Brandeis Center Issues New Fact Sheet on International Humanitarian Law

Based on a review of publicly available information, this fact sheet concludes that the Israeli Defense Forces’ (IDF) policies comply with International Humanitarian Law (IHL), while Hamas does not.

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Today, the Louis D. Brandeis Center for Human Rights Under Law has issued an important new fact sheet to explain the rules that govern how nations must conduct themselves in war and how these rules were violated by Hamas during the Gaza 2021 conflict. It provides specific factual details of publicly available information demonstrating the Israeli Defense Forces’ compliance with IHL guidelines and the clear violations perpetrated by Hamas.

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International Humanitarian Law in Asymmetric Warfare

“IHL is widely misunderstood,” explained its chief author, Senior Counsel and international human rights lawyer Arthur Traldi. “This fact sheet provides a critical educational resource to help people understand an important and complex area of law.”

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“In our campus work, we find that misconceptions about Israel often combine basic misinformation with hateful anti-Jewish stereotypes. Both must be addressed. For years, we’ve addressed the hate and bias through civil rights law. With this fact sheet, we are addressing the misconceptions with critical information and analysis,” added Brandeis Center Founder and Chairman Kenneth L. Marcus.

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IHL applies equally to all parties to armed conflicts. Its key principles are codified in the Geneva Conventions, which help warring parties determine what they can and cannot legally do during a war. The most widely accepted principles include: “distinction,” “necessity,” “proportionality,” and “humanity.”

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  • The principle of distinction requires that attackers distinguish between military and civilian objectives when selecting targets.
      
  • The principle of necessity permits armed forces to take measures which are necessary to accomplish a legitimate military purpose and are not otherwise prohibited by IHL.
      
  • The principle of proportionality bans any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
      
  • The principle of humanity forbids the infliction of unnecessary suffering.   

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The fact sheet explains that asymmetric, urban warfare – like a conflict between Israel and Hamas – poses extra challenges for warring parties because fighters and civilians may look the same, and military targets are in close proximity to civilian objects.

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For instance, the fact sheet notes that Hamas regularly violates various principles of IHL, such as the principle of distinction, both as an attacker and a defender. As an attacker, Hamas often directs attacks at civilians or civilian property. As a defender, Hamas has a practice of “avoiding uniforms and thus failing to distinguish its fighters from civilians, locating operational military bases in civilian areas, and weaponizing items and locations which should be protected under IHL” – as well as using human shields. To learn more about the other key principles and the ways in which Hamas has violated them, access the fact sheet.

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By contrast, the fact sheet notes that as a matter of policy the IDF complies with international guidelines. For instance, in the 2021 Gaza conflict, prior to airstrikes, the IDF took significant precautions to give civilians notice to evacuate an area and avoid harm, such as dropping Arabic language leaflets and sending mobile phone alerts to civilians in strike zones, urging them to evacuate these areas. To learn more about how IDF policies comply with IHL, access the fact sheet.