The Israel-Hamas war has exposed the limits of international law. Can it truly regulate systematic violence or is it merely a tool for powerful states?

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​The ongoing humanitarian crisis in Gaza, exacerbated by the escalation of violence in October 2023, has persisted for nearly two years, leaving the region in near-total devastation. The ongoing conflict between Israel and Hamas presents a significant case study for evaluating the application and enforcement of international legal frameworks in asymmetric warfare. This analysis explores three fundamental aspects of international law: the parameters of self-defense under Article 51 of the UN Charter, the core principles of International Humanitarian Law (IHL), and the mechanisms for ensuring accountability under the Rome Statute. The protracted nature of the conflict, now entering its third year, has generated substantial legal discourse regarding the interpretation and implementation of international legal norms. The situation highlights both the
enduring relevance of established legal frameworks and the contemporary challenges in their consistent application.​

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The Right of Self-Defense

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The right of self-defense is a cornerstone of international law, explicitly recognized in Article 51 of the United Nations Charter. It allows states to respond to armed attacks whether by other states or non-state actors, but only until the Security Council intervenes to restore peace (United Nations, 1945, Article 51). Crucially, self-defense is not a license for unstrained retailation; its ultimate goal is to reestablish equilibrium, not to inflict disproportionate harm. However, this right is not without limitations. Two key principles derived from the Caroline Case (1837)—necessity and proportionality—govern its application. Necessity requires that the threat be imminent and that no peaceful alternatives exist to prevent it. Proportionally demands that the response be commensurate with the scale of the attack. These principles have been reinforced by landmark rulings of the International Court of Justice (ICJ), such as Nicaragua v. United States (1986), Oil Platforms (Iran v. USA, 2003), and Armed Activities on the Territory of the Congo (2005), which emphasize that self-defense applies only to armed attacks and that responses must be necessary and proportionate. The application of these principles to contemporary conflicts raises complex legal questions regarding: the temporal scope of self-defense against ongoing security threats; the assessment of proportionality in urban warfare environments, and the evidentiary standards for establishing necessity in asymmetric conflicts. Recent scholarship (Lubell, 2017; Dinstein, 2022) has examined how technological developments and changing warfare modalities necessitate ongoing interpretation of these established principles.

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International Humanitarian Law: Protecting The Vulnerable

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International Humanitarian Law (IHL), also known as the law of armed conflict or jus in bello, seeks to mitigate the horror of war by establishing rules that protect civilians and limit the means and methods of warfare. Rooted in the first Geneva Convention of 1864 and further developed through the four Geneva Conventions of 1949, the Additional Protocols of 1977, and the Third Protocol of 2005, IHL applies equally to all parties in a conflict, regardless of their motives or the conflict's origins.

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Core Principles of IHL

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I. The principle of distinction (Article 48, Additional Protocol I), requiring parties to differentiate between military objectives and civilian objects.
II. The principle of proportionality (Article 51(5)(b)), prohibiting attacks expected to cause excessive civilian harm relative to concrete military advantage.
III. The principle of humanity (Article 57), mandating all feasible measures to minimize civilian casualties.

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Humanitarian Assistance in Armed Conflict

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IHL also mandates that warring parties allow and facilitate impartial humanitarian aid to civilians in need. This includes ensuring the free passage of relief supplies and prohibiting the use of starvation as a method of warfare. In occupied territories, the occupying power bears the primary responsibility for meeting the essential needs of the civilian population. The humanitarian crisis between Israel and Hamas has brought particular attention to challenges in applying these norms to urban warfare, as noted in the ICRC's 2020 Guidelines on Urban Warfare. These include difficulties in verifying targets in dense urban environments, assessing cumulative effects on civilian infrastructure, and maintaining humanitarian access during sustained hostilities.​​

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Application to the Israel-Hamas Conflict

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Both Israel and Hamas are bound by IHL, though in different ways. Israel, as a state, has ratified the Geneva Conventions and their Additional Protocols, while Hamas, as a non-state actor, is still bound by customary international humanitarian law, which applies to all parties in an armed conflict. The humanitarian crisis has raised serious concerns about violations of IHL, including civilian casualties, destruction of infrastructure, and restrictions on humanitarian aid. For instance, the suspension of aid deliveries to Gaza, as reported on March 2, 2025, has been condemned as a potential war crime. Violations of IHL can lead to severe consequences, including international condemnation, suspension of economic and political agreements, and prosecution for war crimes. The International Criminal Court (ICC) has jurisdiction to investigate and prosecute individuals, including military commanders and political leaders, responsible for grave breaches of IHL. Recent developments, such as the ICC’s indictment of the Israeli Prime Minister, underscore the potential for accountability.

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The International Arrest Warrant: A Tool for Accountability

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The Rome Statute provides multiple pathways for investigating alleged IHL violations, including State Party referrals (Article 14), UN Security Council referrals (Article 13(b)), and proprio motu investigations by the Prosecutor (Article 15). Recent ICC jurisprudence (Al-Mahdi Case, 2016; Afghanistan Investigation, 2020) has clarified standards for evaluating case gravity and the interests of justice consideration. The international arrest warrant is a critical instrument in the enforcement of international law, particularly in cases of severe human rights violations, as outlined in the Geneva Conventions. Issued by the International Criminal Court (ICC), it is the culmination of a complex process involving investigation, evidence collection, and judicial review. The process, according to the Roma Statute, is composed of 4 parts:

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1. Initiation: An investigation can be triggered by a State Party to the ICC (Article 14), the ICC Prosecutor (Article 15), or the UN Security Council (Article 15).

2. Evidence gathering: the ICC evaluates whether there are reasonable grounds to believe that war crimes, crimes against humanity, or genocide have been committed. This implies an extensive evidence-gathering phase (Article 53), during which the ICC collects testimonies, official documents, NGO reports, and relevant materials.

3. Issuance: if sufficient evidence is found, the Prosecutor request the Preliminary Chamber to issue an arrest warrant against individuals deemed responsible for these crimes (Article 58).

4. Execution: For the warrant to have practical effect, it must be executed by member states, which are obligated to arrest and transfer the accused to the ICC. Once arrested, the defendant is brought to The Hague for trial.

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Despite its robust legal framework, the effectiveness of the international arrest warrant often hinges on state cooperation. This limitation was evident following the issuance of an arrest warrant against the Israeli Prime Minister, whose arrest warrant has yet to yield significant changes due to political dynamics and lack of enforcement.

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Complicity and State Responsibility in International Law: a far worse outcome

 

The concept of complicity extends beyond individual accountability to include state responsibility. Under the 2001 Draft Articles on State Responsibility, a state may be deemed complicit in international crimes if it provides assistance or support to another state committing unlawful acts (Article 16). Similarly, the Rome Statute (Article 25) holds individuals criminally liable for planning, ordering, or facilitating international crimes. In the case of the ongoing humanitarian crisis in Gaza, the United States’ unwavering support for Israel raises questions about third-state responsibility under Article 16 of the Draft Articles. As a permanent member of the UN Security Council, the U.S. wields significant influence and has historically shielded Israel from accountability. While this stance may protect short-term political interests, it undermines the moral authority of the U.S. and its alliances, particularly with Europe, which increasingly emphasizes adherence to international law.

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Conclusions: The Limits of International Law

While international law provides a comprehensive normative framework for regulating armed conflict, its effectiveness ultimately depends on consistent application and enforcement. The Israel-Hamas humanitarian crisis underscores both the continuing relevance of IHL principles and the need for more effective implementation mechanisms to address contemporary warfare challenges. While legal frameworks like the right of self-defense, IHL, and the international arrest warrant provide tools for accountability, their effectiveness depends on the cooperation of states and the political will to enforce them. When powerful states prioritize political alliances over justice, they risk being perceived as complicit in the very crimes they claim to oppose. For international law to remain relevant, it must transcend geopolitical constraints and ensure accountability for all, regardless of their influence or alliances. Only then can it fulfill its promise of regulating military occupations and protecting the vulnerable. Future legal scholarship should focus on developing practical methodologies for assessing compliance with IHL norms in complex operational environments, while maintaining rigorous adherence to established legal principles.
 

References

 

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Borger, J. (2024, August 29). Israel airstrike hits aid convoy in Gaza. The Guardian. https://www.theguardian.com/world/article/2024/aug/29/israel-airstrike-aid-convoy-gaza

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Dinstein, Y. (2022). The conduct of hostilities under the law of international armed conflict (4th ed.). Cambridge University Press.
 

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International Committee of the Red Cross (ICRC). (n.d.). Treaties and states parties to the Geneva Conventions and Additional Protocols. https://ihl-databases.icrc.org/en/ihl-treaties/treaties-and-states-parties

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International Court of Justice. (1986). Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Judgment, ICJ Reports 1986.

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International Court of Justice. (2003). Case concerning Oil Platforms (Islamic Republic of Iran v. United States of America). Judgment, ICJ Reports 2003.

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International Court of Justice. (2005). Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda). Judgment, ICJ Reports 2005.

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Lubell, N. (2017). Fragmented wars: Multi-territorial military operations against armed groups. Oxford University Press.

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Paglialonga, R. (2024, October). Un anno di guerra: Conflitto in Medio Oriente dal 7 ottobre 2023 a Gaza e Israele. Vatican News. https://www.vaticannews.va/it/mondo/news/2024-10/anno-guerra-conflitto-medio-oriente-7-0ttobre-2023-israele-gaza.html

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