be excessive in relation to the concrete and anticipated military advantage. This requires a difficult, subjective balancing test by military decision-makers.
However, the sheer scale of destruction in Gaza which has rendered large parts of the Strip uninhabitable and led to the desperate displacement of over 90 percent (1.9 million) of the population raises profound legal questions regarding sustained adherence to the proportionality standard. International bodies have documented findings that Israeli forces have carried out indiscriminate and disproportionate attacks. When strategic objectives result in the cumulative destruction of essential life support systems over a prolonged period, the operational methods themselves, and not merely isolated attacks, violates IHL.
Cumulative Civilian Harm and Systemic Failure
IHL's traditional focus on assessing the legality of individual tactical strikes is insufficient to judge modern asymmetric urban conflicts. The thousands of strikes, which may individually satisfy the proportionality test, have an aggregate effect termed Cumulative Civilian Harm that results in the collapse of health, education, and sanitation systems.
We contend that the systemic destruction of essential services necessary for survival under the guise of technical compliance demonstrates a functional failure of the law to achieve its objective of minimizing suffering. This necessitates legal evolution to require proportionality to be assessed strategically over the duration of a conflict, not just tactically, thereby preventing catastrophic IHRL breaches at a systemic level.
Grave Breaches and the Plausibility of Genocide
The systematic deprivation of the civilian population's means of survival transitions IHL breaches into acts that may qualify as Crimes Against Humanity (CAH) or specific war crimes under the Rome Statute.
Collective Punishment and Starvation as a Weapon
The continued imposition of the restrictive blockade on the Gaza Strip, including the disruption of essential services like fuel and electricity, has been determined by international organizations to constitute illegal collective punishment against the entire civilian population a grave violation of the Fourth Geneva Convention.
A particularly severe allegation centers on the deprivation of necessities. Evidence suggests authorities have deprived the civilian population of objects indispensable to its survival and have employed the starvation of civilians as a method of warfare. This is explicitly defined as a war crime under the Rome Statute. The International Court of Justice (ICJ) recognized the imminent, life-threatening crisis by issuing binding provisional measures, requiring Israel to ensure the provision of basic food supplies without delay.
Forced Displacement and Link to Genocide
The military operations have resulted in the displacement of approximately 1.9 million Palestinians. Allegations that Israeli forces have carried out deliberate, controlled demolitions to create permanent "buffer zones" raise the possibility of the crime against humanity of forcible transfer should these systematic actions lead to the permanent removal and refusal of return for the local population.
The widespread and systematic IHRL violations especially the calculated destruction of healthcare and shelter, and the use of starvation directly correlates with the actus reus (prohibited acts) required under the Genocide Convention ("deliberately inflicting on the group conditions of life calculated to bring about its physical destruction"). The ICJ’s focus on enforcing aid and preventing famine reinforces the specific legal link between massive IHRL deprivation and the plausibility of genocide-related acts.
Accountability: The Twin Tracks of International Justice
The legal fallout of the conflict is being processed via two parallel and distinct accountability tracks: State responsibilityat the ICJ, and individual criminal responsibility at the ICC.
The ICC investigation has jurisdiction over war crimes, crimes against humanity, and genocide and has taken the unprecedented step of seeking arrest warrants for senior leaders on both sides including Israeli leadership (Benjamin Netanyahu and Yoav Gallant) and Hamas leadership. This confirms the court’s determination to address allegations of the highest level crimes committed by all parties, including extermination, torture, hostage-taking, and the use of starvation as a method of warfare.
Concurrently, the ICJ case (South Africa v. Israel) addresses state responsibility under the 1948 Genocide Convention. The Court's finding that South Africa’s claim was plausible enough to proceed, specifically concerning the right of Palestinians in Gaza to be protected from acts of genocide, resulted in legally binding provisional measures mandating the immediate provision of aid. While the actus reus for mass crimes is established, the ultimate determination of genocide hinges entirely on the high legal bar of proving specific, destructive genocidal intent (mens rea) on the part of state leadership.
The current legal landscape is thus defined by widespread evidence of war crimes and crimes against humanity, coupled with a robust, binding international determination to pursue justice. The ICJ's enforcement of measures to prevent starvation underscores the critical linkage between massive IHRL breaches and the potential for the crime of genocide.
The profound functional limitations of the current IHL framework, revealed by the systemic devastation caused by cumulative destruction in hyper-dense urban settings, point to the necessity of legal evolution. Incorporating analytical approaches such as the Cumulative Civilian Harm doctrine has become increasingly important to ensure that international law reflects the realities of modern conflict. Only by moving beyond the narrow, tactical assessment of individual strikes and evaluating the broader legality of sustained military strategies can the law meaningfully address the scale of civilian suffering and infrastructural collapse characteristic of protracted warfare, while remaining true to its fundamental purpose: the protection of human life.