Dr. Ahmed Amara

The least that can be said about international law these days, when observing what is happening in Gaza—devastation, killing, and the blockade preventing the entry of fuel, food, and medicine, while cutting off water and electricity—is that international law has become nothing more than a “joke” or a “lie.” And, within the scope of this article for the “Far’eh Ma’ay” platform, we might ask: “Who really cares about what international law says or doesn’t say?” Does anyone truly pay attention to what international law permits or forbids? And even if they do, what is the purpose of such concern? We can answer by saying that there are those who do care, as evidenced by the many who have asked in one way or another, “Where is international law?” or “What does international law say?” Some have even argued that what Hamas and other Palestinian factions did on October 7th constitutes a war crime, or that what Israel is doing now is a war crime or even an act of genocide. We have witnessed, in an unprecedented way, the frequent references within Israel to international law and its application to the actions of Hamas and others on October 7th as war crimes and crimes against humanity.

Some seek international law for protection, genuinely expecting that the law and international institutions will offer some form of help, while others question, judge, and conclude with the intention of stripping the opposing side of its moral legitimacy, believing that this somehow proves their own ethical superiority. My aim here is not to analyze the legality of the war or the legal violations committed by any of the parties involved, including Egypt and the international community. Instead, I will address some central issues concerning the debate over the legality of certain actions, particularly the trap that international law finds itself in within a non-democratic and non-independent international system.

The gap between what international law says and its actual effectiveness is vast. The difference between what is written and what is enforced is even larger. We must not forget that international law, like any law in general, is not neutral. It reflects the power relations, ideologies, and politics at play. Even if the law’s texts are just and ethical, the problem lies in its implementation, which is influenced by power dynamics. Thus, for the weaker party, international law often appears as a “theoretical text” or a “lie.” The law is often a tool for the weak, but it is the strong who create the law and determine its enforcement, turning it into a theoretical framework or a functional system of power. International law, in this sense, exists somewhere between utopia and the unattainable (“From Apology to Utopia”): beautiful texts, mostly just, reflecting aspirations for an ideal reality that emerged after World War II, aiming to prevent war crimes and atrocities, including the killing of civilians, destruction, genocide, torture, and starvation, among others.

We, like the rest of the world, thought that humanity had transcended those horrors, believing that such atrocities—those that killed tens of millions during World War II—could not possibly occur in our enlightened, modern world of human rights. We were mistaken, and so were they. We did not realize that we were not in the “Age of Enlightenment.” Violations, crimes, and atrocities similar to those in Bosnia, Myanmar, Cambodia, Rwanda, Syria, and elsewhere continued to occur. The hoped-for international system, including the United Nations and international law, failed to create the desired world or prevent these atrocities. The system, and global justice itself, operated on the same foundations: power dynamics and shared interests, particularly the power and will of the victorious nations in World War II (the United States, Britain, Russia, France, and China), who hold veto power in the UN Security Council, the most authoritative body for passing binding international resolutions and authorizing the use of military force.

In the Case of Gaza

When it comes to Gaza, the debate about international law is, at this stage, more of an academic exercise than anything else. We are all watching what is happening, observing the stance of the international community, and noting the lack of any meaningful decision regarding the war. Nonetheless, it is important to point out that some voices are starting to call for holding the perpetrators accountable before the International Criminal Court, including both Hamas and the Israeli state. But the most important issue here is the opportunity to give the court real effectiveness and legitimacy, especially after many countries, including Israel and the United States, have tried to weaken the court and its operations.

In some of the more notable and significant matters regarding this war, let us briefly address the issue of civilian casualties and the principle of proportionality, collective punishment, and the targeting of hospitals.

First, it must be confirmed that Gaza remains under occupation according to the “effective control” test, as Israel continues to exercise significant control over the region even after withdrawing its permanent military presence. This is the position of most international institutions in this regard. Second, the conflict between Hamas and other Palestinian factions on one side, and Israel on the other, is classified as an “international armed conflict,” according to Article 1, Paragraph 4, of the Additional Protocol to the Geneva Conventions of 1977. Israel, however, rejects this classification because it did not ratify the protocol, which considers resistance against colonialism or occupation as an “international conflict” in the pursuit of the right to self-determination, and because it greatly regulates guerrilla warfare or “irregular warfare.” As an international conflict, the conflict is also subject to the provisions of the Hague and Geneva Conventions.

According to that protocol:

“The situations referred to in the previous paragraph include armed conflicts in which peoples are fighting against colonial domination, foreign occupation, or racist regimes, in the exercise of their right to self-determination, as enshrined in the United Nations Charter and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the United Nations Charter.”

Civilian Casualties

International law prohibits the intentional targeting of civilians during wartime. If this occurs, it constitutes a war crime. Therefore, the killing of civilians by Hamas and Palestinian factions is a war crime. As for the Israeli government, it repeatedly asserts in legal discussions that it does not intentionally target civilians. Any civilian casualties, according to Israel, are considered collateral damage that occurs when targeting a legitimate military objective. However, in every war on Gaza, civilians have always been the majority, and in this war, their proportion is higher than in any previous conflict. International law allows for incidental damage to people and property when targeting a military objective, but this is subject to the principles of distinction, precaution, and proportionality, meaning that the incidental damage must be proportional to the military advantage gained from targeting the objective.

There is no clear definition of proportionality in international law, but it is evident to anyone interpreting international law that the cost of targeting a military objective should be proportionate to the military benefit. For example, can we target a soldier in wartime? The answer is yes. Can we target him if there is another civilian next to him? What if there are 5 or 50 civilians nearby? And what about properties, buildings, and houses? When we apply the principle of proportionality logically, we see that in all of the recent wars on Gaza since 2008, civilians have made up the majority of casualties, and in the most recent war, they constitute the overwhelming majority. This raises the question: where is the proportionality? Where is the distinction? And how?

Let us leave these questions unanswered. We simply note that many have tried to justify the bombing of Gaza without regard for civilians or in response to Western criticism of Israeli bombing and the killing of civilians by citing the British-American bombing of Dresden during World War II. They overlooked the main objective of not repeating the war crimes and atrocities of that war, including the bombing of Dresden and the Holocaust, and forgot that the bombing of Dresden lasted three days and involved dropping approximately 3,900 tons of bombs—not for 50 days with tens of thousands of tons of bombs.

Collective Punishment and the Targeting of Hospitals

Regarding intent, what the Israeli government openly acknowledges and uses as a war strategy, some Israeli politicians even boast about it, is the use of collective punishment, pressuring civilians to pressure their leadership, or creating an atmosphere of fear and internal pressure on Gaza’s government (and on Hezbollah in Lebanon). This is exemplified by cutting off electricity, water, and fuel, and preventing the entry of humanitarian aid as a form of pressure on both civilians and Palestinian factions. International law prohibits such actions.

One of the most striking issues in this war is the targeting of hospitals. Articles 18, 19, and 20 of the Fourth Geneva Convention clearly state that:

• Article 18: “It is prohibited to attack civilian hospitals organized for the care of the wounded, sick, disabled, and women in childbirth. The parties to the conflict must respect and protect them at all times.”
• Article 19: “Protection of civilian hospitals can only be suspended if they are being used for military purposes and after a warning has been issued, with a reasonable delay in the event of a military necessity.”
• Article 20: “The personnel working in civilian hospitals must be protected, including those responsible for caring for the wounded, sick, elderly, and women in childbirth, as well as for transporting, collecting, and treating them.”

In the context of the Israeli bombing, which has involved tens of thousands of tons of bombs—equivalent to twice the weight of the bomb dropped on Hiroshima—hospitals have become shelters and safe havens for displaced persons. However, as with international law and global justice, these protections have failed them.