VP Harris presses Israel on civilian deaths in Gaza. What does international law say?

WASHINGTON – When Vice President Kamala Harris called on Israel last weekend to stop killing so many Palestinian civilians, she stopped short of saying the country has committed war crimes in its scorched-earth campaign to destroy Hamas.

But Harris came mighty close, saying Israel “must do more to protect civilian life” in its “devastating” military response to the Oct. 7 attacks that killed about 1,200 people – including 33 Americans – and saw 240 others kidnapped and dragged back to Gaza.

“The United States is unequivocal; international humanitarian law must be respected,” Harris said in a speech Saturday in Dubai. “Too many innocent Palestinians have been killed.”

More than 17,000 people, 70% of them women and children, have died in the Israeli counterattack, according to the Hamas-run Gaza Health Ministry.

The vice president isn’t the first Biden administration official to criticize Israel’s conduct in Gaza. But the question of whether Israel is violating the international laws of war and armed conflict is a delicate and hotly debated one in Washington. An official determination that it is breaking those laws could trigger a recalibration or even cutoff of some of the billions of dollars in aid and weapons that Washington sends to its most important Middle East ally every year.

On Sunday, Karim Khan, chief prosecutor of the International Criminal Court, said an investigation into potential war crimes by Hamas and Israel “is a priority for my office,” though Israel, like the U.S., doesn’t recognize the court’s jurisdiction.

More: News agency accuses Israel of killing journalist, possible war crime: Live updates

‘Verify every strike’

Israel is abiding by globally recognized rules of armed conflict, “from the way the goals of the war were crafted and all the way to our operational conduct,” Eyal Hulata, Israel’s national security adviser until earlier this year, told USA TODAY. “There are teams whose sole responsibility is to verify every strike and every action to see that it doesn’t contradict international law.”

But a growing chorus of international experts – including some former U.S. government war crimes officials – say Israel's bombing of civilian areas is a clear violation of the internationally recognized rules of armed conflict.

“I have very serious concerns about their compliance with the law of war in Gaza based on what I’m seeing,” attorney Brian Finucane, who spent nearly a decade as a State Department adviser on the law of armed conflict, said in an interview. One of the biggest concerns, said Finucane, who left the State Department in 2021, involves “how Israel is defining military objectives, and whether those definitions are consistent with the law of war.”

Disproportionate harm?

For decades, even the most accomplished legal experts have argued about what constitutes a war crime based on the Geneva Conventions and other international laws and policies. The knotty questions about proportionality, including how and when the killings of civilians can be justified and what constitutes a protected site where they can seek shelter, have been especially vexing.

Israel insists that it is well aware of the laws of war and armed conflict and that it has made all reasonable efforts to comply, an assessment shared by many legal experts, including former State Department lawyer Orde Kittrie. That includes rules governing the principle of proportionality, which bars attacks harming civilians that “would be excessive in relation to the concrete and direct military advantage anticipated,” according to the International Committee for the Red Cross.

And while the law is vague, critics have said Israel’s attacks on facilities like Al Shifa hospital, the biggest medical complex in Gaza, have killed far more civilians than is allowable.

“Is Israel doing everything feasible to limit civilian harm? Is it causing disproportionate harm when attacking civilian targets?” asked Anthony Dworkin, senior policy fellow at the European Council on Foreign Relations. “These depend on context – such as information on targeting – which is why leaders are hesitant to make conclusive statements.

“But I would say that Israeli actions fall outside what is reasonable and do constitute war crimes,” Dworkin, a former director of the nonprofit Crimes of War Project, told USA TODAY.

‘Grave risk of genocide’

In her speech last weekend to an audience that included Middle Eastern political leaders, Harris stressed that Israel had the right to defend itself from Hamas, a U.S.-designated terrorist organization that continues to call for Israel’s destruction.

But the vice president said that the Biden administration wants the conflict to end – and that both Israel and Hamas must protect civilians in Gaza.

Her comments came as Israel is under intensifying pressure from many in the international community to stop the killing of innocent civilians and limit the destruction as the war moves from northern Gaza to the south. The debate rages across the U.S., including within the Biden administration and in Congress, over how far Israel can go in toppling Hamas.

One of the biggest criticisms of Israel’s response is that it has bombed hospitals and other civilian targets in Gaza, a tightly packed coastal enclave that’s home to more than 2.3 million people.

By early November, the carnage was so vast that a group of seven independent United Nations special rapporteurs called for a humanitarian cease-fire because, they said, Palestinians were at “grave risk of genocide.”

Human shields

Israel’s response, according to Hulata and others, is that Hamas has been operating out of those facilities, using the civilians inside as human shields – and making those locations acceptable military targets. On Thursday, Israel accused Hamas of firing rockets from “humanitarian zones” where Israel forces have been directing civilians seeking safety.

That argument has enough substance to at least cloud the question, especially in terms of gathering evidence for a war crimes prosecution, some legal experts say.

“Ordinarily, places like hospitals, schools, synagogues and mosques are deemed to have protected status under the law of war. That means it is a violation of the law of war – a war crime – to deliberately target” them,” said retired Air Force colonel Morris Davis, a former U.S. military prosecutor.

“But a place can lose its protected status if one of the belligerents uses it for an improper purpose,” Davis told USA TODAY. “Misusing protected status – using a hospital as a launch point for rockets, for instance – is itself a war crime.”

Israel and the U.S. have said that Hamas maintained a command center in tunnels under Al Shifa hospital, which Gaza and Hamas officials have denied. After Israeli special forces stormed the hospital last month, they produced evidence of a Hamas presence, including weapons. But some critics said the dozen-odd firearms displayed by Israeli forces fell short of justifying their attack on a protected location.

Are Hamas political leaders legal targets?

Finucane said some recent attacks – including one on an ambulance and another Monday that destroyed Gaza’s courthouse – raise particular concerns that Israel may be attacking civilian or otherwise protected facilities.

Israel says many of its strikes have been targeted killings of Hamas leadership. But, Finucane said, “it’s not obvious that these individuals are combatants who could be lawfully targeted under the law of war,” given their role within the group, which has military and political wings and governs Gaza.

“And so there’s real questions,” he said, “about whether their interpretations of the law of war are consistent with mainstream views or what the U.S. would regard to be lawful.”

Even trickier, experts say, is whether alleged violations are intentional.

Looking for answers amid the ‘fog of war’

Virtually all legal analysts interviewed by USA TODAY stressed that Hamas itself committed numerous war crimes in the brutal Oct. 7 attack and its treatment of hostages, including reported evidence of the rape of women and allegations of torture of children. The militant Islamist group also violated international law, Kittrie said, by preventing Palestinian civilians from fleeing Israeli bombings in northern Gaza.

Whether Israel also broke international law, however, is a matter of dispute that has provoked arguments from the United Nations to street protests around the world.

Some legal experts, including former U.S. war crimes investigators, believe Israel could be committing war crimes not only through the number of civilians it has killed but also in its treatment of the survivors of its war on Hamas.

'Deprivation of a means of survival’

That’s especially the case, some say, now that the recent cease-fire is over and Israel is attacking some of the very parts of south Gaza where it told northern residents to flee to avoid bombardment and attacks by ground forces. There is “no place safe for civilians in southern Gaza,” U.N. humanitarian chief Martin Griffin said Thursday. “We are unable to sustain any supplies to hospitals, any safe water.”

Defenders of Israel, like Kittrie, blame Hamas for the desperate conditions in Gaza. Israel is "facilitating the entrance of supplies from Gaza and is thus not only complying with its legal obligations but exceeding them,” he said.

Once an army displaces residents of a locality for military purposes, a former senior Justice Department war crimes prosecutor told USA TODAY, “you’re in a situation where you’ve gained responsibility for that population.”

That’s particularly the case, the former prosecutor said, if Israel is limiting the supply of crucial food, water, medicine and fuel for potentially millions of civilians, as it has done throughout the conflict. More than 1 million people have been displaced from northern Gaza under Israeli military orders.

Concerns about civilian deaths spiked again this week as Israel widened its ground assault to include southern Gaza.

“You have to be sure that there’s adequate supplies for them. And if your blockade is preventing that from occurring, then I think you’re in trouble under the humanitarian aspect of the law concerning the deprivation of a means of survival for that population,” said the former prosecutor, who spoke on the condition of anonymity so he would not draw his current employer into the debate.

‘This is not carpet bombing,’ Biden says

On Monday, President Joe Biden's national security adviser, Jake Sullivan, defended Israel by saying it has told civilians to leave areas where it’s attacking Hamas by ground and air, including in the south, while establishing no-strike zones for their own safety. “And in those zones,” Sullivan said, “we do expect Israel to follow through on not striking.”

“So the real question is how do you on the one hand allow a sovereign nation like Israel to go after terrorist targets while on the other hand have them do so in a way that minimizes the harm to civilians,” Sullivan said. “And that’s really where the rubber hits the road.”

In recent weeks, the Biden administration has said its own intelligence backs up Israel’s claims that militant fighters were hiding out at Al Shifah and other civilian structures, making them legitimate targets. Biden noted that Israeli forces had brought doctors and even incubators with them when they raided Al Shifah to ensure continuity of medical care.

But Biden – like other world leaders – also has warned Israel against indiscriminate strikes. “We’ve discussed the need for them to be incredibly careful,” Biden said of the Al Shifa raid. “This is not the carpet bombing. This is a different thing.”

Harris herself went even further in her private conversations with Egyptian President Abdel Fattah Al-Sisi in Dubai last weekend about the crush of Palestinians on its border with Gaza.

“The Vice President reiterated that under no circumstances will the United States permit the forced relocation of Palestinians from Gaza or the West Bank, the besiegement of Gaza, or the redrawing of the borders of Gaza,” the White House said in a statement.

Israeli worries that U.S. support is waning

On Tuesday, a week after a cease-fire unraveled, Israeli forces stormed Khan Younis, southern Gaza’s main city, in what they said was the most intense day of combat in five weeks of ground operations. Hospitals struggled to cope with scores of Palestinian dead and wounded.

Hulata, the former Israeli national security adviser, said that Israel continues to abide by all international rules and laws. In fact, he said, its advance warnings have allowed Hamas leaders to escape along with the civilians it is trying to protect – thus prolonging the war.

“It is true that many unintentional killings of civilians doesn’t look good but it doesn’t mean that Israel is not adhering to the international law,” he said.

But Hulata also said the Israeli government is growing concerned it is losing the support of elements within the Biden administration as civilian deaths rise – even though, he said, those deaths are a result of Hamas’ use of human shields.

“This is something that I guess is too difficult for people from a liberal background to comprehend or to able to agree to,” Hulata said. “At a point in time, the administration might tell the Israeli government that time is up” in terms of U.S. support.

Violating the laws of war ‘in big or small ways’

Part of the difficulty in determining whether Israel has violated the laws it claims to be following is that it is virtually impossible – especially for outside observers – to see what is happening on the ground in Gaza in real time, given the intensity of the combat, according to Alice Borene, who until recently was the director for human rights and war crimes at the U.S. Office of the Director of National Intelligence.

And given the brutality of war, “every side does violate the laws of war at some point in big or small ways” during a major conflict, Borene said.

“The important thing is whether they mean to, because obviously if you mean to that’s much worse than if you don’t mean to,” she told USA TODAY. “And if you don’t mean to and you realize it and you take steps, then it’s not ideal, but it puts you in a different place than if you’re just willy-nilly going around killing civilians and doing other things that are definitely off limits.”

To answer such crucial questions, war crimes investigators will need to be on the ground in Gaza so they can conduct interviews and gather forensic evidence, experts said.

And that, so far, has proven virtually impossible, said Finucane, now a senior adviser at International Crisis Group, a nonprofit organization committed to preventing and resolving deadly conflict.

Borene agreed, saying the question of whether Israel is committing war crimes in its hunt for Hamas likely depends on details, and military directives, that are known only to a handful of people.

Human rights organizations, journalists and others are using satellite imagery, cellphone video and other tools to present a damning picture of Israel’s conduct on the ground. Amnesty International and Human Rights Watch have used these investigations to accuse both Israel and Hamas of violating the laws of armed conflict.

Borene, now a Ph.D. researcher at King’s College in London, said it’s not that easy. “The civilian cost of the Israeli incursion into Gaza is unquestionably a tragedy,” she said. “International law allows for tragedy, though, and hinges on details that aren’t necessarily available at present.”

“It’s really just like any other crime in that it’s pretty easy to look at a set of facts and make up a story about it,” Borene said. “But that doesn’t mean that’s what happened.”

This article originally appeared on USA TODAY: US officials tiptoe around whether Israel committing Gaza war crimes