Impunity Fuels War Crimes in Israel and Palestine

The Israeli military’s announcement that its forces in Gaza shot and killed three Israeli hostages despite them being shirtless and waving a white flag raises core issues about the protection of civilians in the current hostilities.

First, these men and the other civilians abducted on October 7 should not have been in Gaza in the first place. Hamas and other Palestinian armed groups that are unlawfully detaining civilians and holding them as hostages are committing war crimes. They should immediately and unconditionally release all civilians still being held.

Second, civilians may never be attacked. Combatants expressing an intention to surrender, such as by waving a white flag, also cannot not be attacked. The improper use of a white flag to carry out an attack, called perfidy, is unlawful, but that clearly was not the case here. After a field investigation, Israel’s military chief of staff called the shootings “contrary to the rules of engagement.” Deliberately attacking civilians is a violation of the laws of war, and if those responsible acted with criminal intent, they could be prosecuted for war crimes.

Unlawful civilian deaths during armed conflict can be prevented by strict adherence to the laws of war.

Third, Israeli forces have in the past targeted Palestinian civilians in Gaza displaying or waving white flags when they were in plain view and posed no apparent threat. In 2009, Human Rights Watch documented seven incidents during hostilities in which Israeli soldiers unlawfully shot and killed 11 Palestinian civilians who were in groups carrying white flags. Among the victims were five women and four children. Human Rights Watch colleagues and I visited the site of each incident, interviewed at least three witnesses, gathered medical records, and inspected ballistic evidence. The Israeli military authorities declined to meet with us or answer our questions.

Finally, impunity fuels unlawful conduct. To our knowledge, the Israeli government has held no one to account for these and other grave abuses committed during the December 2008 to January 2009 hostilities. The Israeli rights group B’Tselem has called the Israeli military justice system a “whitewash mechanism,” after repeatedly filing well-documented complaints. Similarly, Hamas authorities have not held anyone to account for previously holding hostages or conducting unlawful attacks.

Pervasive impunity for serious international crimes committed by the Israeli military and Palestinian armed groups underlines the importance of the International Criminal Court’s ongoing investigation.

Unlawful civilian deaths during armed conflict can be prevented by strict adherence to the laws of war—an elusive goal made even more difficult when those responsible for past violations are not held to account. Had clear lines been drawn, the three hostages might have made it home.