Thursday, July 18

The Laws of War Have Limits. What Does That Mean for the Hamas-Israel War?

It has been 26 days since Hamas launched its attacks on Israel. In my column a few days after the conflict began, I said that international law offered a framework for analyzing what was happening, even while the atrocities committed by Hamas were still being documented, and as the consequences of Israel’s devastating airstrikes on Gaza and cutoff of food, water and fuel were beginning to unfold.

I stand by that. But I also know that for many readers, the events of the weeks since — the rising civilian death toll in Gaza, the continued holding of hostages by Hamas, and the seeming inability of world leaders to agree on a way to protect civilians — pose a profound and vexing question: Is there actually a point to these laws if it’s so hard to enforce them?

Yes. But like any tool, international law has limitations as well as strengths. I’m going to dig into those by trying to answer some of the broad questions I’ve heard from readers and other commentators.

The laws of war are not designed to outlaw fighting completely, or even to ban all killings of civilians. Rather, they set minimum requirements for a situation in which our usual moral rules (for instance, “Don’t kill other human beings”) have already been suspended and our usual ways for resolving disagreements have failed. In practical terms, as sad as it is, that means that acts of war can be horrifying without necessarily being illegal.

“International humanitarian law often looks to us quite permissive if we think about violence in moral terms,” said Janina Dill, co-director of the Oxford Institute for Ethics, Law, and Armed Conflict. “A starved civilian, a displaced civilian, a dead civilian — none of that, on its own, is evidence for a violation of the law.”

Consider, for instance, the rule that attacks on military targets must not cause “disproportionate” civilian harm. This is one of the foundational principles of humanitarian law and is designed to protect civilians. But it also presupposes a grim reality: that some civilian deaths might be proportional. The value of striking a particular base of enemy operations, for example, could be considered so high that attacking it would be legal, even if that meant killing some nearby civilians.

All parties to a conflict have an obligation to carefully weigh the facts and make sure the proportionality requirements are met before carrying out any attack. But of course, these decisions can be fraught and subject to disagreement.

The laws do carry weight, even though (like all laws) they aren’t always followed. Committing war crimes can damage a country’s international standing and jeopardize alliances. Many militaries employ full-time lawyers to advise on questions like proportionality. And even many secessionist movements and rebel groups follow international humanitarian law — or at least publicly claim to — as a way to gain credibility.

Although the rules are minimal, they are universal. And they stay in force no matter how dirty a war gets. Violations by one party do not justify violations by another — a helpful way to get distance from the bitter debate over which side of the conflict has the greater claim to moral right or historical grievance.

Take, for instance, the issue of human shields. It is a war crime to use civilians’ presence to shield a particular military target from attack. Israel has claimed that Hamas operates from within hospitals and other civilian buildings as a way to protect itself. Hamas denies doing so.

But whether Hamas does or doesn’t use civilians as human shields, Israel’s legal responsibility to protect those civilians remains the same: It cannot disproportionately harm them, or target them directly.

International law is not connected to any international police force or to a fast-acting court system. There’s no global 911 for war crimes.

Investigations of war crimes and crimes against humanity often take years to complete, and don’t necessarily lead to criminal charges. The International Criminal Court in The Hague, which was established in 2002, has limited resources. It describes itself as “a court of last resort,” aiming to complement, not replace, domestic courts. But domestic courts are often reluctant to prosecute their own leaders and troops.

The I.C.C. has occasionally acted more quickly. In 2022, following a referral from more than 40 member states, the court began investigating Russia’s invasion of Ukraine — even though neither Ukraine nor Russia are I.C.C. members. And in March this year, the court issued an arrest warrant for President Vladimir V. Putin of Russia for crimes related to his invasion of Ukraine. But the court’s powers are still limited: Putin can’t actually be arrested unless he travels to a country that chooses to enforce the warrant, which he is unlikely to do.

Some argue that the threat of future prosecution can have some deterrent power. The I.C.C. can say, “here’s what the law is, let me make clear to all the parties that we are watching you, we are documenting what you are doing, and there will be prosecutions coming down the line,” said Rebecca Hamilton, a law professor at American University who previously worked in the I.C.C. prosecutor’s office.

Collective punishment is when a person or group is punished for an act that someone else committed. As the Red Cross says, it is a war crime, as well as a violation of international humanitarian law. (It’s worth noting, however, that collective punishment is not one of the war crimes that the I.C.C. has jurisdiction over, though it could be prosecuted in a domestic court.)

The prohibition on collective punishment is “one of the central, fundamental rules of international humanitarian law,” said Shane Darcy, a professor at the National University of Ireland Galway and a leading expert on that issue.

But not all attacks on civilians violate that rule.

“We should distinguish between the legal concept of collective punishment and the ordinary, moral concept of collective punishment,” said Adil Haque, an international law expert at Rutgers University. To violate the law against collective punishment, the acts must be done in order to punish a person or group. Acts done with another purpose, or simply with careless disregard for civilian lives, wouldn’t qualify — though of course they might violate other laws.

In recent weeks, Israel has been accused numerous times of collective punishment, including by a group of U.N. independent experts. They released a statement saying that Israel’s “indiscriminate military attacks against the people of Gaza” amount to “collective punishment.” And the U.N. secretary general, António Guterres, said late last month that Hamas’s attacks on Israel “cannot justify the collective punishment of the Palestinian people,” and that “even war has rules.”

There is some evidence that points to Israel’s intent to collectively punish civilians in this conflict, Darcy said. “I think the clearest example is the statement of the siege, that there will be no fuel, electricity or supplies allowed in until the hostages are handed over,” he said, referring to comments made by Israel’s defense minister, Yoav Gallant, and energy minister, Israel Katz.

On Tuesday, the Israeli authority for the Palestinian territories said that it is monitoring supplies of food, water and fuel and that “the situation is far from crisis.” However, those claims contrast sharply with reports from the United Nations, humanitarian aid groups and individuals within Gaza that civilians are suffering from dire shortages of basic necessities.

“It’s illegal for the I.D.F. to bar humanitarian relief for any reason, whether to punish the people of Gaza or to make things more difficult for Hamas,” Haque said, referring to Israel’s military, the Israel Defense Forces. “Similarly, it’s illegal for Hamas to hold civilians hostage for any reason, whether to punish the hostages for the actions of their government, or to use the hostages as leverage for a prisoner exchange.”

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