On March 24, Israel struck a car in northern Gaza and killed Al Jazeera correspondent Hossam Shabat.
The 23-year-old is one of countless civilians – men, women and children – Israel has killed since launching what legal scholars describe as a “genocidal” war on Gaza.
Israel often justifies its killings by claiming that the targets are people sympathetic or affiliated with Hamas or other armed factions. This was the justification given for killing Shabat.
Israel also regularly destroys entire neighbourhoods and buildings, killing dozens – often hundreds – at a time, ostensibly to target a single Hamas operative.
For years, Israel has tried to justify these practices by employing lawyers to create shadowy quasi-legal concepts in the hope of establishing new, dangerous precedents, according to legal scholars and experts.
However, legal scholars told Al Jazeera that neither so-called “targeted killings” nor disproportionate attacks against civilians have any grounding in international law.
“Is there any semblance of law or legal justification for the war tactics Israel is using in Gaza? The simple answer is no. There isn’t,” said Heidi Matthews, assistant professor of law at York University in Toronto, Canada.
Setting precedents
On September 28, 2000, Palestinians across the occupied West Bank and Gaza began demonstrating against Israel’s ever-entrenching occupation in what became known as the second Intifada.
Israel’s repression of the Intifada quickly prompted Palestinians to mobilise and fight back.
Over the next five years, Israel launched what it named “targeted killings”, assassinating unarmed Palestinians.
Israel claimed that these targets could pose a threat to Israelis in the future because of their alleged membership in an armed faction.
“Israel … strips protection from civilians based on their views or perspectives,” said Noor Kilzi, a researcher with Legal Agenda, a nonprofit in Lebanon that advocates for legal reform and human rights in the Middle East.
Israel’s concept of targeted killings laid out a blueprint which the United States adapted during its “war on terror”, analysts told Al Jazeera.
“[In the early 2000s] Israel and the US changed their legal doctrines and implemented that as part of their military dogma,” York University’s Matthews told Al Jazeera.
“When it came to distinguishing between civilians and combatants… the US and Israel began to view [anyone as a target] based on their membership to a group,” she added.
According to the International Committee of the Red Cross, a person is only a legitimate target if they are directly engaged in armed combat at the time they are killed.
This means that suspected membership in an armed group is not a sufficient basis to assassinate someone.
Leiber’s legacy?
Throughout Israel’s war on Gaza, it has routinely dropped 2,000lb (900kg) bombs in densely populated residential areas, as well as systematically targeted schools, hospitals and displacement shelters.
Israeli officials justify these attacks by claiming that Israel is fighting a “just war” against barbarians. As a result, the ostensible goal of destroying Hamas outweighs minimising civilian casualties.
This is rooted partly in the philosophy of Francis Leiber, a 19th-century German American military theorist, who was tasked with setting out the “rules of conduct” for Unionist soldiers fighting the Confederates in the US Civil War.
He argued that some wars are vital to the moral progress of civilised nations and require a quick victory, which can only be achieved using tactics that will likely cause huge civilian casualties.
“Leiber basically said that whatever is militarily necessary to carry out war is legal,” Alonso Gurmendi Dunkelberg, a legal scholar at the London School of Economics, told Al Jazeera.
This terrifying reasoning is blatantly at odds with international norms and laws, Gurmendi Dunkelberg added.
“He believed in killing as many people as you can, so that you finish the job quickly. He believed that was more humane than trying to protect people to the point that the war drags on for say 15 years,” he said.
Since the beginning of Israel’s war on Gaza, its spokespeople have made similar arguments.
Mark Regev, an adviser to Israeli Prime Minister Benjamin Netanyahu, said the goal was to “get the [war] done quicker” when asked by PBS about why Israel had dropped 6,000 bombs in the first six days of attacks on the besieged enclave.
Then spokesperson for the Israeli army, Daniel Hagari, also admitted during the first days of the war that the emphasis in Gaza was on “damage and not accuracy”.
Destroying the system
In November 2024, the International Criminal Court (ICC) approved two arrest warrants for Netanyahu and his then-Defence Minister Yoav Gallant – accused of using starvation as a weapon of war and deliberately attacking civilians in Gaza.
An earlier ruling by the International Court of Justice found that Palestinians in Gaza faced a real risk of genocide due to Israel’s war practices.
The rulings by the ICC and ICJ add weight to the argument that Israel has failed in trying to legally justify its war practices, which likely amount to multiple war crimes, crimes against humanity and even genocide.
As a result, Israel and its western allies are now trying to sabotage the very institutions that were created to uphold international law and prosecute perpetrators of atrocities, said Nadim Khoury, former director at Human Rights Watch and the founder of the Arab Reform Initiative think tank.
“Israel has clearly hit the limit of what they can get away with by using legal arguments. Now, they’re just acting with total impunity to undermine the institutions trying to enforce international laws,” he told Al Jazeera.
Several legal scholars and experts expressed dismay that Netanyahu may be able to visit countries in Europe that are parties to the Rome Statute, the legal framework underpinning the ICC.
Countries such as Hungary, Belgium and France have said they will not arrest Netanyahu if he visits their countries or passes through their land or airspace.
York University’s Matthews believes states that claim to uphold international law must act quickly to salvage what’s left of the system, acknowledging that it was never a perfect model.
“Other states – beyond America and Israel – need to take action to save or salvage the system as a whole, or it will fade away quickly,” she told Al Jazeera.
“We are at an inflection point and it doesn’t look good.”
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