Wherever possible, scientific explanation seeks “first causes.” On civilian suffering in Gaza, all tangible origins lie in relentless Palestinian terrorism. Though Hamas and other jihadi groups allege an Israeli “occupation,” no such allegation has a basis in pertinent facts or law.
The Palestine Liberation Organization, “brother” to Hamas, was created in 1964, three years before there were any “occupied territories.” Under prime minister Ariel Sharon, Israel “disengaged” from Gaza 20 years ago, but Palestinian leaders have exploited that opportunity only to accelerate terror.
Regarding law-based reasons for dismissing current Palestinian claims, insurgent resorts to violence have never been directed to “self-determination” or “sovereignty.”
Prima facie, these actions have spawned barbarism for its own sake and for the expected benefits of “martyrdom.”
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. And in its law-enforcing war against jihadi terror – whether in Gaza, Lebanon, Judea/Samaria (known to the world as the West Bank) or anywhere else – Israel is acting on behalf of all states.
Assessment is difficult to acknowledge
For both legitimate and illegitimate reasons, this assessment has been difficult to acknowledge by observers who see only the most conspicuous consequences of Israeli counter-terrorism. Nonetheless, it is supported by authoritative legal standards and by correlative principles of “mutual aid.”
By this unchallengeable principle of international law, each state is obligated to assist other states that are 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 unchallengeable rules, all states – not just Israel – have a codified and customary obligation to punish terror-criminals. As part of the Nuremberg Principles, this obligation stipulates “No crime without a punishment.”
There would never have been a Gaza War if Hamas had not launched its 2023 criminal assault. Moreover, unlike Israeli counter-terrorist operations, Hamas terror attacks are the unmistakable product of “criminal intent” or mens rea.
Even where an insurgency could conceivably be lawful – that is, where it seemingly met the authoritative criteria of “just cause” – it would still need to satisfy all corollary expectations of “just means.”
Even if Hamas and its sister terror groups had 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.”
'Perfidious' crimes of war
Firing rockets into Israeli civilian areas and intentionally placing military assets amid Palestinian civilian populations represents a “perfidious” crime of war. Always, any taking of civilian hostages, whatever the alleged cause, represents unpardonable criminality. Under international law, the ends never justify the means.
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 at Protocol I of 1977, an amendment 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 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 Israel-Hamas War actions that kill and injure Palestinian 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, total “removal” of the Jewish state by attrition and annihilation. This genocidal goal 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 could launch mega-terror attacks on Israel. Such potentially perfidious aggressions 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 plutonium-production facility: by a state (Iraq) in 1991 and by Hamas in 2014.
International law is not a suicide pact. Even amid world-systems, which celebrate the explosive “martyrdom” of jihadi-manipulated Palestinian civilians and when Palestinian leaders seek “redemption anarchy, this law offers a binding body of rules and procedures that allows for an “inherent right of self-defense.” When Hamas presumes 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, truth is exculpatory. Regarding the Israel-Hamas War, the legal truth is unhidden. Israel is waging a necessary war against an exterminatory foe. In assessing these circumstances, the “international community” should finally acknowledge the truth of jihadi perfidy and the falsehood of Israeli wrongdoing.
The writer is an emeritus professor of international law at Purdue University and the author of many books and scholarly articles on international law, nuclear strategy, nuclear war, and terrorism, including Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; second edition, 2018).