Published 7 April 2024 Author: Stefan Talmon
On 7 October 2023, a Jewish Sabbath day, Hamas and other armed Palestinian groups indiscriminately fired between 3,000–5,000 rockets from the Gaza Strip towards Israel while, at the same time, more than 1,000 Hamas militants breached Israel’s heavily fortified security fence surrounding the territory to launch unprecedented attacks in multiple locations in Israel. Hamas fighters indiscriminately killed and injured Israeli security forces and civilians, including some 260 people attending a music festival in southern Israel. Some 1,200 Israelis, including many women and children, were killed and more than 3,300 injured – the largest number of Jewish victims in a single day since the holocaust. In addition, Hamas abducted some 230 Israelis to the Gaza Strip where they were kept as hostages. These despicable actions of Hamas constituted egregious violations of international law, including war crimes and crimes against humanity.
On 12 October 2024, five days after the mass murder perpetrated by Hamas in Israel, Federal Chancellor Olaf Scholz spoke in the Federal Parliament, saying:
[W]e say very clearly that Israel has the right, enshrined in international law, to defend itself and its citizens against this barbaric attack. … There is only one place for Germany at this time, and that is by Israel’s side. This is what we mean when we say: Israel’s security is part of Germany’s raison d’état.
He repeated the phrase that Israel’s security was part of Germany’s raison d’état; a phrase that had first been used by his predecessor Angela Merkel during a speech before the Israeli parliament, the Knesset, in 2008.
In response to the barbaric terrorist attack, Israel imposed a total blockade of the Gaza Strip. On 9 October 2023, Israeli Defence Minister Yoav Gallant declared: ‘There will be no electricity, no food, no water, no fuel, everything is closed. We are fighting human animals, and we are acting accordingly.’ In exercise of its right to self-defence, Israel embarked on an extensive aerial bombardment of Hamas’ positions in the Gaza Strip followed by a large-scale ground invasion of the territory which led to high numbers of Palestinian civilian casualties. Approximately 70 per cent of those killed were said to be women and children. The military operations of the Israel Defence Force (IDF) in the northern Gaza Strip also led to a large-scale internal displacement of the Palestinian population with many seeking refuge in the city of Rafah in the southern Gaza Strip close to the border with Egypt.
Against the background of mounting casualties among the civilian population in the Gaza Strip, Federal Chancellor Olaf Scholz stated on 26 October 2023:
Israel is a democratic state guided by very humanitarian principles and so one can be certain that the Israeli army will also respect the rules that arise from international law in everything it does. I have no doubt about that.
The chancellor’s statement was in direct contrast to the position taken by the UN Secretary-General who had told the UN Security Council only two days earlier that the appalling attacks by Hamas could not justify the collective punishment of the Palestinian people. He continued:
Even war has rules. We must demand that all parties uphold and respect their obligations under international humanitarian law, take constant care in the conduct of military operations to spare civilians and respect and protect hospitals and respect the inviolability of United Nations facilities, which today are sheltering more than 600,000 Palestinians.
The relentless bombardment of Gaza by Israeli forces, the level of civilian casualties and the wholesale destruction of neighbourhoods continue to mount and are deeply alarming. …
The protection of civilians is paramount in any armed conflict. … Protecting civilians does not mean ordering more than 1 million people to evacuate to the south, where there is no shelter, no food, no water, no medicine and no fuel, and then continuing to bomb the south itself.
I am deeply concerned about the clear violations of international humanitarian law that we are witnessing in Gaza. Let me be clear: no party to an armed conflict is above international humanitarian law.
The chancellor’s position was also at variance with the position taken by the European Union’s High Representative for Foreign Affairs and Security Policy who had criticised Israel for imposing a total blockade on Gaza, saying:
Israel has the right to defend [itself], but it has to be done [in accordance with] international law, humanitarian law, and some decisions are contrary to international law. Some of their actions – and the United Nations has already said it – cutting water, cutting electricity, cutting food to a mass of civilian people, is against international law. So yes, there are some actions that are not in accordance with international law.
By the time the chancellor made his statement, even the International Committee of the Red Cross (ICRC) had already raised the alarm bells with regard to violations of international humanitarian law in the Gaza Strip. In a statement, the ICRC had said that
[t]he instructions issued by the Israeli authorities for the population of Gaza City to immediately leave their homes, coupled with the complete siege explicitly denying them food, water, and electricity, are not compatible with international humanitarian law.
On 27 October 2023, the UN General Assembly, with 121votes in favour, 14 against and 44 abstentions, adopted Resolution ES-10/21, which referred to international law no less than twelve times and called for ‘respect for international humanitarian law in all circumstances’. The General Assembly, in particular, demanded that
all parties immediately and fully comply with their obligations under international law, including international humanitarian law and international human rights law, particularly in regard to the protection of civilians and civilian objects, as well as the protection of humanitarian personnel, persons hors de combat, and humanitarian facilities and assets, and to enable and facilitate humanitarian access for essential supplies and services to reach all civilians in need in the Gaza Strip.
During the debate on the resolution, several States accused Israel of violations of international law, or expressly reminded the country of its obligation to act in line with international humanitarian law and ensure the protection of civilians. For example, Portugal in its prepared statement said:
No matter the savagery of the worst terrorist attack of its history, Israel´s actions must respect International Humanitarian Law. No party to an armed conflict is above international humanitarian law. Tragically, civilian population, hospitals, UN facilities, including schools, and other critical and civilian infrastructures, are not being protected. We are witnessing, beyond doubt, clear violations of International Humanitarian Law in Gaza.
Germany, on the other hand, stated that ‘Israel has the right to defend itself against terrorism within the framework of international law’ but did not even expressly call on Israel to comply with international humanitarian law.
During the regular government press conference on 30 October 2023, the Federal Foreign Office was asked whether Israel complied with international humanitarian law and whether it could confirm that no war crimes were being committed. The spokesperson for the Foreign Office and the cabinet spokesperson replied:
After the horrible terrorist attacks of 7 October, Israel has the right to self-defence. Israel can exercise this right of self-defence within the framework of international humanitarian law. Israel has assured us on several occasions that it is exercising its right to self-defence within the framework of international humanitarian law. …
If there is a war crime, then it is the crime that Hamas is hiding behind civilians, that it is using civilians, that it is using children as human shields, that it is establishing its command centres under supermarkets, that it is hiding in its tunnels beneath schools and hospitals. So it is Hamas that is putting the people of Gaza in mortal danger – after its barbaric terrorist attack on Israel. …
Israel is a democratic State governed by the rule of law, which assures [us] that it abides by the rules of international humanitarian law, and we have confidence in our partner in this region that this is happening.
It is also our expectation that Israel adheres to international humanitarian law.
While Germany focused on the war crimes committed by Hamas and expressed confidence in Israel’s assurances that it was abiding by the rules of international humanitarian law, the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) painted a different picture in his briefing to the UN Security Council. The Commissioner-General stated:
What has happened and is continuing to happen is forced displacement. … Almost 70 per cent of those reported killed are children and women. Save the Children reported yesterday that almost 3,200 children have been killed in Gaza in just three weeks. That is more than the total number of children who have been killed annually across the world’s conflict zones since 2019. That cannot be termed collateral damage. … The current siege imposed on Gaza is collective punishment. … An entire population is being de-humanized. The atrocities of Hamas do not absolve the State of Israel from its obligations under international humanitarian law. Every war has rules, and this one is no exception. … , there must be strict adherence to international humanitarian law. … That is not an option, but an obligation.
On 31 October 2023, the spokesperson for the United Nations Children’s Fund (UNICEF) stated that Gaza had become ‘a graveyard for thousands of children’, and the UN Secretary-General reminded the parties to the conflict that international humanitarian law as ‘not an a la carte menu to be applied selectively’ and that all parties must abide by ‘the principles of distinction, proportionality and precaution.’
At the same time outrage with Israel’s conduct of the military operations in Gaza was growing across Latin America, Africa and parts of Asia. On 31 October 2023, Bolivia became the first country to break off diplomatic relations with Israel over ‘the war crimes being committed in Gaza’. On the same day, Colombia and Chile recalled their ambassadors for consultations in protest of ‘Israel’s violations of international humanitarian law’ in Gaza.
The Federal Government seemed to be unimpressed by these statements and developments. During the regular government press conference on 1 November 2023, the federal government was asked whether in light of more than 8,000 dead Palestinians and, on average, some 300 to 400 people killed each day, the Federal Chancellor still believed that Israel was complying with international law. The cabinet spokesperson replied:
In our discussions with Israel, we have always expressed our conviction that Israel, as the only democracy in this region, naturally complies with all the requirements set by international humanitarian law.
During an interview with German broadcaster ZDF on the same day, Federal Foreign Minister Annalena Baerbock took an even more outspoken position, declaring that Israel was acting ‘within the framework of international law.’ Three days later, Vice-Chancellor and Federal Minister of Economic Affairs and Climate Action Robert Habeck supported that position, stating at a regional rally of his party:
Ultimately, Hamas must be destroyed because it is destroying the peace process in the Middle East. … Israel, of course, must confront Hamas. But Israel is also bound by international law and is required to minimize civilian casualties and comply with humanitarian standards. But that is what they do and will do.
On 6 November 2023, the UN Secretary-General expressed concern about the humanitarian situation in the Gaza Strip, saying:
I am deeply concerned about clear violations of international humanitarian law that we are witnessing. Let me be clear: No party to an armed conflict is above international humanitarian law. … Gaza is becoming a graveyard for children. … Just over 400 trucks have passed into Gaza over the last two weeks, compared to 500 a day before the conflict.
In contrast, in Berlin the cabinet spokesperson reiterated Germany’s position that ‘Israel has the right to defend itself against the ongoing Hamas attacks in accordance with international law.’ The Federal Government put the blame for the plight of the civilian population squarely on Hamas, saying:
We have already made it clear here what is the cause of this situation that we all are witnessing now. This is a brutal, ongoing terrorist attack by Hamas on Israel … This is a continuing act of terrorism that we are witnessing, and Israel has the right to defend itself against this act of terrorism to ensure its own security and that of its citizens. That is the cause of this situation that we are witnessing at the moment. …
This is a very, very difficult situation because – at least if reports are to be believed – the command centres of Hamas are deliberately placed under schools, under hospitals, under other civilian infrastructure facilities in order to protect them from possible strikes by the Israeli Air Force, [which] then, of course, makes these facilities – as bitter as that is – a military objective. …
That is the bitter situation we are facing at the moment. In this respect, the appeal also clearly goes out to Israel to adhere to the requirements of the laws of war and international humanitarian law. But they have the right to defend themselves and to bomb legitimate military objectives there too. Nevertheless, the appeal is made to limit, as far as possible, the effects, which can never be completely limited, to such an extent that as few innocent people as possible are harmed. This is our appeal, this is what we talk about in all our conversations with our Israeli friends. … We also have the impression that this is clearly being heard in Israel.
On 8 November 2023, the situation of the civilian population in the Gaza Strip was, once again, raised in the regular government press conference. The federal government was asked whether it shared the assessment of countries of the global south that, in view of the current figures of over 10,000 deaths in Gaza, 67 percent of which were women and children, there was a genocide or a massacre of the Palestinian civilian population and an unacceptable violation of international humanitarian law. The cabinet spokesperson first called into question the number of civilian victims in the Gaza Strip, saying that ‘Hamas is not a credible source for us, and especially not when it comes to the number of victims.’ He then replied to the question:
This is definitely not the position of the Federal Government. We believe that Israel has the right to defend itself after the brutal and inhuman attack by Hamas, which left 1,400 Israelis dead, and that this right continues, as the attacks on Israel and the threat to Israel continue. In this respect, we believe that Israel has the right to defend itself. …
As I said, we believe that Israel has the right to defend itself. However, we assume – the Federal Chancellor has also said this several times – that Israel, as a democratic country, is aware of international law and adheres to international law. That is our assumption.
On the same day, the UN High Commissioner for Human Rights, Volker Türk, stated during a visit to the Rafah border crossing:
The collective punishment by Israel of Palestinian civilians amounts also to a war crime, as does the unlawful forcible evacuation of civilians. The massive bombardments by Israel have killed, maimed and injured in particular women and children. The latest death toll from the Gaza Ministry of Health is in excess of 10,500 people, including over 4,300 children and 2,800 women. All of this has an unbearable toll on civilians. …
During my visit here, I heard a lot of concerns about double standards in the midst of this conflict. Let me be clear – the world cannot afford double standards. We must instead insist upon the universal standards against which we must assess this situation – international human rights laws and international humanitarian laws.
And those standards are clear: parties to the conflict have the obligation to take constant care to spare the civilian population and civilian objects, which remains applicable throughout the attacks. The actions of one party do not absolve the other party of its obligations under international humanitarian law. Attacks against medical facilities, medical personnel and the wounded and sick are prohibited.
And aid needs to be delivered to all those in need. Egypt’s role has been key in many respects, and has been indispensable in getting humanitarian assistance into Gaza and for injured people to leave Gaza. But the aid getting through is a trickle, and with severely limited geographical reach. Israel’s own obligations as an occupying power also continue to apply in full, requiring it to ensure a maximum of basic necessities of life can reach all who need it.
At the next regular government press conference, the federal government was asked whether it agreed with the UN High Commissioner for Human Rights’ assessment of the situation in Gaza and, in particular, his statement that the collective punishment of Palestinian civilians amounted to a war crime. A spokesperson for the Federal Foreign Office replied:
We have taken note of the statements, and the position of the Federal Government is [that] Israel has the right to defend itself within the framework of international law. The fight against Hamas must be carried out with the greatest possible consideration for the humanitarian situation, for innocent women, children and men. We see the great suffering of the civilian population in Gaza, and we also consider it to be the plan of the terrorists to hide behind civilian infrastructure and behind these innocent women, men and children.
Accordingly, I have referred to the rules of international humanitarian law that apply in conflicts and which also recognize military needs, but also demand the best possible protection of the civilian population from all parties to the conflict. … That is the position of the Federal Government and I have nothing to add to that at the moment.
While French President Emmanuel Macron called on Israel to stop killing babies and women in Gaza, Federal Chancellor Olaf Scholz maintained his position of unconditional support for Israel. During a joint press conference with the Greek Prime Minister in Berlin on 14 November 2023, he stated:
Israel is a democracy… and, in addition, a country and that is committed to human rights, to international law, and acts accordingly.
Chancellor Scholz’s statement triggered the following response from the Deputy Permanent Observer of the State of Palestine to the UN, New York, Ambassador Majed Bamya:
I am now convinced there is another international law that we don’t know about and that the German chancellor and others are referring to, one that allows colonization, collective punishment, indiscriminate attacks, wanton destruction, racial discrimination as long as your name is Israel. They just forgot to teach it to us in law school. That is why there is such a misunderstanding between us. By the way if there is a lesson to be drawn from German history and the responsibility of the Nazis in the commission of atrocities notably the Holocaust it is that Germany should always stand against war crimes, crimes against humanity and genocide by anyone and against anyone.
On 15 November 2023, the federal government was asked during the regular government press conference on what basis the government reached the conclusion that Israel did not violate international law in Gaza when the UN High Commissioner for Human Rights and all relevant UN organizations spoke very clearly about the fact that Israel was breaking international law with its military action in the Gaza Strip. The cabinet spokesperson replied:
This is a very difficult situation; it is a war situation we are in. This is an ongoing armed conflict. The request that we have made several times from this podium … was always that the rules of international humanitarian law must apply and that all sides must adhere to them. We know who does not comply at all: it is Hamas. We also know that Israel is at pains to do so. If there are situations that are worthy of condemnation, then that will be condemned. But it is not up to the government spokesperson or the federal government to judge this from here.
The federal government was also asked whether it considered Israel’s actions in Gaza proportionate. The cabinet spokesperson replied:
It is not the Federal Government’s task to answer the question of proportionality! The Federal Government refuses to carry out such an assessment, not least because of a lack of information.
Interestingly, the cabinet spokesperson clarified that the Chancellor’s statement that Israel was complying with international law related to the Gaza conflict.
On 15 November 2023, the UN Security Council called for ‘urgent and extended humanitarian pauses and corridors throughout the Gaza Strip.’ During an interview with Deutsche Welle’s Arab Service, Federal Foreign Minister Baerbock was asked whether Israel was breaking international law by not adhering to the UN Security Council’s call. She replied:
[T]he situation is complex. If only it were so easy to distinguish black and white. In a situation when a terrorist organisation is abusing international humanitarian law by using civilians as human shields the situation violates international law. … Israel is doing everything to protect civilians to the best of their abilities. We are working with the Israeli government around the clock to ease the humanitarian situation in Gaza as well as possible. Like I said, it is an ultimate dilemma trying to get humanitarian aid into a situation in which a terror organisation is misusing schools and hospitals as military grounds. But I have clearly stated several times that the German government, that I as the German foreign minister, in the past weeks have done everything possible to ensure longer humanitarian pauses, pauses lasting several days.
Confronted with the fact that the humanitarian pauses had not be implemented so far, she replied:
That is what is so complex and difficult about this situation. If it were easy we would have already mitigated the fact that missiles from Gaza are constantly hitting Israel. … Key actors are continuing to make clear that they want to destroy Israel in the very moment when humanitarian aid is let in. Nevertheless, humanitarian ceasefires are needed, that is our urgent appeal also to Israel’s government.
While Germany tried to hide behind the complexity of the situation, other European countries found clear words. On 21 November 2023, the Belgian Minister for Development Cooperation stated:
Denying people, food, water, and medical supplies is a violation of international humanitarian law. Bombing schools, hospitals, innocent civilians, and aid workers is a violation of international humanitarian law.
The Spanish Prime Minister also expressed ‘genuine doubts’ that Israel was ‘complying with international humanitarian law.’ Asked whether the federal government had any comments on the statement of the Spanish Prime Minister, the cabinet spokesperson replied:
We expressly do not share this assessment. But the European Union is very pluralistic, and people can have different views.
With the mounting death toll and suffering among Palestinian civilians in the Gaza Strip, the Federal Foreign Office slightly changed its position at the beginning of December 2023, slowly putting more emphasis on Israel’s obligations under international humanitarian law. On 4 December 2023, a spokesperson for the Federal Foreign Office declared:
It is equally important that Israel abide by international humanitarian law. We also emphasize this in all our discussions and on all our channels with our Israeli partners.
However, the Federal Government continued to call into question the number of Palestinian victims because these numbers were based on numbers provided by Hamas. On 8 December 2023, the spokesperson for the Federal Foreign Office stated:
It is important that Israel abides by international humanitarian law, and we make that very clear in our discussions with our Israeli partners. … Israel has a responsibility to comply with international humanitarian law, reduce civilian suffering and protect the civilian population.
The slight change in approach, however, did not mean that Germany would openly criticise Israel for any violation of international humanitarian law. Even the United States, Israel’s main ally, was at times more outspoken than Germany. During the regular government press conference on 13 December 2023, the federal government was asked repeatedly whether Israel was complying with international law in Gaza, especially in light of US President Joseph Biden’s warning that Israel was losing international support by the ‘indiscriminate bombing’ that takes place in Gaza. All that could be elicited from a spokesperson for the Federal Foreign Office was the usual statement:
Israel has the right and obligation to defend itself, within the framework of international law, against Hamas’ terror of 7 October, which continues through rocket attacks from Gaza. At the same time, Israel has a duty to do this within the framework of international law and to protect the civilian population as much as possible. ….
The Federal Government’s position is very clear: We encourage Israel to carry out the self-defence within the framework of international law and to protect the civilian population in Gaza as much as possible.
However, even this slight shift in the Federal Foreign Office’s position seemed to be going too far for Federal Chancellor Olaf Scholz who remained unperturbed and stuck to his original position of unconditional support. During a joint press conference with the Brazilian president in Berlin on 4 December 2023, he declared:
Israel is defending itself against this terror. One thing is clear: this is happening within the framework of international humanitarian law.
One week later, Chancellor Scholz reiterated his position in a joint press conference with the Dutch Prime Minister, saying:
Israel is defending itself against the terrorist organization Hamas, which continues to fire rockets into Israel and holds more than a hundred hostages captive. One thing is clear: Israel is acting and must act within the framework of international humanitarian law.
By February 2024, however even the Federal Chancellor was no longer able to stick to his original script. During an interview at the Munich Security Conference, he was asked whether he honestly thought that Israel was abiding by international law in its bombardment of Gaza. He was also asked what evidence he had that the Israelis were abiding by international law. Answering in English, the Chancellor stated:
We are asking that they do so and we are constantly discussing this question, and there is good reason for doing so, and it is something which is so important for all of us that we are very clear in this that obeying international law and the rules is something which is not just something we do because we subscribed to some agreements globally, it is something which is coming out of our perspective of humankind and how we want to see ourselves.
Germany staunchly defended Israel’s military operations in the Gaza Strip for several months despite mounting international criticism of Israel’s warfare. The Federal Government called into question the number of civilian victims and put the blame for the civilian victims and the suffering of Palestinian population solely and squarely on Hamas. This partisan position caused international consternation, and led to Germany’s growing international isolation. Its unwavering and unconditional support provided political, diplomatic and legal cover for Israel’s conduct in the Gaza Strip and was difficult to reconcile with its obligation under the Geneva Conventions ‘to ensure respect’ for the Conventions and for international humanitarian law more generally. The danger of Israel overstepping the limits of lawful self-defence and committing war crimes and crimes against humanity could not simply be brushed aside by referring to its character as a democratic State which could be counted on to do the right thing, as done by Chancellor Scholz. By adopting an ostrich approach and burying its head in the sand in the face of mounting allegations of violations of international humanitarian law by Israel, Germany provided a disservice to the international legal order and undermined its own credibility in questions of international law. Germany claimed to speak the language of international law, but in the case of Israel’s response to the Hamas terror attacks it seemed deaf and dumb.
Category: International law in general
DOI: 10.17176/20240411-104156-0
