The Laws of War
Critics of Israel’s actions in Gaza should keep in mind the principles of international humanitarian law–and hold Hamas to those same standards.
Each day brings new accounts of tragedy from Israel and Gaza. Reasonable people agree that the atrocities Hamas committed on October 7—deliberate, videotaped killings of innocent civilians; maiming in the most gruesome fashion of Israeli women and children; and taking Israelis as hostages into its warren of tunnels—stand as deeply disturbing violations of human rights and the laws of armed conflict. As President Joe Biden made clear, Israel possesses a right of self-defense that legally justifies the use of force against Hamas to prevent further atrocities and missile launches against its civilians. Those who argue Israel does not have a right of self defense make two claims: First, they argue that Israel’s “inherent right” is nullified because it is the “occupying power” of the Gaza Strip; and, second, they argue that the right of self-defense in Article 51 of the UN Charter applies only to force against other states, not non-state actors like Hamas.
Both arguments are unavailing. It is highly doubtful that Israel qualifies as an “occupying” power of the Gaza Strip because once it withdrew all military forces from Gaza in 2005, it has exercised no authority over the territory, which is a requirement under international law before assuming the responsibility of an occupying power. UN groups like the Human Rights Council counter that the status of “occupier” still applies because Israel has imposed stringent limits on travel to and trade with Gaza. And yet Egypt has (mostly) sealed off Gaza’s other border without being termed an occupying power.
In any event, even if Israel were an occupying power, that status would not justify Hamas’ intentional attacks on civilian targets in Israel or prevent Israel from using force to protect itself. For example, it was not considered illegal for the United States, as the occupying power of Iraq in the immediate aftermath of the 2003 Iraq War, to use force against Iraqis who were attacking U.S. forces within Iraq.
The second argument against Israel’s right of self-defense—that it cannot invoke this right against non-state actors like Hamas—is equally untenable. Article 51 of the UN Charter states that nothing shall “impair the inherent right” of self-defense possessed by all member states. In recent years, many governments, including the United States, have adopted the view that this right of self-defense applies against non-state actors like al-Qaeda and ISIS in situations where the government of the state in which the non-state actors are operating is “unwilling or unable” to prevent attacks by the non-state actor. The case of the Gaza conflict is much stronger for Israel than the “unwilling or unable” rationale; Israel is protecting against Hamas’ direct, indiscriminate killing, beheading, torture and hostage-taking of Israeli civilians.
Of course, Israel must exercise its right of self-defense in conformity with international humanitarian law (IHL), also known as the laws of war or armed conflict. This body of customary international law, which was codified in the 1949 Geneva Conventions and their subsequent protocols, limits the use of force to the following situations: military necessity; where a distinction is made between combatants and non-combatants; and where the use of force is proportionate to the concrete military objective sought to be achieved.





