Hamas does not follow any rules of war, but that does not exempt Israel from humanitarian justice, says professor emeritus

Hamas does not follow any rules of war but that

The possible and alleged war crimes committed in Gaza have spoken in the international community.

Hamas accuses Israel of targeting civilians, while Israel says that Hamas hides its own fighters in civilian targets, such as schools and hospitals.

Last night, Hamas said more than 30 people were killed in a bombardment of a refugee camp. The information could not be confirmed by independent sources.

On Friday, the Israeli army attacked an ambulance convoy in Gaza. Israel is justified hit by the fact that, according to the military, Hamas used ambulances to transport fighters and weapons.

The Hamas-run Gaza Health Ministry, meanwhile, claimed that several civilians were killed and wounded in the attack. Hamas has denied Israel’s claims about the use of ambulances in military operations.

Based on media information, it is difficult to assess the actual course of events. In any case, it is clear that it is a war crime: either an attack on an ambulance or a military operation under the guise of medical care.

What should we think of this news?

Emeritus Professor of International Law, Academician Martti Koskenniemi reminds us that the information we receive from the battlefields is often incomplete and intentionally distorted.

– The parties do their best to obscure the factual background in which the actions are taken. The rules of humanitarian law are used as a bludgeon on both sides, Koskenniemi states.

War crimes were probably committed on both sides

The rules of international humanitarian law are based on the 1949 Geneva Conventions and the 1977 Additional Protocols.

The Geneva Conventions, their Additional Protocols and the Statutes of the International Criminal Court are, on the other hand, very detailed, but always leave a great deal of discretion to the war-goers.

The key rule is that military operations, attacks and bombings must never be directed at civilian targets. Even in the bombing of military targets, it is not possible to avoid the suffering of civilians.

– The rules require that the suffering caused to civilians is proportional to the military objective to be achieved by the strike. This is an extremely vague standard, which the parties interpret in completely different ways in wars, says Koskenniemi.

Israel justifies the attacks by saying that Hamas uses civilians as its protective shields. According to Koskenniem, hiding military activities in the middle of civilian activities – or showing the use of the red cross or red crescent symbols in military activities – are war crimes.

– I have no confidence that Hamas would follow the legal rules of war. The brutal killings on the Israeli side show that this is a terrorist group ready for anything.

According to Koskenniemi, Israel’s military leadership is in a difficult situation, because obedience to any kind of rules cannot be expected from the other side. However, according to the academician, this does not exempt Israel from following the rules of humanitarian law.

– The number of civilian casualties is so huge that the legal assessment leans towards the fact that Israel has committed war crimes. Especially when bombs with enormous destructive power are used in the attacks, says Koskenniemi.

From the point of view of the legal rules of warfare, it is essential to examine acts of war, individual acts, independently, without taking a position on the justification of the war as a whole.

According to Koskenniemi, Israel has a right to self-defense based on the UN Charter, regardless of whether it is considered to be operating as an occupying state or not.

– But when you look at the acts themselves: an attack on an ambulance convoy, an attack on a hospital and an attack on a school are definitely reprehensible and war crimes.

According to Koskenniemi, however, one cannot talk about genocide or mass destruction when dealing with Israeli attacks.

– Mass extermination requires a conscious effort to destroy a group of people. In my opinion, as a jurist, there is no way to think that the purpose of Israel’s actions is to destroy the Palestinian people.

If war crimes are found, what will be done?

Palestine is a member of the International Criminal Court, so it is possible that the prosecuting authority will take the investigation forward. Israel is not a member of the court, so the question arises as to whether the court even has jurisdiction.

Although Israel does not recognize that it is an occupying state as defined by the Geneva Conventions, according to Koskenniemi, Israel’s Supreme Court has nevertheless stated that it must comply with the obligations of an occupier. Most have considered this to apply to Gaza as well.

The Geneva Rules are primarily applied in national courts. There are some examples of cases where national courts have dealt with war crimes committed by their own soldiers.

For example, Russia has opened a war crime indictment against two in Ukraine to massacres against the guilty soldier. Likewise, for example, the United States has dealt with war crimes a few times in the aftermath of the Iraq and Vietnam wars.

It is therefore possible that Israel’s national courts will also open war crime investigations into the attacks if they feel the evidence is sufficient.

It is considerably less likely that the military leadership of any state would ever end up in the dock in national courts, even in states of law.

– It is clear that the system does not work particularly well as it is, Koskenniemi says.

Is the authority of international criminal law faltering?

International criminal law enjoys a lot of media attention, because big questions are discussed in The Hague. At the same time, it is an area where international law is at its weakest.

There is no great disagreement about the legal rules and procedures of international criminal law, but implementing them in practice, i.e. holding those guilty of war crimes accountable, is very difficult.

Brutal war crime narratives spread through the media are unfortunately commonplace in modern conflicts. Stories about the events are spun on information platforms to please each actor, and competing truths live their own lives.

The question arises as to whether international treaties and courts have sufficient authority?

According to Koskenniemi, the background is a cold fall from hope to hopelessness.

After the end of the Cold War in the 1990s, an opportunity opened up to strengthen the existing international systems. There was a strong belief that the systems protecting humanitarian law would FINALLY be made to work as they were intended.

The tribunals in Yugoslavia and Rwanda and the establishment of the ICC, despite their many problems, brought the experience of success to the international community. The 21st century swept this rug from under our feet.

The wars in Afghanistan, Iraq and now Ukraine showed that the optimism of the 1990s was based on false assumptions.

– That is why there is currently a general atmosphere of disappointment internationally. The International Criminal Court has existed for about 20 years, and it has not fulfilled the expectations that were set for it, says Koskenniemi.

During the Cold War, people thought that the world was dark and that the great powers were beyond the reach of international law. According to Koskenniemi, after a hopeful decade, we have again slipped back into such cold real political times.

With his words, Koskenniemi does not mean that the International Criminal Court is not important. Rather, the question is how fair it is.

– The court’s cases are currently mostly aimed at African soldiers and politicians. Prosecutions can be brought against actors with little international support. In the case of the United States, Russia or Israel, the court is quite powerless.