The Legal Responsibility for the War in Gaza Belongs to Hamas

Seeing may require distance. Though it could first appear that Palestinian suffering in Gaza is the result of indiscriminate or “disproportionate” Israeli military operations, a correct explanation lies only in conflict origins. Accordingly, legal responsibility for noncombatant Palestinian harms in Gaza is discoverable in Hamas terrorism.

Israel “disengaged” from Gaza 20 years ago, but Palestinian leaders abused that opportunity and continuously expanded jihadi terror. In essence, terror — violence against Israeli civilians has never been oriented to “statehood,” “self-determination,” or “sovereignty.” Instead, this lascivious violence has celebrated barbarism for its own sake and the incomparable benefits of “martyrdom.”

“The safety of the people,” says Cicero, “shall be the highest law.” Israel has an inherent right to survival and self-defense. While the harms inflicted by Israeli counter-terrorism are collateral to international law-enforcement, the harms perpetrated on Israeli civilian hostages by Hamas and related jihadists are the product of intentional law-violation.

Hamas’ crimes of October 7, 2023 — murder, rape and hostage-taking — represent egregious violations of humanitarian international law. Under “peremptory” or “jus cogens” international rules, all states — not just Israel — have a codified and customary obligation to punish the terror-criminals. An integral part of the Nuremberg Principles (1950), this obligation stipulates, “No crime without a punishment.”

What about allegations of Israeli “disproportionality”?  In law, rules of proportionality have nothing to do with inflicting symmetrical or equivalent harms. Rather, these rules derive from the fundamental principle that belligerent rights of insurgent groups and nation-states always have variously specific limitations.

In law, even where an insurgency has presumptively “just cause,” it must still satisfy the expectations of “just means.” Even if Hamas and its sister terror groups would have a genuine right to fight against an Israeli “occupation,” that fight would still need to respect long-established limitations of “distinction,” “proportionality” and “military necessity.”’

Firing rockets into Israeli civilian areas, and placing military assets amid Palestinian civilian populations represents a “perfidious” crime of war. Moreover, any taking of civilian hostages, whatever the supposed cause, represents unpardonable criminality.

Deception can be lawful in armed conflict, but The Hague’s 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 jurisprudential source identified at Article 38 of the 1945 Statute of the International Court of Justice.

All combatants, including Palestinian insurgents 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. Israel, too, is bound by the law of war, but Gaza conflict actions that kill or injure Palestinian civilians are without “criminal intent” or mens rea.

Prima facie, the alleged goal of Palestinian “self-determination” is founded on an intended crime — “removal” of the Jewish State by attrition and annihilation. This openly 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 existential threat is no longer a “Pan-Arab War.” At some still-ambiguous point, Hamas or kindred jihadists could launch assorted mega-terror attacks on Israel. Such potentially perfidious aggressions, unprecedented and in cooperation with non-Palestinian jihadists, could include chemical, biological, or radiological weapons.

Foreseeable perils could also include a non-nuclear terrorist attack on the Israeli reactor at Dimona. There exists a documented history of enemy assaults against this Israeli plutonium-production facility, both by Iraq in 1991 and by Hamas in 2014.

International law is not a suicide pact. Even amid world-system anarchy, such law offers a binding body of rules and procedures that permits a beleaguered state to express its “inherent right of self-defense.” But when Hamas celebrates the explosive “martyrdom” of jihadi-manipulated Palestinian civilians and Palestinian leaders seek “redemption” (i.e., power over death) through the rape, torture, and mass-murder of “Jews,” the wrongdoers have no supportable claims to immunity.

In law, all law, truth is exculpatory. Regarding the present Gaza War, legal truth ought not to be suppressed or disregarded. Israel is waging a necessary war against an exterminatory foe.

In assessing this or any other transnational belligerency, it is the obligation of every state to “aid and enforce the law of nations.” This means a law-based responsibility to support Israel’s counter-terrorism operations wherever they are conducted according to Humanitarian International Law. Though it may currently appear that these operations sometimes fall short of HIL expectations, it is jihadi “perfidy” that is legally responsible for Palestinian civilian harms.

Israel’s military operations in Gaza have always sought to prevent and punish terror-crimes. In the final analysis, it is willful acts of “criminal intent” by jihadists that create and sustain Gaza’s abhorrent conditions. The only meaningful way to improve these conditions is for Hamas-manipulated Palestinians to stand conspicuously against terror-violence. There is no other way.

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).