The Armed Conflict in Gaza and Its Complexity Under International Law

In “The Armed Conflict in Gaza, and Its Complexity Under International Law: Jus ad Bellum, Jus in Bello, and International Justice,” Raphaël van Steenberghe critically examines the multilayered legal issues surrounding the 2023 Gaza conflict, highlighting how both Israel and Hamas navigate — or violate — key international legal norms. Published in the Leiden Journal of International Law, the article takes a structured approach, dividing its analysis across three core legal frameworks: jus ad bellum (the right to war), jus in bello (the law in war), and post-conflict accountability mechanisms. The author’s goal is not only to illuminate how the Gaza conflict fits within these doctrines, but also to explore the broader implications for international justice and the enforcement of humanitarian norms.

The article begins with a deep analysis of jus ad bellum, focusing on the legitimacy of Israel’s use of force in response to Hamas’ October 7 attacks. Van Steenberghe assesses this within the framework of Article 51 of the UN Charter, which allows self-defence in response to an armed attack. He raises the complexity of recognising Hamas — a non-state actor — as a legitimate aggressor in the context of self-defence. This legal ambiguity is further complicated by the status of the Palestinian territories, which are not universally recognised as a sovereign state. This leads to legal uncertainty about whether Israel’s military response qualifies as legitimate self-defence or a disproportionate use of force. At the same time, the article raises questions about Hamas’ own use of force, often carried out from within civilian areas, making the conflict even harder to evaluate under established norms. In the jus in bello section, the article examines how the conduct of both sides measures against the principles of international humanitarian law (IHL), especially those of distinction, proportionality, and necessity. Van Steenberghe notes the frequent failure of both parties to distinguish between military and civilian targets. For example, while Israel claims to target Hamas infrastructure, its airstrikes have led to high civilian casualties, often drawing condemnation.

Hamas, in turn, has launched indiscriminate rocket fire into Israeli towns and cities — a clear breach of the prohibition against attacks that do not differentiate between civilians and combatants. The author critiques both parties for engaging in tactics that undermine the humanitarian protections enshrined in the Geneva Conventions. He identifies the use of human shields, attacks on medical facilities, and destruction of civilian infrastructure as potentially prosecutable war crimes. However, Van Steenberghe is careful to note that the application of IHL in asymmetrical warfare — where one party is a state and the other a non-state actor — often results in uneven scrutiny and inconsistent application of legal standards. Moving into post-conflict justice and accountability, the article addresses the potential for prosecution of war crimes in international tribunals. Van Steenberghe outlines the limitations of the International Criminal Court (ICC) and the International Court of Justice (ICJ) in resolving these issues, citing both jurisdictional constraints and the highly politicised nature of international law enforcement. He points out that Israel is not a party to the Rome Statute of the ICC, which complicates the legal pursuit of its military officials, although the ICC claims jurisdiction over crimes committed in Palestinian territories. Hamas officials, meanwhile, may theoretically be subject to prosecution, but the lack of a clear state actor complicates accountability.

A crucial part of Van Steenberghe’s argument is that the Gaza conflict illustrates the limits of legal instruments when power dynamics dominate the global system. Legal doctrines such as proportionality or distinction may serve as moral benchmarks, but without political will and institutional clarity, they remain largely rhetorical. He advocates for legal reform that reflects the challenges posed by asymmetric warfare, suggesting clearer definitions and enforcement mechanisms tailored to non-traditional conflicts. The article is notable for its academic neutrality. Van Steenberghe avoids moralistic framing and instead focuses on clarifying the obligations and violations under existing law. He calls for legal consistency, whether applied to Israel, Hamas, or any other actor. This legalist approach helps remove political bias from legal discourse and brings the reader back to foundational questions about what international law is meant to achieve. Furthermore, the article engages with ongoing debates around “lawfare” — the use of legal instruments as political weapons. Both sides in the conflict have invoked international law to justify their actions or accuse the other of violations. Van Steenberghe urges caution here, warning that instrumentalising law risks undermining its legitimacy and may further entrench division rather than offer resolution.

Another important dimension of the article is its discussion on civilian protection in protracted conflicts. Van Steenberghe warns against the normalisation of civilian suffering as collateral damage. He argues that current legal norms do not sufficiently address the psychological trauma, loss of economic livelihood, and long-term displacement faced by civilian populations. These elements are often overlooked in conventional legal assessments, which focus narrowly on kinetic events such as airstrikes or rocket attacks. In conclusion, the article provides a rigorous and balanced framework for understanding the legal dimensions of the Gaza conflict. It avoids ideological framings, focusing instead on legal accountability and institutional limitations. Van Steenberghe’s work stands out in its commitment to legal clarity, its awareness of geopolitical complexities, and its call for a more effective and depoliticised application of international humanitarian law. This makes the article a valuable contribution to both academic and public discourse on the Middle East conflict. The Olive Desk includes this article summary as part of its Law, Rights & Accountability series — designed to make rigorous academic work accessible and meaningful for the general public. Understanding how legal frameworks operate — and often fail — in times of war is crucial for fostering informed debate and responsible citizenship.

Reference: Van Steenberghe, Raphaël. “The Armed Conflict in Gaza, and Its Complexity under International Law: Jus ad Bellum, Jus in Bello, and International Justice.” Leiden Journal of International Law 37, no. 4 (October 2024). https://doi.org/10.1017/S0922156523000480.