As the Israel-Hamas war continues, its rising civilian death toll has raised more questions about what is allowed under the international laws that govern the waging of war. These rules are remarkably clear in some areas, as I wrote last week, and experts said they had been gravely breached by Hamas in its massacres of civilians and taking of hostages, and by Israel when it announced a complete siege of Gaza that cut off water, food and fuel to over 2 million inhabitants.
In the intervening days, two other legal issues have come to the fore: Hamas’s alleged use of civilians as human shields in the Gaza Strip, and Israel’s order on Friday that all civilians must evacuate from Northern Gaza.
War is politically and emotionally complex, and this conflict is no exception. Tuesday’s blast at the Ahli Arab Hospital compound in Gaza City — which Palestinian militant groups blamed on Israel and Israel blamed on one of them — underscored the horrific human toll of modern warfare.
It remains helpful to remember, amid the sorrow and anger over the ongoing violence, that the core principles of humanitarian law are simple. Civilians must be protected. They cannot legally be targets of violence, or disproportionately harmed by it. And those obligations apply to all parties involved in the fighting, even if the other side has violated them.
“Human shields” are still protected civilians.
Israel has long accused Hamas of using civilians as “human shields.” On Wednesday, Prime Minister Benjamin Netanyahu of Israel told President Biden that Hamas is perpetrating “a double war crime, targeting our civilians while hiding behind their civilians.”
The use of human shields is considered a war crime as well as a violation of humanitarian law.
But even if one side intentionally jeopardizes civilians in this way — either by forcing them to remain near military targets or by placing military targets in or adjacent to the same buildings as civilians — those noncombatants are still entitled to full protections under humanitarian law, experts say. That means that when attacking Hamas, Israel must still weigh the proportionality of any harm to human shields and other nearby civilians. If the harm to them is disproportionate to the military objective, the attack is illegal under international law.
“There’s really only one way in which a civilian can lose that immunity from attack or their other protections become weakened, and that is direct participation in hostilities,” said Janina Dill, an Oxford University professor and the co-director of the Oxford Institute for Ethics, Law, and Armed Conflict.
Even if Hamas uses civilian homes for military purposes, or places weapons or fighters in tunnels underneath civilian buildings, it would not necessarily be legal for Israel to attack those targets, said Avichai Mandelblit, a former chief military advocate general of the Israeli military and former attorney general.
“Of course, there is the question of proportionality,” he said. “If you want a military gain, you have to put it side by side with the collateral damage.”
Ghazi Hammad, a member of Hamas’s political bureau, told The Times reporter Yousur Al-Hlou by phone on Thursday that the organization does not use human shields. “This is fake news,” he said.
“You know that Gaza is very small and densely populated, and therefore Israel considers any place to be a residential place,” he added later in a WhatsApp message.
Civilian displacement: threat or warning?
Last week, on Friday morning, Israel ordered hundreds of thousands of civilians to evacuate from northern Gaza within 24 hours, apparently ahead of a planned ground invasion.
The United Nations warned that this would cause a humanitarian catastrophe, and a U.N. spokesman, Stéphane Dujarric, said it had “strongly appealed” for the order to be rescinded in order to avoid making “what is already a tragedy into a calamitous situation.”
The 24-hour deadline came and went, and Israel acknowledged more time was needed to move so many people. Still, it has continued to bombard both northern Gaza and some of the southern areas to which it had urged civilians to flee.
Gaza health officials said on Thursday that at least 3,785 people had been killed since Oct. 7, including 1,524 children, while Gaza’s government press office said more than a million Palestinians in the enclave had been displaced.
In statements last week, the International Committee of the Red Cross and the Norwegian Refugee Council described the order as unlawful.
“The Israeli military demand that 1.2 million civilians in northern Gaza relocate to its south within 24 hours, absent of any guarantees of safety or return, would amount to the war crime of forcible transfer,” said Jan Egeland, the secretary general of the Norwegian Refugee Council.
The International Committee of the Red Cross said in a statement: “The instructions issued by the Israeli authorities for the population of Gaza City to immediately leave their homes, coupled with the complete siege explicitly denying them food, water, and electricity, are not compatible with international humanitarian law.”
The best way to understand the legal issues surrounding the evacuation order is by considering the difference between a warning about a future lawful attack and a threat, said Adil Haque, an international law expert at Rutgers University.
“International humanitarian law actually requires attacking forces to warn civilians of planned attacks if possible,” Haque said. “A threat is very different. A threat is when you inform the civilian population that you’re about to launch unlawful attacks, indiscriminate attacks, attacks that don’t take precautions for civilians, disproportionate attacks.”
If humanitarian warnings that help protect civilians from carefully targeted attacks are at one end of the legal spectrum, then the war crime of forced displacement, in which threats and other coercive measures are used to remove civilians from their homes and prevent them from returning, is at the other.
Dill, the Oxford professor, said that the difference between evacuation and forced transfer depended on whether the act would “actually benefit the security of the civilians. So evacuating civilians into further peril, in some senses, is an indication that that exception doesn’t apply,” she said.
Some Gaza residents have said they fear that the order to relocate could be the start of another permanent mass displacement like the “nakba” of 1948, when more than 700,000 Palestinians were expelled or fled their homes in present-day Israel during the war surrounding the nation’s establishment. But it is too soon to tell when or how they might be able to return.
Hammad, the member of Hamas’s political bureau, acknowledged that Hamas had encouraged civilians to reject Israel’s order to flee their homes. But he added that “we did not put up barricades and force people to stay.”
Mandelblit, the former chief military advocate general, said that the evacuation would be legal only “if implemented properly.”
One legal requirement was that civilians had to be allowed to return after hostilities ended, he said. “The other conditions should be humanitarian corridors, telling you where you can go safely,” he said. “You also need to include the basic civilian humanitarian needs.”
When I spoke to him on Tuesday, he said that he believed that was happening, noting a statement that day by U.S. Secretary of State Antony Blinken that Israel had agreed to develop a plan for allowing humanitarian aid into Gaza. On Wednesday, President Biden announced that he had secured Israel’s commitment to allow aid into the territory.
However, no aid has yet arrived. As essential resources dwindle, Gazans have been forced to drink polluted water to survive.
Yuval Shany, an international law expert at Hebrew University of Jerusalem, said that he believed the order was lawful, noting that communities in Israel had also been evacuated from border areas at risk of fighting. Michael Schmitt, a professor of international law at the University of Reading, also said that he thought that the order was a lawful warning.
The Israeli military did not respond to a request for comment.
Civilians’ protections remain in place even if they do not follow a lawful evacuation order. And some people simply cannot move. Dr. Muhammad Abu Salima, the director of Gaza City’s Al Shifa Hospital, the territory’s largest medical complex, has said that it is impossible to evacuate the hospital despite the Israeli orders to do so, because there is nowhere in Gaza that could accept their patients in their intensive care, neonatal intensive care, and surgery units.
“There’s no obligation for civilians to evacuate even if they get an evacuation order,” Dill said. “Not displacing themselves, not heeding these warnings, not heeding the evacuation orders doesn’t affect their status and their entitlement to immunity from attack and protection at all.”
Yousur Al-Hlou contributed reporting.