NUMEROUS CONTROVERSIES HAVE erupted in Ireland since the beginning of the conflict in Israel and Gaza over claims about breaches of international law and possible war crimes.
A minor diplomatic spat occurred last weekend after Israel’s ambassador to Ireland, Dana Erlich, took issue with comments by President Michael D Higgins that Israel had broken international law by bombarding Gaza.
Former Web Summit CEO Paddy Cosgrave also apologised and later resigned following a tweet he sent referring to possible “war crimes” by Israel.
The country has faced criticism from the UN and international groups for its ongoing bombardment of the densely populated Gaza Strip, where thousands of civilians have been killed in recent weeks.
Israel, Amnesty International and Human Rights Watch have also accused Hamas – the Islamic militant group who are deemed a terrorist organisation and who control the Gaza Strip – of committing war crimes in their initial attack on 7 October.
The group killed at least 1,400 people on the day it launched its offensive, most of them civilians, and has also been criticised for taking over 200 hostages – including women, children and older people – back to Gaza, where most are still being detained.
International law does define what war crimes are – but could either side be said to have committed such crimes in the current conflict?
Speculation about possible war crimes is almost a given during modern conflicts, but the concept has only existed in an international sense for three quarters of a century.
“Since the beginning of war, in many cases, victorious powers have prosecuted their defeated enemies and sometimes the concept of war crimes was used,” says Professor Shane Darcy, a senior lecturer at the Irish Centre for Human Rights at the University of Galway.
“But in an international sense, it was a concept that was devised in order to hold the Axis powers to account effectively [after World War Two].”
Towards the end of the Second World War, Allied powers sought to prosecute German military and political leaders, as well as the Japanese, and devised crimes based on international law as it existed at the time.
The result was the Geneva Conventions of 1949, which set down specific war crimes and laid down rules about who is and isn’t considered a combatant, and how to legally safeguard combatants, prisoners of war (POWs), and civilians.
In the decades since, various other conventions have expanded on the original set, including the Rome Statute which established the International Criminal Court in the late 1990s, but the concept has broadly remained the same over time.
War crimes are criminal offences that violate what is known as international humanitarian law – a strand of international law that aims to limit the effects of wars for humanitarian reasons and which lays out things like how POWs should be treated.
“War crimes include serious or grave violations of the laws of war,” explains Clive Baldwin, senior legal adviser at Human Rights Watch.
“They can include deliberately attacking civilians, including hostage-taking with criminal intent and imposing collective punishment on the population.”
Other examples of war crimes include murder, torture, rape or other sexual offences, killing POWs, and the conscription of children under the age of 15 into armed forces.
According to the United Nations, war crimes must “always take place in the context of an armed conflict”, but can differ from genocide and crimes against humanity, which do not always take placed during times of conflict.
Every country in the world is a party to the Geneva Conventions, but the concept of war crimes are individually focused; this means that states themselves aren’t prosecuted, but people who may be acting on their behalf can be.
“The state can be held responsible in different ways for violations of international law, but the criminal aspect is generally focused on individuals,” Darcy explains.
In a conflict situation, however, defining what constitutes a war crime can be tricky: not every civilian death at the hands of a combatant is necessarily a violation of international humanitarian law.
International humanitarian law is therefore based on a number of key principles which consider military necessity during an armed conflict against the need to allow for the protection of non-combatants.
Combatants must be distinguished from civilians and only other combatants may be directly targeted, which is known as the principle of distinction.
Direct attacks on civilians or civilian infrastructure is therefore considered a war crime, as is the use of weapons – possibly including nuclear bombs – which do not allow civilians or civilian infrastructure to be distinguished from military combatants or targets.
Another principle, known as the principle of proportionality, demands that a minimal amount of harm must be caused to civilians or civilian infrastructure.
This means that combatants must avoid deliberately killing or injuring civilians, or damaging infrastructure, in pursuit of military goals.
For example, armed groups must not set up near civilian infrastructure if they know that they’re going to be attacked; nor can armies attack places where they believe large numbers of civilians are likely to be.
Indiscriminate attacks where there is no attempt to distinguish between civilians or military objectives is also considered a war crime.
Not every civilian death is a war crime, but attacking places such as hospitals, bakeries or civilian homes is unless there is a military objective (which must also be proportionate).
When it isn’t possible to avoid harming civilians or civilian infrastructure, the damage is required to be proportional to advantage gained; if it is not, that would also be considered a war crime.
But an act that is deemed proportionate is often subjective, which can be unhelpful.
“There is a certain amount of ambiguity in there that is problematic when you’re talking about military objectives and civilian objects,” Darcy says.
“It’s a reflection of international humanitarian law as something that was devised by states and military powers who came together to draft these rules, but who didn’t want to completely tie their hands.”
The principle of proportionality also applies only when a military target is attacked: an attack on civilians alone would constitute a violation of international humanitarian law that cannot be justified.
Another principle, the principle of precaution, states that precautions must be taken to protect civilians ahead of any attacks.
This can include advance warnings to give people time to clear an area that may come under attack – but crucially, the principle explicitly states that “all feasible precautions” should be taken; it is not enough just to give advance warning of an attack.
Claims about what constitutes a war crime and who has committed them in Israel and Gaza continue to shape how the conflict is reported.
Last week, accusations of war crimes were made against both Hamas and Israel following an explosion at the al-Ahli hospital in Gaza – with uncertainty still surrounding who exactly was responsible despite numerous Open Source Intelligence (OSINT) investigations by several international newsrooms.
At home, a misunderstanding over the principle of precaution is what caused the diplomatic spat between President Michael D Higgins and Israel’s ambassador to Ireland, Dana Erlich.
Remarking on Israel’s bombardment of Gaza last week, Higgins said that “to announce in advance that you will break international law and to do so on an innocent population [...] reduces all the code that was there from second world war on protection of civilians”.
However, ambassador Erlich claimed at the weekend that this was “misinformation”.
In an interview with the Sunday Independent, she said that Israel had not broken international law precisely because it had given advance notice to civilians in Gaza before it carried out airstrikes.
“Announcing beforehand — that is not breaking [international law], that is in accordance with international law,” she told the newspaper.
“We want to make sure that there are as few civilian casualties as possible.”
To date, Israeli forces have launched thousands of airstrikes since beginning its latest operation in the Gaza Strip.
The Gazan Ministry of Health say these have killed over 5,000 people and injured over 15,000 more - a figure which Hamas says it has tallied from hospital directors, and is generally used by international news outlets despite an inability to independently verify it because foreign media and observers have been unable to access the Gaza Strip since the conflict began.
There are major questions about the extent to which Palestinian civilians were sufficiently warned about these strikes.
On 13 October, the Israel Defense Forces ordered all those living in northern Gaza – more than 1 million people – to evacuate to the south of the enclave within 24 hours.
Israel may argue that this was sufficient notice and that the subsequent airstrikes in Gaza served an immediate military need – the defeat of Hamas, which it aims to do in response to the 7 October attacks that killed 1,400 people in Israel.
But there may be questions about whether the evacuation order amounted to taking “all feasible precautions” to avoid civilian casualties, which is required under the principle of proportionality.
The order was criticised at the time by foreign governments and agencies including the UN and the Red Cross, in part because it was believed that a 24-hour notice period was far too short a time to facilitate the movement of citizens.
“It is inconceivable that more than half of Gaza’s population could traverse an active war zone, without devastating humanitarian consequences, particularly while deprived of essential supplies and basic services,” Paula Gaviria Betancur, special rapporteur on the human rights of internally displaced persons, said at the time.
Aside from the feasibility of asking more than one million people to leave a large area within 24 hours, others have raised questions about whether the bombardment of civilian targets in Gaza by Israel could also constitute a war crime.
Amnesty International said last week that it is investigating air strikes on residential buildings, a refugee camp, a family home and a public market, claiming that there is no evidence that fighters were present or that the infrastructure had any other military objective.
The group also said that the Israeli military did not give Palestinian civilians adequate warnings before the strikes, and that in some cases it did not warn civilians at all.
“In their stated intent to use all means to destroy Hamas, Israeli forces have shown a shocking disregard for civilian lives,” Amnesty International’s secretary general Agnès Callamard said.
They have pulverised street after street of residential buildings killing civilians on a mass scale and destroying essential infrastructure.”
Israel has also carried out aerial bombardments in Rafah in the southern Gaza Strip, a location that was not mentioned in the evacuation notice on 13 October.
On Tuesday, UN chief Antonio Guterres said that the 7 October attacks could not justify “the collective punishment of the Palestinian people” (though he also criticised Hamas for using civilians as “human shields”).
Israel’s foreign minister to the UN Eli Cohen dismissed calls for “proportionality” and said the only proportionate response to the attacks was “a total destruction to the last one of the Hamas”.
“Tell me, what is a proportionate response for killing of babies, for rape (of) women and burn them, for beheading a child?” he asked.
“How can you agree to a ceasefire with someone who swore to kill and destroy your own existence?”
Aside from airstrikes, human rights groups have suggested that the treatment of Gaza during the conflict could also amount to a breach of international law.
During the first week of the conflict, Gaza’s only power plant ran out of fuel, leaving civilians across the enclave without electricity and the shutting down of its seawater desalination plants, resulting in a lack of drinking water.
“Israel has imposed collective punishment on the population of Gaza – the cutting off of all electricity, fuel, water – which is also a war crime,” Human Rights Watch’s Clive Baldwin says.
However, both Amnesty International and Human Rights Watch also accused Hamas of committing war crimes.
“The massacre by Hamas and other armed groups of Israeli civilians was a war crime, one that was clearly intended to attack and kill civilians. So was the hostage-taking, where there was a clear intent and which was a clear crime,” Baldwin added.
Amnesty International likewise criticised the group for hostage-taking, as well as for ongoing rocket attacks on Israel.
“[We are] calling on Hamas and other armed groups to urgently release all civilian hostages, and to immediately stop firing indiscriminate rockets,” Agnès Callamard said.
Under international humanitarian law, it is possible to prosecute war crimes when the law is broken, though it is not necessarily straightforward to do so.
International tribunals have successfully prosecuted individuals for committing war crimes during civil wars in Rwanda, Sierra Leone and the former Yugoslavia.
But because prosecutions are focused on individuals, who may be national leaders (as commanders-in-chief), military leaders or a country’s own soldiers that have acted on behalf of their country, states can be reluctant to progress investigations.
When it comes to what’s happening in Gaza, crimes could be tried at the International Criminal Court in The Hague in the Netherlands, which has jurisdiction over war crimes committed in Palestine because the State of Palestine is a member of the court.
“It’s clear that those can include attacks from Gaza, because rockets have been fired at civilians, as well as Israeli attacks in Gaza,” Baldwin says.
In theory, a prosecution could also take place via a country’s domestic legal system because the Geneva Conventions says that it doesn’t matter where a crime was committed.
“Maybe it could happen at a domestic level, maybe in court martial system if it’s a member of the armed forces, or maybe it could appear before domestic criminal courts if it involves civilian practices or a civilian from another country,” Professor Shane Darcy of the Irish Centre for Human Rights says.
However, he adds that bringing charges would be complex because of the process involved.
“It’s difficult to prosecute war crimes because of the context about getting access to information, evidence, and witnesses.
“Historically, there been a bit of an insufficient approach because domestically, states tend not to prosecute individuals and there are challenges in criminal trials when crimes might have taken place outside of the country. That remains a big issue.”
The basic principles of international humanitarian law could also hinder any potential prosecution, because of their subjective nature.
What is deemed a proportionate response or how much precautions were taken to avoid civilian casualties are not black-and-white, and may be judged by those more favourable to one side.
If both are weighed up in terms of Israel’s actions, the country’s Western supporters, like the European Union and the United States, might ultimately help to sway opinion in its favour.
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