Hamas-Israel Conflict 2023: Key Legal Aspects
This paper provides an overview of key legal aspects of the hostilities triggered by the horrific attacks perpetrated against Israel on October 7, 2023, which were staggering in their brutality and their contempt for basic humanity. Israel is committed to bringing home the hostages held in Gaza and to defending its citizens and territory in a manner that is consistent with the rule of law, despite facing an enemy with the same disdain for law that it has for human life. The circumstances on the ground are dynamic, and there is widespread – and sometimes deliberate – misinformation about the law and the facts. Any serious legal analysis must be based on the legal rules applicable to the situation and on a trustworthy account of the facts to which those legal rules apply. This paper provides important factual and legal context for this purpose.*
- The applicable law. The applicable legal framework governing the hostilities is the law of armed conflict (LOAC), also referred to as international humanitarian law (IHL), in particular its rules regulating the conduct of hostilities.
- Hamas and Islamic Jihad continue to attack Israel, hold hostages, and are committing war crimes and crimes against humanity. The savage attacks perpetrated by Palestinian terrorist groups on October 7 and since then unquestionably constitute serious violations of international law, often amounting to war crimes and crimes against humanity. They include the slaughter of over 1,400 Israelis and foreign citizens, the wounding of over 5,500, widespread acts of torture and maiming, burning alive, beheading, rape and sexual violence, mutilation of corpses, the abduction of at least 247 hostages (including infants, entire families, persons with disabilities, and Holocaust survivors), the indiscriminate firing of thousands of rockets, and the use of Palestinian civilians as human shields. Some of these crimes may also constitute genocide, as they are carried out with the “intent to destroy in whole or part, a national, ethnical, racial or religious group” in furtherance of Hamas’s declared genocidal agenda. Israel continues to face indiscriminate firing of rockets from Gaza and repeated attempts to infiltrate Israel to murder more Israelis, while the hostages taken by Hamas remain without ICRC visits or communication with the outside world.
- Israel’s right and obligation to defend itself. In relative terms, taking into account the size of Israel’s population, the scope of the attack launched on October 7 is equivalent to the 9/11 attacks many multiple times over. Israel has the right, and indeed the obligation, to defend its citizens and territory by taking all legitimate measures to secure the release of the hostages and neutralize the threat it is facing. This threat is both grave and immediate: some Israeli communities lie meters away from the border, and hundreds of thousands of Israelis live within kilometers of Gaza. On October 7 Hamas and Islamic Jihad penetrated even further into Israeli territory, including into Sderot, which has a population of over 20,000; almost all of Israel remains within range of Hamas’s rockets. In these circumstances, Israel is both entitled and compelled to act so as to deny Hamas and other terrorist groups in Gaza the capacity to continue attacking its citizens and territory.
Israel is simultaneously contending with ongoing attacks and threats emanating from other States and terrorist groups, including Iran and Iranian proxies such as Hezbollah. Hundreds of rockets, missiles and drones have been fired at Israel from Lebanon and Syria, in violation of general international law as well as of UN Security Council Resolution 1701 (2006) and the 1974 Israel-Syria Disengagement Agreement, respectively. Israel is responding to these attacks and has evacuated entire communities from northern Israel for their safety. Multiple ballistic missiles and armed drones have also been launched at Israel from Yemen. These continued attacks could at any moment lead to even wider hostilities.
- Israel’s commitment to international law. Despite Hamas’s unimaginable brutality and its disdain for human life – whether Israeli or Palestinian – and for the law, Israel is committed to conducting its military operations in accordance with international law, as Israel’s senior political and military leadership has repeatedly affirmed. Israel has incorporated LOAC into all aspects of its military operations through legal training, operational procedures and plans, continuous operational legal advice, and robust and independent investigation mechanisms for addressing allegations of IDF misconduct. The Office of Israel’s Attorney General provides ongoing international law advice to the Cabinet and the Government, and Israel’s Supreme Court has jurisdiction to exercise judicial oversight, including during hostilities.
- Suggesting a moral equivalence between Israel and terrorist organizations is repugnant. Any sound analysis of Israeli operations cannot avoid the crucial context of the ongoing attacks, as well as the nature of the enemies, and the scope of the threat, that Israel faces on multiple fronts. It must reject any moral equivalence between those defending against terrorism and those perpetrating it; between a State whose commitment to law underpins its military operations and a terrorist group which openly defies the law; between the IDF, which seeks to minimize civilian harm, and the terrorist groups that deliberately target Israeli civilians while perversely viewing Palestinian civilians as expendable and using them as human shields.
- The facts matter. A sound legal assessment necessitates an accurate and reliable appreciation not just of the law, but also of the facts. Given the dynamic and complex reality of hostilities, and the deliberate attempts by Hamas and other actors to mispresent or fabricate the facts, it is critical to exercise caution and avoid rushing to judgment, as was unfortunately the case in connection with the Al-Ahli hospital incident. Statements by Hamas and other terrorist groups, including by the Hamas-run organs such as the “Ministry of Health”, or by figures subject to Hamas control or intimidation, cannot in any event be used as a reference or reliable source.
- Key principles governing Israeli military operations:
Distinction: Israel is operating against Hamas and other terrorist groups in Gaza, not against the civilian population. It is directing its attacks only at military objectives, and is in no way engaging in “collective punishment”. Consistent with LOAC, and especially given Hamas’s unlawful strategy of systematically embedding its military activity and assets in populated areas (including residential and commercial buildings, places of worship and hospitals), many ostensibly civilian objects may become legitimate targets. LOAC further provides that Hamas militants who fail to distinguish themselves from the civilian population are legitimate targets, as are civilians taking direct part in hostilities. As a result, it cannot be concluded from the mere fact that seeming “civilians” or “civilian objects” have been targeted, that an attack was unlawful.
Proportionality: Under LOAC, an attack against a military target must accord with the rule of proportionality, according to which it is prohibited to carry out an attack when the expected incidental loss of civilian life, injury to civilians, or damage to civilian objects would be excessive in relation to the concrete and direct military advantage that is anticipated from the attack. The military advantages that the IDF is seeking include destroying enemy military assets, targeting militants, degrading and denying enemy ability to command and control operations, neutralizing underground tunnels and infrastructure used for military purposes, and denying positions (such as sniper, anti-tank and surveillance posts) which endanger IDF ground forces, all of which contribute to the overall objective of securing the release of the hostages and removing Hamas’s capability to attack Israel and its citizens. LOAC provides that a proportionality assessment is based on the military commander’s judgement at the time of the attack, not on hindsight: the test is conduct-oriented, not result-oriented. As a matter of law, civilian casualties or damage to civilian objects, while tragic, do not of themselves allow for a conclusion in regard to proportionality without an informed assessment of both the expected civilian harm and the military advantage anticipated at the time of the attack.
Precautions and mitigating civilian harm: Under LOAC, when conducting attacks, parties to a conflict must take precautions that are feasible under the operational circumstances to minimize civilian death or injury as well as damage to civilian objects. Accordingly, the IDF employs various precautionary measures where practically possible in the operational circumstances, including advance warnings and in choosing weapons and munitions. In attempting to mitigate civilian harm, the IDF has moreover repeatedly called on civilians to temporarily evacuate northern Gaza, where more intense hostilities are expected, to the south, where aid is also more available. Hamas has sought forcibly to prevent civilians from leaving areas of hostilities in order to unconscionably exploit civilian casualties and to hinder IDF operational activities.
Humanitarian assistance: Under LOAC, parties to an armed conflict are required to allow and facilitate access of consignments of supplies essential for the survival of the civilian population if the civilian population is not adequately provided with such supplies. This obligation is subject under LOAC to important conditions, including that there are no serious reasons for fearing that the consignments will be diverted from their civilian destination or otherwise provide a definite advantage to the enemy’s military efforts.
Israel wishes no harm to civilians and is committed to addressing the humanitarian needs of those suffering as a result of Hamas’s brutality and instigation of these hostilities. A designated Israeli unit (COGAT) is closely monitoring the humanitarian situation and the needs of the civilian population in Gaza, and is coordinating humanitarian activities with relevant international actors and agencies. Israel is facilitating the entrance of consignments and additional aid to Gaza from Egypt and is working to significantly increase such assistance. Israel is doing so even though Hamas possesses many essential supplies which it is deliberately withholding from its civilians, and that some of the consignments entering Gaza include supplies that are not currently lacking.
It is not possible to effectively respond to the humanitarian situation in Gaza without appreciating that the greatest humanitarian threat to Palestinians in Gaza is that they have lived for years under the control of a genocidal terrorist organization that has no regard for their wellbeing, and that has systematically stolen international aid, and smuggled arms within such aid, so as to advance its own terrorist objectives. Massive stockpiles of fuel, medical, and other supplies, all designated for hospitals and general civilian use, have instead been hoarded by Hamas and are used to sustain its military operations and attacks on Israel (UNRWA has recently stated publicly that Hamas stole tens of thousands of liters of fuel from its warehouses). Genuine concern for the humanitarian situation must also include an unequivocal demand from Hamas to release the reserves it is denying the civilian population, and must ensure that effective mechanisms are in place so that humanitarian assistance reaches its intended civilian destination and is not sustaining the terrorists that are endangering both Israeli and Palestinian lives.
At all times, addressing the legal and practical challenges of humanitarian assistance in these exceptional circumstances requires accurate knowledge of the facts, including that Hamas fire has damaged 9 out of 10 electricity lines coming from Israel (which supply about 50% of the electricity in Gaza, the rest being produced locally); that on October 7 Hamas attacked and significantly damaged the main crossing for Palestinian civilians into Israel (through which almost 20,000 Gazan workers previously passed daily), killing and abducting Israeli personnel; that in recent years Israel has facilitated the installation of alternative energy sources (such as solar panels) for most essential services in Gaza; that 90% of Gaza’s water does not ordinarily come from Israel; and that Israel still supplies water to Gaza (including by fixing pipes damaged by Hamas fire). Israel remains committed to ensuring and expanding the access of Palestinian civilians to humanitarian assistance, but international law does not require it to do so in a manner that enables that assistance to be diverted or exploited so as to sustain Hamas’s capabilities to attack Israel and its citizens.
* This paper was prepared during ongoing and dynamic hostilities and should not be considered as a comprehensive presentation of Israel’s positions concerning the legal and factual situation.****