War Crimes: The Legal Framework and How Hamas Violates It

A war crime is not simply a terrible act committed in wartime. It is a specific violation of international humanitarian law (IHL) — the body of law that governs armed conflict. The foundational rules date to the Geneva Conventions (1949) and their Additional Protocols.

Understanding this framework is essential to evaluating what Hamas did on October 7 and after, and what responsibility each party bears for civilian deaths in Gaza.

International humanitarian law rests on three principles:

1. Distinction — Parties to a conflict must distinguish between combatants and civilians. Intentionally attacking civilians is a war crime. Intentionally attacking combatants is not.

2. Proportionality — Even a lawful attack on a military target may be a war crime if the expected civilian casualties are excessive relative to the military advantage gained. Proportionality analysis is complex and contextual.

3. Precaution — Parties must take feasible precautions to minimize civilian harm — including warning civilians before attacks, choosing means and methods that limit collateral damage, and avoiding locating military objectives in or near civilian areas.

Critically: both parties in a conflict can commit war crimes simultaneously. Hamas committing war crimes does not absolve the IDF of legal obligations, and vice versa. The question is what each party actually did.

Targeting civilians: On October 7, Hamas deliberately targeted Israeli civilians — families in their homes, young people at a music festival, the elderly, children. This is not a matter of dispute; Hamas documented it on video and publicized it. Intentional targeting of civilians is a war crime.

Taking hostages: Hamas abducted approximately 251 people into Gaza, holding them as hostages. Taking hostages is explicitly prohibited under Geneva Convention IV, Article 34, and constitutes a war crime under the Rome Statute of the ICC.

Sexual violence: A UN mission found "reasonable grounds to believe" rape and gang rape occurred in at least three locations on October 7, and "clear and convincing information" of sexual violence against hostages. Sexual violence in armed conflict is a war crime under customary international law.

Using civilian infrastructure for military purposes — hospitals, schools, mosques, residential buildings: IHL prohibits using civilians and civilian objects to shield military operations. Hamas has built its command centers, tunnel entrances, rocket launch sites, and weapons storage within hospitals, UN schools, and residential buildings. This is a war crime.

Using civilians as human shields: Deliberately positioning military assets among civilian populations to deter or complicate attack is prohibited under IHL. It is also strategically rational for Hamas: it forces the IDF either to not attack military targets (Hamas wins) or to attack and generate civilian casualties (Hamas wins the information war).

Preventing civilian evacuation: Israel says Hamas blocked evacuation routes and urged civilians to stay when the IDF ordered evacuations. Deliberately using civilians' presence to shield military objectives is prohibited under IHL.

Al-Shifa Hospital, Gaza's largest, was used by Hamas as a command and control facility — with tunnel access, communications infrastructure, and weapons storage located beneath and within it.

This was:

• Confirmed by IDF operations that documented tunnels and weapons caches beneath the hospital
• Confirmed by the White House National Security Council spokesman John Kirby (November 14, 2023 briefing): "Hamas and Palestinian Islamic Jihad use hospitals in Gaza, including Al Shifa, and tunnels underneath them"
• Reported by The New York Times

Using a hospital for military purposes violates IHL and can cause it to lose protection — but under Geneva Convention IV (Art. 19) only after due warning and a reasonable time limit, and any attack must still meet proportionality and precaution rules. Hamas bears responsibility for endangering patients by using the site; the IDF remains responsible for the lawfulness of its own operations.

When one party to a conflict:

• Embeds military targets inside civilian areas
• Prevents civilians from evacuating
• Stores weapons in schools and hospitals
• Fires rockets from residential neighborhoods

...it makes it mathematically certain that responding to those targets will produce civilian casualties. This is not an accident. It is the strategy.

The IDF cites mitigation measures it uses, some of which (such as roof-knocking) are unusual among militaries; critics, including UN investigators and human-rights groups, argue the warnings were often ineffective or followed by strikes on designated safe areas:

• "Roof-knocking": A small munition is dropped on a roof before a strike as a warning, giving occupants time to flee
• Phone calls and text messages to residents of buildings designated for strike
• Leaflet drops over entire neighborhoods prior to operations
• Tactical pauses in operations to allow civilian evacuation

None of these measures fully eliminate civilian casualties when military targets are embedded inside apartment buildings, school basements, and hospital wards. This is precisely Hamas's calculation: the civilian deaths produced by Israeli strikes on legitimate military targets are counted, publicized, and used to delegitimize Israel internationally.

Under ICRC Customary IHL Rule 23, each party must, to the extent feasible, avoid locating military objectives within or near densely populated areas. Additional Protocol I (Art. 51(8)) states that such violations by one side do not release the attacking side from its own obligations of distinction, proportionality and precaution. How legal responsibility for resulting civilian deaths is divided is debated.