Under which laws can Israel be tried for glaring war crimes against humanity in Gaza?

The conflict between Israel and Palestinian forces since the freedom group Hamas' October 7 assault has created a huge and rising death toll - and accusations of war crimes — on both sides. 

The war falls under a complex international system of justice that has emerged since World War Two. Even if states say they are acting in self-defence, the rules of armed conflict apply to all participants in a war.

What laws govern the conflict? 

Internationally accepted rules of armed conflict emerged from the 1949 Geneva Conventions, which have been ratified by all UN member states and supplemented by rulings at international war crimes tribunals. A series of treaties govern the treatment of civilians, soldiers, and prisoners of war in a system collectively known as the "Law of Armed Conflict" or "International Humanitarian Law." It applies to government forces and organised armed groups, including Hamas fighters.

What acts could violate war crimes?

New York-based Human Rights Watch cited as possible war crimes the deliberate targeting of civilians, indiscriminate rocket attacks, and the taking of civilians as hostages by Palestinian armed groups, as well as the Israeli counterstrikes in Gaza that martyred hundreds of Palestinians.

The taking of hostages, murder, and torture are explicitly banned under the Geneva Conventions, while Israel's response could also be subject to a war crimes investigation.

What do the Geneva Conventions say?

The overarching goal of the Geneva Conventions and thus international humanitarian law is to protect civilians in wartime and minimise suffering in war. Under the laws of armed conflict, combatants include members of state armed forces, military and volunteer forces, and non-state armed groups. 

A siege can be considered a war crime if it targets civilians rather than a legitimate means to undermine Hamas' military capabilities or if found to be disproportionate. Directly targeting civilians or civilian objects is strictly forbidden under the laws of armed conflict. 

However, there are instances in which otherwise civilian objects can become legitimate military targets. Even then, attacks on military objectives have to be proportional, meaning they must not lead to excessive loss of civilian life or damage to civilian objects. 

Proportionality is not a numbers game where the toll of civilian casualties on one side is compared to the other; rather, the loss of civilian life should be proportionate to the direct and concrete military advantage expected from that specific attack.

Which institutions can try alleged war crimes? 

The first in line to try alleged war crimes are local jurisdictions, in this case, courts in Israel and the Palestinian territories. If alleged Palestinian perpetrators of atrocities in Israel and all alleged perpetrators of crimes on the occupied Palestinian territories are not brought to justice at home, the International Criminal Court (ICC) in The Hague is the only international legal organ able to bring charges. 

The ICC's founding Rome Statute gives it legal authority to investigate alleged crimes on the territory of its members or by their nationals when domestic authorities are "unwilling or unable" to do so.

What is the role of the ICC?

The International Criminal Court (ICC), the world's permanent war crimes tribunal, opened in The Hague in 2002. It has jurisdiction over war crimes, crimes against humanity, and genocide in its 123 member states or committed by its nationals. 

Many of the world's major powers are not members, including China, the United States, Russia, India, and Egypt. The ICC recognises Palestine as a member state, while Israel rejects the court's jurisdiction and does not formally engage with it. 

With a limited budget and staff, ICC prosecutors are investigating 17 cases ranging from Ukraine and Afghanistan to Sudan and Myanmar. The ICC has been investigating allegations of war crimes and crimes against humanity committed in the occupied Palestinian territories since 2021. 

It has not issued any arrest warrants.