Col. (res.) Adv. Pnina Sharvit Baruch: Under international law human shields
can't protect Hamas in this critical battle
The War with Hamas: Legal Basics
INSS Insight No. 1770, October 16, 2023
Col. (res.) Adv. Pnina Sharvit Baruch
https://www.inss.org.il/publication/gaza-law/

The violent attack by Hamas that deliberately targeted Israeli citizens,
civilians as well as soldiers, and the atrocities committed by Hamas and
other terrorists - among them murder, torture, rape, abduction, looting, and
many other crimes - constitute gross violations of international law, and in
particular, of international criminal law. These horrific acts constitute
the most serious crimes in international law defined as war crimes and
crimes against humanity, and amount to the crime of genocide. Hamas has an
absolute obligation to release immediately all those kidnapped to the Gaza
Strip whose continued imprisonment is a serious and ongoing war crime.

Despite the horrific crimes committed by Hamas, Israel is obligated to
respect the laws of armed conflict (LOAC, aka IHL). There is no principle of
reciprocity in these laws.

According to the laws of armed conflict, it is permissible to direct attacks
against military targets, whereas direct attacks toward civilians and
civilian objects are forbidden and considered a war crime. The definition of
"military targets" includes civilian objects that by their nature, purpose,
location, or use make an effective contribution to military action and whose
destruction offers a definite military advantage (Art. 52(2) of Additional
Protocol I of 1977). Since Hamas places its military infrastructure in the
heart of the civilian population in the Gaza Strip, including in residential
houses, schools, mosques, and businesses, it is permissible to direct
attacks toward these sites, as they have lost their civilian nature and have
become legitimate military targets due to this use.

According to the laws of armed conflict, even when attacking a military
target, it is forbidden to attack if the collateral damage expected from the
attack to civilians and civilian objects is excessive in relation to the
military advantage expected from the attack. In view of the enormous threat
that Hamas currently poses to Israel, the denial of its military
capabilities is expected to give Israel a great security advantage. Without
achieving this goal, Hamas will succeed in de facto denying Israel the
exercise of its sovereignty in the areas adjacent to the border with the
Gaza Strip. In light of this significant military advantage, even if many
civilians in Gaza are harmed during the attacks, this is not necessarily
excessive incidental damage and therefore would not be disproportionate
attacks that are illegal.

According to the laws of war, there is an obligation to take feasible
precautions to minimize harm to civilians when attacking military targets.
However, there is no legal obligation to warn an individual before an
attack. Under the existing circumstances, giving a general warning to
civilians to leave areas that are planned to be attacked by the IDF can
certainly be considered a sufficient precaution. This is not a forcible
transfer of civilians or ethnic cleansing. On the contrary, it is a
precautionary measure taken for the benefit of the civilian population to
spare their lives.

Hamas's use of Gaza residents as human shields for its military activities
is a war crime. So are its actions to prevent civilians from moving away
from danger zones.

The Gaza Strip is not under Israeli occupation. Israel withdrew from the
Gaza Strip completely in 2005 and has no effective control over the
territory. The ability of Hamas to carry out the sophisticated attack and to
surprise Israel clearly illustrates this. Israel has no obligation to
provide means to enemy territory, including electricity and water.

It is permissible to impose a blockade, including a naval blockade, on enemy
territory. If there is a severe humanitarian shortage, aid agencies can
request to allow the transfer of aid, and there will be reason to consider
this.

The opinions expressed in INSS publications are the authors' alone.

Pnina Sharvit Baruch
Colonel (res.) Adv. Pnina Sharvit Baruch joined the INSS in 2012 as a senior
researcher and heads the program on law and national security. She retired
from the Israel Defense Forces in 2009, after serving in the International
Law Department of the Military Advocate General (MAG) Unit for twenty years,
five of which (2003 - 2009), she was head of the Department. In this
capacity, she was a senior legal advisor responsible for advising IDF
commanders and decision makers at the governmental level on a wide variety
of issues relating to international law and administrative law, among them:
the laws of armed conflict and occupation of territory; naval law;
counter-terrorism; security liaison; border demarcation; and conflict
resolution. She commanded the operational legal advisors at the IDF. Adv.
Sharvit Baruch also served as a legal advisor in Israel's delegations to
negotiations with the Palestinians, from the early contacts and thereafter.
In 2000, she also participated in the negotiations with Syria.
________________________________________
IMRA - Independent Media Review and Analysis

Since 1992 providing news and analysis on the Middle East with a focus on
Arab-Israeli relations

Website: www.imra.org.il