Israel's Attack on Rafah, With No Regard for Civilians, is Certainly a War Crime

The strike took place in western Rafah which the Palestinians believed was part of the Israeli-designated safe area.

The strike took place in the Tel Al Sultan area of western Rafah, which the Palestinians believed was part of the Israeli-designated safe area and was densely populated with tent encampments.

(Photo: AP)

An Israeli air strike at a tent camp in the city of Rafah in Gaza, killing 45 people on Sunday night, has prompted an international outcry, with global leaders calling on Tel Aviv to implement an International Court of Justice (ICJ) order from last Friday to halt the assault in the area.

Prime Minister Benjamin Netanyahu said that the deaths were a “tragic mistake” and pledged an investigation. The Israelis claimed that two Hamas leaders were killed in the strike. They insist that its operations in Rafah, launched three weeks ago, are aimed at eliminating the remaining battalions of Hamas, and it is taking sufficient precautions to prevent civilian casualties.

Despite the Israelis ordering an evacuation of eastern Rafah, thousands of Palestinians were unable to move from there. The strike, however, took place in the Tel Al Sultan area of western Rafah, which the Palestinians believed was part of the Israeli-designated safe area, densely populated with tent encampments.

For the US, Rafah Was the 'Red Line'

Israel has so far ignored the order of the International Court of Justice, which has called for a halt to the military operations “that could lead to the complete or partial destruction of the Palestinian population in Rafah” where hundreds of thousands of civilians are seeking refuge. The ICJ also ordered the reopening of the Rafah crossing to enable humanitarian supplies to come into Gaza.

French President Emmanuel Macron said that he was “outraged” by the Israeli strike, and European Union Foreign Policy Chief Joseph Borrell condemned the attack as well. The attack was also condemned by President Erdogan of Turkey. German Foreign Minister Annalena Baerbock said that international humanitarian law applied to all and “also to Israel’s conduct of the war.” The Italian defence minister said that the attacks on Palestinian civilians in Gaza could “no longer be justified.” There were similar comments from Norway, Ireland, Spain, Egypt, Saudi Arabia, and Jordan.

However, the United States, which had earlier said that an attack on Rafah was a “red line”, seems to have altered its stand. Tel Aviv had recently briefed the US National Security Advisor on the measures it would take to avoid harm to civilians. A spokesman for the US National Security Council said, “Israel has a right to go after Hamas, and we understand this strike killed two senior Hamas terrorists… But as we’ve been clear, Israel must take every precaution possible to protect civilians.”

The ICJ ruling came days after the International Criminal Court (ICC) said that its prosecutor would seek to charge Netanyahu and Defence Minister Yoav Gallant, along with three Hamas leaders, with war crimes related to the Israeli operations in Gaza and the terror strike of 7 October that triggered them.

On Tuesday, countries including Norway, Spain, and Ireland said they would recognise an independent Palestinian state. This move, though symbolic, was highly damaging to Israel.

Israel Has No Regard for Civilian Life

The ICJ’s directive is the latest provisional order issued by the world body to protect Palestinian civilians while it continues to hear a case filed by South Africa in December that accuses Israel of genocide. Although the world court’s orders are binding, it has no means to enforce them. They could be taken up by the UN Security Council, but the US would certainly veto them.

As parties to the 1948 Genocide Convention, Israel and South Africa can file claims at the ICJ about enforcing it. The court has jurisdiction over actions aimed at destroying or decimating specific populations but not over military actions as such, even those that give rise to charges of war crimes.

The ICJ was established by the UN Charter and began work in 1946, succeeding the Permanent Court of International Justice. Its 15 judges are elected to nine-year terms by the UN General Assembly and the UN Security Council. The Gaza ruling was delivered with a 13-2 majority, with two judges, one from Uganda and one from Israel, dissenting.

Ironically, Israel too owes its birth to the United Nations, which partitioned Palestine into independent Arab and Jewish states based on a 29 November 1947 vote in the General Assembly. Israel has since expanded its borders. The basis of its origin is not ordained by any divinity.

The problem is to decide what genocide involves. Israel has largely blocked the entry of all food and fuel supplies to Gaza, and parts of it are facing famine conditions. Meanwhile, Israel refuses to open other crossing points, and the aid to Gaza is also being disrupted by Jewish extremists who have been blocking and destroying the aid destined for the hapless Palestinians. 

Israel is certainly justified in seeking to eliminate Hamas. Under the humanitarian laws of war, however, it cannot target civilians and must avoid the disproportionate use of force. But Israel’s very approach towards Gaza has been to use overwhelming force without any regard for civilian life, and it has indeed, destroyed its infrastructure and economy, thereby making it unliveable.

2000 and 1000 lbs bombs, which the US has recently stopped supplying, are being used to target Hamas leaders, and given their blast radius of nearly 400 metres, there is massive collateral damage and casualties in the densely populated Gaza Strip.

In Rafah, the Israelis say that small-calibre bombs were used, but it did lead to the ratio of casualties of 2:45, meaning two Hamas leaders were killed along with 45 civilians. Military action with no regard for civilian casualties is certainly bordering on genocidal and is most certainly a war crime.

Meanwhile, the war grinds on. The ICJ’s order does not specify the military operations that Israel needs to stop but its operations that could lead to genocidal acts. Meanwhile, operations continue across Gaza, with the Israelis striking 75 targets on Monday and 145 civilians killed elsewhere. On Sunday, Hamas had also used the Rafah area to launch eight or ten rockets toward Israel, the first attack in months.

(The writer is a Distinguished Fellow, Observer Research Foundation, New Delhi. This is an opinion article and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)