Hamas Terror Attacks Israel and International Law

by Prof. Louis Rene Beres

In response to the October 7, 2023, Hamas attacks against Israeli civilians, Israel mounted Operation Swords of Iron. Although international law allows for certain limited uses of insurgent force, including uses directed toward “self-determination,” these residual allowances do not include any rights of indiscriminate violence or of deliberate attacks on noncombatants. “Revenge,” of course, is never a permissible or law-based justification.

What specific legal insights can shed light on the latest Arab attacks against Israeli citizens? Prima facie, Hamas Operation Al-Aqsa Storm represents an “egregious” violation of international law. Under no valid legal standards does it define any acceptable plan for peace, justice or purposeful diplomacy. Instead, this latest Palestinian violence champions a cruelly visceral program for lethal harm against Israeli non-belligerents.

There are variously associated details. Human targets will be identified by terrorists elsewhere in the region, not just those originating from Gaza. Ironically, civilian Arab populations will likely constitute the majority of victims of Arab terror.

What will happen next? Will Syria and/or Iran enter into the hostilities? Will Shiite militia Hezbollah in the north join its Sunni counterparts presently assaulting noncombatants from Gaza? Whatever the nuances and particularities of this Palestinian-inflicted war, Israel will once again have to defend itself against contrived and false charges of “disproportionality.”

“The more things change, the more they remain the same.” In its necessary counter-terrorist operations, the IDF will have to engage Arab terrorists in civilian areas in order to immobilize further terror operations and to destroy large caches of terrorist weapons. Looking ahead, there will likely emerge increasingly unpredictable “cycles of violence,” spasms that could sometimes include direct Syrian and/or Iranian military involvement and much wider war.

Taken as a whole, the Palestinian plan for war against Israeli civilians creates a lethal oscillation of Arab and Israeli destructiveness. “Justice,” we have long known from Plato, has multiple dimensions. It represents “a contract neither to do nor to suffer wrong.” From this authoritative standpoint, not only has Hamas inflicted variously unjust punishments, but Israel would be acting against justice if it left Hamas unpunished. Ipso facto, Operation Swords of Iron is an example of Israeli law enforcement.

There is more. In these bewilderingly complex calculations, law and strategy will always be interrelated. There will always be important legal questions to consider in tandem with important military questions. Still, to accomplish any such needed consideration, there would first have to be some tangible evidence of meaningful jurisprudential understanding.

What does international law have to say about rapidly dissembling circumstances in the Middle East? More specifically, what are the legal requirements of “proportionality” under the law of war or humanitarian international law. These requirements ought never to be misunderstood, ignored or disregarded. Such key expectations concern not just general conflict issues in “Westphalian” world politics, but also core matters of long-settled jurisprudence,

In international law, words always matter. The legally correct meaning of “proportionality” has nothing to do with maintaining equivalence in the use of military force. Proportionality has nothing to do with equivalency. Under international law, especially the law of war, the standard of proportionality is never just a consideration of intuition or “common sense.” Above all, it is always a matter of Reason, an integral foundation of codified and customary international law. This standard seeks to ensure that every belligerent’s resort to armed force always remains limited to what is “necessary” to meet law-based military objectives.

Though we still speak narrowly of “international law,” identifiable belligerents include not only 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.” To the issue at hand, even if Hamas and its associated combatants would have a presumptive right to fight against an Israeli “occupation,” that fight would still need to respect all legal limitations of “discrimination,” “proportionality” and “military necessity.”

Taking Israeli civilian hostages, deliberately firing rockets into Israeli civilian areas and/or placing military assets amid Palestinian civilian populations represents an “egregious” crime of war. Always. In the third example, the pertinent crime is known formally as “perfidy.” In all previous anti-terror wars against Hamas, Israel has had to deal with Palestinian perfidy.

There is more. Under no circumstances does the principle of proportionality stipulate that either party to an ongoing conflict must impose only symmetrical or equivalent harms upon the enemy. If that sort of “common sense” suggestion were correct, there would be no modern historical analogue to America’s “disproportionate” attacks on European and Japanese cities during World War II. By that standard, Dresden, Cologne, Hiroshima and Nagasaki would represent the documented nadir of inhumane belligerency. Indeed, these US attacks would reflect the modern world’s very worst violations of humanitarian international law.

All too often in the seemingly endless Palestinian belligerency against Israel, vital legal backgrounds are minimized or glossed-over. Sometimes, Hamas, Fatah, Islamic Jihad and related terror groups take conspicuous steps to ensure that Israeli reprisals kill or injure Arab noncombatants. By placing selected noncombatants in those areas from which Arab rockets are launched into Israeli homes, hospitals and schools, Palestinian leaders – not Israeli defenders – are violating the most fundamental expectations (more technically, “peremptory” or “jus cogens” expectations) of humanitarian international law.

Any use of “human shields” represents much greater wrongdoing than simple immorality or visceral cowardice. It expresses a starkly delineated and punishable crime. Perfidy is identified as a “grave breach” at Article 147 of Geneva Convention IV. Deception can be legally acceptable in armed conflict, but The Hague Regulations specifically 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 discrete but still-intersecting basis of customary international law, a 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 strictly bound by the law of war. This core requirement is found at Article 3, common to the four Geneva Conventions of 1949. It cannot be suspended or abrogated.

At some point, Palestinian Arab terror groups, most notably Hamas, could escalate mega-terror attacks on Israel. Such aggressions, unprecedented and possibly in cooperation with variously allied non-Palestinian Jihadists, could include chemical and/or biological weapons of mass destruction. In the worst-case scenario, especially if Iran should sometime agree to transfer portions of its expanding inventory of nuclear materials to proxy terror groups, Israel could have to face Palestinian-directed nuclear terrorism. Also possible, though presently still implausible, is that residual ISIS-type surrogates could displace more civilized leadership cadres in “Palestine.” At that point, Israel and relevant allies could have to face a more starkly insidious source of atomic terror.

What would happen then, when bewildered combatants find themselves in extremis atomicum?

Earlier, though ISIS was effectively eliminated as a viable enemy organization, the underlying Jihadist ideology remained anything but defeated. Now, to best predict possible and probable outcomes, Israeli analysts and policy-makers will need to refine their relevant skills for dialectical reasoning. In the final analysis, effective counter-terrorism must always be assessed as an intellectual activity. Over time, the heroes of Israeli counter-terrorism could include behind-the-scenes thinkers (physicists, mathematicians, philosophers and political scientists) among more glamorous Fauda-type fighters and special operations forces.

There are complementary concerns. However perilous the appearance of any particular perceived threat, Israel has sought to keep (and will plausibly continue to keep) counterterrorism operations consistent with applicable international law. For their part, Palestinian fighters remain in generally deliberate and persistent violation of virtually all recognizable rules of civilized military engagement. For them, insurgent warfare remains a matter of “by any means necessary.” For them, it is always just a matter of what Sigmund Freud would have called “wish fulfilment,” not one of binding legal obligation.

History should have some pride of place in these assessments. Terror-violence launched from Gaza accelerated immediately after Israel left the area in 2005, a “disengagement” that Jerusalem had expected (or merely hoped) would produce less terror and greater intercommunal harmony. But hope is never a strategy and is never law supporting per se.

There are certain antecedent points to be emphasized. From the standpoint of binding international law, terrorism is always more than just bad behavior. Without exception, it represents a distinct and serious crime under international law. Such evident crime can neither be minimized or exonerated by any partisan intimations of “just cause” or “by any means necessary.” Under international law, the ends can never justify the means: “Rights can never stem from wrongs”

In the past, various manipulated expressions of jurisprudential reasoning notwithstanding, the Palestinian side bore full legal responsibility for most Arab civilian casualties in Gaza. Arguably, absent its pre-meditated attacks on Israeli civilian populations, there could have been no reciprocal Palestinian harm. Though Israeli military operations did kill and wound Arab noncombatants in every “cycle of violence,” these casualties were largely unavoidable and inadvertent. When Hamas terror attacks Israel, rockets are launched from Gaza, the acknowledged Palestinian intent is to kill and wound Israeli civilians.

In law, all law, criminal intent or mens rea is singularly important.

International law is not a suicide pact. Even amid long-enduring Westphalian anarchy, it offers an authoritative body of rules and procedures that permits a beleaguered state – any beleaguered state – to express an “inherent right of self-defense.” But when Arab terrorist organizations celebrate the explosive “martyrdom” of Palestinian civilians and when certain Palestinian leaders seek religious “redemption” through the mass-murder of “unbelievers,” the wrongdoers have no residual claims to legal immunity or sanctuary.

Under international law, such criminals are called Hostes humani generis or “common enemies of humankind.” Unambiguously, in law, this category of murderers invites punishment wherever wrongdoers are found. Concerning their required arrest and prosecution, jurisdiction is now termed, after Nuremberg (1945-46) “universal.” Also relevant is that the historic Nuremberg Tribunal strongly reaffirmed the ancient legal principle of Nullum crimen sine poena, or “No crime without a punishment.”

There is a manifestly non-legal but still significant point that remains germane to any wrongful allegations of Israeli “disproportionality.” Many Palestinian commanders who control terror-mayhem against Israel cower unheroically in safe towns and cities. Heroic rhetoric notwithstanding, these commanders are never eager to become “martyrs” themselves. Quite the contrary.

International law is closely bound up with US law. Few Americans have ever even glanced at their nation’s Constitution. Derivatively, many US critics of Israel remain determinedly unfamiliar with the laws of war of international law. Just as seriously, they fail to recognize that these laws represent an integral and incorporated part of the domestic or municipal law of the United States. The US Constitution, especially Article 6 (the so-called “Supremacy Clause”) and several corollary Supreme Court decisions, particularly the Paquete Habana (1900), codify this authoritative incorporation.

This means that consistent misuse of relevant international law represents inter alia a wrongful interpretation of American Constitutional law. It is especially vital that major political parties and leaders now become better acquainted with the governing laws of war, and conscientiously apply these basic rules with fairness to all instances of international armed conflict. In the final analysis, the core issue concerning humanitarian international law here is not about Israel and the Palestinians as such, but the willingness of all major states in world politics to sustain uniformly civilized standards of global military conduct. and conflict resolution.

There must be an ethical or humanitarian calculus in all particular circumstances. Although an ideal world legal order would contain “neither victims nor executioners,” such an optimal arrangement of global power and authority is not yet on the horizon. Confronting what he once called “our century of fear,” Camus asks his readers to be “neither victims nor executioners,” living not in a world in which killing has disappeared (“we are not so crazy as that”), but wherein wanton killing has become illegitimate. This is a very fine expectation of philosophy, but not one that can be harmonized with any strategic or jurisprudential realism.

For the moment, Hamas and its allies intentionally adhere to knowingly wrongful definitions of “proportionality,” that is, to narrowly manipulative definitions calling for “equivalence.” At the same time, Israel continually alleges an inherent right to broad targeting strategies that is based on frequently unverified or unverifiable allegations of Palestinian “perfidy.” Though verifying instances of Hamas perfidy would better immunize Israel from legal responsibility for any inadvertent IDF harms inflicted upon noncombatant Palestinian populations, such verification could also undermine tactical successes. In the best of all possible worlds, both Israel and Hamas would accept Plato’s rudimentary definition of justice “neither to do nor to suffer wrong.” But even after Nuremberg, this “Westphalian” world is based less on abstract considerations of law and justice than on crudely zero-sum competitions for power and advantage.

What next? As long as states (e.g., Israel) and aspiring states (e.g., “Palestine”) exist in a world of international anarchy – that is, in the decentralized system of international law originally bequeathed at the Peace of Westphalia in 1648 – conflicts such as the Israel-Hamas war will continue to be treated as adversarial. Until the world can finally progress meaningfully beyond such an inherently self-destructive ethos, the enforcement of international law will depend largely upon the cooperative interactions of several major states, especially the United States.

In this connection, grave responsibility will fall upon the American president and Congress to speak on behalf of a conspicuously more law-enforcing orientation to international law. In specific reference to Israel, Hamas and the current Gaza War, this will mean an obligation to (1) abjure narrowly contrived definitions of “disproportionality;” and (2) acknowledge a broad Israeli right to self-defense against terror wherever Palestinian resort to “human shields” or perfidy can be verified.

Truth is exculpatory. This is not yet the best of all possible worlds, but it is the right time to make a refined start in that direction. Deliberate Hamas rocket attacks on Israeli civilians are always unlawful and never pardonable. Reciprocally, carefully measured Israeli bombings of Gaza structures harboring Hamas terrorists or weapons are always lawful and law-enforcing. Though meeting its legal obligation to gather evidence of Palestinian perfidy during an ongoing belligerency is necessarily problematic, dispensing with this obligation altogether could leave Israel suspended under a perpetual cloud of generalized suspicion and jurisprudential disbelief.

Whatever the differences between them, all sides to this escalating conflict have a coinciding and interdependent obligation to support humanitarian international law. Among other things, it is the de facto and de jure responsibility of the United States and other world powers to insist that both Israel and governing Palestinian organizations meet this overriding obligation. In the end, such a complex task would represent not “only” a tangible accomplishment of ethical conduct, but also one of deeply serious intellectual and cosmopolitan thought.

Louis Rene Beres was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with nuclear strategy and world order reform. Dr. Beres, Professor Emeritus of International Law at Purdue, publishes at The New York Times; The Atlantic; Jewish Business News; Harvard National Security Journal (Harvard Law School); JURIST; Bulletin of the Atomic Scientists; Yale Global Online (Yale University); World Politics (Princeton); International Journal of Intelligence and Counterintelligence; Infinity Journal (Tel Aviv); BESA Perspectives (Israel); INSS Strategic Assessment (Tel Aviv); Modern War Institute (West Point); The War Room (Pentagon); Parameters: Journal of the US Army War College (Pentagon); Armed Forces and Society; global-e (University of California); Special Warfare (Pentagon); Horasis (Switzerland); Modern Diplomacy; JURIST; Brown Journal of World Affairs (Brown University); International Security (Harvard); Air-Space Operations Review (USAF); American Political Science Review; American Journal of International Law; Strategy Bridge; Strategic Review; and Middle East Review of International Affairs.

This article was first published in Jurist.