In the wake of the Hamas attack on Israel, the two storylines describe whether Israel’s attack on Palestine is justified under international humanitarian law or not. According to Israel, the bombing of Gaza to target Hamas is Israel’s right of self-defense in response to Hamas’s attack on Israel’s territory. The first storyline shows Israel’s attack on Gaza is legal and a part of self-defense given by the UN charter.

Article 51 of the UN Charter provides the right of self-defense to the state in an armed attack against a UN member until the United Nations Council maintains the peace.

However, in the Israel-Palestine conflict, Israel is not threatened by Gaza, it is threatened by a non-state actor Hamas from Israel’s occupied territory. Israel is an occupying state, it has occupied the West Bank including East Jerusalem and Gaza since 1967. According to Israel, it withdrew its forces from Gaza in 2005, but this did not end its occupation of Occupied Palestine Territory OPT.

Secondly, as Gaza is an occupied state, Israel cannot claim self-defense in its occupied state. Moreover, according to IHL, it is the responsibility of the occupying state to fulfill the basic needs of the occupied and ensure their security. However, Israel is cutting the food, water, and energy supply to the population of Gaza. Israel is attempting war crimes such as sending its population to the occupied territory.

Even if Gaza would not be an Israel’s occupied territory Israel is still violating IHL. For self-defense, the state should follow the principles of necessity, proportionality, and distinction. Retaliating Hamas attacks can be a necessity. Israel is attacking the civilians without any distinction. It targets hospitals, educational institutes, and refugee camps. It is completely prohibited to cause inappropriate damage to civilians and civilian objects in an armed conflict. Israel is failing to distinguish between combatants and non-combatants therefore it is causing disproportional damage to the non-combatants.

Nevertheless, all parties in a conflict must distinguish between combatants and non-combatants. Until this war started there were more than 30,000 casualties in Gaza by Israeli forces. However, the number of injuries is around 70,000. The evidence from the detainees and the videos on media shows the ill-treatment including beating, torturing, and abuse by Israeli forces on detained Palestinians.

In addition, there are reports that Israeli forces are forcing Palestinian men and women to praise Israel and curse the Hamas. Humiliation of human rights in an occupied territory is a war crime under IHL. Therefore, Israel is not fulfilling the principle of proportionality and distinction in its self-defense. And there are around 1,139 Israeli people killed in the Israel-Palestine conflict.

Israelis are involved in the mass killing but claim they are targeting Hamas. The non-state actors do not follow IHL rules, they do not have war-making apparatus like the state, and do not wear any uniform. They blend themselves among the civilians to effectively attack the adversary. And usually attack the enemy from civilian places and private houses. They do not distinguish between the civilians and armed forces.

Such behavior of the non-state actors creates a dilemma for the state because non-state actors can cause severe deaths among civilians, and the state would not be able to respond against these non-state actors to defeat them because the state is bound to follow IHL. Non-state actors put the lives of the citizens at risk. This is visible in the Israel-Palestine war. In which the non-state actors named Hamas have blended themselves among the civilians and are targeting the enemy Israel without discriminating against the enemy forces and enemy civilians.

In answer, Israel is bombarding Gaza and claiming that it is targeting Hamas but this causes mass casualties of the non-combatants and violating IHL. However, this raises a question of how to deal with the non-state actors in an armed conflict.

The IHL does not specifically answer this question but causing pain to civilians for the sake of targeting the non-state actor is not right. Several things are not word-to-word covered in IHL.

Nevertheless, if we understand the contextual meaning of the IHL it answers several concerns to some extent such as IHL is a universal law therefore it applies to everyone involved in an armed conflict (e.g., non-state actors, mercenaries, etc.). Any kind of attack against anyone who does not distinguish between the armed forces and civilians is a violation of IHL because of the principle of distinction and proportionality.

International humanitarian law is the law of humanity and an attack on humanity by any side in the conflict is not justified. The IHL prohibits attacking civilians but the IHL has not specified the precautionary measures in case a belligerent strikes the civilians. Everyone is talking about the violation of IHL in the Israel-Palestine war. However, the lack of precautionary measures, penalties, compensations, lack of ways to deal with non-state actors is making the law ineffective and thus making it easy to be violated by the states. Nonetheless, when there is no law, the law of humanity should prevail.