As Israel has begun to move into Gaza as part of their military response to the October 7th Attacks many experts have been asking whether Israel is in breach of international law. This is a crucial question both for outside observers to evaluate the legitimacy of Israel’s response but also for the Israeli government. A lot of Western support is contingent on Israel’s remaining within the lines of such legislation. The purpose of this column is not to deliver judgement but to provide the information that many are missing. Hopefully you will finish this article better informed  to make such judgments yourself.

There is a large bank of international laws of armed conflict (also known as LOAC), such as the Geneva Convention, which applies to armed conflict, including this one. One of the crucial questions is whether this should be treated as an international or non-international conflict (the latter referring to a struggle between a state and non-state group). This is because in the latter case laws are blurry - no prisoner of war status for example. However, many principles remain the same and Israel must stay within the law - laws such as those preventing the taking of hostages or the outright targeting of civilians (as opposed to collateral damage). Deliberate destruction of civilian infrastructure (which are not military objectives which will be mentioned later) would also constitute a breach of LOAC in some cases.

In the question of targeting civilians the answer is mildly less clear and can be bogged down in linguistic technicalities. Recklessness, when an attacker shows conscious disregard for substantial risk of harm for civilians, is of greater significance than negligence, which is when an attacker should have known the probable consequences of their action would be large-scale significant death.

What constitutes a ‘military objective’? - which I have mentioned earlier. These are, to use the formal language, objectives which “by their nature, location and use” make an “effective contribution” to the military efforts of one side. This means that Israel must use weapons that can distinguish between military and civilian targets such as carpet bombing or chemical weapons such as those used in the Vietnam War. It is only when expected damage to civilian objects is less than the military advantage that would be gained from their destruction that such objects can be militarily targeted. It is of importance to note that Israel’s declared reading of LOAC is that if a civilian building is of use also for military purposes that it can be treated in its entirety as a military object although the standard proportionality analysis does still extend to loss of civilian life in such attacks.

On the topic of using civilian buildings and infrastructure as military bases, LOAC is very clear - the use of human shields in all cases constitutes a war crime. “Utilising the presence of a civilian … to render certain points, areas or military forces immune from military operations” is illegal under LOAC. However, while the death of civilians used as shields is the responsibility of the defenders,  the civilians still retain their civilian rights and attackers must bear this in mind both in their analysis of the proportionality of their actions and in their obligation to minimise civilian harm. 

Proportionality and Protocol- Possibly the most important principle guiding a military response to an attack is proportionality. This principle applies both to smaller attacks but also in the case of a full-scale war. Nevertheless, this principle does have a degree of ambiguity - the qualifications for what constitutes proportionate action are not particularly clear.  However the principle of proportionality applies nor only between combatants but also between means and ends of an operation. Regardless of the provocation, Israel must remain within the laws of war. An attack, even one which violates LOAC, does not justify any violation of LOAC on the part of the other combatants. 

Enforcement of LOAC - The international criminal court (ICC) is the primary arbiter of international law and has already started investigating the actions of both sides in the current Israel-Palestine conflict. However such investigations are highly complex, take time and often face issues such as difficulty obtaining evidence, political opposition and lack of compliance from belligerents. The UN can also make calls on such issues but is a similarly ineffective body during such conflicts (although it can be highly influential in the aftermath to conflict).

The store of international law is large and complicated and violations can vary in scale. That being said, LOAC is important and can be a useful tool or lens through which to view armed conflict - although perhaps less useful in Israel-Palestine than the Russo-Ukrainian War. The principles which LOAC are built on are good, moral judgements upon which we can build our own conclusions upon the justification of past military action and how the warring parties ought to go on to act. It is also important because much of the international response will be in some way influenced by the way both sides participate in this conflict. Clear violation of LOAC on Israel’s  part may lead to softening in support from the West whereas continued horrific acts from Hamas may alienate supporters of Palestine (though we must not conflate pro-Palestine sentiment with pro-Hamas). I will leave it up to you to apply these principles and come to your own conclusions.