Introduction
The conflict in Gaza following October 7, 2023, has become a brutal test for the modern legal order. This analysis examines the limits of self-defense and the criminal liability of both parties in light of international norms.
The reader will discover why the laws of war must apply regardless of political motivations. The text explains the distinction between the right to initiate war and the rules governing its conduct, arguing that the only path toward lasting peace lies in the rejection of tribal narratives.
Hamas's Crimes Cannot Be Historically Justified
Historical context, including decades of occupation and Palestinian trauma, may explain the political drivers behind the rise in support for Hamas. However, it does not constitute a normative justification for the intentional murder of civilians and the taking of hostages.
The crimes of October 7 are an unequivocal violation of international humanitarian law. Causal explanations cannot serve to morally negate responsibility for specific acts.
A prime example is the instrumentalization of human beings, where hostages were reduced to bargaining chips. Such a practice is prohibited and constitutes a war crime, regardless of rhetoric regarding resistance against occupation.
The Right to Self-Defense Does Not Waive the Obligation to Follow the Laws of War
Israel possesses an inherent right to self-defense under Article 51 of the United Nations Charter. However, the status of being a victim of a brutal attack does not grant a state a so-called 'moral premium' that would allow it to ignore the protection of civilians.
It is crucial to distinguish between jus ad bellum (the right to go to war) and jus in bello (law during war). The principles of civilian protection apply regardless of who initiated the conflict or whether the cause for doing so was just.
Even if Hamas employs so-called human shields, this does not absolve Israel of responsibility for civilian deaths. An attacker must always account for bystanders when assessing the proportionality of a strike.
The Gap Between War Aims and the Legality of Means
The pursuit of destroying Hamas's military capabilities does not automatically justify any scale of civilian casualties. The law requires a distinction between military and civilian targets and the maintenance of strict proportionality.
This principle does not concern casualty statistics, but rather the assessment of a specific strike before it is executed (the ex ante test). One must examine whether the military advantage is excessive in relation to the anticipated collateral damage.
This situation is illustrated by the actions of the ICJ, which ordered Israel to prevent genocide and ensure humanitarian aid. Meanwhile, the ICC has issued arrest warrants for leaders on both sides, confirming a symmetry before legal norms despite an asymmetry of guilt.
Conclusion
Lasting peace requires more than military victory. The mere removal of Hamas without establishing a political order and recognizing Palestinian agency will only prepare the ground for subsequent cycles of violence.
In a world dominated by mutual traumas, a future mediator will not be negotiating merely borders on a map. They will have to negotiate with the memories of millions of people for whom compromise has become a potential acceptance of their own catastrophe.
The only foundation is universal international law. It must cease to be an instrument of power and instead become the sole common language of agreement.
Frequently Asked Questions
Does the historical context of occupation and Palestinian trauma justify Hamas's attack on October 7th?
The historical context, including occupation and Palestinian traumas, may explain the political environment in which Hamas shaped its strategy, but it does not justify the intentional killing of civilians. Causal explanation differs from normative justification and cannot serve to nullify responsibility for specific acts.
Does the fact of being a victim of a brutal attack give you the right to ignore the rules for the protection of civilians during a military response?
No. According to the principles of humanitarian law (jus in bello), a victim of aggression does not receive a moral bonus that would allow for the ignoring of civilian protection rules. The law governing the conduct of war applies regardless of who started the conflict and who has the more justified cause.
Does Israel's pursuit of destroying Hamas automatically justify the scale of civilian casualties in Gaza in light of international law?
No, the pursuit of destroying Hamas does not automatically justify the scale of civilian casualties, as the law of armed conflict requires maintaining proportionality and distinguishing military targets from civilian ones. The legality of actions depends on an analysis of each specific strike regarding the anticipated military advantage relative to potential harm to the civilian population.
Does Hamas's use of civilians as human shields relieve Israel of responsibility for their deaths in light of international law?
No, the unlawful use of human shields does not deprive civilians of protection nor does it transfer full responsibility for damages to the attacking party. Israel remains obligated to take all feasible precautions and to include these individuals in the proportionality assessment of an attack.
Do historical trauma and political motivations exempt parties to a conflict from criminal liability before international tribunals?
Individual criminal responsibility is based on symmetry regarding legal norms, not on the moral or factual symmetry of actions. This means that neither the leader of an organization fighting against occupation nor the leader of a democratic state waging a defensive war receives immunity derived from their side's political narrative.
What specific remedies and prohibitions has the International Court of Justice introduced regarding Israel's actions?
The International Court of Justice ordered Israel to ensure large-scale food aid and to keep the Rafah crossing open for supplies. The Court also called for the cessation of the offensive and operations in Rafah that could create conditions leading to the physical destruction of the Palestinians.
Are allegations of genocide and war crimes equivalent, and how does international law assess the responsibility of both parties to the conflict?
Allegations of genocide and war crimes are not equivalent, as genocide requires proving a specific intent to destroy a national, ethnic, racial, or religious group. International law assesses the responsibility of both sides regardless of the causes of the conflict, recognizing, among other things, grounds for establishing war crimes and crimes against humanity on Israel's part, as well as Hamas's responsibility for the serious crimes committed on October 7th.
Why does the military destruction of Hamas alone not guarantee security, and what are the political alternatives for Gaza?
Military destruction alone does not guarantee security because it does not eliminate the social environment in which the organization reproduces itself, which stems from a sense of statelessness and a lack of prospects. Permanently removing the threat requires the creation of a political institution and a credible vision of order after Hamas, encompassing issues of Palestinian sovereignty and legitimate authority over the territory.
Does supporting Israel's right to self-defense preclude criticism of the methods of conducting the war in Gaza?
No, supporting Israel's right to self-defense does not preclude criticism of the methods of conducting the war. This stems from the distinction between the right to enter a conflict (jus ad bellum) and the permissibility of specific ways of conducting military operations (jus in bello).
Why is the mere removal of Hamas or a return to the pre-war state insufficient to achieve lasting peace?
The mere removal of Hamas or a return to the status quo will not be enough, as the previous system was based on a blockade and the illusion that the conflict could be managed indefinitely. Lasting peace requires the simultaneous demilitarization of the entity threatening Israelis and the political emancipation of Palestinian society.
Is the rigorous application of international law to both parties of the conflict possible and necessary for achieving lasting peace?
Yes, the rigorous application of international law to both sides is necessary because humanitarianism is a long-term condition for security. The universality of the principles of civilian protection and criminal responsibility must apply regardless of the asymmetry of power or trauma; otherwise, law becomes merely an instrument of force.
