Innocent Until Proven Guilty: Legal Scrutiny in Gaza

We must acknowledge the horrific conditions Gazans have long suffered and the continued humanitarian crisis that is facing the millions of innocent Gazans displaced due to the war. We must also acknowledge that isolated incidents of soldiers disobeying orders exist even in the most professional and moral militaries. Though this is likely to be the case with Israel's war against Hamas in Gaza, it does not detract from the legitimacy of the operation. That said, I will be amongst the first to condemn intentional immoral actions committed by the IDF.


We must also appreciate, however, that “innocent until proven guilty” reigns supreme. It applies from the smallest of petty criminal actions to the largest heinous war crimes. This has to be the case because the alternative found in dictatorships is unimaginably opaque and unfair. Despite this, the previous article on Gaza and many of its sources fail to realistically portray the legal status of Israel’s war against Hamas in Gaza. 


For example, the claim that Israel is committing war crimes has been asserted without sufficient supporting evidence. “Proportionality”, often misunderstood, is one of the worst examples. The accusation is entirely predicated on the argument of whether Israel is targeting civilians or targeting Hamas. On the one hand, the high Gazan death rate might seem like Israel is targeting civilians. However, it comes apart in light of the extraordinary lengths the IDF go to in evacuating the civilian populace from the fighting zones. Hamas’ own videos show their fighters launching RPGs at IDF tanks while dressed in regular civilian clothing – endangering uninvolved Gazans and making a true count of the civilian casualties difficult to assess. Any serious legal review of IDF operations would have to take these facts into account.


Misleading headlines from news outlets fail to do justice to the complex situation. For example, the Guardian ran with this sub-headline: “the UN said there is evidence that international humanitarian law may have been breached by both sides in the conflict.” The article describes Hamas’ actions as outright war crimes, but in the section on Israel, the language changes. “Israel may be committing the war crime of collective punishment”, Israel’s actions are “not compatible with international humanitarian law”, and “multiple war crimes have been committed […] in Israel and Palestine.”

The article clearly implies that both sides have committed war crimes, but notice the weaker language applied in Israel’s case: “may” instead of “are”, “not compatible with” instead of “in clear breach of”, “in Israel and Palestine” and not “by Israel and Palestine.”

This is because legal concepts are generally accompanied by very precise language and processes that the media has a moral duty to adhere to. In this case, Israel is, at most, under heavy suspicion. Regardless of our strong feelings towards civilian casualties–or even towards this conflict–it is vital we recognise that the law of armed conflict is a process-oriented legal concept. If we focus exclusively on outcomes, we risk paralysing even the most moral armies armed with the best justifications and encouraging bad actors to embed themselves further in civilian infrastructure.


This weaker accusatory language is even found in the OHCHR’s “Commission of Inquiry collecting evidence of war crimes committed by all sides in Israel and Occupied Palestinian Territories since 7 October.” It states that “armed groups from Gaza have gunned down hundreds of unarmed civilians”, without explicitly saying that these were Hamas and other terrorists targeting and massacring Israeli civilians inside Israel. On the flip side, the war crime that Israel is accused of is “a complete siege on Gaza involving the withholding of water, food, electricity and fuel which will undoubtfully cost civilian lives and constitutes collective punishment.” But in fact, Israel has gone beyond its international legal obligations, which do not require Israel to provide anything to Gaza. The UN’s own reports provide evidence contradicting the claim of collective punishment, reporting that hundreds of trucks are coming in regularly, including from Israel.


Speaking of which, the UN and the international community have done very little to assure Israel that these trucks are not ending up with Hamas, despite video evidence showing trucks seemingly being hijacked by the group. 

Armed, masked men reportedly affiliated with Hamas can be seen atop trucks carrying humanitarian aid that arrived in the Gaza Strip via Egypt's Rafah crossing on 17 December 2023. (Screenshot, used in accordance with Clause 27a of the Copyright Law)

This type of bias at the most powerful peacekeeping and human rights organisations is not new. Former UN Secretary-General Ban-Ki Moon admitted that political interests in the UN have “created a disproportionate number of resolutions, reports and committees against Israel.” Going on to say that “instead of helping the Palestinian issue, this reality has foiled the ability of the UN to fulfil its role effectively.” In 2022, when Russia invaded Ukraine, the UN rightfully condemned Russia 6 times. During that same year (when no Israeli soldier was in Gaza), it condemned Israel 15 times. Other examples of institutional bias include UN Women refusing to explicitly condemn the many instances of rape and other terrible abuses Israeli women suffered by Hamas until December. The US veto at the UN now makes sense, as the US Deputy Rep pointed out: “[the] US still could not understand why the resolution’s authors declined to include language condemning “Hamas’s horrific terrorist attack” on Israel.” 


As rightly pointed out in the previous article: “the consistent upholding of international law and human rights is indispensable to regain the credibility of the West in the sceptical Global South” and the Middle East. In this case, upholding international law entails the continuity of ties with Israel, accurate reporting of the facts on the ground, fostering greater respect for the legal process and the principle of innocence until proven guilty, and an urgent effort to reassure serious concerns over Gazan aid.


All articles and opinions posted give the views of the author(s) and do not necessarily reflect the views of the Leeds Think Tank, the Leeds University Union, or the University of Leeds.