Why international law is on Israel’s side in the Gaza conflict - opinion

In essence, Israel’s war against jihadi terror must be fought on two separate but overlapping dimensions: operational and legal. Though each dimension presents challenging elements, the second, or jurisprudential, standard needs immediate clarification and support. Above all, such support should be drawn from refined legal scholarship, not from politics.

Often, concerning Gaza, starving and dying Palestinians are compared to tortured and murdered Israeli hostages. Under humanitarian international law, however, there is a consequential difference. Hamas and kindred terror groups always approach their intended Israeli victims with “criminal intent” or mens rea. However, Israel approaches potentially impacted Palestinian populations with no such intent.

International law is not a suicide pact. As is the case for every state in world politics, Israel has an incontestable right to survive. In order to protect itself against the sorts of lascivious harms perpetrated on October 7, 2023 – assaults that had nothing to do with Palestinian “self-determination” – Jerusalem has a core obligation to “stay alive.” On its face, this obligation is primary and extends beyond Israel to the entire community of nations.

In Gaza, but also in Yemen, Lebanon, Sudan, Syria, and Judea/Samaria (West Bank), Israel is acting on behalf of all states exposed to jihadi terrorism. Per the international law principle of “mutual aid,” each state is continuously obligated to assist other states imperiled by terror-violence. Plausibly, it is only a matter of time before certain state-supported jihadi criminals resort to chemical, biological, or nuclear (“dirty bomb”) terrorism.

Proportionality, self-determination, and law of war

Unlike Israel, which regrets the collateral damage of its obligatory self-defense war, Hamas rocket fire and terror attacks (including civilian hostage-taking) are the evident product of “criminal intent.” Recent displays of mens rea by Hamas have been conspicuous in the terror group’s calculated sabotage of Gaza aid deliveries. 

In part, at least, these displays have had nothing to do with Palestinian “self-determination.” Rather, they have been products of ordinary criminality.

Hamas, unlike Israel, intentionally seeks to target, maim, and kill noncombatants. Hamas leaders also encourage the mass dying of Palestinian noncombatants by Israeli military action, a defiling objective, but one that can create “martyrs” and keep jihadist masterminds safe and wealthy in Qatar, Egypt, the UAE, Saudi Arabia, and Turkey.

Under humanitarian international law, a belligerent’s use of armed force is limited to what is “necessary” to meet allowable military objectives. The legal notion of “military necessity” is correctly defined as that degree and kind of force required for the partial or complete submission of an enemy with a minimum expenditure of time, life, and physical resources.

There is more. We generally speak of “international” law, but belligerents include not only nation-states but also insurgent and terrorist armed forces. Even if Hamas and its sister terror groups had a presumptive right to fight against a so-called Israeli “occupation,” that fight would still need to respect the established limitations of “military necessity,” “proportionality,” and “distinction.”

Any deliberate firing of rockets into Israeli civilian areas or intentional placement of military assets amid Palestinian civilian populations represents a “perfidious” war crime. When Palestinian leadership cadres place their military terror assets within normally protected civilian spaces, the legal responsibility for Israel-inflicted military harms lies with these decision-making circles.

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, in addition 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 in 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 requirement is found 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 conflict is necessary to national survival, and its associated military actions impact Palestinian civilians because of Palestinian perfidy and without Israeli mens rea. It follows, inter alia, that unintentional harms resulting from Israel’s self-defense actions are the responsibility of the perfidious jihadi belligerent and its state supporters. 

Tangibly, this identifies both the Hamas terror-criminals who cower behind “human shields” and the steadily nuclearizing Islamic Republic of Iran. 

The PLO has genocidal intentions

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.”

In its 1974 plan, a proposed sequence of Palestinian violence was plainly identified: FIRST, “to establish a combatant national authority over every part of Palestinian territory that is liberated”; SECOND, “to use that territory to continue the fight against Israel”; and THIRD, “to start a Pan-Arab War to complete the liberation of the all-Palestinian territory.” 

Ironically, this was and remains the annihilationist plan of a more “mainstream” Palestinian terror group than Hamas, an organization that Hamas has always considered too moderate.

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., Shi’ite 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 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 accept its “inherent right of self-defense.” 

But when Hamas celebrates the explosive “martyrdom” of manipulated Palestinian civilians and Palestinian leaders seek “redemption” (i.e., a presumed power over death) through the mass murder of “Jews” (sometimes “Zionists”), the wrongdoers have no rightful claims to immunity. Moreover, Hamas celebrations of “martyrdom” underscore the two-sided nature of Palestinian terror/sacrifice – that is, primal sacrifice of the reviled “Jew” and reciprocal sacrifice of the sacred “martyr.” 

Significantly, this murderous reasoning is codified within the Charter of Hamas as a “religious problem.” Under international law, terrorists are considered hostis 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.”

Once again, Israel is waging mandatory war against an exterminatory foe, this time a jihadist terrorist organization and its allies. In assessing these difficult circumstances, the international community should finally take seriously the insidious truth of jihadi perfidy and the reciprocal falsehood of Israeli wrongdoing. While Israeli weapons harm Palestinian civilians in Gaza, the Hamas policy of “human shields” bears full responsibility for these harms. 

In binding law, Palestinian perfidy is exculpatory for the Jewish state.

The writer is an emeritus professor of International Law at Purdue, was educated at Princeton (Ph.D., 1971). A frequent contributor to major law and strategy journals in the United States, Europe, and Israel, he is the author of many scholarly books and monographs dealing with war, terrorism, and jurisprudence.