C. Violations of International Humanitarian Law

299. In relation to international humanitarian law, the Commission emphasises that the three fundamental principles are distinction, precaution and proportionality. The Commission concludes that Hamas and other Palestinian armed groups failed to adhere to the principle of distinction in relation to their attacks against the civilian population not taking part in hostilities, including murder, and this amounts to a grave violation of international humanitarian law.

300. The Commission also finds on reasonable grounds that members of Hamas military wing and of Palestinian Islamic Jihad violated the principle of distinction when they intentionally launched rockets and mortars from Gaza into Israel, targeting civilians in Israel on 7 October 2023 and in the subsequent weeks.¹ Furthermore, due to the sheer volume and imprecise nature of the rockets, the Commission finds on reasonable grounds that members of Hamas military wing and of Palestinian Islamic Jihad violated the norm of customary international humanitarian law which prohibits the use of weapons which are by nature indiscriminate.²

301. The Commission finds on reasonable grounds that Israeli Security Forces, under the command of Brigadier General Barak Hiram, failed to adhere to the principles of distinction, precaution and proportionality when they fired tank shells at a house in Be’eri, knowing that there were civilians inside, after an RPG rocket was fired at the forces from inside the house.

302. The Commission highlights the established norm of international humanitarian law that grants special protection to civilians and, specifically, to women and children.³ Women are accorded special protection and respect in terms of treatment due to their sex.⁴ Children and older persons affected by armed conflicts are also entitled to special protection and respect.⁵

303. The Commission finds that members of Hamas military wing and of other Palestinian armed groups failed to adhere to this norm in relation to these groups, particularly in kibbutzim Be’eri, Nir Oz, Kfar Aza, Mefalsim, Alumim and Nahal Oz and in Sderot and Zikim beach. The Commission documented instances where members of these groups were targeted, killed, mistreated and abducted. In relation to the special protection for women, the Commission particularly notes the cases where women were deliberately killed in Mefalsim and Alumim, while they were trying to escape from the perpetrators, and they were assaulted in the course of their abduction. In relation to older persons the Commission particularly notes the intentional killing of eight older people at a bus-stop in Sderot. In relation to children, the Commission particularly notes the intentional killing of five teenagers at Zikim beach.

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Sources:

Footnotes

1. ICRC Customary International Humanitarian Law, Volume I: Rules, rules 1, 7, 11, 12 and 71. ↩

2. ICRC Customary International Humanitarian Law, Volume I: Rules, rule 71, p. 244. See also API, art. 51(2) and (4); Rome Statute, art. 8(2)(b)(xx). ↩

3. E.g., for a comprehensive overview of the IHL rules regarding the specific treatment of women, see ICRC, Addressing the Needs of Women Affected by Armed Conflict: An ICRC Guidance Document, ICRC, (2004). ↩

4. ICRC Customary International Humanitarian Law, Volume I: Rules, rule 134; IAC: GCIV, art. 27; API, art. 76(1); NIAC: common art. 3 to the Geneva Conventions; APII, arts. 4 and 5. ↩

5. ICRC Customary International Humanitarian Law, Volume I: Rules, rules 135 and 138. ↩