The international criminal court should investigate Israel’s hostage rescue raid

If it’s true that more than 100 women and children died in the IDF’s rescue of four hostages, Israel violated international law

Thu 13 Jun 2024 

The enormous loss of Palestinian life attendant to the Israeli military’s 8 June rescue of four hostages held by Hamas cries out for investigation. Hamas’s abduction and detention of these four civilians was a clear war crime, but that does not exempt the Israeli military from the duty to comply with international humanitarian law in the rescue operation. The available evidence suggests that Israel fell short in several deadly respects.

The Gaza health ministry, whose numbers have generally proved reliable, says that at least 274 Palestinians were killed in the operation and more than 600 wounded. The ministry does not distinguish combatants from civilians, but it reports that the dead included 64 children and 57 women, or 44% of the total. Given that many of the men who were killed in the course of the operation were in a nearby market, we must assume that a good proportion of them were civilians as well. That is a horrible civilian toll.

International humanitarian law requires that a military refrain from launching an assault if the anticipated civilian toll “would be excessive in relation to the concrete and direct military advantage anticipated”. It is reasonable to conclude that the Israeli operation fell short of this standard.

All the more so given questions about its necessity. With the rescue of these four hostages, Israeli military operations have freed a total of seven hostages alive. By contrast, more than 100 hostages were released as a result of Israel’s November 2023 ceasefire deal with Hamas. Few doubt that another deal will be necessary to bring most of the remaining hostages home alive. The negotiations have been painfully slow, in part because the Israeli prime minister, Benjamin Netanyahu, seems to prioritize his elusive goal of destroying Hamas over the freeing of the hostages.

Israel notes that Hamas endangered civilians by holding the hostages in a densely populated neighborhood in Nuseirat in central Gaza. International humanitarian law requires militaries to take “all feasible precautions” to spare civilians, which Hamas violated by holding the hostages in two apartment buildings in Nuseirat, but that does not relieve Israel of the separate duty to avoid an attack that causes disproportionate harm to civilians. Palestinian civilians do not stop being civilians just because they are endangered by Hamas.

The duty to take all feasible precautions also applies to the Israeli military. One obvious precaution is to launch military operations at a time of day when fewer civilians are present, but the Israeli military launched the rescue operation shortly before noon, hoping to surprise Hamas, which would have expected a night-time operation. That may have made the operation safer for the Israeli soldiers involved, but it transferred the risk to the many Palestinian civilians who were out and about in the middle of the day, particularly in the nearby market, greatly increasing the death toll.

The operation to rescue the one female hostage seems to have proceeded relatively smoothly, but the rescue of the three male hostages, who were held in a separate apartment building, ran into trouble. Israeli forces faced a firefight before reaching those hostages and then attacks by rocket-propelled grenades as they fled.

“In an effort to give the rescuers enough time and ample cover to get the captives to freedom,” the Israeli the air force, according to the New York Times, “began striking dozens of nearby targets”. Eyewitnesses reported “heavy bombardment … with missiles and rockets raining down on the densely packed camp, home to thousands of displaced families”. A hospital official reported that “many Palestinians were killed and wounded during strikes near the Nuseirat market, which he said had been packed with passers-by”.

What were the “dozens of nearby targets” that the Israel air force attacked? Was it able to strike Hamas fighters with any precision in the chaos of that moment? Or did it simply drop bombs in the vicinity, hoping to clear a path for the rescuers to flee despite the area being filled with civilians? We don’t know, but an independent investigation is clearly needed. Indiscriminate attacks are a war crime.

One other element of the Israeli operation merits scrutiny. According to the Israeli press, at least some of the rescue team entered Nuseirat in a truck designed to look as if it was carrying furniture for displaced Palestinians, and “the truck was driven by a female soldier in civilian clothes”. That may constitute the war crime of perfidy, which prohibits soldiers from dressing as civilians during military operations when it leads to death or injury.

The purpose of this rule is to protect civilians. While soldiers are allowed to engage in ruses – for example, feinting left while going right – they are not allowed to pretend to be a protected person, such as a civilian, because it endangers civilians when hostile forces cannot distinguish them from opposing military forces. That is why soldiers in combat wear uniforms.

What can now be done? The Israeli military has no history of investigating senior IDF officials for war crimes, let alone of examining the rules of engagement that it issues for military operations. That is why investigation by the international criminal court is needed. Karim Khan, the chief prosecutor, has already sought arrest warrants in relation to the starvation strategy allegedly pursued in Gaza by Netanyahu and his defense minister, Yoav Gallant, and he has hinted that he may pursue Israel’s use of 2,000lb bombs that decimate civilian neighborhoods. The hostage rescue effort should be added to his list of incidents that merit scrutiny.

Political pressure is also needed. The US government welcomed the release of the four hostages, but the huge loss of Palestinian civilian life didn’t merit even a footnote. If the US government greenlights such deadly operations despite the serious questions about their legality, it will only encourage Netanyahu to undertake more of the same.