Invidious comparisons are being made between Israel, Hamas's use of violence
FORMER HOSTAGES (clockwise from top left) Almog Meir Jan, Noa Argamani, Andrey Kozlov, and Shlomi Ziv are back in Israel after they were rescued in June.
Hamas-inflicted terror violence is not comparable to Israel’s use of violence to combat terror.
To suggest otherwise is akin to claiming equivalence in domestic legal settings between crimes of murder and police anti-crime violence. Under both international law and domestic law there is always a valid difference between the harms created by criminal violence and harms created by law- enforcement. In the first case, these harms are intentional. In the second, they are unavoidable.
While harms spawned by Israeli counterterrorism operations are collateral to international law enforcement, the harms inflicted on Israeli civilian hostages by terrorists are the product of “criminal intent” or mens rea. It was a political rather than legal decision by the International Criminal Court (ICC) to issue coinciding arrest warrants for the Israeli prime minister and leaders of Hamas. For the ICC, this decision can best be described as “invidious.”
In its law-enforcing actions against Palestinian terror – a terror encouraged and sustained by Iran – Israel is acting on behalf of all nation-states. Though this assessment is often difficult to acknowledge by observers who see only the tangible effects of Israeli military counterterrorism, it is supported by pertinent legal standards and long-established legal expectations of “mutual aid.” By this authoritative expectation, each state is required to assist other states imperiled by aggression or terror-violence.
The Hamas crimes of October 7, 2023, inter alia murder, rape, and hostage-taking, represent “Nuremberg-level” violations of “humanitarian international law.” Under “peremptory” or jus cogens international law, all states have an obligation to punish terrorists. An integral part of Nuremberg Tribunal principles, this obligation stipulates “No crime without a punishment,” or Nullun crimen sine poena. Significantly, there would have been no Gaza war and no Palestinian casualties if Hamas had not launched its October 7 criminal operation against Israel; and there would be no further Palestinian casualties if Iran-backed Hamas were willing to immediately return the Israeli hostages.
A chair is left in front of posters with pictures of hostages, who were kidnapped during the deadly October 7 attack on Israel by Palestinian Islamist group Hamas, amid the ongoing conflict in Gaza between Israel and Hamas, in Tel Aviv, Israel, April 26, 2024. (credit: Shannon Stapleton/Reuters)
A chair is left in front of posters with pictures of hostages, who were kidnapped during the deadly October 7 attack on Israel by Palestinian Islamist group Hamas, amid the ongoing conflict in Gaza between Israel and Hamas, in Tel Aviv, Israel, April 26, 2024. (credit: Shannon Stapleton/Reuters)
Among the subjective charges leveled against Israel in its current Gaza operation is “disproportionality.” However, under humanitarian international law, proportionality has nothing to do with symmetrical or equivalent harms. The incessant Hamas declaration that it is entitled to fight “by any means necessary” is patently contrived. It directly contravenes Hague Convention No. IV (1907): “The right of belligerents to adopt means of injuring the enemy is not unlimited.”
Hamas's attacks are "criminal intent"
Unlike Israel, which tries to avoid the collateral damage of a self-defense war, Hamas rocket fire and terror attacks are the product of “criminal intent.” So, too, were the rapes and mutilations inflicted by Hamas on October 7.
Under law-based principles of proportionality, a belligerent’s resort to armed force is always limited to what is “necessary” to meet allowable military objectives.
In relevant law, belligerents include not only states but also insurgent and terrorist armed forces. This means that even where an insurgency seemingly meets the standards of “just cause,” it must still satisfy all associated expectations of “just means.” Even if Hamas and its sister terror groups would have a presumptive right to fight against an alleged Israeli “occupation,” that fight would need to respect the limitations of “distinction,” “proportionality,” and “military necessity.”
Firing rockets into Israeli civilian areas and intentionally placing military assets amid Palestinian civilian populations always represents a “perfidious” crime of war. Any taking of civilian hostages, however “sacred” the cause, represents terror-criminality.
Under the law, proportionality is never a matter of “common sense.” If it were, there would be no legitimate defense for America’s “disproportionate” attacks on European and Japanese cities during World War II. As for the persistent Palestinian crime of “human shields” or “perfidy,” it is identified as a “grave breach” in Article 147 of the Fourth Geneva Convention.
Deception can be lawful in armed conflict, but The Hague Regulations disallow any placement of military assets or personnel in populated civilian areas.
Related prohibitions of perfidy can be found in Protocol I of 1977, additional to the Geneva Conventions of August 12, 1949. These rules are also binding on the basis of customary international law.
All combatants, including Palestinian insurgents fighting for “self-determination,” are bound by the law of war. This requirement is discoverable in Article 3, common to the four Geneva Conventions of 1949. It cannot be suspended or abrogated. Israel is also bound by the law of war, but its Gaza war operations that kill and injure Palestinian civilians are inadvertent and without “criminal intent.” In law, responsibility for these Palestinian casualties lies entirely with the “perfidious party” – that is, with Hamas.
The alleged Hamas goal of Palestinian “self-determination” is founded upon an intended crime – total removal of the Jewish state by attrition and annihilation. This openly genocidal intent has its origins in the Palestinian Liberation Organization’s (PLO) “Phased Plan” of June 9, 1974. At its 12th Session, the PLO’s highest deliberative body, the Palestinian National Council, reiterated the terror organization’s aim “to achieve their rights to return, and to self-determination on the whole of their homeland.”
IN ITS 1974 plan, a proposed sequence of Palestinian violence is expressed: “First, to establish a combatant national authority over every part of Palestinian territory that is liberated” (Art. 2); “second, to use that territory to continue the fight against Israel” (Art. 4); and “third, to start a pan-Arab war to complete the liberation of the all-Palestinian territory” (Art. 8). Ironically, this was and remains the annihilationist plan of a more mainstream Palestinian terror group than Hamas.
For Israel, the existential threat is no longer from a “Pan-Arab War.” At some still-ambiguous point, Hamas (with tangible Iranian support) could prepare to launch mega-terror attacks on Israel. Such potentially unprecedented aggressions could include chemical, biological, or radiological (radiation-dispersal) weapons. Foreseeable perils could also include a non-nuclear terrorist attack on the Israeli reactor at Dimona. There is a documented history of enemy assaults against this Israeli plutonium-production facility, both by a state (Iraq) in 1991 and by a Palestinian terror group (Hamas) in 2014. Though neither attack was successful, various fearful precedents were established.
International law is not a suicide pact. Even amid long-enduring world-system anarchy, it offers a binding body of rules and procedures that permits any beleaguered state to express an “inherent right of self-defense.”
But when Hamas celebrates the explosive “martyrdom” of manipulated Palestinian civilians and when Palestinian leaders seek “redemption” through the mass-murder of “Jews,” the wrongdoers have no supportable legal claims to immunity. Moreover, Hamas celebrations of “martyrdom” underscore the two-sided nature of Palestinian terror/sacrifice – that is, the primal sacrifice of “the Jew” and the reciprocal sacrifice of “the martyr.” Such murderous reasoning is codified within the Hamas charter as a “religious problem.”
Under international law, terrorists are considered hostes humani generis or “common enemies of humankind.” Among other things, this category of criminals invites punishment wherever the wrongdoers can be found. Concerning their required arrest and prosecution, jurisdiction is “universal.” Also relevant is that the Nuremberg Tribunal reaffirmed the ancient legal principle of “Nullum crimen sine poena,” or “No crime without a punishment.”
Generally, Palestinian commanders who control terror-mayhem against Israel cower unheroically in safe towns and cities outside of Gaza. Living in luxury hotels and villas, these commanders are never eager to become “martyrs” themselves. Why? Hamas and wider Palestinian populations believe that because they are fighting a “just war” they are entitled to employ “any means necessary.” Under international law, however, even if a war is determinably “just,” it must still be fought only with “just means.” Here, ends can never justify means.
The PLO, forerunner of Hamas (Islamic Resistance Movement) and of the Palestinian Authority (PA), was formed in 1964. This formation was three years before there were any Israeli “Occupied Territories.” What were the Palestinians then trying to “liberate?” The answer is incontestable and clarifying: “From the River to the Sea.”
The Palestinian objective has always been the “liberation” of Israel as such. For Hamas, the “solution” for Israel remains unambiguously “final.”
The writer is an emeritus professor of international law at Purdue University and the author of many books and scholarly articles on international law, nuclear strategy, nuclear war, and terrorism. His 12th and latest book is Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; second edition, 2018).