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In the Israeli-Palestinian conflict, when is an attack a war crime?

The Washington Post logo The Washington Post 5/17/2021 Adam Taylor
a train on a track with smoke coming out of it: Smoke rises after Israeli airstrikes in the Gaza Strip, as seen from the Israeli side of the border on May 17. (Atef Safadi/EPA-EFE/Shutterstock) © Atef Safadi/EPA-EFE/REX/Shutterstock Smoke rises after Israeli airstrikes in the Gaza Strip, as seen from the Israeli side of the border on May 17. (Atef Safadi/EPA-EFE/Shutterstock)

The ongoing conflict between Israel and Palestinian militant groups in Gaza has led to fierce accusations of war crimes, on both sides.

Palestinian deaths climbed to 200 Monday, including more than 50 children as of Sunday evening, according to local health officials, amid hundreds of Israeli airstrikes.

Israeli actions have come under particular scrutiny, as the toll remains lopsided: Ten Israelis have been killed, according to authorities, as thousands of rockets from the Gaza Strip rain down over the country, many of which have been intercepted by Israel’s Iron Dome air defense system.

On Monday, advocacy group Reporters Without Borders called on the International Criminal Court to investigate as a possible war crime an Israeli strike this weekend that destroyed a building in the Gaza Strip housing several international news outlets.

Meanwhile, rockets fired indiscriminately into Israeli land by Hamas, the group that controls Gaza, and by other militants, have been described as war crimes by groups that ally themselves with Israel.

But war crimes investigations are never simple, with huge discrepancies in power and fatalities, and the institutions of international law have long struggled to deal with the conflict between Israel and Palestinian groups.

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What is a war crime?

Under international law, there are provisions for how states and other warring parties should conduct themselves, referred to as “laws of war.” Breaches of these laws are considered war crimes.

The system was largely established after World War II, when the trials of Nazi leaders at Nurembergand of Japanese leaders in Tokyo helped spur new attention to crimes against civilians during war. One major development was the Geneva Conventions, treaties setting out a framework to which 196 countries have signed on, entirely or in part.

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The list of potential war crimes is long, but its measures include the intentional killing of civilians or prisoners, torture and the use of child soldiers.

Another key concept is the idea of “proportionality,” which argues that the damage caused to civilian life during a military operation should not be disproportionate to the objective of the operation.

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Have war crimes been committed during the ongoing Gaza conflict?

Although both sides have leveled war crimes accusations in the latest round of fighting, they have not been tested in a court.

Critics have long said Israeli airstrikes in the Gaza Strip, even if they have a legitimate military aim, are disproportionate. The intensity of strikes targeting Hamas this past week renewed these claims, with widespread accounts of civilians displaced or killed by Israeli airstrikes.

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The Washington Post reported Sunday that one predawn airstrike had killed 17 members of one family. The Israeli military has said the initial investigation showed the casualties had been “unintended.”

Separately, an Israeli airstrike on Saturday targeted a Gaza Strip high-rise housing the offices of media outlets including the Associated Press and Al Jazeera. Israel’s military claimed the building also housed “Hamas military intelligence assets.”

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Reporters Without Borders has suggested this would constitute targeting the media, a potential war crime. “Deliberately targeting media outlets constitutes a war crime,” the group’s secretary general, Christophe Deloire, said in a statement on Monday.

“By intentionally destroying media outlets, the Israel Defense Forces are not only inflicting unacceptable material damage on news operations,” Deloire said. “They are also, more broadly, obstructing media coverage of a conflict that directly affects the civilian population.”

Israeli leaders have expressed regret at the loss of civilian life and do undertake measures, including phone calls to targeted buildings or smaller warning shots, designed to allow time to evacuate.

They also suggest that Hamas deliberately locates military offices in civilian-heavy areas in the densely populated Gaza Strip.

Hamas, designated as a terrorist organization by the United States and other powers, indiscriminately targets Israeli civilian areas with crude but sometimes deadly rockets and artillery fire. Though the Israeli military says the vast majority of threats are eliminated by its Iron Dome defense system, some do get through and civilians die during each conflict.

However, the unequal death tolls in Israeli-Palestinian conflicts have raised questions about proportionality for years. By Monday, a week into the latest round of fighting, the Israeli death toll stood at 10 while Palestinian deaths were reported to be 200, including at least 58 children, according to local authorities in Gaza.

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How does the International Criminal Court work?

U.N. members came together to draft and ratify the Rome Statute that led to the establishment of the independent International Criminal Court in The Hague in 2002, to prosecute war crimes, along with international crimes including genocide and crimes against humanity, in member states or when referred by the United Nations Security Council.

The court’s top prosecutor, Fatou Bensouda, told Reuters last week that her team was watching the events in Israel and the Palestinian territories closely to see whether they fit into an already-open inquiry on the conflict.

“These are events that we are looking at very seriously,” Bensouda said. “We are monitoring very closely and I remind that an investigation has opened and the evolution of these events could also be something we look at.”

Bensouda’s office opened a formal investigation focusing on Israel and the Palestinian territories this March, after a request by the Palestinian Authority — the Fatah-led political body that is based in the West Bank, but not Gaza. The investigation is focused on the 2014 Gaza war, which saw the Israeli military enter Gaza as Hamas and other groups fired rockets toward Israel cities.

Israel is not a member of the court and has rejected its jurisdiction, with Israeli Prime Minister Benjamin Netanyahu calling the move “pure antisemitism” and an “affront for all democracies.”

The United States, also not a member of the court, has voiced its disapproval of the investigation: Under the Trump administration, Bensouda and other ICC officials were targeted with sanctions, which the Biden administration later lifted.

Even supporters of the court admit it has had a slow pace and uneven results since it first issued arrest warrants in 2005. In recent years, African states have repeatedly complained that the investigations opened so far have unfairly focused on the continent, while human rights groups have called for the court to be strengthened so it can stand up to powerful governments.

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