The Gaza War: A Legal Analysis Of Israel’s And Hamas’s Actions – OpEd
The world was stunned by the attack of over a thousand Hamas fighters on Israeli settlements, which killed and captured many soldiers. Israel retaliated with air strikes on the Gaza Strip, targeting buildings and structures that it claimed were Hamas bases. The devastation has been immense: half of the buildings in Gaza have been destroyed, over 16,000 Palestinians have been killed, and the city has become almost uninhabitable. These actions constitute war crimes, crimes against humanity, and violations of the four Geneva conventions on international humanitarian law.
Israel regards Hamas as a terrorist group, but some international law definitions classify it as a national liberation movement that fights for the freedom of the occupied Palestinian territories. Even if Israel had the right to self-defense after the initial attack, it has not respected the proportionality principle and breached the Geneva Quartet on international humanitarian law.
Legitimate defense and proportionality in defense
The United Nations Charter first defined legitimate defense as an international document. It allows the attacked government to take necessary military action to protect itself and its people until the Security Council intervenes (Article 51, Chapter VII). However, legitimate defense also requires the proportion of defense to attack. The defense must stop when the attack is repelled and the attacker withdraws. Any action beyond this is disproportionate and violates the Charter (Article 2, Paragraph 4).
The defending government must also respect human rights and international humanitarian law. The indiscriminate bombing of Gaza and the killing of Palestinians are clearly disproportionate and disrespectful of these laws, and they actually start a new war. Israel’s claim that Hamas is a terrorist group is also unjustified by international law standards. According to the contemporary classification of armed groups, Hamas is not a terrorist group like ISIS or Al-Qaeda, but a national liberation movement that fights for the occupied Palestinian territories.
Hamas: Terrorist group or liberation movement?
The status of Hamas is disputed. Some Western countries view it as a terrorist group that opposes Israel. Many third world and Muslim countries and some developed countries regard it as a liberation movement that fights for the Palestinian land from Israeli occupation. However, there may be a third option. According to the Montevideo Conference definition of a state, Hamas meets all the criteria to be considered as a government. It has effective control over Gaza, with various institutions and a 30,000-strong army. It has territory, government, and sovereignty, and could be recognized as the ruling government in Palestine if Israel withdraws to the 1967 borders. It also has foreign relations with some Islamic countries that imply its recognition. Therefore, the recent war between Hamas and Israel could be seen as either a fight between a liberation movement and an occupying state, or a fight between an unrecognized state and the Israeli state. In either case, Israel must follow the rules of international humanitarian law in the war against Hamas, as per the Geneva Conventions.
War crime, crime against humanity, and accountability
The Statute of the International Criminal Court defines crimes against humanity and war crimes in an armed conflict. Article 7 states that crimes against humanity occur when acts such as murder, intentional destruction, deportation, torture, and others listed in this article are committed on a large scale, and the court can deal with them. Article 8 lists examples of war crimes, and that the offenders and accomplices of each of them will be prosecuted.
According to this article, serious violations of the Geneva Conventions of August 12, 1949, such as intentional killing, torture, use of biological weapons, wounding, mutilation, and destruction of protected property and assets, are war crimes. Israel’s action of killing over 16,000 Palestinians, destroying half of the buildings in Gaza, and displacing more than two million people is a war crime and a crime against humanity. However, Hamas is also guilty of war crimes for attacking and killing over a thousand Israeli civilians, and its officials and commanders can be tried and punished at the International Criminal Court. Since neither Israel nor Hamas is a member of or can sue at the International Criminal court, the Prosecutor can initiate investigations into these crimes and charge the perpetrators (Article 15).
In sum, according to the international laws, the October 7th attack by Hamas was a war crime by a liberation movement against an occupying force. Israel responded with disproportionate and ruthless destruction of civilians, property, and assets in Gaza. These actions killed over 1000 Israelis and 16000 Palestinians, and made Gaza uninhabitable. Israel’s crimes were much more severe and widespread than Hamas’s, and showed no respect for the four Geneva Conventions. Israel aimed to destroy and cleanse Gaza of its civilization. Hamas started and violated international humanitarian law, but Israel surpassed Nazi Germany and the former Soviet Union in committing crimes against humanity with its brutal response.
