Here Is Exactly Why Israel’s War Against Hamas Is Legal — and Required — By International Law

Israel has always had to navigate “new waves.” Today, however, separate but force-multiplying “seas” of jihadi terrorism and Iranian nuclearization define an existential threat. To confront this, Jerusalem’s strategic decision-makers will need to offer assessments in legal and strategic terms.

On these matters, geography remains specific. Gaza is often center stage, and Gazan Palestinians are portrayed as victims of incessant harms. Though the death and victimization of so many Gaza noncombatants seems difficult to reconcile with humanitarian international law, there exists a clarifying distinction between jihadist-inflicted terror violence and Israeli-inflicted defensive measures — measures needed by Israel to survive as a state.

This distinction centers on “criminal intent” or mens rea. For Hamas, Hezbollah, Fatah, the Houthis and assorted other Islamist foes, mens rea is conspicuous and indisputable. These groups aim to kill civilians.

For Israel, on the other hand, it is absent prima facie. Though Gaza civilians do not deserve to suffer the harms of any military attacks, legal responsibility for these attacks does not lie with Israel. It lies with those Palestinian leadership cadres that insidiously place military assets within normally-protected civilian structures — and that launched this war with its massacre against Israel on Oct. 7, which it has threatened to repeat “over and over” if it stays in power.

Critics of Israel’s Gaza policies should consider an elucidating analogy from domestic law. In national or “municipal” legal settings, no reasonable comparisons can be made between the crime of murder and police action to stop murder. In the first case, the grievously inflicted harms are intentional. In the second case, they are unavoidable.

International law is not a suicide pact. As is the case for every state in world politics, Israel has an immutable right to “stay alive.”

To protect itself against the sorts of lascivious harms perpetrated on October 7, 2023, Jerusalem has not only the right — but the obligation to prevent Israel’s planned “elimination.” This primary obligation extends beyond Israel to the entire community of nations.

In its current law-enforcing war against jihadist terror — in Gaza, but also in Yemen, Lebanon, Judea/Samaria (West Bank), and various other places — Israel is acting on behalf of all imperiled or “at risk” states.

While this assessment has been difficult to acknowledge by those who see only the tangible effects of Israeli counter-terrorism efforts, it is still supported by applicable legal standards, especially the long-established principle of “mutual aid.” By this immutable principle, each state is obligated to assist other states threatened by terror-violence.

The Nuremberg Principles (especially Principle 1) stipulate “No crime without a punishment” (Nullum crimen sine poena). There would have been no Gaza war and no Palestinian casualties if Hamas had not launched its October 7, 2023, criminal assault against noncombatant Israelis, some under five years old, with civilians repeatedly raped (male and female) and ceremoniously burned alive.

Among the jurisprudentially-vacant charges leveled against Israel in its necessary Gaza War operations is “disproportionality.” But what exactly does this charge mean under humanitarian international law?

Though counter-intuitive, proportionality has nothing to do with any obligation to inflict symmetrical or equivalent harms.

The law-based obligations of “proportional combat” are contained in rules governing resort to armed conflict (“justice of war”) and the operational conduct of hostilities (“justice in war”). In the former, proportionality concerns existential rights of national self-defense. In the latter, it references the manner in which a particular belligerency is being conducted.

Proportionality derives from a more basic legal principle, namely that belligerent rights of insurgent groups and nation-states always have specific limitations. To wit, the ubiquitous Hamas declaration that the organization is entitled to fight “by any means necessary” contravenes Hague Convention No. IV (1907), Annex to the Convention, Section II (Hostilities), Art. 22: “The right of belligerents to adopt means of injuring the enemy is not unlimited.”

Unlike Israel, which plainly regrets the collateral damage of its mandatory self-defense war in Gaza, Hamas rocket fire and variegated terror attacks are the express product of openly “criminal intent.”

There is more. Unlike Israel, Hamas actively seeks to target, maim and kill noncombatants. Under humanitarian international law, a belligerent’s resort to armed force always remains limited to what is “necessary” to meet allowable military objectives. The related notion of “military necessity” is defined as follows: “Only that degree and kind of force, not otherwise prohibited by the law of armed conflict, required for the partial or complete submission of the enemy with a minimum expenditure of time, life, and physical resources may be applied.”

We generally speak of “international” law, but belligerents include not only nation-states, but also insurgent and terrorist armed forces. This means that even where an insurgency is presumptively lawful — that is, where it seemingly meets the settled criteria of “just cause” — it must still satisfy all corollary expectations of “just means.” It follows that even if Hamas and its sister terror groups could have a presumptive right to fight against an alleged Israeli “occupation,” that fight would need to respect the established limitations of “distinction,” “proportionality” and “military necessity.”

Deliberately firing rockets into Israeli civilian areas and intentionally placing military assets amid civilian populations represents a “perfidious” crime of war. And any taking of civilian hostages, whatever the alleged cause, represents an unpardonable criminality.

If a “common-sense” definition of proportionality was ever deemed appropriate, there could be no legitimate defense for America’s “disproportionate” attacks on European and Japanese cities during World War II. By that standard, Dresden, Cologne, Hiroshima and Nagasaki would represent the incontestable nadir of inhumane and lawless belligerency. Expressed differently, these US attack histories would represent the modern world’s very worst violations of humanitarian international law.

Hamas’ perfidy represents a much greater wrongdoing than simple immorality or visceral cowardice. It expresses a starkly delineated and punishable crime. It is identified as a “grave breach” at Article 147 of Geneva Convention IV.

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 at 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, a principal jurisprudential source identified at Article 38 of the Statute of the International Court of Justice.

All combatants, including Palestinian insurgents allegedly fighting for “self-determination,” are bound by the law of war. This rudimentary requirement is found at Article 3, common to the four Geneva Conventions of 1949. It cannot be suspended or abrogated.

On its face, the expressed Hamas goal of Palestinian “self-determination” is founded on an intended crime — that is, the total “removal” of the Jewish State by attrition and annihilation.

This literally genocidal orientation has its origins in the PLO’s “Phased Plan” of June 9, 1974. In 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.”

For Israel, the core existential threat is no longer “Pan-Arab War.” At some still-ambiguous point, Hamas and other jihadi forces (plausibly, with Iranian support) could prepare to launch mega-terror attacks on Israel. Such potentially perfidious aggressions, unprecedented and in cooperation with allied non-Palestinian Jihadists (e.g., Shiite Hezbollah) 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). Neither attack was successful, but variously fearful precedents were established.

Under international law, terrorists are considered hostes humani generis or “common enemies of humankind.” This category of criminals invites punishment wherever the wrongdoers can be found. Concerning their required arrest and prosecution, jurisdiction is now unambiguously “universal.” Correspondingly relevant is that the universality-declaring Nuremberg Principles reaffirm the ancient legal principle of “No crime without a punishment.”

In the end, Hamas and its kindred jihadi forces argue they are fighting a “just war” and are therefore entitled to employ “any means necessary.” Under determinative international law, however, even a just war must be fought with “just means.” Ends can never justify means.

A corollary clarification is warranted: Rights can never stem from wrongs (ex iniuria ius non oritur). Under no circumstances can there be law-based justifications for inherently-criminal terror-violence. To suggest otherwise would be an oxymoron.

The Palestine Liberation Organization (PLO), the forerunner of both Hamas (Islamic Resistance Movement) and the Palestinian Authority was formed in 1964. This formation was three years before there were any “Israeli Occupied Territories.” So what exactly were the Palestinians trying to “liberate”?

It’s not a hard question. The answer remains incontestable. “Palestine” is everything “From the River to the Sea.” By unwavering design, it includes the entire State of Israel.

Prof. Louis René Beres was educated at Princeton (Ph.D., 1971) and is the author of many books and scholarly articles dealing with international law, nuclear strategy, nuclear war, and terrorism. In Israel, Prof. Beres was Chair of Project Daniel (PM Sharon). His 12th and latest book is Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; 2nd ed., 2018).

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