The War on Hamas and International Law
International law does not forbid the evacuation of residents to the southern Gaza Strip; on the contrary, it would appear to demand of Israel that it warns residents and encourages them to leave.
Photo by: Atia Mohammed/Flash90
Data from a survey conducted in recent days by the Israel Democracy Institute reveal that only around one-half of the Jewish public in Israel think that the IDF should ensure that its actions during the war in Gaza conform to international law, compared with almost two-thirds who were of this opinion a year ago. While this is hardly an unexpected finding at a time of continued hostilities, it reflects the narrow prism through which we view international rules of armed conflict, and international law in general.
In the wake of the attack on October 7, and the emergence of the facts about the murderous slaughter carried out by Hamas, it was clear that international law constituted an important element in the formation of an international coalition of support for Israel. This support stemmed, of course, from the recognition that Hamas had committed appalling crimes from a moral standpoint. But international law was the tool used to frame these terrible events and to design the response to them. States, organizations, media channels, and individuals throughout the world used terms taken from international law—such as crimes against humanity, genocide, and war crimes—to process what had happened, to define it in uniform terms that are known and accepted in different countries, and to situate it properly in comparison to massacres perpetrated elsewhere in the world in the past. Hundreds of experts in international law from across the globe, including those who had never expressed public support for Israel, signed a petition stating that the abductions carried out by Hamas constituted violation of international law, and demanding the immediate release of all hostages. The international support for Israel’s response was also constructed around recognized rights in international law, such as the right to self-defense.
Beyond its role as a tool for garnering support for Israel, international law also delineated a clear boundary between the states supporting Israel and those not supporting it. The United States, Britain, France, Germany, Italy—the classic liberal democracies—stood by Israel without any hesitation. These are states that explicitly declare that international law reflects their values, and they are its biggest supporters. On the other hand, countries such as Russia and China, not to mention dictatorships from Africa to Eastern Europe, were careful to present a “balanced” view, and in some cases even voiced support for Hamas. These are the states that traditionally attack international law, and only use it as a cynical and partisan political tool. If anyone was in doubt, it was again made clear that relying on states with which we have no shared values—values that include recognition of the importance of international law and commitment to the rule of law—is exceedingly foolish.
Yet this partnership of shared values is a two-way street. Their commitment to international law and to the shared values that it represents was what drove Western states to express support for Israel. But the same commitment is also behind their demand from Israel that the Jewish state remains faithful to these values in its use of force during the war in Gaza, both in aerial bombardments and in the expected ground invasion. In order to maintain the support of the community of Western states, Israel will have to prosecute the war while adhering closely to the rules of international law.
It should be noted that the Western countries that take seriously the rules of armed conflict in international law usually adopt an interpretation of those rules that allows sizable room to maneuver. This is in contrast to the interpretation given by jurists with an ideological worldview, who see international law as a tool mainly intended to protect citizens from the might of states, or that given by dictatorships, which in any case never have any intention of respecting these rules.
But even according to this relatively flexible interpretation, there are certain rules that are an immovable part of the foundations of international law. One example is the evacuation of residents from Gaza City. International law does not forbid the evacuation of residents to the southern Gaza Strip; on the contrary, it would appear to demand of Israel that it warns residents and encourages them to leave. But attention must be paid to the restrictions that apply to such an evacuation: It must be temporary; it must take place via protected humanitarian corridors, to the greatest extent possible; and Israel must ensure that the evacuees have their basic needs met in the areas to which they are evacuated.
The calls to ignore international law may attract support from within Israel, but they are not in Israel’s interests in the international arena. Adhering to the rules of international law is necessary to protect the fundamental values on which Israel—in contrast to its enemies—is founded, and to ensure continued support from the international community over time. At the very least, it is needed to maintain support from those countries with which Israel has partnerships based on shared values, which are vital to Israel at the current time.