Hamas-Israel Conflict 2023: Key Legal Aspects

Israeli Ministry of Foreign Affairs

Publish Date Nov 2, 2023

An overview of key legal aspects of the hostilities triggered by the horrific attacks perpetrated against Israel on October 7, 2023.

Updated to November 2, 2023

This paper provides an overview of key legal aspects of the hostilities triggered by the horrific attacks perpetrated against Israel on October 7, 2023, which were staggering in their brutality and their contempt for basic humanity. Israel is committed to bringing home the hostages held in Gaza and to defending its citizens and territory in a manner that is consistent with the rule of law, despite facing an enemy with the same disdain for law that it has for human life. The circumstances on the ground are dynamic, and there is widespread – and sometimes deliberate – misinformation about the law and the facts. Any serious legal analysis must be based on the legal rules applicable to the situation and on a trustworthy account of the facts to which those legal rules apply. This paper provides important factual and legal context for this purpose.*

  • The applicable law. The applicable legal framework governing the hostilities is the law of armed conflict (LOAC), also referred to as international humanitarian law (IHL), in particular its rules regulating the conduct of hostilities.
     
  • Hamas and Islamic Jihad continue to attack Israel, hold hostages, and are committing war crimes and crimes against humanity. The savage attacks perpetrated by Palestinian terrorist groups on October 7 and since then unquestionably constitute serious violations of international law, often amounting to war crimes and crimes against humanity. They include the slaughter of over 1,400 Israelis and foreign citizens, the wounding of over 5,500, widespread acts of torture and maiming, burning alive, beheading, rape and sexual violence, mutilation of corpses, the abduction of at least 247 hostages (including infants, entire families, persons with disabilities, and Holocaust survivors), the indiscriminate firing of thousands of rockets, and the use of Palestinian civilians as human shields. Some of these crimes may also constitute genocide, as they are carried out with the “intent to destroy in whole or part, a national, ethnical, racial or religious group” in furtherance of Hamas’s declared genocidal agenda. Israel continues to face indiscriminate firing of rockets from Gaza and repeated attempts to infiltrate Israel to murder more Israelis, while the hostages taken by Hamas remain without ICRC visits or communication with the outside world. 
     
  • Israel’s right and obligation to defend itself. In relative terms, taking into account the size of Israel’s population, the scope of the attack launched on October 7 is equivalent to the 9/11 attacks many multiple times over. Israel has the right, and indeed the obligation, to defend its citizens and territory by taking all legitimate measures to secure the release of the hostages and neutralize the threat it is facing. This threat is both grave and immediate: some Israeli communities lie meters away from the border, and hundreds of thousands of Israelis live within kilometers of Gaza. On October 7 Hamas and Islamic Jihad penetrated even further into Israeli territory, including into Sderot, which has a population of over 20,000; almost all of Israel remains within range of Hamas’s rockets. In these circumstances, Israel is both entitled and compelled to act so as to deny Hamas and other terrorist groups in Gaza the capacity to continue attacking its citizens and territory.

    Israel is simultaneously contending with ongoing attacks and threats emanating from other States and terrorist groups, including Iran and Iranian proxies such as Hezbollah. Hundreds of rockets, missiles and drones have been fired at Israel from Lebanon and Syria, in violation of general international law as well as of UN Security Council Resolution 1701 (2006) and the 1974 Israel-Syria Disengagement Agreement, respectively. Israel is responding to these attacks and has evacuated entire communities from northern Israel for their safety. Multiple ballistic missiles and armed drones have also been launched at Israel from Yemen. These continued attacks could at any moment lead to even wider hostilities.
     
  • Israel’s commitment to international law. Despite Hamas’s unimaginable brutality and its disdain for human life – whether Israeli or Palestinian – and for the law, Israel is committed to conducting its military operations in accordance with international law, as Israel’s senior political and military leadership has repeatedly affirmed. Israel has incorporated LOAC into all aspects of its military operations through legal training, operational procedures and plans, continuous operational legal advice, and robust and independent investigation mechanisms for addressing allegations of IDF misconduct. The Office of Israel’s Attorney General provides ongoing international law advice to the Cabinet and the Government, and Israel’s Supreme Court has jurisdiction to exercise judicial oversight, including during hostilities. 
     
  • Suggesting a moral equivalence between Israel and terrorist organizations is repugnant. Any sound analysis of Israeli operations cannot avoid the crucial context of the ongoing attacks, as well as the nature of the enemies, and the scope of the threat, that Israel faces on multiple fronts. It must reject any moral equivalence between those defending against terrorism and those perpetrating it; between a State whose commitment to law underpins its military operations and a terrorist group which openly defies the law; between the IDF, which seeks to minimize civilian harm, and the terrorist groups that deliberately target Israeli civilians while perversely viewing Palestinian civilians as expendable and using them as human shields.
     
  • The facts matter. A sound legal assessment necessitates an accurate and reliable appreciation not just of the law, but also of the facts. Given the dynamic and complex reality of hostilities, and the deliberate attempts by Hamas and other actors to mispresent or fabricate the facts, it is critical to exercise caution and avoid rushing to judgment, as was unfortunately the case in connection with the Al-Ahli hospital incident. Statements by Hamas and other terrorist groups, including by the Hamas-run organs such as the “Ministry of Health”, or by figures subject to Hamas control or intimidation, cannot in any event be used as a reference or reliable source.
     
  • Key principles governing Israeli military operations:

    Distinction: Israel is operating against Hamas and other terrorist groups in Gaza, not against the civilian population. It is directing its attacks only at military objectives, and is in no way engaging in “collective punishment”. Consistent with LOAC, and especially given Hamas’s unlawful strategy of systematically embedding its military activity and assets in populated areas (including residential and commercial buildings, places of worship and hospitals), many ostensibly civilian objects may become legitimate targets. LOAC further provides that Hamas militants who fail to distinguish themselves from the civilian population are legitimate targets, as are civilians taking direct part in hostilities. As a result, it cannot be concluded from the mere fact that seeming “civilians” or “civilian objects” have been targeted, that an attack was unlawful.

    Proportionality: Under LOAC, an attack against a military target must accord with the rule of proportionality, according to which it is prohibited to carry out an attack when the expected incidental loss of civilian life, injury to civilians, or damage to civilian objects would be excessive in relation to the concrete and direct military advantage that is anticipated from the attack. The military advantages that the IDF is seeking include destroying enemy military assets, targeting militants, degrading and denying enemy ability to command and control operations, neutralizing underground tunnels and infrastructure used for military purposes, and denying positions (such as sniper, anti-tank and surveillance posts) which endanger IDF ground forces, all of which contribute to the overall objective of securing the release of the hostages and removing Hamas’s capability to attack Israel and its citizens. LOAC provides that a proportionality assessment is based on the military commander’s judgement at the time of the attack, not on hindsight: the test is conduct-oriented, not result-oriented. As a matter of law, civilian casualties or damage to civilian objects, while tragic, do not of themselves allow for a conclusion in regard to proportionality without an informed assessment of both the expected civilian harm and the military advantage anticipated at the time of the attack.

    Precautions and mitigating civilian harm: Under LOAC, when conducting attacks, parties to a conflict must take precautions that are feasible under the operational circumstances to minimize civilian death or injury as well as damage to civilian objects. Accordingly, the IDF employs various precautionary measures where practically possible in the operational circumstances, including advance warnings and in choosing weapons and munitions. In attempting to mitigate civilian harm, the IDF has moreover repeatedly called on civilians to temporarily evacuate northern Gaza, where more intense hostilities are expected, to the south, where aid is also more available. Hamas has sought forcibly to prevent civilians from leaving areas of hostilities in order to unconscionably exploit civilian casualties and to hinder IDF operational activities.

    Humanitarian assistance: Under LOAC, parties to an armed conflict are required to allow and facilitate access of consignments of supplies essential for the survival of the civilian population if the civilian population is not adequately provided with such supplies. This obligation is subject under LOAC to important conditions, including that there are no serious reasons for fearing that the consignments will be diverted from their civilian destination or otherwise provide a definite advantage to the enemy’s military efforts.

    Israel wishes no harm to civilians and is committed to addressing the humanitarian needs of those suffering as a result of Hamas’s brutality and instigation of these hostilities. A designated Israeli unit (COGAT) is closely monitoring the humanitarian situation and the needs of the civilian population in Gaza, and is coordinating humanitarian activities with relevant international actors and agencies. Israel is facilitating the entrance of consignments and additional aid to Gaza from Egypt and is working to significantly increase such assistance. Israel is doing so even though Hamas possesses many essential supplies which it is deliberately withholding from its civilians, and that some of the consignments entering Gaza include supplies that are not currently lacking.

    It is not possible to effectively respond to the humanitarian situation in Gaza without appreciating that the greatest humanitarian threat to Palestinians in Gaza is that they have lived for years under the control of a genocidal terrorist organization that has no regard for their wellbeing, and that has systematically stolen international aid, and smuggled arms within such aid, so as to advance its own terrorist objectives. Massive stockpiles of fuel, medical, and other supplies, all designated for hospitals and general civilian use, have instead been hoarded by Hamas and are used to sustain its military operations and attacks on Israel (UNRWA has recently stated publicly that Hamas stole tens of thousands of liters of fuel from its warehouses). Genuine concern for the humanitarian situation must also include an unequivocal demand from Hamas to release the reserves it is denying the civilian population, and must ensure that effective mechanisms are in place so that humanitarian assistance reaches its intended civilian destination and is not sustaining the terrorists that are endangering both Israeli and Palestinian lives.

    At all times, addressing the legal and practical challenges of humanitarian assistance in these exceptional circumstances requires accurate knowledge of the facts, including that Hamas fire has damaged 9 out of 10 electricity lines coming from Israel (which supply about 50% of the electricity in Gaza, the rest being produced locally); that on October 7 Hamas attacked and significantly damaged the main crossing for Palestinian civilians into Israel (through which almost 20,000 Gazan workers previously passed daily), killing and abducting Israeli personnel; that in recent years Israel has facilitated the installation of alternative energy sources (such as solar panels) for most essential services in Gaza; that 90% of Gaza’s water does not ordinarily come from Israel; and that Israel still supplies water to Gaza (including by fixing pipes damaged by Hamas fire). Israel remains committed to ensuring and expanding the access of Palestinian civilians to humanitarian assistance, but international law does not require it to do so in a manner that enables that assistance to be diverted or exploited so as to sustain Hamas’s capabilities to attack Israel and its citizens.

    * This paper was prepared during ongoing and dynamic hostilities and should not be considered as a comprehensive presentation of Israel’s positions concerning the legal and factual situation.****

For more details, see attached:

ANNEX 1: The Attacks and Threats Against Israel – Additional Details

ANNEX 2: Legal Aspects of the Hamas-Israel Conflict 2023

ANNEX 3: Additional Resources on Facts and Law

ANNEX 1

THE ATTACKS AND THREATS AGAINST ISRAEL – ADDITIONAL DETAILS
Updated to November 2, 2023

In order to properly appreciate the context within which Israeli military operations are taking place, it is critical to understand the scope of the barbaric attacks against Israel and the ongoing threats that Israel is facing on multiple fronts.

The current hostilities were triggered on October 7, 2023 with the infiltration of at least 1,500 Hamas and Islamic Jihad militants into Israel, raiding twenty Israeli towns, Kibbutzim and cities, a music festival, border crossings, and military bases, and systematically committing widespread and grave violations of international law, war crimes and crimes against humanity of unimaginable brutality exceeding even that of groups such as ISIS, including –

  • The slaughter of over 1,400 infants, children, women, and men (the overwhelming majority of them civilians), including Jews, Arabs and foreign nationals, pregnant women and their fetuses, the elderly, and persons with disabilities;
     
  • The wounding of over 5,500 individuals;
     
  • Torturing and maiming (including of children in front of their parents, and of parents in front of their children), executing handcuffed persons, burning alive, beheading – including of babies, children and the elderly;
     
  • Rape and other acts of sexual violence;
     
  • Mutilating and sexually abusing corpses, and booby-trapping corpses;
     
  • Dressing as IDF soldiers and civilians in order to conduct attacks;
     
  • Attacking ambulances and first responders;
     
  • Killing animals;
     
  • Causing widespread destruction of civilian property, including by systematically burning homes to the ground; and
     
  • Looting homes and communities.

At least 247 Israeli and foreign nationals were taken as hostages into Gaza (the overwhelming majority civilians, including entire families, infants, elderly, Holocaust survivors, the sick, and persons with disabilities). These hostages are being held incommunicado by various armed groups and are assessed to be dispersed throughout Gaza. Some of the hostages are in urgent need of lifesaving medical care. Hamas has publicly threatened to execute hostages. To date, four hostages have been released (some of whom have family members still being held) and one has been rescued.

This was the largest massacre of Jews in a single day since the Holocaust. Even now the number of fatalities has yet to be finalized, especially as recovery and identification efforts have been complicated as a result of people being burnt entirely to ashes (including whole families, making DNA identification particularly difficult), while other corpses were boobytrapped, and over 40 Israelis are still unaccounted for.

At the same time as the massacre inside Israel, Hamas and other terrorist groups in Gaza fired indiscriminately thousands of rockets and mortars into Israeli cities; launched armed drones to attack defensive infrastructure, military bases, people and ambulances; and conducted incursions into Israel from the sea. These attacks served both as a diversion for the raids across the border and as a method of driving civilians into bomb shelters so as to make easier the infiltration into their communities and homes and their slaughter.

Attacks have continued incessantly since October 7. Hamas continues to send squads from Gaza to target Israel via land and sea, and to deploy attack drones via the air, while seeking to coordinate with other armed groups to attack Israel from additional fronts. Hamas and other terrorist groups are also carrying out attacks in the West Bank. Rocket and mortar fire from Gaza has continued constantly: to date, over 9,000 projectiles have been fired into Israel. While Israel’s aerial defenses (Iron Dome) have intercepted many of these, many others have hit residential areas, resulting in death and injury, and causing extensive damage to homes, hospitals, public buildings, and agriculture areas. More than 700 Palestinian rockets have misfired, causing death, injury, and devastation within Gaza itself.

These attacks constitute grave violations of international law, and often amount to war crimes and crimes against humanity. Some of these crimes may also constitute genocide, as they are carried out with “an intent to destroy in whole or in part, a national, ethnical, racial or religious group” – in furtherance of Hamas’s declared genocidal agenda.

Israel has also come under attack from the north and the north-east by Iranian proxies, including Hezbollah, while Iran itself has expressly threatened to attack Israel from additional fronts. Hundreds of rockets, anti-tank missiles, and other projectiles have been fired from Lebanon and Syria into Israel, resulting in death and injury to civilians and soldiers. These repeated attacks from Lebanon and Syria are in violation of general international law, as well as of UN Security Council Resolution 1701 (2006) and the 1974 Israel-Syria Disengagement Agreement, respectively. Multiple ballistic missiles and drones have also been fired from Yemen, but intercepted before reaching Israel.

Many cities and communities in southern Israel have been evacuated, and it is unclear when their residents will be able to return home given the ongoing hostilities and widespread destruction of houses and residential areas. Northern communities close to the Lebanese border have also been evacuated. Currently, over 200,000 Israelis are internally displaced.

Internationally, incidents of antisemitism against Jewish communities and individuals have risen dramatically in number, and Israel has had to issue travel warnings for Israelis in certain countries in light of concrete terror threats.
 

ANNEX 2
LEGAL ASPECTS OF THE HAMAS-ISRAEL CONFLICT 2023
Updated to November 2, 2023


1. The Legal Framework: Law of Armed Conflict

  • The heinous attacks launched by Hamas and Islamic Jihad against Israel on October 7, 2023, which left over 1,400 Israeli and foreign nationals murdered and thousands more wounded, and the continuing attacks since then, took place in the context of an ongoing armed conflict between Israel and Hamas and other terrorist organizations in Gaza. For this reason in particular, legally speaking, these attacks do not necessitate an analysis of the conditions under which Israel may resort to the use of armed force (the jus ad bellum).
     
  • In the context of these hostilities, Israel has the right, and indeed the duty, to respond in order to protect its citizens and territory from the ongoing deadly attacks which it is facing. As reiterated by the highest levels of Israel’s political and military leadership, Israel is committed to conducting its military operations in accordance with the rule of law, including the law of armed conflict (LOAC), also known as international humanitarian law (IHL). Israel is a party to many international conventions that form part of LOAC and abides by all applicable rules of customary international law, including those embodied in conventions to which it is not a party (such as the 1977 Additional Protocols to the Geneva Conventions).
     
  • In stark contrast, Hamas has committed horrific war crimes and crimes against humanity and continues to target Israeli civilians indiscriminately while using the residents of the Gaza Strip as human shields.1 It has shown complete disdain for the law, for elementary considerations of humanity, and for the well-being of the civilian population under its control.
     
  • As Israel does not exercise effective control over the Gaza Strip, the legal framework governing the present hostilities is not the law of belligerent occupation, but rather the rules of LOAC, in particular those governing the conduct of hostilities. The powers exercised by Israel with respect to Gaza since its Disengagement from this territory in 2005, when its military and civilian presence was entirely removed, derive primarily from LOAC and Israel’s sovereign rights under international law more broadly, as well as Israeli-Palestinian agreements where applicable. Hamas has been in control of Gaza since its violent takeover in 2007.
     
  • The precise classification of the armed conflict between Israel and Palestinian terrorist organizations operating in the Gaza Strip (as an international armed conflict (IAC) or a non-international armed conflict (NIAC)), and the question whether there is a single or several ongoing armed conflicts taking place in parallel, have been a matter of debate.2 In any event, in practice Israel conducts its present military operations in accordance with the rules of LOAC governing both international and non-international armed conflicts, including the rules relating to distinction, precautions, and proportionality in carrying out attacks. In certain respects, Israel also conforms to more stringent obligations that are applicable to IACs only.

2.    Hostages Taken into Gaza

  • At least 247 Israelis and foreign nationals were abducted by Hamas, Islamic Jihad and other groups and taken hostage in Gaza, the majority of them being civilians, including women, children, infants, the elderly (including Holocaust survivors), and persons with disabilities. Four hostages were released and one rescued. The exact number of hostages remains unknown, as is their medical condition and whether they are alive. The hostages are denied visits by the ICRC and any communication with the outside world. Hamas has threatened publicly to execute hostages. Forty Israelis are still unaccounted for.
     
  • International law strictly prohibits the taking of hostages, an act that constitutes a grave breach of the Geneva Conventions and a war crime. Offences perpetrated against hostages in a systematic manner also amount to crimes against humanity. All States and international organizations must continue to demand the immediate and unconditional release of all hostages.

3.    Israel is Committed to Complying with LOAC

  • The State of Israel is committed to complying with international law when conducting its military operations. The IDF has incorporated the rules of LOAC into all aspects of military operations, including through legal training, operational procedures and plans, ongoing legal advice to different levels of IDF command, and robust and independent mechanisms to investigate allegations of IDF misconduct. Accordingly, Israel consistently applies the rules of LOAC, including those concerning distinction, precautions, and proportionality in carrying out attacks. This is notwithstanding the fact that the other parties to the conflict violate these rules willfully and systematically.
     
  • Distinction: As repeatedly affirmed by Israel’s senior political and military leadership, the IDF is fighting Hamas and the other terrorist organizations in Gaza, not the civilian population. In accordance with the principle of distinction, the IDF only targets persons who are members of organized armed groups or civilians directly participating in the hostilities, and objects that qualify as military objectives. In terms of objects, Israel applies the customary definition of “military objectives” as reflected in Article 52 of Additional Protocol I of the Geneva Conventions.3 The special protection afforded under international law to objects such as hospitals is reflected in IDF procedures, and the IDF implements further restrictive measures for additional sites such as schools, places of worship, and UN facilities. 

As is well documented, Hamas systematically and unlawfully embeds its military assets within heavily populated areas, and carries out its military activities amongst, behind, and under its own civilians.4  In this regard:

  • Hamas’s military infrastructure, command, militants, communications, and weapons are deliberately located within residential, commercial, and other civilian buildings, including specially protected sites,5  for the most part in the densest parts of Gaza. Hamas exploits the civilian population as human shields.6 
     
  • Hamas systematically conceals some of its most valuable and extensive military centers and assets in and underneath hospitals, including the Al-Shifa hospital, which is the largest hospital in Gaza.
     
  • Hamas prepared and initiated the October 7 attacks from within civilian neighborhoods adjacent to Israeli territory, and used these areas to continue raids into Israeli territory in the days following.
     
  • A central part of Hamas’s military strategy and activity relies on an extensive tunnel network, assessed to extend to hundreds of kilometers underneath densely populated areas and sensitive sites throughout Gaza. 
     
  • In expectation of the IDF’s ground activities, Hamas has booby-trapped civilian buildings and roads throughout the Gaza Strip, and uses or designates numerous civilian buildings as posts for sniper fire, the launch of anti-tank missiles, and intelligence gathering.  

Given this reprehensible strategy, many ostensibly civilian objects may become legitimate targets, as LOAC prescribes that civilian objects become legitimate military targets when, inter alia, they make an effective contribution to military action by their purpose or use. Moreover, under LOAC, Hamas militants who fail to distinguish themselves from the civilian population are legitimate targets, as are civilians taking direct part in hostilities. As a result, it cannot be concluded from the mere fact that seeming “civilians” or “civilian objects” have been targeted, that an attack was unlawful. 

  • Proportionality: Israel also abides by the rule of proportionality in conducting attacks. According to this rule, it is prohibited to carry out an attack when the expected incidental loss of civilian life, injury to civilians, or damage to civilian objects will be excessive in relation to the concrete and direct military advantage anticipated from the attack.7  Under customary international law, military advantage may include a variety of operational considerations such as disrupting enemy activities, weakening the enemy’s military forces, gaining ground, and protecting the security of one’s own forces and civilians. Military advantage moreover may refer to the advantage anticipated from an operation as a whole. 

    In the context of current hostilities, the IDF seeks to gain military advantage in a variety of ways, including by targeting Hamas command and control centers, militants, military offices, weapons depots, launch sites and tunnel networks. The military advantage anticipated from these attacks includes destruction of military infrastructure and incapacitation of command activities. Attacks against military objectives have also been conducted in areas used by Hamas as staging points to carry out raids against Israel and to fire anti-tank missiles and mortar barrages into Israel, particularly areas that are close to the Israel-Gaza border. The IDF is also attacking Hamas’s surveillance and attack positions deeper in Gaza and tunnels that form part of the wider network intended for a wide range of military purposes, including attacks against Israeli civilians and tactical advantages over IDF soldiers within Gaza. These various attacks are also intended to serve the larger goal of rescuing the hostages and destroying the overall ability of Hamas and other terror groups to conduct military operations against Israel. Experience shows that previous operations in Gaza, which were more limited in scope, did not remove the threat to Israel.

    Estimating expected civilian harm can be very challenging, especially when operating in a complex and dense urban environment where civilian presence is dynamic and often hard to ascertain. The IDF invests significant resources, both routinely in preparing for hostilities and throughout active hostilities, in collecting intelligence that would support real-time assessment of expected civilian harm. Due to Hamas’s tactics of embedding itself within the civilian population and preventing the evacuation of civilians, incidental damage to civilians and civilian objects is, unfortunately, in many cases unavoidable despite mitigation efforts. 

    The proportionality assessment – with respect to both civilian harm and military advantage – is based on the facts as they were understood in real-time, and on the military commander’s judgment at that time, not on hindsight. To determine compliance with the proportionality principle it is vital, therefore, to have knowledge of the available facts and the judgement calls made at the time of the attack. If the attack results in more collateral damage than expected, this does not necessarily indicate a violation: compliance is conduct-oriented, not result-oriented.
     
  • Precautions: LOAC also requires that parties to hostilities take precautions in attack that are feasible under the operational circumstances to minimize the expected incidental loss of civilian life, injury to civilians, and damage to civilian objects.8  What is feasible under international law amounts to what is practically possible taking into account the circumstances at the time. In implementation of this obligation, for example, the IDF employs specific procedures for determining targets and carrying out attacks (including the choice of weapons and munitions). In practice, some of the IDF’s precautionary practices go beyond its legal obligations.

    Additional precautionary measures include providing effective advance warnings of attacks where circumstances permit.9 The IDF has dropped leaflets over areas of expected attacks with instructions to evacuate and how to do so, broadcasted over radio and through social media messages warning civilians to distance themselves from Hamas operations, and in some cases made individual phone-calls to occupants of targets, warning them of impending attacks. Where circumstances do not permit providing effective advance warning before an attack – such as when the strike is aimed at a militant who may exploit the warning to escape, or when there is insufficient time to provide a warning (for example, when an enemy attack is imminent) – there is no legal requirement to do so.
     
  • The IDF maintains an independent Military Advocate General Corps (MAG Corps), which provides ongoing legal advice to the IDF on a range of operational matters, including targeting, weaponry, and detainees. IDF legal advisers are not subject to the IDF chain of command on professional matters, but report directly to the Military Advocate General, whose conduct is subject to scrutiny by the Israeli Attorney General. IDF legal advisers work closely with operational forces to ensure that international law is integrated into orders, procedures, doctrines, and combat decision-making. In addition, the Office of the Attorney General provides international law advice to the Cabinet and the Government, and Israel’s Supreme Court has general jurisdiction to exercise judicial oversight, including during hostilities. Petitions have already been submitted to the Supreme Court during the present hostilities by civil society organizations and individuals.

4. Temporary Evacuation of Northern Gaza

  • Since October 12, the IDF has repeatedly called on civilians, by various means (including leaflets, messages broadcasted over radio, social media, individual phone-calls, and via third parties) to evacuate to the southern part of Gaza as a temporary measure until the hostilities cease. To this end, the IDF has also published evacuation routes in order to allow safer civilian passage. The IDF has repeatedly delayed intensifying its operations in northern Gaza so as to allow for continued evacuation.
     
  • Hamas consistently and forcibly acts to frustrate these efforts, including by setting up roadblocks, threatening civilians not to leave, and issuing calls to ignore IDF recommendations to evacuate. It does so knowing that the IDF seeks to minimize civilian harm, wishing to both hinder the IDF’s operations, and, abhorrently, to maximize Palestinian casualties in order to invite condemnation of Israel rather than of its own inhumanity. In any event, the IDF does not assume that there are no civilians in areas or sites where advance warnings had been given: strikes in such locations, too, are conducted in accordance with LOAC, including the principles of distinction, proportionality and precautions in attack. 
     
  • In addition, the IDF has designated a ‘humanitarian zone’ in the southwestern part of Gaza, where international agencies are working to provide assistance and to which many relief supplies coming in through Egypt have been directed. 

5.    The Humanitarian Situation

  • Israel wishes no harm to civilians and is committed to addressing the humanitarian needs of those suffering as a result of Hamas’s brutality and instigation of these hostilities. 
     
  • It is not possible to effectively respond to the humanitarian situation in Gaza without appreciating that the greatest humanitarian threat to Palestinians in Gaza is that they live under the control of a brutal terrorist regime that has shown no regard for their well-being, used its resources for massive military buildup and attacks, and has systematically taken for itself the aid designated for the civilian population. 
     
  • Prior to the barbaric Hamas attacks of October 7, and despite significant challenges, Israel worked, together with other stakeholders, to improve the socio-economic situation of the civilian population in Gaza, including by allowing the entrance into Israel of almost 20,000 Gazan workers per day; operating border crossings; transferring tons of goods into Gaza; and facilitating exports from Gaza. The humanitarian situation has significantly deteriorated as a result of the attacks of October 7, including due to Hamas’s fire on supply lines and border crossings, its exploitation of supplies destined for civilian use, and its hoarding of supplies (such as fuel) for military purposes.
     
  • Under LOAC, parties to an armed conflict are required to allow and facilitate access of consignments of supplies essential for the survival of the civilian population if the civilian population is not adequately provided with such supplies.10 This obligation is subject under LOAC to important conditions, including that there are no serious reasons for fearing that the consignments will be diverted from their civilian destination or otherwise provide a definite advantage to the enemy’s military efforts. 
     
  • A designated Israeli unit (COGAT) closely monitors the humanitarian situation and the needs of the civilian population in Gaza, and coordinates humanitarian activities with relevant international actors and agencies. An increasing number of trucks carrying water, food, medical equipment, and hygiene supplies have been passing into Gaza through the Rafah Crossing between Gaza and Egypt, after security checks. Israel is continuously working with third parties to allow for the provision of additional aid, and to further increase the scale and pace of such assistance, while ensuring that it reaches the civilian population and is not diverted by Hamas. Israel is doing so even though Hamas possesses many essential supplies which it is deliberately withholding from its civilians, and that some of the consignments entering Gaza include supplies that are not currently lacking.
     
  • As indicated, inter alia, by the entrance of supplies into Gaza through the Rafah Crossing and the provision of water from Israel to Gaza, a matter of fact and law there is no ‘siege’ on Gaza (even though a siege on enemy forces is not unlawful under international law subject to certain safeguards, as is also evident from the military manuals of various states).
     
  • Currently, massive stockpiles of fuel, medical, and other supplies, all designated for hospitals and general civilian use, have been hoarded by Hamas and used to sustain its military operations and attacks on Israel (UNRWA has publicly stated recently that Hamas stole tens of thousands of liters of fuel from its warehouses). Genuine concern for the humanitarian situation must include an unequivocal demand from Hamas to release the reserves it is denying the civilian population, and ensuring that effective mechanisms are in place so that humanitarian assistance reaches its intended civilian destination and is not sustaining the terrorists that are endangering both Israeli and Palestinian lives.
     
  • At all times, addressing the legal and practical challenges of humanitarian assistance in these exceptional circumstances requires accurate knowledge of the facts, including that Hamas fire has damaged 9 out of 10 electricity lines coming from Israel (which supply about 50% of the electricity in Gaza, the rest being produced locally); that on October 7 Hamas attacked and significantly damaged the main crossing for Palestinian civilians into Israel (through which, prior to October 7, almost 20,000 Gazan workers passed daily), killing and abducting Israeli personnel; that in recent years Israel has facilitated the installation of alternative energy sources (such as solar panels) for most essential services in Gaza; that 90% of Gaza’s water does not ordinarily come from Israel; and that Israel still supplies water to Gaza (including by fixing pipes damaged by Hamas fire). Israel remains committed to ensuring and expanding access to humanitarian assistance by Palestinian civilians, but international law does not require it to do so in a manner that enables that assistance to be diverted or exploited so as to sustain Hamas’s capabilities to attack Israel and its citizens.

6.    Expansion of Ground Activities

  • The expansion of the IDF’s ground activities has a clear military purpose: to reach the heart of Hamas’s military activity and assets, which are systematically and unlawfully embedded within urban areas, including within and underneath civilian infrastructure. This cannot be achieved by aerial operations only. The ground activities are temporary and are solely intended to contribute to the overall aim of rescuing the hostages and destroying Hamas’s capability to carry out attacks.
     
  • During its ground activities, the IDF is encountering fierce fighting with Hamas and other terrorists, who deliberately use the urban terrain and the civilian population to frustrate IDF operations and exploit unintended civilian harm for propaganda purposes. Civilian sites are being used by Hamas for sniper posts, intelligence gathering, launching anti-tank fire, and hiding tunnel shafts for purpose of killing and kidnapping more Israeli soldiers. Many houses and roads are booby-trapped. Vast tunnels and bunkers lie under entire neighborhoods, and command centers are located under specially protected sites such as hospitals. The fighting is made even more difficult given that Hamas exploited the advance notices given by the IDF to Gazan civilians in order to prepare ambushes and defenses. IDF soldiers are contending with these challenges in their mission to rescue the hostages and defeat Hamas, and are using force in a dense urban area, including for force protection. In furtherance of this mission, IDF soldiers have been killed and wounded.

7.    Lessons Learned and Allegations of Misconduct

  • The IDF has in place robust and independent mechanisms for reviewing its conduct, implementing lessons learned, improving its practices and procedures, and examining investigating allegations of misconduct. These mechanisms are subject to review by Israel’s Attorney General as well as Israeli courts, including the Supreme Court. Naturally, examining individual incidents occurring during largescale and intensive hostilities is challenging, and obtaining a full factual picture can be difficult and may take time.
     
  • Civilian harm is not of itself indicative of misconduct, as even the most carefully planned and lawful military operations might put civilians at risk, especially in cases of intense urban warfare. Tragic outcomes do not in and of themselves point to unlawful conduct.  
     
  • The Al-Ahli hospital incident serves as a clear reminder that great caution should be exercised in attributing responsibility for incidents without evidence, especially on the basis of statements made by Hamas organs, which have a documented record of fabricating allegations and must not be considered a reliable source. Following the blast at the hospital compound, the Hamas Ministry of Health immediately blamed Israel for the attack and the killing and wounding of over 500 people. This allegation was reported in numerous media outlets without it being made clear that it was unverified, leading to worldwide violent incidents of unwarranted protest against Israel and the cancellation of an international summit intended to discuss humanitarian aid to Gaza. The IDF subsequently proved that the blast was the result of a rocket misfired by the Islamic Jihad, which landed in the hospital parking lot and apparently caused far less casualties than was claimed. Independent assessments by other intelligence agencies confirmed this account. 
     
  • Hamas has a documented practice of inflating and distorting casualty figures. For example, Hamas does not distinguish between militants and civilians in its reporting, nor does it declare which casualties were a result of Hamas’s own fire. Hamas’s disinformation is not limited to Palestinian casualties: Hamas leadership figures have even stated in international media interviews that no Israeli civilians were killed by Hamas on October 7, despite releasing in Arab channels propaganda videos taken by Hamas militants clearly documenting the systematic and wanton murdering of civilian women, children, and men. No Hamas official, or any entity controlled by Hamas or subject to Hamas intimidation, can be relied upon as a trustworthy source.

***

1 In targeting and terrorizing Israeli civilians with rockets and mortars, Hamas violates fundamental customary norms of LOAC that prohibit a party to hostilities from deliberately making civilians the object of attack, and that prohibit acts or threats of violence primarily intended to spread terror among the civilian population. This customary rule is reflected in Article 51(2) of the Protocol  additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (June 8, 1977), and Article 13(2) of the Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (June 8, 1977).

2 Israel’s Supreme Court determined in 2008 that the armed conflict was an IAC, referring to its trans-boundary nature. Many international law experts consider that the proper classification nowadays would be a NIAC, especially given developments since the 2008 decision. Various courts, States, and legal experts have characterized armed conflicts of this kind as NIACs, given that one or more parties to the conflict are non-State entities.

3 According to this Article, “military objectives” are limited to “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”

4 Customary international law obligates parties to an armed conflict to take various steps to mitigate, to the extent feasible, the harm to the civilian population under their control resulting from the dangers of military operations. This customary rule is reflected in Article 58 of Additional Protocol I and Article 13(1) of Additional Protocol II.

5 Hamas exploits hospitals and ambulances to conduct military operations, despite the special protection afforded these units and transports under customary international law, as well as the special protection afforded to the sick and wounded civilians often present in these facilities. These customary rules are reflected in Articles 10, 12(1), and 21 of Additional Protocol I; Articles 8 and 11 of Additional Protocol II; Article 18 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949; and Article 19 of the Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949.

6 Using the presence of civilians to shield military targets from attack is prohibited by customary international law. This customary rule is reflected in Article 51(7) of Additional Protocol I.7 This customary rule is reflected in Article 57(2)(b) of Additional Protocol I, which states that “an attack shall be cancelled or suspended if it becomes apparent … that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”

7 This customary rule is reflected in Article 57(2)(b) of Additional Protocol I, which states that “an attack shall be cancelled or suspended if it becomes apparent … that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”

8 This customary rule is reflected in Article 57(2) of Additional Protocol I.

9 This customary rule is reflected in Article 57(2)(c) of Additional Protocol I, which states that “effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.” 

10 In this regard, see Article 23 of the Fourth Geneva Convention, Article 70 of Additional Protocol 1, and Article 18(2) of Additional Protocol II. Article 23 states that:

“Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases . The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing :

(a) that the consignments may be diverted from their destination ,

(b) that the control may not be effective, or

(c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods.

The Power which allows the passage of the consignments indicated in the first paragraph of this Article may make permission conditional on the distribution to the persons benefited thereby being made under the local supervision of the Protecting Powers.

Such consignments shall be forwarded as rapidly as possible, and the Power which permits their free passage shall have the right to prescribe the technical arrangements under which such passage is allowed.”

ANNEX 3
ADDITIONAL RESOURCES ON FACTS AND LAW
Updated to November 2, 2023
 

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