First Published 31 Oct 2023. Revised November 8 & November 20, 2023.
High emotions generated by the Israel-Hamas conflict make this a time of wild claims and counterclaims. Few subjects are timelier and more critical than the Law of Armed Conflict, (LOAC), frequently referred to as the Law of War, (LOW). The concept is sometimes referred to by a better name, International Humanitarian Law (IHL). Researching LOAC/LOW/IHL can challenge U.S. researchers and lawyers. There are no codified statutes or well-organized case law of the types familiar to most U.S. researchers.
There are precedents, but rather than a system of U.S.-style case law, neatly organized by jurisdiction, there is a set of often vague or disputed concepts known as “customary international law.” One expert defines it as “rules of law derived from the consistent conduct of States acting out of the belief that the law required them to act that way.”
Difficulties in interpreting and applying this definition have led to the creation of multiple treaties. These treaties generally bind only nations that have ratified them.
This resource guide is part of the LLRX Israel-Hamas War Project. Our goal is to make it easier for policymakers, diplomats, analysts, reporters, scholars, and the public at large to find objective, accurate, and actionable information concerning the Israel-Hamas conflict. We welcome suggestions for adding additional research links or otherwise improving this guide.
This resource guide attempts to avoid two areas:
- Factual findings or conclusions. It is too early for such assessments. For example, multiple sources seem to take it as a given that the Israeli bombing of Gaza constitutes a war crime. This conclusion is premature. There is yet no little or no reliable evidence on questions like the selection of targets, disproportionate use of force, and so on.
- Analysis of Crimes against humanity, including genocide. These concepts differ from LOAC. They were first prosecuted as separate crimes at Nuremberg. Some reputable scholars have concluded that Israel’s historical treatment of the Palestinians has been immoral and abhorrent. Other reputable scholars have come to different conclusions. However, we do not attempt to resolve the inconsistency in this guide. Even if the first view were to be accepted, it is also true that immoral and abhorrent conduct is not necessarily a crime against humanity as legally defined.
While there is no unanimity on this issue, the sense is that most reputable and objective scholars believe that while Israel’s conduct has not always been above reproach, there is no reasonable basis to assert that Israel has committed crimes against humanity of the types prosecuted at Nuremberg or being committed by the terrorist component of Hamas today.
On the other hand, Hamas openly states that their goal is genocide. This is not an admission. It is a boast.
International Committee of the Red Cross – The ICRC is a rich source of high-quality analysis and links to primary sources. The casebook section links to court decisions and white papers from government sources, including some otherwise-hard-to-find documents from the U.S. Department of Justice:
The Council on Foreign Relations
U.S. State Department
U.S. Department of Defense
- DoD Law of War Manual(June 2015, Updated July 2023). This Pentagon-produced treatise represents the U.S. military’s authoritative analysis of LOAC/LOW/IHL issues.
- The Commander’s Legal Handbook (June 2019). This is a practical summary of many legal issues drafted for an audience of combat commanders. The National Security Law section, beginning on page 285, summarizes LOAC/LOW/IHL concepts.
These resources are superior to the Department of Defense Law of War Manual in some ways:
Library of Congress (LOC)
- Public International Law: A Beginner’s Guide – This guide includes cogent discussions of customary international law treaties, and judicial decisions.
- U.S. Bilateral Treaties
LOC’s Military Collection has three components:
- Military Law Review. This is the preeminent U.S. Armed Forces journal of legal scholarship.
- The Army Lawyer. This less-scholarly periodical contains practical advice for military lawyers.
- Scholarly Articles, Monographs, Scrapbooks, and Theses
Congressional Research Service (CRS)
CRS is a nonpartisan organization created to provide objective analysis to congressional committees and Members of Congress. Following are recent relevant publications. These can be updated relatively frequently so it’s best to check for a more recent version.
- Israel and Hamas 2023 Conflict In Brief: Overview, U.S. Policy, and Options for Congress, November 1, 2023
- Israel: Major Issues and U.S. Relations Updated September 27, 2023
- Israel and Hamas October 2023 Conflict: Frequently Asked Questions (FAQs) (October 20, 2023)
- Israel and Hamas: Major Conflict After Surprise Attacks (October 10, 2023)
- Foreign Terrorist Organization (FTO), Updated September 1, 2023
- Congressional Research Service, War Crimes: A Primer (March 30, 2023)
- The Role of International Tribunals in the Response to the Invasion of Ukraine (March 22, 2023)
Selected News Articles and Updates Providing Background/Context
Just Security – Expert Guidance: Law of Armed Conflict in the Israel-Hamas War – This reference has several strong points, including distinguishing between areas where the law is well-settled and clear and where it is less so.
The Conversation – How the ‘Laws of War’ Apply to the Conflict Between Israel and Hamas
New York Times — What I Believe as a Historian of Genocide
The Atlantic – A Knife Fight in a Phone Booth
CNN – Updates
Times of Israel – Updates
Deutsche Welle – What Constitutes A War Crime?
Global Investigative Journalism Network – What Is Legal In War?
U.S. News & World Report – Key Historical Events in the Conflict Between Israelis and Palestinians
- A Timeline of Israel and Palestine’s Complicated History
- This Gaza War Didn’t Come Out of Nowhere
- Why Did Hamas Invade Israel?
Duke University Law School
Michigan Journal of International Law
George Washington University – The Ironic History of Palestine.
Closing Thought: A Concise Summary of Some Key LOAC Concepts
No doubt some readers will be daunted by the prospect of digesting the sources referenced above and prefer a Cliff Notes approach. Here is the U.S. Army’s admirably concise summary of the fundamental rules. This excerpt from The Commander’s Handbook, AR 350-1, Table F-2 condenses the mountain of legalese into the minimum knowledge required for all Army members:
The Soldier’s Rules
- Soldiers fight only enemy combatants.
- Soldiers do not harm enemies who surrender. They disarm them and turn them over to their superior.
- Soldiers do not kill or torture any personnel in their custody.
- Soldiers collect and care for the wounded, whether friend or foe.
- Soldiers do not attack medical personnel, facilities, or equipment.
- Soldiers destroy no more than the mission requires.
- Soldiers treat civilians humanely.
- Soldiers do not steal. Soldiers respect private property and possessions.
- Soldiers should do their best to prevent violations of the law of war.
- Soldiers report all violations of the law of war to their superiors.
Mr. Lawson’s experience as a military and civil service lawyer includes assignments to the Pentagon, the U.S. Army, and the Agency for International Development. He holds a J.D. from the University of Kentucky and is a Commandant’s List graduate of The Judge Advocate Legal Center and School Basic Course. He holds an LL.M. from the same school. His active-duty military responsibilities included teaching the law of war to soldiers.
Ms. Pacifici is a law librarian with over forty years of experience in the private, government and academic sectors. She is the Founder, Editor, Publisher of the award-winning monthly e-journal LLRX.com and the daily research blog, beSpacific.
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