OpinionIsrael at War

Is a ‘humanitarian ceasefire’ a war crime?

Hamas has committed a “grave breach” of international law and must be held accountable.

An IDF Merkava tank in the Gaza Strip, Nov. 5, 2023. Credit: IDF.
An IDF Merkava tank in the Gaza Strip, Nov. 5, 2023. Credit: IDF.
Daniel Pomerantz. Source: Facebook.
Daniel Pomerantz
Daniel Pomerantz is an expert in international law, a lecturer at Reichman and Bar Ilan universities, and the CEO of RealityCheck, an NGO dedicated to clarifying global conversations with verifiable data. He can be found on Instagram at @danielspeaksup.

As the IDF fights a fierce ground campaign in Gaza against Hamas, a number of international parties, including the U.N. General Assembly and even the Pope, are calling for a “humanitarian ceasefire.” It was recently reported that Israel has agreed to a U.S. request for four-hour “pauses” in the fighting for humanitarian reasons. No doubt pressure for a full ceasefire will continue.

However, calls for a “humanitarian ceasefire” have overlooked a key point: Israelis are human too. Because of this, a ceasefire may violate international law.

Last week, the IDF rescued Pvt. Ori Megidish from Hamas captivity. Megidish was captured during Hamas’s Oct. 7 massacre. Over 240 other hostages—mostly civilians, including babies, children, women and the elderly—remain captive.

The stated goal of the current IDF operation, however, is not just freeing the hostages, but also destroying Hamas itself. This goal would be greatly impeded by a ceasefire. 

As former U.S. Secretary of State Hillary Clinton pointed out, “People who are calling for a ceasefire now don’t understand Hamas. … It would be such a gift to Hamas because they would spend whatever time there was a ceasefire in effect rebuilding their armaments … to be able to fend off an eventual assault by the Israelis.”

Indeed, Hamas officials have openly expressed their intention of repeating the horrors of Oct. 7 a “second and a third and a fourth” time.

Thus, Clinton was pointing out the reality that a ceasefire would endanger Israelis. This would make any pause in the IDF operation morally complex, to say the least. But the rescue of Ori Megidish is decisive.

This stunning operation establishes Israel’s military campaign as an effective means of rescuing the hostages. Thus, every minute the IDF delays its military campaign is another minute that innocent Israelis remain in captivity. Under such circumstances, any call for a pause in the IDF operation is, in effect, a call to perpetrate further suffering upon Israeli civilians.

There is nothing humane about that. Moreover, in this particular case, a “humanitarian” ceasefire would not only be cruel, but arguably a war crime.

Taking hostages is considered a “grave breach” of a number of international laws, including the International Convention Against the Taking of Hostages. Interfering in the rescue of hostages is also illegal.

Specifically, Article 3 of the Convention requires the “release” and “departure” of hostages. Article 1 stipulates that no conditions can be placed upon such releases. Furthermore, Israel has not only a right but an obligation to defend its citizens under Article 2(4) of the U.N. Charter.

Given that the IDF’s military campaign has proven to be a viable means of securing the “release” and “departure” of hostages as required by international law, and thus of defending Israeli citizens, any interference with Israel’s legal right to self-defense under Article 2(4) would be a prima facie violation of Convention Article 3. Moreover, requiring a ceasefire or any other condition in exchange for the release of hostages would be a prima facie violation of Convention Article 1.

In other words, on its face, demands for a ceasefire under these circumstances technically constitute a war crime against the Israeli people.

And what about the people of Gaza?

Gaza has no shortage of humanitarian supplies, but nonetheless faces a humanitarian crisis. Understanding why is the key to understanding the current situation: It is entirely the fault of Hamas.

On Oct. 11, Gaza’s only power plant shut down due to lack of fuel even as Hamas fired over 8,000 rockets at Israel. Each one of those rockets was powered by… fuel. Satellite images released by Israel (also available on Google Earth) show Hamas’s massive 500,000-liter fuel storage depot, dedicated exclusively to the Hamas terror infrastructure.

Hamas has stolen massive amounts of food, water and medical supplies. This has been confirmed by photos, videos and intercepted conversations between Hamas operatives. The U.N. has confirmed that Hamas robs its aid facilities.

Israel released a mountain of evidence—including from non-Israeli sources—that Hamas placed a military headquarters inside Gaza’s Shifa Hospital. Hamas also habitually holds civilians inside combat areas at gunpoint. Recent reports indicate that the terror group has been firing live ammunition at the civilian evacuation corridor established by the IDF in order to force those civilians to serve as human shields.

In short, Hamas steals almost every humanitarian resource the world provides to Gaza and diverts it to terrorist purposes. As Clinton pointed out, this includes the resource of time.

In addition to its ghastly theft of humanitarian aid, Hamas’s “grave breach” of international law regarding hostages and its consequences, which include the war itself, impact the Palestinians as well.

Though tragic for Gazans, the solution to this humanitarian disaster cannot be to inflict additional tragedy upon innocent Israelis, nor to force Israel to neglect its obligations to its citizens.

The only truly humane solution is to hold Hamas accountable for its actions, which created the crisis in the first place. Such accountability must include the immediate release of all Israeli hostages and the unconditional surrender of the entire Hamas terror organization, after which Hamas members will face arrest and prosecution for crimes against humanity. Anything less would constitute a war crime against Israel and violate the most fundamental precepts of basic human morality.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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