On the weekend of 6 October 2023, there was an open-air music festival, Supernova, next to Kibbutz Re’im, one of the villages close to the border with Gaza, approximately 5 kilometers (3 miles) from the border. The festival was part of the UNIVERSO PARALELLO festivals, which aims to spread love and stands for the values of protecting the environment. The festival was during the weekend of Shimchat Torah, a Jewish holiday. At the same time, another open-air party was going on not too far away, in the area of Kibbutz Nirim, also close to the border with Gaza. Around 7 am on 7 October, a siren broke the dancers’ joy, alarming an incoming missile attack. After realizing that the missiles were heading their way, people started to evacuate from the area, glancing back to see the bright flash of the rockets lighting the sky.
What came up next was unexpected – Hamas militants/terrorists, dressed in military attire, wearing body armor equipped with assault rifles, grenades, stun guns, and RPGs, using motorcycles, pickup trucks, and paraglides, surrounded the festival area, starting to shoot and target the participants. Shots were fired at those running away, against injured people lying on the ground, all while grabbing people and taking them hostage. At least 260 bodies were recovered from the festival alone, where rescue agency people accounted for sights they had never seen before. Bodies spread everywhere, in half-burned cars where Hamas militants/terrorists set on fire after murdering those in the car, piles of bodies in other locations, and post-mortem mutilated bodies.
The scale and horror of the attack on festival participants are still being assessed, and the word massacre seems inadequate to describe what happened. From a legal perspective, Hamas’ actions constitute a violation of international law, of the laws of war or in its other name, international humanitarian law (IHL), and the prohibition on the use of force.
The analysis of Hamas’s violation of IHL is based on the assumption that a continuous armed conflict exists between Israel and Hamas (whether this is an international armed conflict or non-international armed conflict is irrelevant at this point). Both Israel and Hamas, as parties to this conflict, are obligated to respect and to hold, as a minimum, customary international law.
Under customary international law, it is prohibited to make the civilian population the object of an attack (i.e., to directly and intentionally attack just civilians as the purpose of the attack) (this rule is enshrined in Articles 48, 51(2) and 52(2) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, and in Article 31(2) of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977). It is without a doubt that the people at the Nova festival and the other open-aired party were civilians. They were simply people enjoying music and having a good time. None of them is a legitimate military target.
Under Common Article 3 to the Geneva Conventions (CA3), which represents customary international law, there is an obligation to treat those who take no active role in the hostilities humanely. CA3 prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.” The actions of Hamas against those who were at both of the festivals cannot be described as anything else but murder. In addition, CA3 instructs that those who are wounded and sick shall be “collected and care for” – not only did Hamas not do that, but they have burned those who were injured, and executed those who they suspected that might be still alive despite being shot. With respect to the violation of the prohibition on the use of force, without going into a very long legal analysis, even if Hamas has the right to use force as part of the right to self-determination and resist what they describe as their “oppressor”, they do not have the right to target civilians (for an elaborated discussion on this issue, see Schmitt).
