AYESHA RASCOE, HOST:
The scale of deaths in the conflict between Israel and Hamas fighters has led to accusations of war crimes on both sides. NPR international affairs correspondent Jackie Northam says determining whether there are violation of the laws of war is not so clear-cut.
JACKIE NORTHAM, BYLINE: The law of war, or international humanitarian law, is a collection of treaties that, among other things, are meant to limit mass civilian casualties during a time of war. For many people, some actions during the current conflict between Israel and Hamas are undeniable violations of the laws of war - Hamas' surprise attack on October 7, which left at least 1,200 people dead, hostage-taking by the militant group, and using civilians as human shields.
DAVID SCHEFFER: Oh, it's so completely illegal.
NORTHAM: David Scheffer is a former U.S. ambassador at large for war crimes issues in the Clinton administration and helped create the International Criminal Court.
SCHEFFER: There is no justification under the Geneva Conventions, under customary international law, to use civilians as human shields during combat. That's a strictly illegal tactic that Hamas is using.
NORTHAM: But Israel's response to the Hamas attack has also led to accusations of war crimes, especially when it comes to civilian deaths. According to the health ministry in Gaza, at least 11,000 people have died from Israeli attacks over the past month, including thousands of children. But Scheffer, now a professor at Arizona State University, believes it's too early to say Israel is violating laws of war because individual strikes and the decision-making behind them will have to be examined on their own.
SCHEFFER: When someone sees whole blocks being destroyed, when someone sees hundreds of Palestinians being rushed to hospitals, all of that evokes in me just a ton of questions about what just happened. What were you doing firing on that building? How many civilians were in that building? Or did you think Hamas was in that building? But whether it's criminal is another very complex determination.
NORTHAM: Under international law, Israel has the right to defend itself. Retired Lieutenant Colonel Geoffrey Corn, a former senior adviser for the U.S. Army on law of war issues, says that means eliminating Hamas even if it causes civilian deaths.
GEOFFREY CORN: When you're fighting an enemy that violates the law by consistently using civilians as camouflage, then the judgment of attacking those targets becomes incredibly complicated.
NORTHAM: Take, for example, the massive Israeli airstrikes recently on Jabalia, a congested refugee camp in Gaza. Israel said it killed a senior Hamas commander, but the attack also left dozens of Palestinians dead and injured, and that's raised questions about proportionality. Corn, now at Texas Tech University, says Israel's military follows a process similar to the U.S. military when determining whether to launch a strike. He says the first thing a commander will ask is if it's a legitimate military target.
CORN: Then the commander is going to say, what options do I have to reduce the civilian risk? Can I give a warning? Well, if I give a warning on this target, then he's going to go right down underneath the ground, and we're going to lose him.
NORTHAM: It's a judgment call by the commander as to what may be an excessive number of civilian deaths. Omar Shakir, Israel and Palestine director for Human Rights Watch, says the rules on proportionality are not simple mathematical equations, and there are other factors a commander could consider before firing.
OMAR SHAKIR: For example, was it possible for the warring party to take feasible precautions to minimize civilian harm, such as by using a different type of weapon or attacking at a different time that may have resulted in achieving the same military aim without the same collateral impact on civilians?
NORTHAM: Israel says it is adhering to international law, such as sending warnings and text messages to people in Northern Gaza to leave the area. But Shakir says those warnings don't meet the standards of international humanitarian law because of the blockade Israel has imposed on Gaza. He calls that collective punishment, which is prohibited under the law of war.
SHAKIR: For a warning to be effective, there must be a safe place to go and a safe place to get there. There is no safe place to go in Gaza and no safe way to get anywhere. In addition, the Israeli government has severely curtailed the entrance of aid, food, medicines, water, and this also amounts to a war crime as it deprives the population of life-saving care. Starvation as a weapon of war is also a war crime.
NORTHAM: The International Criminal Court, or ICC, has active investigations into the October 7 Hamas attacks on Israel and ongoing Israeli activities in Gaza, going back to an earlier ground incursion in 2014. David Scheffer says Hamas, by a tangled set of circumstances, is bound by the ICC. Israel, on the other hand, is not a member of the ICC, which Scheffer says could create a problem for investigators.
SCHEFFER: I would be very skeptical as to how far the Israelis would go in cooperating with the prosecutor to provide all of the information that would pertain to any particular strike in Gaza.
NORTHAM: But that won't stop an investigation. War crime tribunals can take years. And in the meantime, the war between Israel and Hamas and the civilian casualties continues.
Jackie Northam, NPR News. Transcript provided by NPR, Copyright NPR.
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