On civilian suffering in Gaza, the true origins lie in relentless Palestinian terrorism. Though Hamas and other jihadi groups argue self-righteously about an Israeli “occupation,” no such argument has any basis in facts or law. Ipso facto, this Islamist argument is a self-serving contrivance.
The Palestine Liberation Organization, “brother” to Hamas, was created in 1964, three years before there were any “occupied territories.” Under Israeli Prime Minister Ariel Sharon, Israel “disengaged” from Gaza 20 years ago, but Palestinian leaders exploited that opportunity only to expand their terror criminality. Regarding law-based reasons for dismissing current Palestinian claims, insurgents resorting to violence have never been authentically directed to “self-determination” or “sovereignty.” Rather, these actions have sought barbarism for its own sake and the expected benefits of “martyrdom.”
The “Islamic Resistance Movement” Hamas’s crimes of Oct. 7, 2023—murder, rape, hostage-taking—represent Nuremberg-level violations of humanitarian international law. Under “peremptory” or jus cogens international rules, all states have a codified and customary obligation to punish the terror-criminals. An integral part of the “Nuremberg Principles,” this obligation stipulates: “No crime without a punishment.”
What about charges of Israeli “disproportionality?”
In law, rules of proportionality have nothing to do with inflicting symmetrical or equivalent harms. They derive from a fundamental principle that the belligerent rights of insurgent groups and nation-states have specific limitations. Accordingly, the declaration that Hamas and other jihadis are entitled to fight “by any means necessary” contravenes the Hague Convention No. IV (1907), Annex to the Convention, Section II (Hostilities), Art. 22, which states: “The right of belligerents to adopt means of injuring the enemy is not unlimited.” Unlike Israel, which expressly regrets all collateral damage of its self-defense war in Gaza, Hamas terror attacks are the product of unambiguously “criminal intent” or mens rea.
When it comes to Gaza, informed observers speak narrowly of “international” law, but the “belligerents” include not only states but armed terror groups. 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 corollary expectations of “just means.” Even if Hamas and its fellow terror groups had a presumptive right to fight against an alleged Israeli “occupation,” it would still need to respect long-established limitations of “distinction,” “proportionality” and “military necessity.”
Firing rockets into Israeli civilian areas and intentionally placing military assets amid Palestinian civilian populations represents a “perfidious” crime of war. Always. Ipso facto, any taking of civilian hostages, whatever the alleged cause, represents unpardonable criminality.
There is more. Perfidy represents a much greater wrongdoing than simple immorality or visceral cowardice. It expresses a starkly delineated and punishable crime. Among other places, perfidy is identified as a “grave breach” at Article 147 of the Geneva Convention IV.
Deception can be lawful in armed conflict, but regulations issued from The Hague disallow any placement of military assets or personnel in populated civilian areas. Related prohibitions of perfidy can be found at Protocol I of 1977 addition to the Geneva Conventions of Aug. 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.
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 actions during the war in Gaza 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.
Significantly, 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. At the 12th session of the PLO’s highest deliberative body, the Palestinian National Council, they 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 (plausibly with Iranian support) could launch assorted mega-terror attacks on Israel. Such potentially perfidious aggressions, unprecedented, and in cooperation with allied non-Palestinian 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. There exists a documented history of enemy assaults against this Israeli plutonium-production facility—both by a state, Iraq, in 1991; and by Hamas in 2014.
International law is not a suicide pact. Even amid long-enduring, world-system anarchy, such law offers a binding body of rules and procedures that permits a beleaguered state to express an “inherent right of self-defense.” But when Hamas celebrates the explosive “martyrdom” of jihadi-manipulated Palestinian civilians and when Palestinian 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 immunity.
In Gaza and elsewhere, Israel is waging a necessary war against murderous jihadi adversaries. Accordingly, it’s time for the international legal community of states to acknowledge the following: Legal responsibility for noncombatant harms in Gaza is the product of unceasing Palestinian perfidy, not Israeli “disproportionality.”
