Israel Must Follow the Laws Hamas Violates

By William A. Galston

Oct. 17, 2023  

Moral clarity is essential, especially during crises. No history, no narrative, no sense of injustice, however burning, can justify the deliberate slaughter of civilians. The Israelis whom Hamas murdered weren’t the collateral damage of a military offensive; they weren’t intertwined with military targets; they were civilians going about their lives. They were the victims of uncontrolled rage and a distorted ideology.

Ismail Haniyeh, head of Hamas’s political bureau, described the Hamas fighters who brought death and destruction as “pious.” Any belief system that regards the slaughter of innocents as an act of piety has discredited itself.

Moral clarity isn’t complete without legal clarity. The deliberate targeting of civilians is a violation of international law and the laws of war. Acts of violence intended to spread terror among the civilian population are unconditionally prohibited under international law. Abduction of civilians as hostages is a violation of international law and a war crime. In its recent attacks on Israel, Hamas committed all three of these acts, for which there can be no excuse.

Article 51 of the United Nations Charter endorses “the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” Israel is entitled—legally and morally—to respond to Hamas’s lethal attack, consistent with laws and norms.

Regrettably, Israel’s response began with a misstep—Defense Minister Yoav Gallant’s hasty announcement of a total blockade against Gaza, including cutting off food, water and electricity. Most experts regard this as a violation of international law, and it will lead to a humanitarian catastrophe if it continues. Depriving hospitals of medical supplies and electricity is not humane and will be impossible to defend in the court of public opinion. The U.S. has urged Israel to modify this policy, and Israel’s emergency war cabinet has reopened water pipes to southern Gaza.

The heart of the matter, however, is Israel’s military response, which began with airstrikes and commando probes and will soon include an all-out ground invasion. Israel’s announced objective is the complete dismantling of Hamas as a military force and governing body, akin to the Allies’ goal of unconditional surrender by Germany and Japan to end World War II. Achieving this will require Israel to kill or capture all Hamas personnel and take control of the organization’s infrastructure of terror, including its headquarters, stockpiles of equipment and extensive network of underground tunnels.

Throughout its time ruling Gaza, Hamas has chosen to build infrastructure and launch rockets near civilian population centers, which has forced Israel to choose between ineffective half-measures and the onus of civilian casualties. In short, Hamas uses the inhabitants of Gaza as human shields, a tactic strictly forbidden under international law. The same prohibition applies to using hostages as shields.

International law requires all parties to a conflict to do everything in their power to minimize civilian casualties, which includes attempting to “remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives.” To fulfill this requirement, Israel has urged civilians in northern Gaza to relocate to the south until the military conflict ends.

Criticisms of this move by governments and U.N. officials are misguided. Israel is trying to protect Gazan civilians from harm, not expel them. If Israel didn’t ask civilians to leave their homes even temporarily, its forces couldn’t respond effectively to Hamas without causing massive civilian casualties. These critiques, which amplify the human-shield strategy, are offered either in ignorance or bad faith.

Although it will be difficult, Israel must conduct the war against Hamas with one eye focused on its long-term objectives, starting with effective governance in Gaza and extending to regional peace. Saudi Arabia has paused its participation in talks whose objectives include formal diplomatic recognition of Israel. But if Israel were to conduct the land invasion in a way that seems inadequately attentive to its impact on Gaza’s civilians, it would become much harder for the Saudis to resume negotiations after the war ends, and public opinion in the U.S. could shift against Israel. The brutal slaughter of Israeli civilians has thrown Hamas’s advocates on the defensive, but if Israel is blamed for massive civilian casualties, this could change.

Israel must pursue its inherent right of self-defense with prudence and foresight in the difficult months ahead.