Will International Humanitarian Law Survive the Israel-Hamas Conflict?

Will International Humanitarian Law Survive the Israel-Hamas Conflict?

Human rights should not be cast aside during times of war

A Palestinian family eats their iftar meal as they break their fast near the rubble of their destroyed home.
A Palestinian family eats their iftar meal as they break their fast near the rubble of their destroyed home, in Rafah, in the southern Gaza Strip, on March 21, 2024. REUTERS/Mohammed Salem

The crisis in Gaza has raised serious questions about the relevance of international law—even of its very survival. States and armed actors involved in the conflict have duties, both positive and negative, to protect the right to health in the face of so much violence. 

The humanitarian catastrophe continues months after Hamas brutally killed more than 1,200 Israeli civilians on October 7 and took more than 200 hostages. Israel has responded with relentless, destructive reprisals, killing more than 33,000 people, most of them women and children. The staggering death and injury toll is likely an undercount given the difficulties of monitoring those buried under rubble or outside hospitals in Gaza. A recent analysis by public health experts starkly lays out the risks of excess deaths from the lack of water, starvation, eviscerated health services, and epidemic diseases.  

One indication of the vitality and necessity of international law is that even amid this highly polarized conflict, both sides insist they are complying with international law and have submitted substantial questions about the conflict to international adjudicatory mechanisms. Some hope rests here because international law provides necessary and essential guidance on shared principles of respect for humankind.  

International law provides necessary and essential guidance on shared principles of respect for humankind

A necessary corollary of this respect is that widespread or systematic violations of basic rights need to be treated as crimes against humanity and that the perpetrators must be subject to accountability. The problem is not that international law is irrelevant, but that it is not implemented.  

The founding principle of both international humanitarian law (IHL) and international human rights law is that even in war some common humanity should prevail, and that even during dire emergencies basic human rights cannot be cast aside. The lethality of modern weapons demands that stakeholders rein in the desire of states and nonstate actors to win at any cost.  

International Humanitarian Law During Conflict 

It is crucial to point out—particularly in the context of the Gaza conflict—that, even though the conduct of hostilities is governed by IHL, international human rights laws also apply: all people within the conflict area are entitled to respect for their human rights, including the right to life, the right to basic necessities, and the right to health.  

Discussions of IHL often describe the actions that parties to the conflict should not do. Do not target civilians or cause them disproportionate harm. Do not attack hospitals, humanitarians, or other civilian objects. Do not take hostages or abuse prisoners. If followed, these so-called negative duties would mitigate some of the mass atrocities across the globe today, not only in Gaza but also in Ethiopia, Myanmar, Sudan, and Ukraine. 

The IHL principle of precaution demands making active choices to minimize harm, considering not just the immediate damage to a health-care facility or civilian center but also the broader damage that could result from an attack. Proportionality demands that military aims are always balanced with the risk to civilians.  

Palestinians gather at the site of an Israeli airstrike on a building.
Palestinians gather at the site of an Israeli airstrike on a building, in Rafah, in the Gaza Strip, on April 2, 2024. REUTERS/Mohammed Salem

For health care, the protections and obligations are even more specific and provide distinct protections. IHL demands that states and armed groups should not weaken IHL protections of health by militarizing hospitals, including, for example, using such facilities to store or fire weapons, host militants, or park tanks outside.  

The provisions for the well-being of the sick and wounded in the laws of war are among the very first elements of IHL: the original 10 articles of the 1864 Geneva Convention focused on protections for health workers and civilians caring for the wounded combatants. In modern times, IHL states that "wounded or sick combatants, to whatever nation they may belong, shall be collected and cared for." These rules to collect and care for the sick and wounded are also present in the national law and military manuals of almost all countries; they are considered customary international law—binding regardless of what treaties are signed. 

Where the Israel-Hamas Conflict Stands with IHL 

Today, a binding resolution of the United Nations Security Council (Resolution No. 2728 of 2024) demands "that all parties comply with their obligations under international law, including international humanitarian law and international human rights law, and in this regard deploring all attacks against civilians and civilian objects, as well as all violence and hostilities against civilians, and all acts of terrorism, and recalling that the taking of hostages is prohibited under international law."  

It is crucial to remember that human rights law applies in times of conflict and war as much as in peace time

Additionally, the International Court of Justice (ICJ) has issued two sets of provisional measures demanding Israel's compliance with its obligations under the Genocide Convention, in particular the "unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance." The ICJ also called on Hamas to release all hostages immediately. However, because Hamas is not a state party to the Genocide Convention, the ICJ's ruling is not binding. 

This obligation for warring parties to provide for the health care of combatants has been expanded to include the well-being of civilians. Beyond not causing harm, if a state controls or occupies a territory, it has a positive duty to care for people and ensure access to health care for the wounded or the sick—whether combatants or civilians. This point has been made clearly by the UN Committee on Economic, Social and Cultural Rights in its General Comment 14 on the Right to Health, which demands that states provide the minimum essential levels of health care, even in times of conflict. This obligation is not subject to any excuse or derogation.  

It is crucial to remember that human rights law applies in times of conflict and war as much as in peace time. In particular, the right to life—and thus the right to health—are clearly laid out in international conventions signed by most states. The UN Human Rights Council made a powerful case for these rights in 2019, noting in General Comment 36 that "the right to life is the supreme right from which no derogation is permitted, even in situations of armed conflict and other public emergencies that threaten the life of the nation." Even conflict or national threats do not allow derogation from these basic human rights.   

Responsibilities turn in part on control of territory. Regardless of what it might have said about Gaza's status prior to this conflict, Israel is now without question in control of air, land, and sea. It effectively regulates and restricts movement within and to the territory as well as health and security and access to food, water, electricity, and all other supplies and goods. It does so against the will of Palestinians and, at this point, in the absence of any control by Hamas. Controlling the area, Israel has the responsibility to protect, fulfill, and defend the fundamental rights of the inhabitants.   

As pointed out, clear immediate obligations on Israel come from the ICJ in its provisional orders in late January regarding claims that Israel has violated the Genocide Convention: Israel must avoid actions "deliberately inflicting on the group [Palestinians in Gaza] conditions of life calculated to bring about its physical destruction in whole or in part." In practical terms, Israel faces a requirement to do all they can to facilitate humanitarian aid and uphold international humanitarian law.    

Humanitarian aid falls through the sky towards the Gaza Strip after being dropped from an aircraft.
Humanitarian aid falls through the sky towards the Gaza Strip after being dropped from an aircraft,as seen from Israel's border with Gaza, in southern Israel, on March 20, 2024. REUTERS/Amir Cohen

Bombing and raiding hospitals, destroying roads and ambulances, blasting civilian neighborhoods, causing electricity outages, and laying siege to food, water, and other daily needs have entirely eroded Gaza's already enervated health system. The recent missile strike against World Central Kitchen aid workers underscores the magnitude and lack of proportionality in the violence.

This situation has generated more wounded and sick people, with much higher severity of illness, at a time when personnel, medical supplies, food, and care facilities are dwindling. Humanitarian law and human rights law demands not only that states limit the violence to "military necessity" but that they help address the catastrophic health conditions that ensue from conflict.  

Nearly 25 years ago, while reviewing the situation in Israel and the Occupied Palestinian Territories, the United Nations stated its "firm conviction that the implementation of the International Covenant on Economic, Social and Cultural Rights can play a vital role in procuring a lasting peace in Israel and Palestine."  

How to Address Humanitarian Needs in This Moment 

Several concrete steps could support adherence to the obligations to care for the wounded, sick, and other civilians. The prohibition of "militarizing" health-care facilities must be respected at all times. At the very least, specific protections for health-care facilities, personnel, and transport so that functioning clinics have the security to recruit staff, store supplies, and welcome patients is critical. Additionally, the safe and well-managed delivery of humanitarian goods, including the sourcing and disbursing of health-care supplies, equipment, and medication across the borders at the scale necessary to meet the need is vital. The flour massacre in late February and subsequent U.S. airdrop of supplies are testaments to how supplies are not getting through, how unsafe the situation is now, and how basic humanitarian supplies are critical for life.  

Given the political context and hostility between the communities, it would not be realistic for Israel to deliver services directly. That does not absolve Israel of the positive duties to ensure that care is safely and effectively provided. Humanitarian and civil society organizations should be given the access and the means to deliver services and humanitarian goods. As major hospitals are destroyed, the request for field hospitals should be met.

Facilitating the passage of medical convoys and ambulances to allow supplies to reach hospitals and for sick people to leave Gaza for care is another important dimension. Israel should also finance these activities and provide water, electricity, and other critical infrastructure.  

Access to human rights monitors and transparency about the steps taken are crucial to ensure that Israel upholds the law

Access to human rights monitors and transparency about the steps taken are crucial to ensure that Israel upholds the law, minimizes harm, and ensures that the wounded and sick receive care. Only an impartial, independent investigation can properly respond to consistent Israeli claims that Palestinian armed groups have militarized hospitals (and to the denials by such groups).  

The obligation of international actors to ensure compliance with and implementation of international law is clear. The United States and many other nations have committed to the responsibility to protect civilians from grave crimes across any borders, using diplomatic, humanitarian, and possibly military measures. The Leahy Law prohibits the United States from providing military or security assistance to any country that is blocking the provision of U.S. humanitarian assistance 

To fulfill its obligations, U.S. leaders should continue pressuring Israel to limit its violence and allow humanitarian access. The U.S. refusal to veto the ceasefire resolution at the UN Security Council (after multiple earlier vetoes) should send a signal that Israel cannot avoid its international legal obligations forever.  

Much of the attention has been focused on protections from disproportionate violence, civilian deaths, and the destruction of infrastructure, but the advocacy around adherence to IHL should also center the positive duty to provide health care. Many are discussing the duty to allow humanitarian supplies in as a moral imperative, but doing so must equally be seen as a legal obligation.   

In light of the acute lack of essential supplies for civilians in Gaza, Israel must ensure that humanitarian assistance is provided. It may therefore need to allow a third party to enter its territory to provide humanitarian assistance, one acceptable and consented to by Palestinians in Gaza.   

The UN Security Council's resolution demands Israel as well as Hamas to fulfill their obligations under IHL and international human rights law. As a state party to the Genocide Convention, as well as the occupying power with full practical power over Gaza, Israel is obliged to follow the clear provisional orders of the International Court of Justice, as well as the negative and positive requirements of international humanitarian law and human rights law.

Complying with those obligations could provide a necessary transition to the eventual rebuilding of Gaza, an effort that will require immense global diplomatic and practical support.  

A person looks on near the damaged Al Shifa Hospital after Israeli forces withdrew from the hospital and the area around it following a two-week operation.
A person looks on near the damaged Al Shifa Hospital after Israeli forces withdrew from the hospital and the area around it following a two-week operation, in Gaza City, on April 2, 2024. REUTERS/Dawoud Abu Alkas

Rohini J. Haar is medical advisor at Physicians for Human Rights and adjunct professor in the School of Public Health at the University of California, Berkeley.

Saman Zia-Zarifi is the executive director of Physicians for Human Rights.

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