Responsibility for noncombatant harms in Gaza lies with Palestinian Arab terrorism. Though Hamas and other jihadi groups argue self-righteously about an Israeli “occupation,” no such argument has any basis in fact or law. To explain further, history will deserve evident pride of place.
The Palestine Liberation Organization, “brother” to Hamas, was created in 1964, three years before there were any “occupied territories.” Under Prime Minister Sharon, Israel “disengaged” from Gaza twenty years ago, but Palestinian Arab leaders have exploited that opportunity only to expand terror criminality. Regarding law-based reasons for dismissing current Palestinian Arab claims against Israel, insurgent resorts to violence have never really been directed to “self-determination” or “sovereignty.” In essence, these lascivious resorts have sought barbarism for its own sake and for expected benefits of “martyrdom.”
As with every state in world politics, Israel has an inherent right to survival and self-defense. While the harms inflicted by Israeli counter-terrorism are collateral to international law-enforcement, harms perpetrated on Israeli civilian hostages by Hamas and kindred jihadists are the product of intentional law violation. Moreover, in its law-enforcing war against jihadi terror - whether in Gaza, Lebanon, Judea/Samaria or anywhere else - Israel is acting on behalf of all nation-states.
For legitimate and illegitimate reasons, this assessment has been difficult to acknowledge by observers who see only the most evident consequences of Israeli counter-terrorism, Nonetheless, it is fully supported by authoritative legal standards and by variously correlative principles of “mutual aid.” By this unchallengeable principle of international law (one known formally as “jus cogens” or “compelling law”), each state is obligated to assist other states imperiled by terror-violence.
The “Islamic Resistance Movement” crimes of October 7, 2023 - murder, rape and hostage-taking - represent egregious (Nuremberg-level) 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 Nuremberg Principles, this obligation stipulates “No crime without a punishment.” Prima facie, there would never even have been a Gaza War if Hamas had not launched its 2023 criminal assault against Israeli noncombatants.
What about charges of Israeli “disproportionality”? In law, rules of proportionality have nothing to do with inflicting symmetrical or equivalent harms. These rules derive from a fundamental principle that the belligerent rights of insurgent groups and nation-states have specific limitations. Accordingly, the declaration that Hamas and other jihadis are 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 expressly regrets and attempts to prevent all collateral damage of its self-defense war in Gaza, Hamas terror attacks are the product of unambiguously “criminal intent” or mens rea.
On Gaza, informed observers speak narrowly of “international” law, but the belligerents include not only states, but also terror-group armed forces. This means that even where an insurgency is presumptively lawful - that is, where it seemingly meets settled criteria of “just cause” - it must still satisfy all corollary 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 still need to respect long-established limitations of “distinction,” “proportionality” and “military necessity.”
Firing rockets into Israeli civilian areas and intentionally placing military assets amid Palestinian Arab civilian populations represents a “perfidious” crime of war. Always. Ipso facto, any taking of civilian hostages, whatever the alleged cause, represents unpardonable criminality.
There is more. Perfidy represents a much greater wrongdoing than simple immorality or visceral cowardice. It expresses a starkly delineated and punishable crime. Among other places. perfidy is identified as a "grave breach" at Article 147 of Geneva Convention IV.
Deception can be lawful in armed conflict, but 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 Arab 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 War actions that kill and injure Palestinian Arab civilians are without mens rea. In law, all harms resulting from these actions become the responsibility of the perfidious belligerent.
Significantly, the alleged 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 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 from a “Pan-Arab War.” At some still-ambiguous point, Hamas or kindred jihadists (plausibly with Iranian support) could launch assorted mega-terror attacks on Israel. Such potentially perfidious aggressions, unprecedented and in cooperation with allied non-Palestinian Arab jihadists, 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 exists a documented history of enemy assaults against this Israeli plutonium-production facility, both by a state (Iraq) in 1991 and by Hamas in 2014.
International law is not a suicide pact. Even amid long-enduring world-system anarchy, such law offers a binding body of rules and procedures that permits a beleaguered state to express an "inherent right of self-defense." But when Hamas celebrates the explosive "martyrdom" of jihadi-manipulated Palestinian Arab civilians and when Palestinian Zrab leaders seek "redemption" (i.e., presumed power over death) through the rape, torture and mass-murder of "Jews,” the wrongdoers have no supportable claims to immunity.
Under international law, terrorists are hostes humani generis or "common enemies of humankind." This category of criminals invites punishment wherever the wrongdoers can be found. Concerning arrest and prosecution, jurisdiction is “universal.”
In law, all law, truth is exculpatory. Regarding the Gaza War, legal truth ought not to be suppressed or disregarded. Israel is waging a necessary war against an openly 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.” More precisely, 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 fall short of HIL expectations, it is antecedent jihadi “perfidy” that is ultimately responsible for Palestinian Arab civilian harms.
By deliberate co-location of military facilities with schools, homes and hospitals, Hamas and its kindred terror groups have imperiled civilian populations (both Arab and Israeli) and undermined the essential foundations of world legal order. Under authoritative international law, Israel is obliged not only to punish terror-crimes, but also to remind the global community of a critically important difference: A valid distinction exists between the results of international law violations (jihadi terror-crimes) and the outcomes of international law enforcement (Israeli military remedies).
Though it is reasonable to assume that not every Israeli military action in Gaza has been law-enforcing, it is also reasonable that Israel has been acting to punish terror crimes and to prevent future crimes. In the final analysis, it is willful acts of “criminal intent” by jihadi terrorists that create Gaza’s dissembling facts on the ground. It follows that the only promising way to reduce suffering of noncombatant Gazans is for these jihadi-manipulated populations to finally stand against Islamist terror-violence. Though this proposal may seem naive, it represents the only law-enforcing and humane path forward for both Israelis and Gazans.
Louis René Beres, 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 books and monographs dealing with war, terrorism and jurisprudence. Professor Beres is a seven-times contributor to Oxford University Press Annual Yearbook on International Law and Jurisprudence and a member of the Oxford editorial advisory board for the Yearbook. An early recipient of the Bulletin of the Atomic Scientist’s Rabinowitch Prize, he was born in Zürich at the end of World War II.