‘Collective punishment is a war crime’

Since the beginning of the Israeli army's ground offensive on the Gaza Strip last Friday, international actors have finally started issuing warnings to Israel in an effort to limit civilian losses.

Three weeks earlier, over 1,400 people were killed in Hamas’ attack on Israel on Oct. 7, triggering a devastating attack on Gaza that has killed over 8,800, including over 3,600 children. The death toll three weeks into the war surpassed the annual number of children killed in conflict zones since 2019, according to international charity organization Save the Children on Sunday. Hospitals have received alleged evacuation orders, since Israel suspects Hamas, which has a network of underground tunnels, of using their basements to conduct operations.

On Tuesday, Oct. 31, Gaza’s Jabaliya refugee camp was targeted by an Israeli strike, leaving at least 50 dead, according to a still provisional toll. "A senior Hamas commander was present there," explained the Israeli Army, which warned on Oct. 22 that "anyone choosing not to leave northern Gaza for the south of Wadi Gaza may be identified as an accomplice of a terrorist organization." Kenneth Roth, executive director of Human Rights Watch between 1993 and 2022, and current professor at Princeton’s School of Public and International Affairs spoke to L'Orient-Le Jour about the unfolding situation.

Q- Both parties justify their acts of war: Hamas invokes the argument of “decades of Israeli occupation” for its Oct. 7 attack, and Israel uses the surprise attack by Hamas as a pretext to its bombing campaign on Gaza. What weight do such justifications have in international law, especially in the face of apparent war crimes?

A- Although Hamas committed horrendous war crimes on Oct. 7 by slaughtering and abducting civilians, international humanitarian law is clear that war crimes by one side do not justify war crimes by the other. The legal requirements of international humanitarian law apply independently and unconditionally to each party. They do not depend on reciprocal conduct by the opposing side. International humanitarian law also applies regardless of the justice of one’s cause, whether Hamas resisting Israeli occupation or Israel responding to Hamas’s attacks on Israeli civilians. No cause justifies war crimes. Nothing does. It is fair to talk about context in discussing why Palestinians or Israelis might choose to fight, but that context does not excuse war crimes.

Q- In this conflict, journalists have been intentionally targeted, according to Reporters Without Borders, and hospitals are being ordered to evacuate without having the material and logistical means to do so. To what extent have the principle of distinction and the core rules of proportionality and precautions been safeguarded in this conflict?

A- There have been cases of Israeli forces seemingly deliberately targeting civilians or civilian objects, such as the Reporters Without Borders finding with respect to a Reuters journalist or the Israeli attack on Islamic University of Gaza (for the weak reason that it supposedly trained intelligence operatives – something that probably happens at many universities around the world).

More commonly, Israeli forces have violated the rule against indiscriminate attack – that is, attacking a broad civilian area just because a military target may be within it. That seems to characterize Israel’s flattening of several Gaza neighborhoods. In addition, even when aiming at a military target, international humanitarian law prohibits an attack when the harm to civilians is disproportionate. An illustration of an Israeli violation is the destruction of large apartment complexes, rendering one hundred families homeless at a time, just because of some ostensible Hamas presence.

Israel has been blaming Hamas for using civilians as human shields and endangering civilians by fighting from populated areas. Both of those violations do occur, but they do not relieve Israel from the ongoing duty not to fire in ways that are indiscriminate or will cause disproportionate harm to civilians. Netanyahu’s suggestion that all civilian deaths in Gaza are Hamas’s fault is really an invitation to Israeli forces not to worry about civilian deaths – the opposite of what a law-aiding head of government should do.

International humanitarian law requires a warring party if possible to give “effective advance warning” before an attack to try to spare civilians, but Israel has been implementing this duty in an inhumane way – by ordering more than one million civilians of northern Gaza to flee south while continuing to bomb southern Gaza and the routes going there, allowing only a trickle of humanitarian aid far below what is needed, and failing to provide credible assurances that people who leave will later be allowed to return home rather than face a second Nakba. Ordering hospitals to evacuate is completely unreasonable given the many people on life-support systems who would die, the severe shortages of medication, and the shortages of necessities such as fuel and electricity needed to help them. Even if Hamas is operating under hospitals, as Israel claims, it would cause disproportionate harm to civilians for Israel to attack hospitals.

Q- In Rafah over the weekend, the prosecutor of the ICC (International Criminal Court), Karim Khan, stated that impeding aid to cross into Gaza may constitute a crime. Can the investigation already launched by the institution on crimes committed by Palestinian factions and on Palestinian occupied territories since 2014 include this conflict and eventually lead to concrete sentences?

A- The International Criminal Court chief prosecutor is correct that Israel’s obstruction of humanitarian aid to people in need constitutes a war crime that can be prosecuted. The ICC has jurisdiction over any crime committed by Palestinian nationals or on Palestinian territory because Palestine, recognized as a non-member state by the UN General Assembly, has joined the court. That Israel has not joined the court doesn’t matter if it commits war crimes in Palestinian territory. Khan has had an open investigation on Palestine for more than two years but he has been slow-walking it, evidently because it would be controversial to charge Israeli officials. That impunity only encourages more war crimes. The war crimes being committed by both sides during the current conflict have spurred Khan to hold a press conference on Sunday in Egypt. I hope it also convinces him to expedite his open investigation, which could address current war crimes if he pursues them.

Q- Focusing specifically on children in this conflict (the death toll of which, announced by Hamas, has exceeded the annual number of children killed in conflict zones since 2019, according to Save the Children), what can explain the extremely high losses and the muted condemnations of the international community?

A- The high death toll among Palestinian children is one element of the disturbingly high overall civilian death toll due to the Israeli bombardment. It suggests that Israel forces are not taking the steps needed to comply with the requirements of international humanitarian law. In discussing the siege, Israeli defense minister Yoav Gallant spoke of Palestinian residents of Gaza as “human animals.” It is as if he does not regard it as important to spare their lives, as if he wants to punish them collectively for the acts of Hamas which they have no control over, given that Hamas is a brutal military dictatorship. Collective punishment is a war crime.

Q - What are the responsibilities of the international community and what can it do to ensure the protection of the civilian population? What role can the US play in this part, knowing that Joe Biden claimed during his presidential campaign that human rights would be at the core of its foreign policy?

A- The major Western nations have been willing to insist that while Israel has a right to defend itself, it must do so consistently with international humanitarian law. But Western governments are not yet noting how regularly Israel seems to be violating international humanitarian law. That soft approach only encourages more war crimes. When Russia attacked civilians in Ukraine, Western governments were quick to press for justice. I have not heard similar endorsement of prompt International Criminal Court action in Gaza. Israel is very attuned to the views of Western governments. This soft treatment is too easily read as a green light to continue the current types of attacks that are so harmful to civilians.

Q- In terms of freedom of expression, to what extent can this conflict constitute a turning point in US and other Western societies long portrayed as champions of individual liberties, as we see a lot of pro-Palestinian voices being silenced or assimilated to antisemitism?

A- In Europe in particular, some pro-Palestinian rallies are being blocked. The ostensible rationale is security, but governments should address security challenges with an enhanced protective police presence, not with censorship. The accusation of antisemitism is also misused to try to silence criticism of Israeli government misconduct. I myself have been ridiculously accused of being antisemitic, even though I am Jewish, because I am openly critical of Israel repression, apartheid, and war crimes. Obviously, some critics of Israel are antisemitic, but many are legitimately and genuinely concerned about Israeli abuse. Antisemitism is an important global scourge for Jewish people, but it cheapens the concept of antisemitism, and undermines that fight against it, if people come to believe that accusations of antisemitism are just ruses to stop criticism of Israeli misconduct. 

This article was originally published in French in L'Orient-Le Jour.