In legal terms, it’s not complicated. The ultimate responsibility for noncombatant harms in Gaza lies with Palestinian Arab terrorism. Though Hamas and other jihadi groups argue vehemently about an Israeli “occupation,” their argument lacks any basis in fact or law. Even if this was a plausible argument, it could never justify launching deliberate harms against Israeli civilians.[1]
To understand these issues more fully, history deserves pride of place.
1.The Palestine Liberation Organization, “brother” to Hamas, was created in 1964, three years before there were any “occupied territories.”
2. Under Prime Minister Sharon, Israel “disengaged” from Gaza twenty years ago, but Palestinian Arab leaders have exploited that opportunity to expand terror criminality instead of building a viable country.
3. Regarding law-based reasons for dismissing choreographed claims against Israel, Palestinian Arab resorts to violence have never been directed to “self-determination”[2] or “sovereignty.”[3]
Prima facie, these crimes have sought violence for its own sake (i.e., as a “purifying force”) and for the expected benefits of “martyrdom.” Though generally disregarded, a core objective of Islamist terror is always personal immortality or “power over death.” The plain fact that such power is unachievable does not in any way diminish its immense and insidious attraction.[4]
But back to law. As with every other 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, the sufferings inflicted on Israeli civilian hostages by Hamas are always the product of intentional law violation.
And in its law-enforcing efforts against jihadi terror - whether in Gaza, Lebanon, Judea/Samaria or anywhere else - Israel is acting on behalf of all nation-states.
For both 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 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 that are imperiled by terror-violence.
The Hamas “Islamic Resistance Movement” crimes of October 7, 2023 - murder, rape and hostage-taking - represent egregious (“Nuremberg-level”) violations of humanitarian international law. Under “peremptory”[5] or “jus cogens” international rules, all states - not just Israel - have a codified and customary obligation to punish the terror-criminals.
Understood as an integral part of the 1950 Nuremberg Principles,[6] this obligation stipulates “No crime without a punishment.”[7] There would never 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. Instead, these rules derive from a fundamental principle that the belligerent rights of insurgent groups and nation-states have specific limitations in trying to achieve their goals.
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 the collateral damage of its self-defense war in Gaza, Hamas terror attacks are the product of “criminal intent,” or mens rea.
Ironically, in view of currently spreading charges of an Israel-inflicted genocide, Hamas and its jihadi allies are the only belligerent party to display “intent to destroy.” [8]
On Gaza, informed observers speak narrowly of “international” law, but the law-bound belligerents include not only states, but also terror-group insurgents. 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 coinciding expectations of “just means.”
More succinctly, 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-recognized limitations of “distinction,” “proportionality” and “military necessity.”[9]
-Firing rockets into Israeli civilian areas and intentionally placing military assets amid Palestinian Arab civilian populations represents a “perfidious” crime of war.
-The taking of civilian hostages, whatever the alleged cause, represents an act of unpardonable criminality.
-Deception can be lawful in armed conflict, but Hague Regulations disallow any placement of military assets or personnel in populated civilian areas
Perfidy represents much greater wrongdoing than simple immorality or visceral cowardice. From standpoints of justice, it signifies a starkly delineated and punishable crime. Among other sources. perfidy is identified as a "grave breach" at Article 147 of Geneva Convention IV.
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 (1945).
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.
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."
As for Hamas and other jihadi adversaries of Israel, they regard (at best) the PLO and later Palestinian Authority (PA) as “weak,” “moderate” and “ineffectual.”
For Israel, the existential threat is no longer a “Pan-Arab War.” At some still-ambiguous point, Hamas or kindred jihadists (plausibly with Iranian support[10]) 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. Recalling history’s “pride of place,” there exists a documented record of enemy assaults against this Israeli plutonium-production facility, both by a state (Iraq) in 1991 and by a terror-group (Hamas) in 2008.
When Hamas celebrates the explosive "martyrdom" of jihadi-manipulated Palestinian Arab civilians and when Palestinian Arab 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 legal immunity. To the contrary, the world legal community has an obligation to punish the perpetrators.
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.”[11]
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 sometimes may 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 Palestinian and Israeli) and undermined the essential foundations of world legal order.[12] 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: There is a meaningful distinction between results of international law violations (jihadi terror-crimes) and outcomes of international law enforcement (Israeli military remedies).
Though it is reasonable that not every Israeli military action in Gaza has been law-enforcing, it is similarly reasonable that Israel has been acting to punish terror crimes and prevent future terror assaults. To be sure, there is hunger and civilian suffering in Gaza, but not because of Israeli unwillingness to deliver food aid. Rather, because Hamas and its allied jihadists draw tangible advantages from images of Palestinian Arab civilian suffering, they systematically do whatever possible to keep such images before a global audience. It is a perverse and inhumane calculus, to be sure, but one that is still perfectly rational in terms of core jihadi goals.
For Israel, truth is exculpatory. In the final analysis, it is the willful acts of “criminal intent” by Hamas terrorists that bring accumulating harms to Gaza’s noncombatant populations. It follows that the only promising way to reduce these grievous harms is for the Palestinian Arab community to openly disavow and condemn Islamist terror. Though this conclusion may first seem naïve or unrealistic, it represents the only law-enforcing and dignified path forward for both Israelis and Palestinian Arabs.
There is one last point. The creation of a Palestinian state would expand and enlarge jihadi terror-crimes against Israel. Per long-standing and explicit declarations of assorted Palestinian “authorities,” all of Israel is considered “occupied Palestine.”
As for diminishing existential risks to Israel, pre-independence codifications of Palestinian Arab “demilitarization” would go unheeded. Though not yet widely understood, such codifications could even be evaded or renounced lawfully.[13]