Updates

Update 10/23 #02

We are now in the fourth week of the war in Gaza launched by Hamas’ mass pogrom against Israelis on October 7 – with Israel now engaged in limited ground engagements in Gaza and approaching Gaza city. This Update looks at new footage Israel has shown to journalists from the bodycams of the terrorists responsible for the mass-murder and mass kidnapping of that day, as well as the debates about the use and misuse of international law that have developed in response to Israel’s military actions in self-defence against Hamas.

We lead with a report on the deeply disturbing bodycam footage that Israel showed journalists – but which has not been made public – from the Times of Israel. Israel has said it decided to show the footage to counter the “Holocaust-denial-like phenomenon” of people around the world attempting to deny these atrocities happened. The report describes scenes of the murder of children, decapitation, mistreatment of captives and Hamas figures bragging about how many Jews they killed. For this story, CLICK HERE.

Many media outlets and journalists have offered often emotive reactions to this intense footage after seeing it – for example, see here, here, here, here and here. Plus, counter-terrorism Matthew Levitt puts Hamas’ actions in historical context.

Next up is US-based Law of War expert Prof. Thomas Wheatly, who argues that the way international law is being distorted to condemn Israel’s action in Gaza is likely to also hurt the US and any other country that has to fight a war in future. He reviews how Law of War concepts, such as collective punishment, forcible transfers of civilians, and the rules related to sieges, are being distorted or mispresented to condemn Israel. He also says if these concepts are allowed to be stretched, sometimes to “breaking point”, to prevent Israel from succeeding in its lawful campaign, it is not just Israel that will suffer. For his complete argument, CLICK HERE.

Next up is noted Israeli international law expert Pnina Sharvit Baruch, who outlines exactly what Israel’s obligations to Gaza and its civilian population are – and are not. She makes it clear Israel is not responsible for providing for the needs of the people of Gaza – its obligation is only to permit the passage of certain humanitarian aid, such as food and medicine (but not electricity or fuel), as it is doing. And she makes it clear that Israel was actually fulfilling its legal obligations by calling for civilians to leave northern Gaza – not breaking international law as some bizarrely claimed – and it is Hamas which is committing a war crime by preventing them from doing so, For all the vital details,  CLICK HERE.

On the same topic, we strongly recommend AIJAC analyst Oved Lobel’s blog about the real meaning and widespread misuse of three international law terms – proportionality, collective punishment, and genocide.

Readers may also be interested in…

• More material on the real meaning of the widely miused term “proportionality” under the Laws of War from US expert Dr. Geoffrey Corn, British expert Lord Guglielmo Verdirame KC, and US writer Shoshana Bryen. Plus, a general guide to the use and misuse of international law in the Hamas conflict is here. 
• The full footage released from the Israeli interrogation of six Hamas terrorists arrested on October 7, in which they confess the war crimes they were ordered to commit and committed. A story summarising the details is here.
• Hamas leader Ismail Haniyeh seemed to admit Hamas is seeking to get Gaza civilians killed, saying Hamas needs “The blood of the women, children and elderly […] it awakens within us the revolutionary spirit.”
• American columnist Jeff Jacoby on why people tear down posters of kidnapped Israelis – plus Kevin Williamson on “What people really mean when they justify anti-Israeli barbarism.”
• Israeli writer and intellectual Yossi Klein Halevi asks “Why is Israel being blamed for the Hamas massacre?” Plus, Seth Mandel on why calls for an immediate Gaza ceasefire are a “moral catastrophe.”
• Ehud Yaari on Iran’s role in this war and attitude toward it.
• Some examples from the many stories and comments now appearing at AIJAC’s daily “Fresh AIR” blog:
  • Jamie Hyams’ Hobart Mercury piece on misrepresentations of international law by Palestinian sympathisers.
  • Colin Rubenstein on the “War against Israel’s Right to Self-Defence”, published in the Daily Telegraph.
  • Justin Amler on how the atrocities of October 7 already appear to be being forgotten, the Courier Mail. 
  • AIJAC National Chairman Mark Leibler in The Australian, on Hamas’ “harrowing threat to Jews and wider world.”
  • Ahron Shapiro in The Australian on the ground invasion of Gaza and the huge challenges the IDF is likely to face there.
  • Oved Lobel on SkyNews online explored why the media appeared so ready to parrot Hamas lies blaming Israel for the explosion at the al-Ahli hospital caused by a failed rocket launch.
  • Galit Jones on the explosion of international antisemitism since October 7. Plus, a short AIJAC video on this.
  • Two Sky News interviews with Colin Rubenstein yesterday on the current reality for Israel and Jewish Australians – here and here.
  • AIJAC media releases on: The Open Letter by six former Australian PMs regarding the Hamas-Israel conflict; Australia’s abstention on a UN resolution calling for a Gaza ceasefire; Controversial Statements by Federal Minister Tony Burke, and Australia’s latest announcement of new sanctions on Iran.

IDF shows foreign press Hamas bodycam videos, photos of murder, torture, decapitation

The Israeli government on Monday screened for 200 members of the foreign press some 43 minutes of harrowing scenes of murder, torture and decapitation from Hamas’s October 7 onslaught on southern Israel, in which over 1,400 people were killed, including raw videos from the terrorists’ bodycams.

The government said it had decided to show journalists part of its collected documentation in order to dispel what a spokesperson characterized as “a Holocaust-denial-like phenomenon happening in real-time,” as doubts have been raised around the world about some of the most horrific of Hamas’s atrocities.

Journalists were not permitted to record the screening, which took place on a closed military base.

The footage was collected from call recordings, security cameras, Hamas terrorists’ body cameras, victim dashboard cameras, Hamas and victims’ social media accounts, and cellphone videos taken by terrorists, victims and first responders. Over 1,000 civilians were slaughtered by the terrorists, and at least 224 people were abducted.

In one pair of videos that were screened, Hamas terrorists are seen dressed in IDF uniforms, flagging down passing cars and then shooting their occupants.

Dead bodies are dragged out of vehicles and left in the middle of the road after terrorists rifle through their belongings and in some cases steal the blood-soaked, bullet-ridden cars.

In another video, first responders are seen pouring bottled water over still-smoldering bodies, hoping to snuff out the remaining embers.

In another, a man writhes on the ground, bleeding from his stomach, as a terrorist tries repeatedly to decapitate him with farming equipment. The man appears to be southeast Asian, possibly one of Israel’s foreign agricultural workers.

In another clip, from after the assault, an Israeli woman is seen trying to work out if a partially burned woman’s corpse, with a mutilated head, is that of a family member. The dead woman’s dress is pulled up to her waist and her underpants have been removed.

Major Gen. Mickey Edelstein, who briefed reporters after the viewing, said that “we have evidence” of rape but “we cannot share it,” declining to elaborate further.

Screenshot of Hamas body cam footage as terrorists fire on an Israeli vehicle during the terror organisation’s October 7 attack in southern Israel, released by the IDF and GPO. (Screenshot)

In a two-part video segment recorded in two Israeli communities near the Gaza border, a home security camera shows a father scooping up his two young sons to run to their outdoor bomb shelter, the three of them just roused from their beds and all still in underwear.

Moments after they enter presumed safety, a hand appears onscreen, tossing a grenade in after the family. The father dies, and the boys exit, covered in his blood.

“Dad’s dead, it wasn’t a prank,” one says after they run back into their home. “I know, I saw it,” responds his brother, later screaming, “Why am I alive?”

In the second segment, captured through a call recording application on a victim’s phone, a different son reaches out to a different father. “Dad, I killed 10 with my bare hands,” the terrorist excitedly tells his father in Gaza. “Their blood is on my hands, let me speak to Mom.”

“Please be proud of me, Dad,” he adds.Identified by his father as Mahmoud, the terrorist says he is calling his family from the phone of a Jewish woman he’s just murdered, and implores them to check his WhatsApp messages for further documentation.

The military also pulled footage from within Gaza that was uploaded to social media on the day of the attack. In one video, a bloody IDF soldier is pulled from a car — it is not clear whether he is dead or alive — dropped on the ground, and kicked and beaten by a local Palestinian crowd.

In another, a young girl — revealed by Israeli media to be a 19-year-old soldier — wears bloody sweatpants while being dragged out of the trunk of a car to a chorus of cheers. One man yells in English, “You’re in Gaza!”

Among the still images included in the raw footage reel were those of a decapitated soldier, several charred human remains including those of young children, a pile of dead bodies in a bomb shelter, and several Islamic State flags that the military said were found in Israel.

Speaking to the press corps, Israel Defense Forces Spokesman Rear Admiral Daniel Hagari said that Israel has been identifying Hamas with Islamic State (or ISIS) since October 7 primarily because of the Gaza-based terror group’s methods.

In addition to the Hamas bodycam footage, Israel has already released footage of the interrogations of six Hamas terrorists arrested on October 7 – in which they confess to being under orders to slaughter and take hostage civilians. (Image: IDF screenshot). 

“When we say Hamas is ISIS, it’s not a branding effort,” said Hagari.

“We say ISIS in the sense of — [Hamas’s] media elements, cruelty, and barbarism are ISIS elements,” he said. He also noted “the guidance of manuscripts” found on killed and captured Hamas terrorists, the primary force of which was from the group’s Nukhba commando unit.

“It’s this idea that they would take all measures, [even] against Islam, to not allow the existence of Israelis, wherever they are, [including] Bedouins, Arab Israelis, foreigners,” Hagari said.

“Why does a person take a GoPro [to such an attack]?” the military spokesperson continued. “Because he’s proud of what he does.”

“It’s indoctrination, and if the indoctrination is to commit crimes against humanity, it’s not just Israel’s problem,” Hagari added, alluding to a broader Western war against fundamentalist Islamic terror.

A fake law of war will hurt Israel now and America in the future

According to the first sentence of the U.S. Army’s 2019 People Strategy, “winning matters.”

Indeed, winning matters most. A nation that wages war with little or no regard for satisfying its casus belli — or reason for going to war — is a country cruelly engaged in the pointless destruction of human life.

But to win, nations — including the United States — must be free to avail themselves of all lawful means of waging and winning war. This makes it all the more bewildering that, when considering Israel’s fight against Hamas, some in the international law community seem determined to distort the law of armed conflict in a way that needlessly binds combatants’ hands and jeopardizes Israel’s chance at decisive victory.

Such distortions may be grounded in noble intentions. But if left unchallenged, this fake body of international law will not only condemn Israel to living under constant threat, it will seriously impair the ability of the U.S. to not just fight, but win future wars.

Consider, for example, the notion of “collective punishment” — a refrain employed to describe Israel’s siege of Gaza by the likes of Human Rights Watch, Amnesty International and more recently, the United Nations. Collective punishment is a war crime.

Yet Israel’s actions come nowhere near “punishment” as it is ordinarily understood. Israel is not engaging in retribution for its own sake; it’s not seeking to inflict human suffering merely to satiate a sense of justice or revenge. It is capitalizing on the real military advantages of a siege, a method of warfare that has long been recognized as legitimate under international law. The United States’s own law of war manual allows it — even if the siege results in the incidental starvation of civilians. Siege warfare was instrumental in the American Civil War, leading directly to Confederate surrender along the Mississippi River, including at Vicksburg and Port Hudson.

Then there is the so-called “forcible transfer of civilians.” According to UN spokesperson Ravina Shamdasani, Israel’s order to civilians in northern Gaza to evacuate, coupled with its siege, may amount to “a forcible transfer of civilians in breach of international law.” She continued, “Those who managed to comply with the Israeli authorities’ order to evacuate are now trapped in the south of the Gaza Strip, with scant shelter, fast-depleting food supplies, little or no access to clean water, sanitation, medicine and other basic needs.”

The claim Israel warning northern Gaza civilians to flee amounts to “forcible transfer” stretches international law to “its breaking point.” (Image: Youtube screenshot from France24). 

This argument stretches the law to its breaking point. Forcible transfers are generally prohibited, but integral to all “forcible” transfers is — well, force. Unlike Hamas, the Israeli military has not gone door-to-door and removed civilians from their homes using or threatening to use force. Moreover, Israel’s “orders” are literally unenforceable in Gaza. Instead, they are tantamount to a warning of an impending attack, a practice which the International Committee of the Red Cross says reflects “a long-standing rule of customary international law” and which is enshrined in both the Hague Regulations and Article 57(2)(c) of Additional Protocol I.

Quite the opposite of a “forcible transfer,” Israel’s warnings are an effort to remove civilians from the vicinity of military objectives — something U.S. policy not only permits, but actually describes as “appropriate” and “advisable” in some cases. Similar warnings were given by the U.S. and its allies to civilians in the Korean War, in the conflict in the former Yugoslavia, in Afghanistan and in Iraq — much to the international community’s acclaim.

But where are residents of northern Gaza to go? Where will they stay? How will their basic human needs be met? These questions are important, but they are ultimately an exercise in goalpost-shifting. Israel is not legally bound to provide for the human needs of those fleeing the battlefield. This is particularly true if, as mounting evidence shows, such humanitarian assistance is at risk of ending up in the hands of Hamas militants.

Other examples abound. The Israeli military has been lambasted, for example, for using white phosphorus — an incendiary weapon that, according to Human Rights Watch, “violates the international humanitarian law prohibition on putting civilians at unnecessary risk.” But white phosphorus is not prohibited under the law of armed conflict. U.S. policy explicitly states white phosphorus “may be used as an antipersonnel weapon” as long as such use complies with “the general rules for the conduct of hostilities, including the principles of discrimination and proportionality,” and “feasible precautions” are taken “to reduce the risk of harm to civilians.” In fact, white phosphorus was credited as “an effective and versatile munition” in the Second Battle of Fallujah, and has been used by the U.S. in Iraq as recently as 2017.

Indeed, Israel’s critics have put forth an extreme position — one as much at odds with common sense as the law. Israel suffered an armed attack by the de facto governing body of the Gaza Strip. It is entitled to exercise its inherent right to self-defense under Article 51 of the UN Charter and use every lawful means at its disposal to effectuate that right. Most importantly, however, it is allowed to succeed in exercising that right.

For its own interests, the United States must preserve today the legal means necessary to secure victory on whatever battlefield it may be forced to fight tomorrow. At this hour in history, that means protecting Israel’s power to do the same.

Thomas Wheatley is an assistant professor in the Department of Law at the U.S. Military Academy at West Point. The views expressed herein belong solely to the author and do not necessarily reflect the views of the United States Military Academy, the United States Army or the Department of Defense.

Israel’s Humanitarian Obligations Toward the Civilian Population in Gaza

What are Israel’s humanitarian obligations toward the civilians in Gaza?

Pnina Sharvit Baruch

INSS Insight No. 1773, October 26, 2023

Trucks line up to bring aid to Gaza at Egypt’s Rafah crossing: Israel is obliged to allow in third party aid such as food and medicine to Gaza – and it is  – but is not obliged to supply the Gaza population itself. (Photo: Sayed Hassan/dpa/Alamy Live News.)

Much confusion surrounds the debate over the nature and extent of Israel’s obligations toward the civilian population in Gaza. Several important questions must be addressed: Is Gaza an occupied territory? Is it permitted to prevent the supply of electricity to Gaza? Can Israel lay siege to Gaza as part of its war against Hamas? Is there a duty to allow humanitarian aid into Gaza? Is advising civilians in Gaza to evacuate to the south a form of internal displacement?

The purpose of this short paper is to clarify these issues by addressing the following points:

• Claims that the Gaza Strip is territory occupied by Israel
• Prohibition of starvation
• Obligation to allow the passage of humanitarian aid
• The rules that apply to laying a siege
• The rules that apply to notifying civilians to leave combat zones

The Law of Occupation Do Not Apply

Gaza is no longer an occupied territory under Israeli control.

Under international law, occupation is determined by the effective control of the occupying power over a territory. Following Israel’s disengagement from Gaza in 2005, Israel no longer has effective control over the territory. Therefore, it cannot be considered as the occupying power in Gaza. Hamas has effective control over the territory. The magnitude and sophistication of its surprising attack against Israel from Gaza is clear proof of the lack of Israel’s control over this area.

Thus, Israel has no legal obligation to ensure or actively provide for the needs of the civilian population in the Gaza Strip derived from the law of occupation. This includes water and electricity.

Israel is bound by some basic humanitarian obligations toward the civilian population in Gaza under rules of the laws of armed conflict that pertain to obligations toward the enemy’s civilian population. However, these obligations are of a limited scope, as detailed below.

The Prohibition on Starvation of Civilians

The laws of armed conflict prohibit the starvation of enemy civilians as a means of warfare. Starvation includes the denial of food and water. However, it does not include denying electricity or fuel.

The prohibition on starvation does not apply to enemy fighters; they can be denied food and water supply. To the extent that preventing food and water supply from enemy fighters will harm the civilian population, the harm must be proportionate, ensuring that no excessive damage is caused to the civilians compared to the military advantage of the operation. This is also the US position, as specified in the Laws of War Manual of the US Department of Defense.

Israel may take actions designed to prevent supplies from reaching Hamas and other terrorist organizations. In doing so, it must ensure that the civilian population in Gaza does not face starvation (including water shortage).

The Obligation to Allow the Passage of Humanitarian Aid

Israel has no obligation to actively provide humanitarian aid to the civilian population in Gaza. Israel is only required to allow the passage of humanitarian aid, including food, water, medicine, and medical equipment. There is no set list of items that must be transferred, and there are different approaches to the subject.

It is possible to demand inspection and supervision to ensure that aid is directed toward the civilian population and does not reach Hamas forces and other terrorist organizations.

In practice, humanitarian aid shipments have entered Gaza through the Rafah crossing in recent days. Hamas, as a regular course of action, seizes aid intended for the civilian population for its military needs. A recent example is UNWRA’s (later deleted) tweet that Hamas took fuel and medical equipment from the agency’s compound that were meant to reach hospitals and civilian facilities.

Siege: Lawful Warfare

A siege is a legitimate method of warfare used to cut enemy forces off from reinforcements and vital supplies. When imposing a siege, any expected collateral harm that may be caused to civilians must be proportionate and not excessive to the military advantage it is intended to achieve.

Severing Hamas from reinforcements and supplies may provide a significant military advantage to Israel, especially in light of the grave danger Hamas poses to Israel’s security. Nonetheless, a siege cannot justify the starvation of a civilian population. Thus, it is necessary to allow civilians to evacuate from the siege area or to allow humanitarian aid to prevent this outcome.

Despite the statement by Defense Minister Yoav Gallant immediately after the murderous attack by Hamas and in the midst of battles against Hamas terrorists on Israeli territory that no supplies will enter the Gaza Strip, it is not at all clear that Israel’s policy toward the Gaza Strip amounts to a siege, as opposed to a wide-ranging closure of the area.

In any case – whether a siege or a wide-ranging closure – the restrictions imposed by Israel are intended to prevent the introduction of weapons and supplies to Hamas and other terrorist organizations, and therefore, they are legal. They are not aimed to punish the civilian population and thus they do not constitute unlawful collective punishment. Practically and unfortunately, there is no way to prevent supplies from Hamas without inflicting hardship on the civilian population. This incidental harm is permissible as long as it is proportionate. When assessing proportionality, one must consider the significant threat that Hamas poses to Israel’s security and its citizens.

International Law expert Pnina Sharvit Baruch: It is not a war crime for Israel to urge Gazans to evacuate the battle zone – it is a war crime for Hamas to prevent them doing so. (Image: INSS)

Forced Displacement vs. Lawful Evacuation

The military infrastructure and activity of Hamas and the other terrorist organizations in Gaza are conducted from within civilian structures. This makes these lawful military targets that can legally be attacked by Israel. To minimize harm to Palestinian civilians from these attacks, Israel called on the residents of Gaza to evacuate to southern Gaza, while allowing humanitarian corridors for this purpose. These actions were taken by Israel as a lawful temporary evacuation of civilians from a combat zone rather than a prohibited forced displacement for collective punishment or permanent displacement. Israel took these actions in meeting its obligation to take feasible precautions and provide, when possible, advance warnings to civilians prior to attacks.

Hamas is the governing power that controls the Gaza Strip, and only it can (and should) take care of evacuating the civilian population and distancing it from the combat zone. However, Hamas has acted to prevent civilians from evacuating to southern Gaza by blocking the roads and bombing the fleeing civilian convoys. This is meant to use the civilians as human shields against IDF attacks. In doing so, Hamas has committed another war crime, this time against its own people.

Lack of Reciprocity

Hamas has committed atrocities, which included torturing and butchering babies, children, and defenseless civilians inside Israel, and continues to commit an ongoing crime by holding more than 220 Israeli hostages, including children, the elderly, women, and men. In addition, Hamas also violates its humanitarian obligations toward the Israeli hostages. To date, there has been no release of information about their condition, no means of communication with them, and no reported meetings with Red Cross officials. Nonetheless, Israel is still required to fulfill its obligations toward the civilian population of Gaza, since the laws of war do not include the principle of reciprocity and thus are binding even when one of the parties blatantly violates them.

Colonel (res.) Adv. Pnina Sharvit Baruch joined the Institute for National Security Studies at Tel Aviv University 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.