This Article is From Oct 12, 2023

Explained: What Are War Crimes And Are Israel And Hamas Committing Them?

In 1998, the International Criminal Court defined a "war crime", which essentially requires parties to a conflict to differentiate between civilian and military targets.

Explained: What Are War Crimes And Are Israel And Hamas Committing Them?

The United Nations has said over 338,000 people have been displaced in Gaza.

New Delhi:

Fighting between Israel and the Hamas - in which nearly 3,000 people have died and around 2.3 million in Gaza face a humanitarian disaster - entered a sixth day Thursday with no end in sight.

On Saturday Hamas gunmen broke through a heavily fortified border, under cover of a barrage of rockets that overwhelmed Israel's Iron Dome anti-missile system, and slaughtered more than 1,200 Israelis and foreign nationals. They also took around 150 people, including children, hostage.

Israel retaliated with five days (and counting) of aerial strikes targeting entire Gaza neighbourhoods, as well as residential buildings, mosques and schools, claiming information that they were being used by Hamas operatives. Gaza said this afternoon over 1,300 Palestinians have been killed so far.

Amid the questions asked and red flags raised now, including whether Israel had been pre-warned of Hamas' strikes, and how and why Tel Aviv's famed intel networks failed to prevent the attack.

READ | NDTV Explains: Was Israel Warned Of Hamas Attack, What Did Egypt Say?

The biggest, perhaps, question is that of war crimes, allegations of which have been traded between the Israelis and Palestinians for decades. Are war crimes being committed?

The short answer is - yes. War crimes are being committed by both Israel and Hamas operatives.

What Is A War Crime, Or Crime Against Humanity?

In 1998, the International Criminal Court offered an extensive definition of a "war crime", which essentially requires parties to a conflict to differentiate between civilian and military targets.

These include "willful killing" and "taking hostages", as well as attacking "buildings dedicated to religion, education, art, science or charitable purposes... historic monuments, hospitals".

READ |Israel Planning "Something Big", Weighing Gaza Ground Assault

War crimes also include "directing attacks against a civilian population... not taking direct part in hostilities" and causing death or injury to them. The statute also prohibits "... using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival".

Overall, there are more than 50 scenarios, including torture and rape.

A "crime against humanity", meanwhile, is defined as "a widespread or systematic attack directed against any civilian population" and this includes "extermination", "enslavement" and "deportation".

Hamas War Crimes

The Palestinian group's rocket assault on Israel was a war crime, as were the actions of its gunmen, who reportedly went door-to-door in border towns to shoot down civilians and take hostages.

Melanie O'Brien, an expert in international law, told AFP Hamas' rocket attack appear to violate humanitarian laws prohibiting "violence aimed at spreading terror among the civilian population".

READ | How Hamas Outfoxed Israel's Iron Dome Air Defence

The Hamas' killing of 270 people at a music festival at an Israeli border town has also been flagged.

On the taking of hostages, Ms O'Brien said, That is a blanket prohibition... that is a war crime,"

Others agree; Ben Saul, a professor in international law at an Australian university, told AFP, "On the Hamas side, I think it's fairly clear-cut... the deliberate murder of civilians is a war crime."

There have also been allegations Hamas operatives sexually assaulted women, but this claim has not yet been proven. And neither has one that says the Hamas beheaded children; that claim was also made by United States President Joe Biden but the White House walked it back shortly afterwards, declaring neither Mr Biden nor American government officials had definitive proof of such acts.

Israel War Crimes

The fusillade of rockets Israel fired on Gaza, many have argued, is as much a war crime as the Hamas' missile attacks, since Tel Aviv cannot be certain civilians, or non-combatants, won't be killed.

Israel Prime Minister Benjamin Netanyahu did urge those not aligned with Hamas to leave, but given Gaza has been completely blockaded (and Egypt has closed its border crossing), Palestinian civilians do not appear to have an option but to stay and expect bombs to fall on their heads.

What is certain, though, is that the "complete siege" ordered by Israel, as a result of which Gaza has lost mains power and is rapidly running out of food, water and medicines, is a war crime.

READ |"No Water Tap Will Be Opened Until...": Israel's Big Warning For Gaza

"On the Israeli side I'd say the clearest one is the declaration of a complete siege... preventing food, fuel, water, energy coming in. In terms of criminal liability, starvation is a war crime," Ben Saul said.

Under international law a siege is not prohibited, but starvation as a method of warfare is; United Nations human rights chief Volker Turk has said such a siege is illegal under humanitarian laws.

Under the same laws, Israel must "allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need", which Israel Defence Minister Yoav Gallant's "no electricity, no food, no water, no gas" declaration clearly contravenes.

With input from agencies

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