What International Law Has

to Say About the Israel-

Hamas War
Hamas’s attack on Israel and the ensuing war in the
Gaza Strip raise a host of questions about the
combatants’ legal obligations.

Article by David J. Scheffer, Expert

October 19, 2023 12:15 pm (EST)

Israeli soldiers lined up in a field near the border with

the Gaza Strip. Ronen Zvulun/Reuters

The atrocities Hamas committed against Israel on October 7 have sent shockwaves
around the world and prompted the Israeli government to embark on a war of still-
unknown magnitude and character against the Palestinian militant group.

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Israel’s military campaign in the Gaza Strip seeks to fulfill several objectives, including
the destruction of Hamas and the rescue of hostages, that are strictly regulated by
international law. Observing these legal guardrails, as Israel has declared it will do, will
make the conflict complicated and risky, particularly because Israel’s actions will be
scrutinized by various observers, including other governments, the United Nations, the
International Criminal Court, legal scholars, civil society, and the general public. The
large number of civilian casualties in a fiery explosion at a Gaza hospital has
underscored how an unconstrained war could take a grim human toll.

Hamas’s War Crimes

Hamas’s killing of at least 1400 Israeli civilians (including children) during its surprise
attack on Israeli territory violated provisions of international humanitarian law that are
designed to protect civilians and their property during war. They include Common
Article 3 of the 1949 Geneva Conventions, which requires humane treatment of
civilians and noncombatants; Article 51 of the conventions’ Protocol I, which protects
civilian populations from attack; and a host of provisions on war crimes and crimes
against humanity in Articles 7 and 8 of the Rome Statute [PDF] of the International
Criminal Court (ICC), which reflect customary international law and apply to Hamas
leaders and fighters. Moreover, Hamas’s continuous, indiscriminate rocket attacks
against Israeli targets put civilian structures and individuals at risk, also violating these
treaty provisions and customary international law.

Is Hamas covered by international law?

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There continues to be a rather strained debate among governments and legal scholars
about applying various fields of international law to nonstate actors such as Hamas,
including questions about the legal obligations of states that these actors come into
conflict with. For example, in the United States, the George W. Bush administration
advanced a “legal black hole” argument during the so-called war on terrorism that
followed 9/11, claiming that al-Qaeda and the Taliban were nonstate actors and
therefore unprotected by the 1949 Geneva Conventions. However, the U.S. Supreme
Court discredited that legal argument in 2006, ruling that Common Article 3 of the
conventions did apply to the U.S. war with al-Qaeda.

Israel and the “state of Palestine,” which is recognized by most countries as comprising
the West Bank, Gaza, and East Jerusalem, are ratified parties of the four Geneva
Conventions of 1949. Israel has not ratified the first and second protocols of the
conventions, which in 1977 further regulated protection of civilians, property, and the
environment during war. One of the prominent provisions is Article 75 of Protocol I,
which Washington has long viewed as part of customary international law and thus the
provision would bind not only the United States but also Israel. It requires that persons
held by a combatant power shall be treated humanely in all circumstances and provides
a detailed list of prohibited conduct. A plurality of Supreme Court justices in the 2006
decision stressed Article 75’s customary application. Palestine has ratified all three
protocols, so as a state party, it is undeniably bound to their terms. Hamas, particularly
as a de facto governing authority in Palestine (namely, over Gaza) with control over its
own militant forces, is obligated as part of the state of Palestine to comply with the
Geneva Conventions and its three protocols.

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The state of Palestine also is a state party of the Rome Statute of the International
Criminal Court (ICC), which means that Hamas leaders and personnel can be held
accountable for committing genocide, crimes against humanity, or war crimes on, for
example, Israeli territory or in Gaza. Israel, like the United States and dozens of other
countries, is not a state party of the Rome Statute, but the ICC prosecutor will
scrutinize its military actions in Gaza, the territory of a state party.

Israel’s Self-Defense
Israel’s primary objectives are self-defense in response to the Hamas attacks and
ensuring the future security of Israel. Article 51 of the UN Charter permits actions of
“inherent” self-defense derived from customary international law, and it does not limit
that right to actions against the conventional armed forces of another state. The UN
Security Council can choose not to take any action to reinforce or circumscribe this
right of self-defense—and, regardless, the body has long been essentially paralyzed by
the fracture between Western permanent members and the twosome of Russia and
China, as amply demonstrated during the council’s inconclusive meeting on October 16.

Deeply associated with Israel’s self-defense measures is the government’s stated

intention to terminate Hamas entirely. International law does not explicitly prohibit
the use of force to eliminate an organization such as Hamas, which Israel, the United
States, and many other countries consider a terrorist group. It remains important,
however, that Israel’s use of force to achieve this aim abides by the right of self-defense
under the UN Charter and is in accordance with the law of armed conflict and
international humanitarian law.

What should Israel do to comply with international humanitarian law?

Israel has fundamental legal obligations to abide by during its campaign against Hamas.
Heavily charged statements by some Israeli officials need to be separated from sound
legal policy. In brief, Israel must meet several standards:

It must not use starvation (including deprivation of food, water, and other
essentials for survival) of Gaza’s civilian population as a weapon of war against
Hamas or for any reason.

It must take every possible step to target only Hamas militants and their military
infrastructure, and to minimize civilian casualties and the destruction of civilian
infrastructure. The Israeli air and artillery campaign, as well as its ground warfare,
 must be guided by the immutable legal principles of humanity, distinction,
proportionality, and military necessity.

It must allow for the return of displaced civilians after the conflict. While a
temporary evacuation of civilians from a theater of combat can be legally
requested, it would be unlawful to permanently displace the civilian population
from their homes. The circumstances in Gaza today create enormous hardship for
hundreds of thousands of Palestinian civilians, and Israel should take measures to
ameliorate these difficult conditions. The visits of U.S. President Joe Biden and U.S.
Secretary of State Antony Blinken to the Middle East this week focused in part on
what Israel and other nations and organizations can do to address the
humanitarian plight of Palestinians in Gaza.

Rescuing Hostages
Another paramount objective for Israel is the rescue or release of the roughly two-
hundred Israeli, American, and other foreign hostages. Hamas’s taking of hostages from
Israeli territory and using them, illegally, as human shields in Gaza under life-
imperiling conditions pose particular challenges for Israeli military action. If Hamas
had not taken hostages, Israel’s strategy for confronting the militant group might have
been different.

Though much debated among international lawyers and governments, there is a legal
right [PDF] for states to use force to rescue hostages, as long as their actions meet four
criteria:

many hostages are seized, particularly during an armed attack (as occurred on
October 7),

the actions are necessary (there is a threat of violence against Hamas’s hostages,
and non-forcible recovery options, such as a negotiated deal with the group, may
 prove futile),

there is an immediacy (a quickly negotiated release is not possible, and the fate of
the hostages appears to worsen with each passing day), and

the use of force is proportional (using only the level of armed force that is
necessary to rescue the hostages).

The final criterion of proportionality would be superseded by the anticipated Israeli

incursion into Gaza because that intervention would be made under the right of self-
defense—a much larger-scale objective—and not only to rescue the hostages.

Whatever the debate may be about Palestinian statehood, the applicability of various
treaties, and whether Israel is an occupying power over Gaza, Israel should take care to
follow the powerful requirements of customary international law as it defends itself
against Hamas and pursues the rescue of hostages.

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