Israel Launches Multiple Strikes on Jabalya Refugee Camp: War Crime Or War Tragedy?
What Do The Facts Tell Us?
War is Hell.
There has never been any real debate on William Tecumseh Sherman’s pithy aphorism, but the residents of the Jabalya refugee camp in northern Gaza received a brutal reminder of it when Israel launched an airstrike on buildings in the camp this past Tuesday (October 31).
An Israeli strike targeting a Hamas commander in the densely populated Jabalya refugee camp in northern Gaza has left catastrophic damage and killed a large number of people, according to eyewitnesses and medics in the enclave.
It is important to note that the IDF acknowledged this was an Israeli strike in Gaza.
Lt. Col. Richard Hecht of the Israel Defense Forces (IDF) told CNN that the airstrike was targeting a Hamas commander, whom he accused of “hiding, as they do, behind civilians.” Civilian deaths, Hecht also said, are “the tragedy of war.”
Hamas however has strongly denied the presence of one of its leaders in camp, Hazem Qassem, a spokesman for the group said in a statement Tuesday.
It is equally important to note that not just one, but at least twenty buildings were destroyed in the attack.
According to the Hamas-controlled Ministry of Interior in Gaza, twenty homes were “completely destroyed” in the bombing. Photos of the site showed multiple large craters in the ground, surrounded by the rubble of destroyed and damaged buildings.
The photos that have been released of the Israeli attack shows fairly widespread devastation. Reports of casualties are significant and even horrific.
Which leads us to an important question: is this a war crime?
We should first note that the corporate media coverage has done a better job this time around than the Al Ahli Hospital blast from two weeks ago.
This time, the corporate media obtained reliable footage of the attack’s aftermath. This time, the corporate media confirmed the attack with the IDF—what we were told initially by the corporate media appears to still be true (a true rarity!).
As we appear to have reliable recitation of the facts by the corporate media, let us now consider what facts are being recited.
Precise casualty figures are not fully known. Al Jazeera has reported the casualty count could be as high as 400.
At least 50 people were killed after six Israeli air raids hit a residential area of the camp on Tuesday. A Hamas statement said there were 400 dead and injured in the attack. Casualty figures for Wednesday’s attacks are still not known.
For its part, Israel has claimed it was targeting a senior Hamas commander, and that the civilians surrounding him were in fact being used by Hamas as human shields.
An Israeli military statement said that the attacks on Jabalia had killed Hamas commander Ibrahim Biari. The military believes Biari played a pivotal role in the planning and execution of the Hamas attack on southern Israel on October 7.
On the other hand, Hamas has denied the presence of any Hamas leaders in the camp.
Hamas spokesperson Hazem Qassem has denied that any senior commander was present in the refugee camp and deemed the claim an Israeli excuse for killing civilians.
We must, however, take the Hamas denials with a grain of salt, as they also accused the IDF of the Al Ahli Hospital blast.
The Hamas-run Health Ministry in Gaza says an Israeli airstrike caused the blast, and that it killed some 500 people, many of whom had sought shelter from an ongoing Israeli offensive.
Given that the hospital attack was later established to be the result of an errant Palestinian rocket, Hamas’ willingness to make demonstrably false accusations against Israel compels us immediately to be circumspect about Hamas’ claims on anything. Quite the contrary, Hamas’ previous duplicity makes their claim that the camp was not harboring Hamas commanders largely meaningless; they would make that claim regardless, and they would accuse Israel of targeting civilians regardless.
However, regardless of how one apprehends Hamas’ role in this latest paroxysm of violence in the Middle East, the visual evidence of the Jabalya air strike shows a significant amount of damage to a fairly wide area. Multiple buildings were damaged or destroyed, giving Hamas’ assessment of that damage substantial credibility.
Even without considering Israel’s particular motivation for this particular strike, the presented visual evidence establishes that the IDF airstrike demolished multiple buildings, and would have inflicted casualties in all of those buildings.
It is this magnitude of damage and this scope of attack that must be assessed when we ask the question: is this a war crime?
To answer that question, we must first be clear on what we mean when we say “war crime”.
War by its very nature is brutal and bloody. It necessarily entails destruction and the taking of human life. For an act to constitute a war crime it must in some way be an extraordinary instance of destruction or an extraordinary taking of human life. So long as humanity accepts the existence of war, we cannot automatically say all acts of violence during war are “war crimes”.
Accordingly, within international law there are treaties—the “laws of war”—which seek to define what constitutes such extraordinary acts of violence. War crimes are therefore defined as violations of those laws of war1. In particular, we generally look to the Geneva Conventions, as well as the Rome Statute establishing the International Criminal Court.
In considering these treaties, however, we must be mindful that not all nations have ratified all these treaties. Israel in particular is a signatory to the Rome Statute but has never ratified it and made it binding upon itself.2 Israel has further explicitly rejected the jurisdiction of the ICC over the conflict with the Palestinian Arabs.
Netanyahu, after meeting with senior ministers and government officials ahead of a Friday deadline to respond to an ICC notification letter, said Israel would not cooperate with the inquiry, but it will send a response.
"It will be made clear that Israel is a country with rule of law that knows how to investigate itself," he said in a statement. The response will also say Israel "completely rejects" the assertion that it was carrying out any war crimes.
Israel is not a party to the Rome Statute that established the ICC and therefore by definition not a party to the court.
However, Israel is a party to Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War3, and has been since the initial drafting of the Convention in 19494.
Convention (IV) broadly applies to civilians who find themselves in combat zones, as specified in Article 4 of the convention5:
Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.
Combatants are specifically excluded from this category, as their treatment is covered elsewhere in the Geneva Conventions.
We may plausibly consider Palestinian Arabs not participating in Hamas terror activities to be such protected persons as per Convention (IV).
Article 27 of the convention6 specifically prohibits acts of violence against protected persons.
Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.
This alone would tend rule out attacks on civilian Palestinian Arabs, a point that is further emphasized by Article 3, which extends the Convention into conflicts not of an international character7.
Article 14 establishes that parties to a conflict may create and designate “safety zones” for the protection of non-combatants (in particular women and children)8. One could easily and plausibly argue that a site designated as a “refugee camp” is one such safety zone.
However, the mere presence of protected persons does not automatically make an otherwise legitimate military target off limits. This is the consequence of Article 289.
We must be cautious in applying Convention (IV), however, as it specifically relates to one party to a conflict acting as an “Occupying Power”—i.e., it has seized and is in control of territory nominally belonging to another party to the conflict. The extent to which Israel can be said to be in control of Gaza and is therefore an Occupying Power is itself somewhat problematic.
This is relevant because while Additional Protocol 1 to the Geneva Conventions10 addresses the treatment of civilian populations in general, and not just by an Occupying Power, Israel is not a signatory to that protocol11.
Nevertheless, Article 48 of the Additional Protocol dictates that parties to a conflict shall only target military installations and pursue military objectives. Civilian populations and their infrastructures are not to be targeted.
In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.
We should be mindful that the Palestinian National Authority is as signatory to the Additional Protocol, and Hamas’ October 7 attack is therefore itself an undeniable war crime perpetrated by Hamas against Israel, as the attacks were clearly not against any military objectives whatsoever, in blatant disregard for Article 48 of the Additional Protocol. Indeed, its call for a war of genocide in its charter12 violates both the letter and the spirit of the Geneva Conventions. Even the 2017 revisions to the charter which accept the 1967 borders for “Palestine”—i.e., the West Bank and Gaza—does not really alter this call to genocide, as the atrocities of October 7 demonstrated unambiguously.
Not withstanding the blatant illegality of Hamas’ own conduct, Article 51 of the Additional Protocol explicitly prohibits “indiscriminate attacks” that involve civilian populations.13
4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or
(c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol;
and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
Article 51 further enumerates specific instances of indiscriminate attacks, the language of which does appear to relate to the Jabalya airstrike.
5. Among others, the following types of attacks are to be considered as indiscriminate:
(a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and
(b) an 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.
At the same time, Article 51 also precludes reliance on the presence of civilians to render military targets and objectives immune from attack.
7. The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.
Arguably, when Hamas maintains its bases and facilities for attacking Israel in Gaza—which is has always done—as an elected leader of the Palestinian National Authority and a signatory to the Geneva Conventions it is guilty of war crimes against the Palestinian Arabs. Despite having agreed not to do such things, it does them with seeming impunity and casual disregard for the Geneva Conventions.
Looking thus at the particulars of the Geneva Conventions, there can be little doubt that the Jabalya airstrike stands in violation of the Geneva Conventions. It certainly violates Article 51 of Additional Protocol 1, and there are several portions of Convention (IV) which stand as a bar to the nature of the attack.
Even if we accept Israel’s contention that a Hamas leader was situated within the refugee camp, Ibrahim Biari, as a single individual, could never occupy multiple buildings, and thus the destruction of multiple structures within Jabalya cannot be justified on that basis. The single structure housing Biari would be a legitimate target, but not the surrounding buildings.
While Israel is not a signatory to the Additional Protocol 1 which explicitly addresses the circumstances applicable to the Jabalya air strike, it is a signatory to Convention (IV), which by implication and imputation also precludes the indiscriminate nature of the Jabalya attack. Israel’s signing of the Geneva Conventions is in every regard a pledge to refrain from such indiscriminate overkill.
Thus, without rendering an opinion on whether the rest of Israel’s attack on Gaza is an indiscriminate attack on a civilian population and therefore a war crime, we may fairly conclude that the Jabalya attack as carried out is a war crime perpetrated against civilian Palestinian Arabs. Israel has every right to defend itself against Hamas’ psychopathic predations, and even to engage in reprisal actions when Hamas attacks Israeli civilians (which are also war crimes, to be clear), but it does not have the right to indiscriminate attacks on civilian Palestinian Arabs.
I have been and still am appalled by Hamas’ October 7 attack, but Israel screwed the pooch in bombing the Jabalya refugee camp.
War Crime. https://www.law.cornell.edu/wex/war_crime.
ICRC Database, Treaties, States Parties and Commentaries , Rome Statute of the International Criminal Court, 17 July 1998, States parties and signatories, https://ihl-databases.icrc.org/en/ihl-treaties/icc-statute-1998/state-parties?activeTab=undefined
ICRC Database, Treaties, States Parties and Commentaries , Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949., https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949?activeTab=undefined
ICRC Database, Treaties, States Parties and Commentaries , Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949., States parties and signatories, https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/state-parties?activeTab=undefined
ICRC Database, Treaties, States Parties and Commentaries, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949., Article 4 - Definition of protected persons, https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/article-4?activeTab=undefined
ICRC Database, Treaties, States Parties and Commentaries, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949., Article 27 - Treatment I. General observations, https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/article-27?activeTab=undefined
ICRC Database, Treaties, States Parties and Commentaries, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949., Article 3 - Conflicts not of an international character, https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/article-3?activeTab=undefined
ICRC Database, Treaties, States Parties and Commentaries, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949., Article 14 - Hospital and safety zones and localities, https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/article-14?activeTab=undefined
ICRC Database, Treaties, States Parties and Commentaries, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949., Article 28 - Treatment II. Danger zones, https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/article-28?activeTab=undefined
ICRC Database, Treaties, States Parties and Commentaries , Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977., https://ihl-databases.icrc.org/en/ihl-treaties/api-1977?activeTab=undefined
ICRC Database, Treaties, States Parties and Commentaries , Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977., States parties and signatories, https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/state-parties?activeTab=undefined
MEE Staff. Hamas in 2017: The Document in Full. 2 May 2017, https://www.middleeasteye.net/news/hamas-2017-document-full.
ICRC Database, Treaties, States Parties and Commentaries, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977., Article 51 - Protection of the civilian population, https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-51?activeTab=undefined
The conflict between Israel and Hamas is without a doubt controversial, and awakens considerable passions on all sides.
However, I would like to remind all who read and comment here of the golden rule of discussions on this Substack: disagreement is welcome, but being disagreeable is not.
Comments which are laced with bigotry of any kind, whether it be against the Palestinian Arabs or against the Israelis, will not be tolerated, will be deleted, and the authors of such poison banned. Trolling is not welcome and will be similarly excised.
This does not mean that Israel cannot be criticized and even condemned for their actions. It does not mean that Hamas cannot be criticized and condemned. It does mean that everyone needs to temper their rhetoric with a modicum of civility and a double dose of logic.
Everyone will have their opinions about the parties to this conflict and what should be done, and this is entirely as it should be. However, as we share and discuss those opinions, as well as such facts as inform those opinions, let us be mindful to be respectful to one another, and to remember that the ones who are suffering are the ones caught in the middle of all the violence.
Let us think on those caught up in this or any war with compassion. War is hell all on its own. We do not need to add to that hell with yet more hatred and anger. There's plenty of that already.
This wouldn't have happened if not for the terrorist attack on October 7th. Did these monsters care about civilians when they placed babies in ovens and set them on fire? Some of these atrocities are beyond the imagination. Hamas has a history of operating in civilian areas. So they bear the responsibility for the casualties. You expect Israel to "play fair" when the enemy never has. You can never defeat terrorism if you "play fair." It's a fact of war.