The Rules of War and Human Rights in the Israel-Hamas War
In this Q&A, legal and human rights expert Len Rubenstein, JD, a Distinguished Professor of the Practice and interim director of the Center for Public Health and Human Rights at the Johns Hopkins Bloomberg School of Public Health, discusses the rules of war and how they apply to the events in Israel and Gaza, and what can and should be done to support health and human rights.
First, what are the rules of war in terms of health care?
The rules, known as international humanitarian law, are designed to limit harm to non-combatants in war; they are distinct from the law regarding the legitimacy of going to war. The rules aim to protect civilians, wounded and sick soldiers, health and humanitarian workers, and prisoners of war.
Civilians may not be attacked or taken hostage. In their targeting, combatants must distinguish between civilian and military objects and take precautions to avoid hitting hospitals and other civilian structures. Even when the target is a military one, combatants must take precautions to avoid or at least limit harm to civilians. The rules also prohibit attacks on objects indispensable to the survival of the civilian population. Conflicts in densely populated areas do not obviate these duties.
The rules apply to both state military forces and non-state armed groups, such as Hamas. The fact that one side violates the rules does not permit the other side to deviate from them.
Intentional attacks on civilians and collective punishment are each war crimes. Grave violations of the rules, such as targeting civilians or civilian infrastructure, taking hostages, or starving the population, are war crimes.
What specific rules apply to health and humanitarian needs?
The foundational requirement of the rules is to respect and protect the wounded and sick, health providers, hospitals and other health facilities, and ambulances and other medical transports. Intentional attacks on them are war crimes.
The law also includes a duty not to interfere with or obstruct health care, such as blocking the passage of ambulances seeking to evacuate the wounded and sick. In the Israeli-Palestinian conflict, the International Committee of the Red Cross has a system to liaise with Israeli military authorities and Palestinian ambulance services to ensure safe movement of ambulances and prevent their misuse.
Occupying powers have additional obligations to ensure that populations living in occupied territory have adequate access to health services and public health measures. International authorities as well as the State Department consider Gaza to be occupied because of Israel’s control of airspace, territorial waters, entry and exit of people, and water and electricity.
How do the rules apply in this conflict to date?
Hamas’ atrocities, including its horrific massacres of civilians, taking of hostages, and indiscriminate rocket attacks throughout Israel, are war crimes. The latest reports state that Hamas killed 1,400 Israelis, the vast majority of them civilians, and has taken more than 200 hostages. Hamas fighters also attacked a hospital and its staff in Israel, killing a paramedic and injuring others.
The Israel military conducted more than 7,000 strikes in Gaza in the first 19 days of the war. According to Gaza Ministry of Health, more than 6,500 Palestinians, including civilians and fighters, were killed (including more than 2,000 children), in that period. As of October 23, there were 25 incidents of extensive damage to health facilities, some of them more than once.
A full investigation is required to learn facts that can reveal whether Israel distinguished between civilian and military objects and took the precautions required by law for each attack to minimize harm to civilians and civilian structures and to ensure that its attacks are proportionate. The sheer number of airstrikes in such a short period in a dense area and the high death toll, however, cast serious doubt whether Israel complied with its obligations.
What are other immediate concerns?
Gaza’s health infrastructure and its capacity to treat traumatic injuries were weak before the war because of Israel’s blockade and the impact of past conflicts in this century. Israel’s cut-off of electricity and fuel, and only partial restoration of water to Gaza, along with damage from airstrikes, has forced closure of multiple hospitals at a time of enormous need. In my view, the denial of key utilities to the population amounts to collective punishment.
The prevalence of psychological trauma from the Hamas attacks in Israel and from the experience of airstrikes in Gaza is likely to be very high, including among children, who compose almost half the population of Gaza.
