Leonard Rubenstein’s extremely well-informed and well-argued article is an uncompromising discussion of some of the most serious breaches of and threats to international humanitarian law in these two conflicts. If we do not confront them, there is a great risk that this law will lose all power, that the perpetrators of these violations will not be bothered and that civilian populations will be sacrificed on the altar of international inaction.
Almost a decade ago, a book of essays about the development of, and lack of respect for, international humanitarian law (IHL) in the second half of the twentieth century appeared under the title Do the Geneva Conventions Matter?[1]Matthew Evangelista and Nina Tannenwald (eds.), Do the Geneva Conventions Matter?, Oxford University Press, 2017. The question seems even more relevant now, as, in the first quarter of the twenty-first century, war has been characterized by persistent and vicious assaults on humanitarians, health workers, infrastructure and civilians in general.
Some State militaries and non-State armed groups have demonstrated open contempt for the law’s values and specific rules in wars in the Democratic Republic of the Congo, Gaza, Myanmar, Sudan, Tigray (Ethiopia), Ukraine and in less-reported conflicts around the globe. The Safeguarding Health in Conflict Coalition reported more than 2,500 attacks on healthcare in conflicts in 2023, the highest it has ever reported in its decade of reporting.[2]Safeguarding Health in Conflict Coalition, Critical Condition: Violence Against Health Care in Conflict 2023, May 2024, … Continue reading The atrophy of commitment to IHL is evident too among States, most recently Israel, that celebrate their fealty to it but interpret its obligations so narrowly that they drain it of protective value and justify attacks that result in mass killing and wounding of civilians and destruction of health systems.
Russia’s total war
Russia invaded Ukraine in 2022 on the flimsiest of pretexts, breaching its obligations under the UN (United Nations) Charter not to use force against the territorial integrity or political independence of any other State. Russia’s conduct of the war has been characterized by brutal attacks on hospitals, apartment blocks, train stations and shopping malls, kidnapping and deportation of children, slaughter of civilians, and blockage of aid and evacuation. A consortium of international and national non-governmental organisations (NGOs) documented more than 1,500 attacks on healthcare infrastructure since the beginning of the war, including damage or destruction to more than 770 hospitals and clinics. More than 200 health workers have been killed.[3]eyeWitness to Atrocities, Insecurity Insight, Media Initiative for Human Rights et al., Attacks on health care in Ukraine, n.d., https://www.attacksonhealthukraine.org A joint report by the World Bank and the UN Development Programme assessed that in the first year, Russia’s attacks on the power grid cut Ukraine’s generating capacity by more than half.[4]The World Bank and UNDP, Ukraine Energy Damage Assessment, March 2023, https://www.undp.org/ukraine/publications/ukraine-energy-damage-assessment When questioned about this conduct, President Vladimir Putin has never sought to justify it under the law.
“While Russia has adopted the Geneva Conventions and Protocols and incorporated them into domestic law, it has never integrated them into its military doctrine, training and command.”
Analysts generally agree that Russia commits atrocities as part of a military strategy to suppress and deter resistance, demoralise the population and break its will to resist, and exercise psychological pressure on the government.[5]Joshua Askew, “‘Terror bombing’: Why is Russia targeting civilians in Ukraine?” euronews, 1 June 2023, … Continue reading Julia Friedrich and Niklas Masuhr point out that Putin decorated the unit that committed massacres in Bucha. And as Mark Kramer of Harvard’s Davis Center for Russian and Eurasia explains, while Russia has adopted the Geneva Conventions and Protocols and incorporated them into domestic law, it has never integrated them into its military doctrine, training and command. On the contrary, he writes, “contempt for the law is built into Russian military ethos.”[6]Mark Kramer, “Russia, Chechnya and the Geneva Conventions, 1994-2006”, in Matthew Evangelista and Nina Tannenwald (eds.), Do the Geneva Conventions matter?…, op. cit.
Russia is hardly alone. The Assad regime in Syria launched hundreds of chemical attacks on civilians and, along with Russia, attacked hospitals more than 600 times, while also criminalising the provision of healthcare to anyone in an opposition-controlled area. It never attempted to defend its actions under the Geneva Conventions, only issuing preposterous denials, seeking to discredit the messenger or labelling health workers as supporters of terrorism. The overwhelming evidence is that it attacked civilians and hospitals as a strategy to displace populations and undermine support for opposition forces.[7]Leonard Rubenstein, Perilous Medicine: The Struggle to Protect Health Care from the Violence of War, Columbia University Press, 2021. In the war in Gaza, Hamas’s massacres of civilians, hostage-taking, indiscriminate rocket fire, sexual violence and embedding fighters within civilian structures convey total disdain for the law.
Russia has paid little price for its atrocities. The International Criminal Court (ICC) has assumed jurisdiction of crimes against humanity committed in the war in Ukraine and indicted Putin and others for abduction of children. It remains to be seen whether it will hold him and Russian commanders to account for their attacks on healthcare.
Israel’s manipulation of international law
By mid-August 2024, Israel had, according to Gaza’s Ministry of Health, killed more than 40,000 Palestinians in Gaza, a figure that includes both combatants and civilians. Assuming Israel’s claim that its forces have killed 14,000 Hamas fighters is accurate,[8]Emma Farge and Nidal Al-Mughrabi, “Gaza death toll: how many Palestinians has Israel’s campaign killed?”, Reuters, 1 October 2024, … Continue reading 60% of the killings were civilian. More than 100,000 people have suffered traumatic injuries. Up to 24 July, the World Health Organization (WHO) reported more than 500 attacks on healthcare infrastructure in Gaza with almost 750 killed and almost 1,000 people injured, many of whom were displaced and sheltering in hospitals.[9]World Health Organization, occupied Palestinian territory, Impact of attacks on health care in the Gaza Strip 7 October 2023 until 30 July 2024, 14:00, 2024, … Continue reading That same month, the number of hospital beds available had declined from 3,500 before the war to 1,400, and of those, only 800 were in fixed hospitals; the rest were in field hospitals with limited capacity. Still in July 2024, more than 10,000 individuals needed urgent medical evacuation. The destruction of housing, sanitation and water infrastructure has led to catastrophic increases in infectious diseases, including more than half a million cases of diarrhoea and a polio outbreak.[10]WHO Regional Office for the Eastern Mediterranean, Media briefing on health emergencies in the Eastern Mediterranean Region, 17 July 2004, https://x.com/i/broadcasts/1PlKQbRdjPzGE
“A deconfliction system for a humanitarian response has not so much broken down as never been put in place.”
By mid-2024, more than 250 aid workers had been killed[11]Human Rights Watch, Gaza: Israelis attacking known aid worker locations, 14 May 2024, https://www.hrw.org/news/2024/05/14/gaza-israelis-attacking-known-aid-worker-locations and more than 350 attacks had been carried out on humanitarian installations and convoys. The Global Education Cluster reported that schools, many of which had been converted to shelters for displaced people, had been directly hit. Sixty-five of them were totally destroyed and another forty-three half-destroyed.[12]Education Cluster, Verification of damages to schools, July 2024, https://www.eenet.org.uk/wp-content/uploads/2024/07/Preliminary-school-damage-assessment_July2024_Final-1.pdf A deconfliction system for a humanitarian response has not so much broken down as never been put in place.
Despite the massive death and destruction, Israel has, from the start of the war, asserted that it is committed to compliance with the law on protection of civilians and healthcare. Prime Minister Benjamin Netanyahu has repeatedly claimed that Israel has “the most moral army in the world”.[13]Prime Minister of Israel, Post on X, 7 June 2024, https://x.com/IsraeliPM/status/1799106794020851916 In a speech to the US Congress in July 2024, he argued that Israel “implemented more precautions to prevent civilian harm than any military in history and beyond what international law requires”.[14]“We’re protecting you: Full text of Netanyahu’s address to Congress” (on 25 July 2024), The Times of Israel, 9 October 2024, … Continue reading People who questioned Israel’s conduct, he said, including judges, are liars who issue “blood libels against the Jewish state”.
Apart from Netanyahu’s tendentious political posturing, Israel’s Ministry of Foreign Affairs issued a brief on how the laws of war apply to the conflict in Gaza. The Ministry reasserted that, while Israel has not ratified the 1977 Additional Protocols to the Geneva Conventions that require adherence to duties of distinction, precaution and proportionality in attack, Israels abides by them under customary international humanitarian law.[15]Ministry of Foreign Affairs, “Hamas-Israel Conflict 2023: Key Legal Aspects,” 14 December 2023, https://www.gov.il/en/pages/hamas-israel-conflict2023-key-legal-aspects The brief also argues that Israel trains its forces in the law, provides commanders with legal advice on targeting and investigates allegations of wrongdoing. In addition, the Israeli Supreme Court has jurisdiction to adjudicate on issues arising under the law of war.
Israel, however, has adopted an interpretation of obligations of precautions and proportionality contrary to the language and purpose of the Protocols that permit it enormous leeway to inflict grievous harm on Palestinian women, children and other civilians, on humanitarian workers, and on healthcare facilities and personnel.[16]The discussion here of Israel’s view of the duties of precaution and proportionality draws from and updates my analysis in a prior publication, which also considers historically competing theories … Continue reading If adopted globally, its view would drain the law of its protective function.[17]Israel’s obstruction and limitation of humanitarian aid, including food, leading to a request of arrests warrants by the International Criminal Court prosecutor for starvation of the population and … Continue reading
Evading requirement of precautions
Additional Protocol 1 requires that parties to a conflict take “constant care” to spare the civilian population, including to “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects”. [18]ICRC International Humanitarian Law Databases, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol … Continue reading Minimizing civilian harm in a situation of high population density and where Hamas is embedded in civilian structures is challenging, but as the International Committee of the Red Cross (ICRC) Commentaries to the Protocols explain, the requirement is especially critical in fighting in dense urban areas.[19]ICRC International Humanitarian Law Databases, Protocol Additional to the Geneva Conventions…, op. cit, paragraph 2190, … Continue reading In addition to the rule of precaution, Additional Protocol 1 includes a separate duty to provide, when feasible, effective advance warning of attacks that may affect the civilian population. In the case of hospitals misused for military purposes, warnings must also include a reasonable time to cease misuse.
The Ministry of Foreign Affairs brief, however, lists precautions only as warnings, calls for evacuation and choosing weapons and munitions that can minimise civilian harm. It makes no reference to precautions in means and methods, nor is there evidence of their use.[20]Larry Lewis, “Israeli civilian harm mitigation in Gaza: Gold standard or fool’s gold?”, Just Security, 12 March 2024, … Continue reading Moreover, from the start of the war and for months on end, Israel treated offering warnings and evacuation orders as sufficient to fulfil the duty to take all feasible precautions in attacks. Israel entirely ignored the requirements of employing “means and methods” of warfare to minimise civilian harm. In an attack on 31 October 2023 that dropped two 2,000-pound bombs on the crowded Jabalia refugee camp, killing dozens of Palestinians, the Israeli Defense Forces (IDF) spokesperson cited no precautions, just warnings, and blamed Hamas and the victims for the carnage. He said: “We warned civilians two weeks ago to evacuate that specific area because there was going to be major conflict operations, they should’ve heeded the warning and left”. He added that civilians were paying the price for the atrocities of Hamas.[21]Erin Burnett, OutFront, “Israeli troops inside Gaza City tonight”, CNN, 1 November 2023, https://transcripts.cnn.com/show/ebo/date/2023-11-01/segment/01 The refrain became common in bombing, shelling and missile strikes on civilian structures in Gaza City, Khan Yunis and Rafah.
Israel also engaged in deflection, treating Hamas’s existential threat to Israel and presence in civilian structures as a legitimate reason for inflicting massive civilian harm. But precautions are required even when a civilian structure becomes a target because of its military use.
After a missile attack on an ambulance parked at Al-Shifa Hospital that caused dozens of casualties, the IDF claimed the presence of Hamas fighters in the vehicle without mentioning any steps to minimise harm to medics, patients and bystanders.[22]Human Rights Watch, “Gaza: Israeli ambulance strike apparently unlawful”, 7 November 2023, https://www.hrw.org/news/2023/11/07/gaza-israeli-ambulance-strike-apparently-unlawful In the brutal hospital incursion into Nasser Hospital in February 2024, the IDF took no serious efforts to save the lives of the severely wounded and sick patients there and obstructed the WHO’s efforts to evacuate them for three days.[23]Leonard Rubenstein and Stephen Morrison, “Facts and falsehoods: Israel’s attacks against Gaza’s hospitals”, Think Global Health, 15 March 2024, … Continue reading And in the infamous attack on three vehicles in a World Central Kitchen convoy, the IDF’s investigation cited mistaken beliefs by frontline troops that Hamas militants were present, not any precautions (or absence of them) to avoid harming aid workers if they had been.[24]The Israel Defense Forces, Conclusion of the investigation into the incident in which 7 WCK employees were killed during a humanitarian operation in Gaza, 5 April 2024, https://www.idf.il/190614
“Precision weapons are not precautions when the target is known to have many civilians present and that these latter will inevitably suffer grievous harm.”
As a result of international pressure, in 2024 Israel announced it would use more precise weapons in Gaza and support their use through better intelligence and aerial surveillance in targeting.[25]Matthew Mpoke Bigg and Rawan Sheikh Ahmad, “Israeli strikes on schools pose a life-or-death choice for civilians”, The New York Times, 10 August 2024. But precision weapons are not precautions when the target is known to have many civilians present and that these latter will inevitably suffer grievous harm. In the attack on the Al-Tabaeen School in the summer of 2024, three precision weapons struck a prayer hall where Israel claimed Hamas fighters were present, resulting in a hundred people being killed, according to Gaza’s Civil Defence.[26]Missy Ryan, Hajar Harb, Mohamad El Chamaa, et al., “Nearly 100 killed in Israeli strike on school, Gaza, officials say,” The Washington Post, 10 August 2024. The IDF’s citation of use of precision weapons became a mantra disconnected from true precautions. After a strike on the courtyard of Al-Aqsa Martyr’s Hospital, where displaced people had sought refuge, killed four people and wounded others, a military spokesperson was quoted by the New York Times as saying: “Numerous steps were taken to mitigate the risk of harming civilians, including the use of precise munitions and aerial surveillance.” The Times noted that the statement “echo[ed] words often employed by the military after airstrikes in Gaza”.[27]“As the first phase of vaccinations end, an Israeli strike hits a hospital courtyard in central Gaza, The New York Times, 6 September 2024.
The IDF’s failure to take required precautions to reduce harm to civilians in military operations appears linked to apparent indifference to other obligations under the Geneva Conventions. These include respecting and protecting healthcare workers unless they commit, outside their humanitarian function, acts that harm the enemy, ensuring the availability of the necessities of life including food, shelter, medicine and water, and eschewing torture and cruel, inhuman or degrading treatment. In hospital incursions and other encounters with Palestinian health workers, the IDF has detained more than 260 healthcare workers[28]Healthcare Workers Watch, “The killing, detention and torture of healthcare workers in Gaza”, 7 October 2024, … Continue reading without charge, and more than thirty have reportedly been tortured.[29]Human Rights Watch, Israel: Palestinian Healthcare Workers Tortured, 26 August 2024, https://www.hrw.org/news/2024/08/26/israel-palestinian-healthcare-workers-tortured
Proportionality inside out
Israel’s approach to proportionality similarly drains the obligation of its purpose. The rule prohibits attacks that 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”.[30]ICRC International Humanitarian Law Databases, Protocol additional to the Geneva Conventions…, op. cit. The rule can be difficult to apply, but it remains central to avoiding massive harm and wilful breaches can be prosecuted as war crimes.
As emphasized in the ICRC commentary to Protocol 1, the military advantage in the proportionality calculus relates to the particular attack, not the strategic objective of the war. It must be direct and concrete, not long-term.[31]ICRC International Humanitarian Law Databases, Commentary of 1987, op. cit., paragraphes 2207 et 2209. Otherwise, any civilian harm could easily be considered outweighed by the enormous advantage of moving toward achievement of a strategic objective and render the proportionality rule meaningless. But that has been Israel’s approach in Gaza, citing its strategic goal is the total elimination of Hamas and all its components. As a result, it considers that the killing of Hamas militants or the destruction of any command centre is a step towards achieving its strategic goal that outweighs civilian harm, no matter how great.
Colonel (res.) Pnina Sharvit Baruch, a former director of the IDF branch that advises commanders on the law, repeatedly argued for this theory in public appearances. She said that the strategic goal of eliminating Hamas’s existential threat, and every part of its infrastructure, is “so heavy” and has “such weight” that extensive civilian causalities in a particular attack will not be disproportionate.[32]American-Israel Friendship League, “Navigating international law in times of war with Colonel Adv. Pnina Sharvit Baruch”, n.d., https://www.youtube.com/watch?v=KKV0Itaylvw IDF’s justification of particular attacks either cites the strategic goal of eliminating Hamas or ignores proportionality altogether. In addressing the Al-Tabaeen School attack, Israel’s representative told the Security Council: “We neutralised dozens of vicious terrorists who used the school for their evil goals, in direct violation of international law”, as though no discussion of proportionality was required.[33]United Nations, Israeli Attack on Al Tabi’een School in Gaza Underscores Desperate Need for Ceasefire, Scaled up Humanitarian Assistance, UN Political Chief Tells Security Council, 13 August 2024, … Continue reading
Mark Lattimer, a leading expert on civilian protection in war, wrote that Israel’s approach to proportionality suggests that “Israel’s commitment to that protection is now seriously in doubt”.[34]Mark Lattimer, “Assessing Israel’s approach to proportionality in the conduct of hostilities in Gaza”, Lawfare, 16 November 2023, … Continue reading
Acquiescence in the corrosion of international humanitarian laws
The international community, while endlessly affirming the importance of international humanitarian law, has largely acquiesced in diminishing its force. In particular, it has abdicated responsibility for accountability for both Russia’s blatant crimes committed and Israel’s permissive interpretations of its law that rationalise harm to civilians. The international criminal tribunals established since the 1990s have had the power to prosecute attacks on aid workers and healthcare facilities in cases within their jurisdiction. But since the creation of international criminal tribunals in the 1990s, no international prosecution has focused on attacks on healthcare infrastructure and their staff, no matter how open and vicious. Nor have there been prosecutions under principles of universal jurisdiction.
The ICC prosecutor is reportedly investigating crimes beyond those already charged in Ukraine and Gaza. But it remains uncertain whether he will bring charges related to attacks on healthcare, aid workers and displaced people or have global credibility if he does. Furious condemnations of initial charges against Israeli leaders by the United States may well contribute to undermining the very legitimacy of the ICC and reinforce claims that its work elsewhere, including for crimes in Ukraine, is politically motivated. Even less politically fraught steps, including Israel’s destructive interpretation of the law, have been absent.
“Powerful States have reinforced impunity for these crimes by their arms transfer policies.”
Powerful States have reinforced impunity for these crimes by their arms transfer policies. The Arms Trade Treaty and domestic legislation in many countries prohibit arms transfers to State armed forces and non-State armed groups (or, in some cases, units of them) that violate international humanitarian law. The United States, the largest supplier of arms to Israel, has such laws, including one that requires a report to Congress whether representations by a recipient of arms that they are not used to breach IHL are reliable and credible.
In May 2024, the US Secretary of State issued a report to Congress that included addressing the war in Gaza.[35]U.S. Department of State, Report to Congress under Section 2 of the National Security Memorandum on Safeguards and Accountability with Respect to Transferred Defense Articles and Defense Services … Continue reading The State Department noted “instances” where “it is reasonable to assess” that since 7 October, Israeli security forces employed US arms in a manner “inconsistent with its IHL obligations or with established best practices for mitigating civilian harm”. It nevertheless asserted that “The IDF has undertaken steps to implement IHL obligations for the protection of civilians in the current conflict, including the requirements related to distinction, proportionality, and precautions in offensive operations”, even as it acknowledged that the US “lacks full visibility of Israel’s application of these principles.
The report neither explained how it could accept Israel’s representations without adequate information nor addressed Israel’s cramped view of these principles. Similarly, it cited Israel’s assertion that it took steps to mitigate civilian harm without assessing them, noting only that the results on the ground “raised substantial questions whether the IDF is using them effectively in all cases”. It did not address the patterns of attacks and the credibility of Israel’s asserted justifications for them.
The report’s lack of the analysis required and its repeated use of fudge words and phrases such as “instances” and “in all cases” not only authorised continued arms sales to Israel but constitute an invitation to belligerents and their arms dealers elsewhere to ignore the law.
On 2 September 2024, the UK Labour government Foreign Secretary David Lammy suspended thirty arms exports licenses to Israel for weapons he said pose “a clear risk that they might be used to commit or facilitate a serious violation of international humanitarian law”.[36]U.K. Government, UK policy on arms export licenses to Israel: Foreign Secretary’s statement, 2 September 2024, … Continue reading It was an important but partial step, both regarding the 90% of export licenses not covered and the absence of any discussion of Israel’s view of the law.
Conclusion
One could ask where there is a moral difference between strategically killing civilians, as Russia has, and Israel rationalising its indifference to causing their deaths through bad-faith views of its affirmative obligations to avoid or minimise harm to civilians in military operations. As to the latter, as the ICRC’s most recent comprehensive report on IHL and armed conflict, though not addressing particular conflicts, explains that “states’ adoption of expedient interpretations of IHL […] to preserve States’ leeway to kill and detain […] have compounded to undermine its protective force.”[37]International Committee of the Red Cross, “International humanitarian law and the challenges of contemporary armed conflict: Building a culture of compliance for IHL to protect humanity in … Continue reading Whatever the case, each brings mass death and destruction and has a corrosive effect on compliance with laws designed to protect people already suffering from war. There must be accountability for both or else the tenuous power of IHL globally will further erode. The question is not whether the Geneva Conventions are relevant – they are – but whether they will continue to be either ignored or suffer death by a thousand cuts.
