INTERNATIONAL HUMANITARIAN LAW 101

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International legal terms are used (and often misused) by decision-makers, nongovernmental organizations, media, and others in describing the Israel-Hamas War. This misuse contributes to inflammatory rhetoric, perpetuates misinformation about Israel, fuels division in Canada, and leads to increased threats to Canada’s Jewish community.

In the following brief, providing full and transparent citations, we will set the record straight on what international law says and how it applies to Israel’s war against Hamas – a Canadian listed terrorist entity.

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WHEN IS A COUNTRY ALLOWED TO GO TO WAR AGAINST ANOTHER COUNTRY OR TERRITORY?

•  According to UN Charter Chapter 8 Article 51, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations...”
  
  
• The jus ad bellum principle recognizes that self-defence is considered a legitimate cause for going to war. Under this same principle of international law, only sovereign states have the right to wage war, the war must be attempting to address an injustice or aggression, and the war must be a last resort option with reasonable hope of success and with the goal of restoring peace.

HOW THIS APPLIES TO THE ISRAEL-HAMAS WAR

• On October 7, 2023, Hamas violated Israel’s sovereignty by deliberately targeting Israeli civilians with rockets, breaching the border, and killing more than 1,200 people, taking hostages, and committing acts of sexual violence, rape, and torture.
  
  
• Hamas violated international principles when waging its deliberate attack on the Israeli civilian population.
  
  
• In contrast, Israel’s war on Hamas is justified and meets the threshold of authorized use of force in self-defence as outlined in Article 51 of the UN Charter and in the principles of jus ad bellum. In the absence of a Palestinian state, Hamas is the entity that controls Gaza, and it is directly responsible for the atrocities of October 7. Israel’s war is one of self-defence, with the goals of addressing the violation of sovereignty and the violence against its citizens on October 7, restoring peace, and protecting its citizens from incessant attacks from Hamas. Israel has, indeed, a reasonable hope of success in its mission.

WHAT DOES THE TERM “PROPORTIONALITY” MEAN, AND WHERE DOES IT COME INTO PLAY WHEN UNDERSTANDING WAR?

• While Jus ad bellum refers to the conditions under which States may resort to war or to the use of armed force in general, jus in bello regulates the conduct of parties engaged in an armed conflict. This is when international humanitarian law comes into play.
      
• International humanitarian law (IHL) seeks to limit the worst effects of armed conflict and to protect civilians from them. One key principle of IHL is proportionality.   
  
  
• According to the principle of proportionality, as detailed in Rule 14 of the List of Customary Rules of IHL, “Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.”  
  
  
• According to the ICRC, (the International Committee of the Red Cross) “The principle of proportionality prohibits attacks against military objectives which are ‘expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” In other words, the principle of proportionality seeks to limit damage caused by military operations by requiring that the “effects of the means and methods of warfare used must not be disproportionate to the military advantage sought.”  
  
  
• Rule 20 of the List of Customary rules of IHL adds that, “Each party to the conflict must give effective advance warning of attacks which may affect the civilian population, unless circumstances do not permit.”  
  
  
• To be clear, international law and this principle of proportionality do not say that civilians will not be unfortunate casualties of war, but they do ensure that countries do their utmost to protect civilians during war.  
  
  
• Further, although tragic, the loss of human life remains a reality of armed conflict, but only to the extent that is strictly necessary — such as when the undesired, but often inevitable, loss of civilian life occurs following the targeting of a highly strategic military asset.  
  
  
• Every military strike must be considered under these principles and analyzed by what is known at the time of the strike (i.e. not in retrospect).
  
  
• Further, although tragic, the loss of human life remains a reality of armed conflict, but only to the extent that is strictly necessary — such as when the undesired, but often inevitable, loss of civilian life occurs following the targeting of a highly strategic military asset.  
  
  
• Every military strike must be considered under these principles and analyzed by what is known at the time of the strike (i.e. not in retrospect).

HOW THIS APPLIES TO THE ISRAEL-HAMAS WAR

• Israel has incorporated the laws of armed conflict into its military operations through legal training, operational procedures, plans, and investigation mechanisms. This helps ensure that every attack against Hamas falls within the bounds of proportionality. 
   
• Israel has provided advance warnings to Palestinian civilians to evacuate areas deemed of military strategic importance. The warnings include dropped leaflets and phone calls.
  
  
• Israel has also created a designated area of conflict in Gaza, targeting Hamas infrastructure in the North, and is facilitating a humanitarian corridor for civilians to evacuate safely to the South. In parallel, Israel evacuated its own population from communities in proximity to the Gaza border to ensure they too were not present in an active combat zone.

WHAT ARE THE RULES REGARDING CIVILIANS DURING WARTIME?

• While proportionality explains the unfortunate reality of civilian casualties during war, Common Article 3 of the 1949 Geneva Conventions protects “[p]ersons taking no active part in the hostilities.” Furthermore, Article 51(3) of the Additional Protocol I and Article 13(3) of the 1977 Additional Protocol II provide that civilians shall enjoy protection against the dangers arising from military operations “unless and for such time as they take a direct part in hostilities.” Therefore, civilians lose their “protected status” under international law if they participate directly in hostilities.   
  
  
• According to Rule 97 of the List of Customary Rules of IHL “the use of human shields is prohibited.” The ICRC further details that, “The prohibition of using human shields in the Geneva Conventions, Additional Protocol I and the Statute of the International Criminal Court are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations.”

HOW THIS APPLIES TO THE ISRAEL-HAMAS WAR

• In its war against Hamas, Israel targets only military assets. These include Hamas terrorists or other terror operatives, weapons storage facilities, rocket launches, and terror infrastructure, such as the Hamas tunnels – a sophisticated network of reinforced tunnels built under Gaza and used for terror-related purposes.  
  
  
• In contrast, and in violation of international law, Hamas targets Israeli civilians by firing rockets at Israeli population centres.  
  
  
• Hamas’ October 7 attack deliberately targeted civilians, as demonstrated by Hamas attacking Israeli communities (kibbutzim) and their civilian populations, murdering, raping, and kidnapping men, women, and children. The attack on the Supernova Music Festival was another clear violation of international law that saw Hamas target civilians with terror.
  
  
• It is important to note that, even though Hamas’ rocket attacks against Israeli civilians do not result in high Israeli casualties, due to Israel investing in missile defense systems and bomb shelters, every single Hamas rocket fired constitutes a war crime – because the targets of the rockets are civilians.   
   
• By contrast, while Israel’s attacks of Hamas terror infrastructure unfortunately can and do result in Palestinian civilian casualties, despite best efforts to avoid them, they are not war crimes under international law because they adhere to the principle of proportionality and do not target civilians.     
  
  
• Hamas uses its own civilian population as human shields, imbedding its terrorist infrastructure in population centres, schools, hospitals, and more. (Please see below.) This is a deliberate tactic to ensure that either its military assets are not targeted by Israel or that, should Israel deem attacking them as proportional to the military gain, the civilian casualties that result will be leveraged to condemn Israel in the arena of public opinion. As detailed above, Hamas’ use of human shields is illegal under international law.

WHAT ARE THE RULES REGARDING SUPPLYING HUMANITARIAN AID?

• According to Rule 55 of the List of Customary Rules of IHL, “The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control.”   
• The Article 23 of the 4th Geneva Convention further details that “humanitarian relief” consists of “all consignments of medical and hospital stores intended only for civilians” and “all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.”  
  
  
• Practice also “indicates that each party to the conflict must refrain from deliberately impeding the delivery of relief supplies to civilians in need in areas under its control.”

HOW THIS APPLIES TO THE ISRAEL-HAMAS WAR

• There is ample evidence of Hamas’ misappropriation of humanitarian aid, which raises significant challenges for Israel’s ability to supply humanitarian aid while ensuring “right of control.”   
  
  
• Despite these risks, Israel is allowing humanitarian aid to be provided to the Palestinian population in Gaza via the Rafah border crossing.   
  
  
• Israel has published evidence of instances of Hamas preventing humanitarian aid from reaching the Palestinian civilian population, in direct contravention of international practice.

WHAT ARE THE RULES REGARDING HOSPITALS? SCHOOLS? OTHER CIVILIAN STRUCTURES?

• According to Rule 28 of the List of Customary Rules, “Medical units exclusively assigned to medical purposes must be respected and protected in all circumstances. They lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy.”  
  
  
• Article 18 of the 4th Geneva Convention details that “it is recommended that civilian hospitals be situated as far as possible from such [military] objectives” due to the risks such proximity poses to hospitals and the civilians in them.
  
  
• According to the Additional Protocol I to the Geneva Conventions, Article 12, “Under no circumstances may medical units be used in an attempt to shield military objectives from attack. Whenever possible, the parties to the conflict shall ensure that medical units are situated so that attacks against military objectives do not imperil their safety."  
  
  
• Further, Article 21 of the 1st Geneva Convention states that, “The protection to which fixed medical establishments and mobile medical units are entitled shall not cease unless they are being used to commit acts, outside their humanitarian duties, that are harmful to the enemy.”

HOW THIS APPLIES TO THE ISRAEL-HAMAS WAR

• Israel has shared significant evidence, verified by the United States, that, in contravention of international law, Hamas is using hospitals for military purposes.   
  
  
• As noted above, by using hospitals for military purposes, the hospitals became legitimate military targets. Therefore, Israel’s military operations at Gaza’s Shifa Hospital and other hospitals found to be used by Hamas are not violations of international law. Hamas is violating international law by using hospitals for military purposes.   
  
  
• Israel gave weeks of warning that Hamas was using hospitals to shield its military operations prior to engaging in combat at the hospitals, and it provided humanitarian aid to the hospitals during the operations.

WHAT ARE THE INTERNATIONAL RULES PERTAINING TO HOSTAGES?

• The taking of hostages is prohibited in international armed conflict under Article 34 of the 1949 Geneva Convention IV. It is also prohibited in non-international armed conflict under Common Article 3 to the 1949 Geneva Conventions.   
  
  
• The taking of hostages is also considered a war crime as defined in Article 8 of the Rome Statute of the International Criminal Court (ICC).   
  
  
• According to Rule 124, the ICRC must also be granted access to all hostages, considered “persons deprived of their liberty.”

HOW THIS APPLIES TO THE ISRAEL-HAMAS WAR

• On October 7, Hamas took some 242 Israeli hostages in gross violation of international law.   
  
  
• The ICRC has not been granted access to the hostages held by Hamas, in further violation of international law.

WHAT IS A CEASEFIRE? HOW DOES IT COMPARE TO A HUMANITARIAN PAUSE?

• According to the UN, a ceasefire is a “suspension of fighting agreed upon by the parties to a conflict, typically as part of a political process. It is intended to be long-term and often covers the entire geographic area of the conflict. Its aim is usually to allow parties to engage in dialogue, including the possibility of reaching a permanent political settlement.”   
  
  
• By contrast, a “humanitarian pause,” as defined by the UN, is a “temporary cessation of hostilities purely for humanitarian purposes. Requiring the agreement of all relevant parties, it is usually for a defined period and specific geographic area where the humanitarian activities are to be carried out.”

HOW THIS APPLIES TO THE ISRAEL-HAMAS WAR

• Despite the fact that Hamas broke an existing ceasefire on October 7, brokered by Egypt in May 2021, and that the terrorist organization currently holds 167 Israelis hostages, several groups in Canada have been demanding a ceasefire as a means to ending the hostilities. Israel and its allies argue that there can be no ceasefire until the hostages are returned and Hamas surrenders. If not, then Hamas would be allowed to re-arm, re-group, and would be able to continue to commit violations of international law. To be clear, a ceasefire would do nothing for peace, either for Israelis or for Palestinians.
    
• Israel has created a humanitarian corridor, and its army is facilitating the safe evacuation of Palestinian civilians from the north to the southern part of Gaza. Likewise, Israel evacuated approximately 200,000 of its own civilian population from areas in proximity to the Gaza border to protect them from continued rocket attacks and other terror from Hamas.|
  
  
• A "humanitarian pause," for a brief designated time, can allow additional humanitarian aid to flow to Gaza during this time of war. It is also an opportunity for Hamas to release all hostages and Canadian nationals trapped in Gaza. Enhanced oversight is needed to ensure this aid reaches the most vulnerable and that it is not misappropriated by Hamas.   
  
  
• One must remember that, in the past, Hamas has exploited these “humanitarian pauses” to murder Jews. During the 2014 conflict, Hamas broke a similar pause and, via one of its terror tunnels, murdered three Israeli soldiers, one of whom, Hadar Goldin, has never been returned. Any “brief pause” must not serve as an opportunity for Hamas to exploit to achieve its terrorist ends.