The horrific incursion into Israel on October 7 by hordes of raging and rampaging terrorists belonging to the Hamas and Palestinian Islamic Jihad terror organizations – who brutally and indiscriminately slaughtered, tortured, and maimed over one thousand Israeli and other citizens, including babies, children, and elderly persons – was widely condemned throughout the world.
Similarly, the kidnapping of more than 200 adults, children, babies, and senior citizens, and their forcible, cruel, and inhumane transfer to Gaza as hostages, was also widely condemned.
The fact that this incursion was accompanied by the wholesale, indiscriminate, and willful bombardment by the Hamas and Palestinian Islamic Jihad terror organizations of Israeli towns and villages with over 4,000 rockets, only added to the wave of shock, disbelief, and condemnation throughout the world.
However, parallel to this worldwide condemnation and expressions of sympathy, and despite the unbelievably horrific nature of the slaughter committed by the terrorists, it took but a few hours before the world was witness to an incredible and unbelievable wave of pure and utter hatred and genuine antisemitism directed against Jews and against Israel by incited groups of demonstrators and students in Europe and North America.
These incited and hateful expressions of identification with, support for, and encouragement of the unbelievable acts of terror committed by Hamas and the Palestinian Islamic Jihad terror organization have been accompanied by active and vocal support and encouragement by Arab leaders and states throughout the Arab world.
This wave of hateful identification with Hamas and Palestinian Islamic Jihad even had the gall to condemn Israel for its actions of reprisal and self-defense against Hamas and Palestinian Islamic Jihad terrorists, and their tactical terror locations and rocket emplacements in the Gaza Strip, accusing Israel of violating international humanitarian law.
The charges that Israel’s military actions against terrorists in Gaza are inhumane and violate international humanitarian law have no basis. They emanate from critics and observers who are totally ignorant of, and unfamiliar with concepts of the international law of armed conflict and international humanitarian law, or alternatively who deliberately and knowingly choose to mislead and lie to the international community.
Accusation of disproportionate response by Israel
The absurd and warped logic behind the oft-expressed charge that Israel’s actions are “disproportionate” would imply that a proportionate and equal response would constitute identical action by one side to the actions of the other.
By this curious logic, Israel would now theoretically be entitled to brutally murder the same number of Hamas citizens and to take the same number of hostages and would be entitled to willfully and indiscriminately fire thousands of rockets into Palestinian civilian areas. Clearly, this is a willful misreading and misrepresentation of the laws of armed conflict.
Since the military capability of Hamas and the Palestinian Islamic Jihad is, in accordance with their national charters and the public declarations of their leaders, devoted and intended solely to achieve one purpose, and one purpose only – to destroy Israel – then Israel has the proportionate prerogative and strategic duty under the international law of armed conflict, to totally and completely destroy that military capability and to render it ineffective.
According to international humanitarian law, the definition of “military targets” includes “civilian objects that by their nature, purpose, location, or use make an effective contribution to military action and whose destruction offers a definite military advantage” (Protocol I to the Geneva Conventions).
As is widely known and acknowledged, Hamas and the Palestinian Islamic Jihad, as a matter of declared policy, hold the Palestinian civilian population as hostages and shields by placing their military infrastructure within the heart of the civilian population in the Gaza Strip, including in residential houses, schools, mosques, and businesses.
Accordingly, in so doing, these civilian sites lose their civilian protection and international law permits the direct targeting of such sites as legitimate military targets due to their military use.
Accusation that Israel violates distinction between combatants and non-combatants
While the destruction of the military capability and infrastructure of the Hamas and the Palestinian Islamic Jihad terror organizations is, as stated above, clearly permitted by international law, Israel is under a subjective international obligation not to indiscriminately target civilian centers, or innocent civilians.
Since Hamas, as a matter of policy, uses its civilian population to shield its military installations by locating its command and operational nerve centers within or under hospitals, mosques, schools, and private homes, or in a multitude of tunnels underneath civilian centers and infrastructure, Israel has, under the international laws of armed conflict, the proportionate prerogative to attack Hamas’s command and nerve centers, weapons installations, and tactical tunnels, wherever they are, while attempting to minimize the number of civilians affected.
While there is no specific legal obligation in international law to warn individuals before an attack, the fact that Israel has nevertheless cautioned and warned the civilian population of its intention to target Hamas’s tactical military centers, and advised them to leave those areas within a given time limit with the aim of avoiding civilian casualties, Israel is fulfilling its obligation to distinguish between legitimate military targets and capabilities, and the civilian population.
This cannot be considered to be a forcible transfer of civilians or ethnic cleansing. It is clearly a precautionary measure taken for the benefit of the civilian population to spare their lives.
Inasmuch as Hamas is forcibly preventing civilians from exiting areas where they are held as human shields, then Hamas has the full responsibility for any collateral harm caused to those civilians if and when such tactical areas are targeted.
According to law Prof. Alan Dershowitz, “Israel is entitled, by any fair reading of international law, to do to Gaza City what the US did to Berlin and Tokyo in 1945. It has warned civilians to leave. The collateral deaths of Palestinian civilians, caused directly by the Hamas decision to use them as human shields, would be the moral, political, and legal responsibility of Hamas.”
Taking of Israeli hostages
The taking by Hamas and the Palestinian Islamic Jihad of multiple civilian hostages, including entire families, women, and infants, and their cruel and violent kidnapping and transfer to the Gaza Strip, as well as the odious exhibition of dead and mutilated bodies in the streets of Gaza, is an inexcusable and flagrant violation of international law as well as of humanitarian norms, and constitutes an odious insult to humanity.
The 1979 International Convention against the Taking of Hostages has criminalized the taking of hostages and determined that those who take hostages are subject to prosecution or extradition if apprehended within the jurisdiction of a nation that is a party to the convention. The 179 nations that are parties to the convention are obligated to cooperate in preventing acts of hostage-taking by establishing internal preventive measures and by exchanging information and using coordinated prevention measures.
Inasmuch as Arab states (including Qatar) host the leaders of Hamas and Palestinian Islamic Jihad, and since Qatar is party to the convention, it is incumbent on the international community to ensure that Qatar extradites the terrorist leaders.
Accusation that Israel imposes an illegal blockade on the Gaza Strip
International law recognizes the right of states to impose blockades, including naval blockades, on territory and areas of the sea from which hostile acts are conducted, and to prevent the entry into such territory of materials that could serve the military activities of the enemy state or entity.
Hamas and Palestinian Islamic Jihad crimes
Grave crimes against international humanitarian law include:• Indiscriminate targeting of Israel’s civilian population centers• Willful and deliberate massacre of defenseless civilians• Use of their own civilian population as human shields• Pillaging and destruction of private homes• Taking multiple civilian hostages, including entire families• The odious exhibition of dead and mutilated bodies in the streets of Gaza
Hamas and Palestinian Islamic Jihad leaders and commanders are accountable and prosecutable under international law, which considers non-state actors to be bound by customary norms of international humanitarian law when they become a party to an armed conflict.
Hamas, even as a non-state entity, or part of a non-state entity, is considered by all accepted criteria to be fully accountable under international humanitarian law for its actions in carrying out its terror attacks against Israeli civilians, and for using its own civilians as human shields. Thus, its leadership, commanders, and fighters are punishable for crimes against humanity and war crimes.
The writer served as the legal adviser to the Foreign Ministry and as ambassador to Canada. He also served for four years as a legal officer at UN headquarters in New York. He presently directs the International Law Program at the Jerusalem Center for Public Affairs.