International Law

Three bodies of international law are applicable to the situation in Gaza and Israel during the period covered in this report: international humanitarian law (including the law of occupation), international human rights law and international criminal law.

International humanitarian law is a body of rules and principles whose central purpose is to limit, as much as possible, human suffering in times of armed conflict. It sets out standards of humane conduct and limits the means and methods of conducting military operations. Its focus is the protection of those not participating in hostilities, particularly civilians, as well as combatants who are sick, wounded or captured.

States are also bound by their obligations under international human rights law, which applies during armed conflict and in peacetime. It includes treaties guaranteeing civil and political rights, and economic, social, and cultural rights. A fundamental principle of international human rights law is that victims of serious human rights violations have the right to remedies, including justice, truth and reparations.

International criminal law establishes individual criminal responsibility for certain violations and abuses of international human rights and international humanitarian law, such as war crimes, crimes against humanity and genocide, as well as torture, extrajudicial executions and enforced disappearance.


The rules on the conduct of hostilities, which are most relevant to this report, are set out in the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I, adopted in 1977). Israel is a party to the four Geneva Conventions of 12 August 1949, but not to Protocol I or Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II, also adopted in 1977). Nonetheless, the rules cited below reflect customary international humanitarian law and are legally binding on all parties to an armed conflict “as general practice accepted as law.”

Israel is also bound by relevant rules of occupation law, including provisions of the Fourth Geneva Convention and of the Hague Convention (IV) respecting the Laws and Customs of War on Land and its annexed Regulations of 1907.

The State of Palestine has acceded to the four Geneva Conventions of 12 August 1949, Protocols I and II and the Hague Convention (IV) and its annexed Regulations.


A fundamental rule of international humanitarian law is that parties to an armed conflict must at all times “distinguish between civilians and combatants”, especially in that “attacks may only be directed against combatants” and “must not be directed against civilians.” A similar rule requires parties to distinguish between “civilian objects” and “military objectives”. These rules are part of the fundamental principle of “distinction”.

“Civilian objects are all objects that are not military objectives.” And military objectives are “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 neutralisation, in the circumstances ruling at the time, offers a definite military advantage.” Military advantage may not be interpreted so broadly as to render the rule ineffective. Using this provision to justify attacks aimed at harming the economy of a state or demoralizing the civilian population in order to weaken the ability to fight would distort the legal meaning of military advantage, undermine fundamental principles of international humanitarian law, and pose a severe threat to civilians.

Objects (or locations) that do not meet these criteria are civilian objects. In cases where it is unclear whether a specific object such as a home or residential building, place of worship, school, media office, medical facility, or government building is being used for military purposes, “it shall be presumed not to be so used”.

According to the Rome Statute of the International Criminal Court, intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities and intentionally directing attacks against civilian objects constitute war crimes.

In addition, as regards the destruction of entire homes, orchards, and businesses the 1949 Fourth Geneva Convention regulates Israel’s actions as the occupying power in the Gaza Strip. Article 53 provides that:

“Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.”

According to Article 147 of the Fourth Geneva Convention, “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” is a grave breach of the Convention, and thus a war crime.

In addition to benefiting from the protection accorded civilians and civilian objects, certain persons and objects are afforded special protection under international humanitarian law. Medical personnel and medical transports must be respected and protected in all circumstances. Humanitarian relief personnel and humanitarian relief objects must be respected and protected. And “special care must be taken in military operations to avoid damage to buildings dedicated to religion, art, science, education or charitable purposes and historic monuments unless they are military objectives.”


The corollary of the rule of distinction is that “indiscriminate attacks are prohibited”. Indiscriminate attacks are those that are of a nature to strike military objectives and civilians or civilian objects without distinction, either because the attack is not directed at a specific military objective, or because it employs a method or means of combat that cannot be directed at a specific military objective or has effects that cannot be limited as required by international humanitarian law.

International humanitarian law also prohibits disproportionate attacks, which are those “which 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.” Intentionally launching an indiscriminate attack resulting in death or injury to civilians, or a disproportionate attack (that is, knowing that the attack will cause excessive incidental civilian loss, injury or damage) constitutes a war crime.


The protection of the civilian population and civilian objects is further underpinned by the requirement that all parties to a conflict take precautions in attack. In the conduct of military operations, then, “constant care must be taken to spare the civilian population, civilians and civilian objects”; “all feasible precautions” must be taken to avoid and minimize incidental loss of civilian life, injury to civilians and damage to civilian objects. The parties must choose means and methods of warfare with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects. Everything feasible must be done to verify that targets are military objectives, to assess the proportionality of attacks, and to halt attacks if it becomes apparent they are wrongly directed or disproportionate. Where circumstances permit, parties must give effective advance warning of attacks which may affect the civilian population.

Parties must choose appropriate means and methods of attack when military targets are located within residential areas. This requirement rules out the use of certain types of weapons and tactics. The use of means of combat that cannot be directed at a specific military objective – such as using imprecise explosive weapons on targets located in densely populated civilian areas – may result in indiscriminate attacks and is prohibited. The use of artillery and mortars in the vicinity of densely populated civilian neighbourhoods of Rafah and other parts of Gaza – even if intended to target military objectives – violates this prohibition. Choosing methods of attack that do not minimize the risk to civilians – for example, attacking objectives at times when many civilians are most likely to be present – also violates international humanitarian law.


Warring parties have obligations to take precautions to protect civilians and civilian objects under their control against the effects of attacks by the adversary. As with precautions in attack, these rules are particularly important when fighting is taking place in areas with large numbers of civilians.

Each party to the conflict must, to the extent feasible, avoid locating military objectives within or near densely populated areas. The authoritative commentary of the International Committee of the Red Cross (ICRC) on this provision explains that the use of the term “feasible” is used to illustrate “the fact that no one can be required to do the impossible. In this case it is clear that precautions should not go beyond the point where the life of the population would become difficult or even impossible.” And it notes: “Moreover, a Party to the conflict cannot be expected to arrange its armed forces and installations in such a way as to make them conspicuous to the benefit of the adversary.”

Furthermore, Article 50(3) of Protocol I states that “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” As indicated by the ICRC in its commentary, “In wartime conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example, soldiers on leave visiting their families. However, provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population.”

In other words, the fact that Palestinian fighters may be located within civilian areas does not in any way negate Israel’s obligations with respect to civilians, including the principle of distinction, the prohibition on indiscriminate or disproportionate attacks, and the precautions in attack detailed above.


Since Israel imposed its military blockade on the Gaza Strip in June 2007, heightening its policies of “closure” against the Strip, which date back to the early 1990s, Amnesty International and numerous other organizations have argued that the blockade amounts to collective punishment of Gaza’s entire population.

The Fourth Geneva Convention specifically prohibits collective punishment. Its Article 33 provides: “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.”

As explained in the authoritative commentary of the ICRC: “This paragraph then lays a prohibition on collective penalties... penalties of any kind inflicted on persons or entire groups of persons, in defiance of the most elementary principles of humanity, for acts that these persons have not committed.”

Although the Israeli authorities have eased some aspects of the blockade since mid-2010, for example by removing restrictions on certain categories of imports, many aspects of the blockade and the closure regime continue, and have impeded reconstruction efforts. The combination of restrictions continues to have a severe impact on all aspects of life in Gaza. Israeli policies towards the Gaza Strip continue to violate the prohibition on collective punishment.

Aspects of Israel’s military operations in Rafah following the capture of Israeli soldier Lieutenant Hadar Goldin may in themselves have amounted to collective punishment of the civilian population of Gaza.


Under international humanitarian law, “states must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.” The duty to investigate extends beyond war crimes to other violations of international humanitarian law. This derives from the obligations of states to suppress all breaches of international humanitarian law.


As affirmed by the International Court of Justice and the UN Human Rights Committee, human rights law remains applicable during times of armed conflict, in a position complementary to international humanitarian law. Israel’s actions in the Occupied Palestinian Territories are bound by its obligations under the international human rights treaties that it has ratified, as well as customary rules of international human rights law. Treaties ratified by Israel include: the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination against Women; and the Convention on the Rights of the Child.

Although Israel has argued that its obligations under the international human rights treaties it has ratified are not applicable in the Occupied Palestinian Territories, this position has been rejected by all the UN bodies monitoring adherence to these treaties and by the International Court of Justice. Specific treaty bodies have also clarified that the treaty provisions apply extraterritorially in general; for example, the UN Human Rights Committee has stated, with respect to the ICCPR, that “a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.”

As international human rights law is applicable in times of armed conflict alongside international humanitarian law, the same conduct can constitute a breach of both international human rights law and international humanitarian law. Article 6(1) of the ICCPR states that “Every human being has the inherent right to life… No one shall be arbitrarily deprived of his life.” This right is a peremptory norm of international law which cannot be suspended or otherwise derogated, including in times of war. During an armed conflict, the question of whether a death occurring in hostilities is an arbitrary deprivation of life is determined by international humanitarian law, particularly the rules on the conduct of hostilities. Deliberately killing a civilian who is not directly participating in hostilities is an arbitrary deprivation of life.

Other human rights obligations relevant to Israel military operations in Rafah include the obligations to respect, protect and promote: the right to adequate food and housing (ICESCR, Article 11); the enjoyment of the highest attainable standard of physical and mental health (ICESCR, Article 12), which also includes the right to water; and the right to education (ICESCR, Article 13). Actions that were aimed towards or were likely to result in the destruction or impairment of infrastructure necessary for the enjoyment of those rights, including hospitals, schools, and water infrastructure, are violations for which state parties can be held responsible.

With respect to the right to housing, Israel’s destruction of homes and residential buildings in Rafah and elsewhere in Gaza during the conflict appears to constitute unlawful forced evictions, a breach of Article 11 of the ICESCR. The UN Committee on Economic, Social and Cultural Rights defines forced evictions as “the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.” The Committee includes among such evictions those resulting from “international armed conflicts, internal strife and communal or ethnic violence.”


Individuals, including civilians and military personnel, can be held criminally responsible for certain violations of international human rights law and international humanitarian law. International law imposes the obligation to investigate and prosecute alleged perpetrators of crimes under international law and serious violations and abuses of human rights. Israel has the obligation under international law to ensure that, where sufficient evidence exists, individuals suspected of committing crimes under international law are prosecuted in fair trials without recourse to the death penalty. Israel must also ensure that effective remedies are put in place and that victims are provided with fair and just reparation including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

Under the principle of universal jurisdiction, all states have an obligation to investigate and, where enough admissible evidence is gathered, prosecute crimes under international law, including genocide, crimes against humanity, war crimes, torture, extrajudicial executions and enforced disappearances.

According to Article 7 of the Rome Statute, certain acts, if directed against a civilian population as part of a widespread or systematic attack, and as part of a state or organizational policy, amount to crimes against humanity. Such acts include, among others, murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape and other sexual crimes, and enforced disappearances. Crimes against humanity can be committed either during a time of peace or during an armed conflict.

Military commanders and civilian superiors can be held responsible for the acts of their subordinates. Article 86(2) of Protocol I, which imposes a single standard for military commanders and civilian superiors, reflects customary international law. It states:

“The fact that a breach of the [1949 Geneva] Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.”

Superior orders cannot be invoked as a defence for violations of international humanitarian law, but they may be taken into account in mitigation of punishment. This principle has been recognized since the Nuremberg trials after World War II and is now part of customary international law.