I s I s r a e l ’ s f i g h t a g a i n s t H a m a s j u s t i f i e d u n d e r i n t e r n a t i o n a l l a w ?
1
Is Israel’s Fight against Hamas justified under International Law?
WEBINAR REPORT | 9 June 2021
Andrew Tucker, Pieter Hoogendoorn
I s I s r a e l ’ s f i g h t a g a i n s t H a m a s j u s t i f i e d u n d e r i n t e r n a t i o n a l l a w ?
1
This report contains a summary of the introductions that were made at an online roundtable organised by ELNET-France in cooperation with thinc. on 9th June 2021.
© The Hague Initiative for International Cooperation 2021 All rights reserved
The Hague Initiative for International Cooperation Bergstraat 33 3811 NG Amersfoort
www.thinc.info [email protected]
The Hague Initiative for International Cooperation is a charitable trust under Dutch law. Donations are gratefully accepted at
IBAN: NL 15 INGB 0007 8215 39
BIC (SWIFT code): NLINGB2A
ING Bank, The Netherlands
Cover photo: Anas Baba/AFP
I s I s r a e l ’ s f i g h t a g a i n s t H a m a s j u s t i f i e d u n d e r i n t e r n a t i o n a l l a w ?
1
Is Israel’s Fight against Hamas justified under International Law?
Aspects of Legitimacy and International Law
The latest escalation between Israel and Hamas in Gaza, and
the recent decision of the International Criminal Court to
open an investigation into possible crimes committed in the
context of the Israeli-Palestinian conflict, raise fundamental
issues about the scope of international law and legitimacy.
These issues were discussed at an international roundtable
organised by ELNET-France and thinc. on 9th June 2021.
The roundtable was chaired by Dr. Arié
Bensemhoun, CEO of ELNET France.
The speakers at the roundtable were:
• Andrew Tucker
• Prof. Laurie Blank
• Col. (res.) Adv. Daniel Reisner
• Dr. Dov Jacobs
ISRAEL’S BATTLE FOR LEGITIMACY – ANDREW TUCKER
Israel is fighting several wars
simultaneously. In the first phase after
its establishment in 1948, Israel fought
relentless ongoing military conflicts on
the ground. Then, from the 1970’s, it
fought legal wars within the
international legal institutions. More
recently, it has also been required to
fight a war of legitimacy.
Legitimacy is a function of perception,
not reality. Who is perceived to be in
the “right” and who in the “wrong”, in
this world of flashing images and short
sound bites, often has nothing to do
with factual or legal realities.
During and after the last round of
conflict in Gaza, Hamas seems to have
won the war of perception. Many
people worldwide perceived Hamas to
be in the right – its actions have been
portrayed in the media, and perceived
by the public, as more legitimate than
those of Israel – even though it is clear
that Hamas actions have been much
more illegal than those of Israel. I
believe this is the result of a campaign
over many decades to undermine the
legitimacy of Israel: to delegitimize it.
Israel is a legitimate state
Let us recall that – from a factual and
legal perspective – Israel exists. It is
undoubtedly a state, under
international law. Because states are
legitimate under international law,
I s I s r a e l ’ s f i g h t a g a i n s t H a m a s j u s t i f i e d u n d e r i n t e r n a t i o n a l l a w ?
2
Israel is - by definition - legitimate.
Such legitimacy means that Israel is
entitled under international law to be
treated equally (the principle of
sovereign equality); it has a right to
territorial integrity and political
independence; and it has a right to
self-defence. These rights are all
reflected in the UN Charter, of which
Israel is a member state.
The “delegitimization” campaign that
has been waged against Israel over the
last five decades is in part a function of
the highly political, complex and
legally controversial history leading up
to the establishment of the State of
Israel. To give some examples: The
Balfour Declaration (1917) was
expressed in ambiguous language (“the
establishment in Palestine of a national
home for the Jewish people”). There
were many different opinions about
the legal status of the San Remo
resolution (1920) and the Mandate for
Palestine (1922) that implemented the
Balfour Declaration. The legal status of
the 1947 Partition Plan was disputed.
When Israel was established in 1948 –
in the midst of conflict – it was not
immediately clear what its borders
were. Over the decades, the 1949
Armistice Lines have been repeatedly
breached without sanction, and came
to be seen as international frontiers –
even though they were expressly not
intended to have any political or legal
status as a boundary. Since 1948, the
Arab world, later through the PLO, has
relentlessly promoted within the UN a
particular legal narrative, denying the
legitimacy of Israel and challenging its
borders, effectively rewriting law and
history. The international community
has, by and large, acquiesced. Israel’s
formal position on key legal issues
such as the status of the territories
controlled by Israel since 1967 has
been, at times, ambiguous. Within
Israel there have been diverse
opinions.
International institutions and
Israel’s illegitimacy
Most recently, three important
decisions by international institutions
have given seemingly legal validity to
this politically-driven campaign to
Israel is being forced to fight several asymmetrical wars simultaneously. In the
first phase after its establishment in 1948, Israel fought relentless ongoing
military conflicts on the ground. Then, from the 1970’s, it fought legal wars
within the international legal institutions. More recently, it has also been
required to fight a war of legitimacy.
I s I s r a e l ’ s f i g h t a g a i n s t H a m a s j u s t i f i e d u n d e r i n t e r n a t i o n a l l a w ?
3
undermine Israel’s legitimacy. In other
words, the legal proceedings in these
institutions have contributed to the
delegitimization of Israel.
• In 2004 the International Court of
Justice (ICJ) made an Advisory
Opinion in the “Wall” case, in which
the Court made a number of
findings that have since been used to
give support to the attacks on
Israel’s fundamental rights. For
example, the Court stated that “the
Israeli settlements in the Occupied
Palestinian Territory (including East
Jerusalem) have been established in
breach of international law.” This
broad statement has been relied on
by those who assert that all Israelis
living in the territories are doing so
illegally – even though, in fact, there
is no generic prohibition of
settlements, only a prohibition on
the transfer or deportation of
civilians into and out of occupied
territory.
• In 2012, the UN General Assembly
adopted resolution 67/19 granting
“Palestine” “UN non-member
Observer state status”. This
politically-driven resolution has
been used by the PLO to accede to
many multilateral treaties and
international organizations,
including the International Criminal
Court (ICC). It has led many to treat
Palestine as if it were a state – even
though this was not the intent of the
resolution and, manifestly,
“Palestine” is not a state under
international law.
• In February 2021, the Pre-Trial
Chamber of the ICC issued its
Ruling on the “Situation in
Palestine”. In this Ruling the Court
decided that the Prosecutor has
jurisdiction to investigate and
prosecute crimes committed on the
territory of “Palestine”. It held that
“Palestine” is a “state” for the
purposes of the Statute of Rome,
and that the territory of “Palestine”
encompasses Gaza, East Jerusalem
and the West Bank – even though it
is widely acknowledged that
Palestine does not constitute a state
under general principles of
international law. As the dissenting
judge, Peter Kovács, explained, this
is nothing less than “legal
acrobatics” and manifestly
contradicts both legal and historical
realities.
ISRAEL AND HAMAS – THE LAW OF SELF-DEFENCE AND PROPORTIONALITY – PROF. LAURIE BLANK
The right to self-defence
Israel had a right to self-defence under
international law against the recent
attacks launched by Hamas from Gaza.
Every state – like every human being –
has a right under international law to
I s I s r a e l ’ s f i g h t a g a i n s t H a m a s j u s t i f i e d u n d e r i n t e r n a t i o n a l l a w ?
4
self-defence. There are two basic
conditions to the right to self-defence.
Necessity
First, the use of force in self-defence is
only allowed if it is “necessary” to repel
or deter the attack. The fact that a
terrorist organization was attacking
Israel, and there was no possibility of
negotiation, clearly means that a
response was necessary in self-defence
to end or prevent that attack. In other
words, there was a necessity for Israel
to respond.
(As an aside – the argument some
proffer that, because Israel is protected
by the Iron Dome, there is no necessity
to use force in self-defence has no basis
in international law or in operational
realities.)
Proportionality
Second, the principle of
proportionality regulates the extent of
force that can be used to bring an end
to the attack. Note: it is not a “tit-for-
tat” or a question of symmetry.
International law allows the use of
force to the extent needed to end or
repel the attack. As long as Hamas was
continuing to launch rockets and other
attacks, Israel is justified in using the
amount of force needed to stop the
attacks – for example, by eliminating
Hamas’ military capabilities for
launching attacks. In addition, the fact
that Hamas, apparently a small
aggressor, is in fact a proxy of a larger,
more powerful, aggressor (Iran), could
potentially be relevant to this analysis
as well.
There is a separate concept of
proportionality governing how you can
fight. The law of armed conflict sets
out comprehensive principles and
rules to protect civilians, but also
recognizes the pursuit of military
objectives. This principle of
proportionality in the law of armed
conflict is about minimizing harm to
civilians from lawful military
operations. The rule is that, in the case
of an attack on a lawful military
objective, if the expected harm to
civilians will be excessive in relation to
the anticipated military gain, then you
cannot carry out that attack. This
requires assessing in advance the value
of the target and whether the expected
civilian loss will be “excessive”.
Perceptions of legitimacy
This appears to be the only conflict in the world where a comparison of the
number of casualties is used as a measure of legality. There is nothing in the
law that says there must be an equal number of casualties on both sides.
I s I s r a e l ’ s f i g h t a g a i n s t H a m a s j u s t i f i e d u n d e r i n t e r n a t i o n a l l a w ?
5
The biggest challenge, however, lies in
the perception of legality and
legitimacy. Israel is fighting a kinetic
war to counter attacks against its
territory and civilian population, while
Hamas is fighting an information war
to delegitimize Israel. Hamas uses
civilian losses in Gaza to fight this war.
It either uses civilians to protect it
from attack by shielding military
objectives — a war crime — or
deliberately puts civilians in harm’s
way in order to create the perception of
war crimes regardless of the actual
legality of Israel’s actions. Hamas thus
creates the ingredients it needs in its
information war, claiming to the world
that Israel is using excessive force and
deliberately harming civilians.
This appears to be the only conflict in
the world where a comparison of the
number of casualties is used as a
measure of legality. But there is
nothing in the law that says there must
be an equal number of casualties on
both sides. This lack of understanding
of how the law works, combined with
an exploitation of that lack of
understanding, makes it very difficult
to combat this information war.
THE IDF’S APPRO ACH TO COMPLIAN CE WITH INTERNATION AL LAW – COL. (RES.) DANIEL REISNER
The context of the recent conflict
First, let’s look at the background to
the current round of violence. In the
past, Hamas used Israel’s alleged
“occupation” of Gaza as an excuse to
attack Israeli civilians. This was
strange, because Israel is no longer in
Gaza; Hamas was basically saying that
the fact it does not like its neighbors
justifies killing people. But in this case,
it did not even rely on that argument;
it said that certain events in Jerusalem
required it to attack. It said: we have a
view about those events, and if Israel
does not comply with our demands, we
will kill Israeli civilians. It was an
extortion racket. Israel justifiably
disregarded this threat, and Hamas
started firing rockets at Israeli
civilians.
IDF processes to ensure
compliance with international
law
Allow me to explain the process by
which the IDF addresses and
implements the legal rules outlined by
Prof. Blank. I was responsible for
implementing the procedures at the
IDF about twenty years ago to ensure
that international humanitarian law is
complied with.
Before launching a military attack, the
IDF goes through a three-test process:
1. The attack has to be militarily
justifiable. It must “make military
sense” – i.e. it must have some
military advantage associated with
it.
I s I s r a e l ’ s f i g h t a g a i n s t H a m a s j u s t i f i e d u n d e r i n t e r n a t i o n a l l a w ?
6
2. The second question is whether the
attack is “moral”, i.e. can I sleep at
night if we do this? Although
difficult to quantify, this is actually
an easy test to apply.
3. The third question is: is it a lawful
attack? There are three sub-
questions:
a. is it a legitimate target? This
means it must be a military
objective.
b. are you using lawful weapon
systems? This is easy, because
Israel only uses lawful weapons.
c. is it proportionate? – i.e. are the
expected civilian casualties
excessive in relation to the
anticipated military gain?
These decisions must be made real-
time on the basis of the information
available at that time – not in
hindsight. The authorized military
commander makes these
determinations, together with
targeting officers working with bomb
damage assessment experts who try to
give a picture of the expected collateral
damage, and qualified expert
international lawyers who apply the
principles of proportionality to advise
whether the planned attack makes
sense.
Dozens of IDF lawyers are deployed
with military commanders at divisional
level and above: General HQ, Air Force
HQ, Special Forces HQ, and the
relevant division commanders – all are
given on-the-ground legal advice with
respect to each and every operation
and/or attack.
Hamas, on the contrary, is
intentionally targeting civilians. So
there is an asymmetry: Israel is making
every effort to comply with every
aspect of international law, while
Hamas is making every effort to violate
every rule of international law –
intentionally, willfully and wantonly.
The recent Hamas conflict and
the ICC investigation in
“Palestine”
After every incident in which there is
alleged wrong-doing, the IDF – just
like other modern armies – launches
an after-the-fact investigation. In most
cases these are “operational”
investigations, in which commanders
investigate whether something went
wrong, and if so why. In extreme cases,
where there is a risk that international
Israel is making every effort to comply with every aspect of international
law, while Hamas is making every effort to violate every rule of international
law – intentionally, willfully and wantonly.
I s I s r a e l ’ s f i g h t a g a i n s t H a m a s j u s t i f i e d u n d e r i n t e r n a t i o n a l l a w ?
7
law has been violated, the investigation
will be transferred to the legal
authority for a legal investigation. For
example, if there is an allegation that a
soldier fired intentionally at a civilian,
a criminal investigation will be
launched.
This is important with respect to the
ICC because the ICC is based on the
principle of complementarity –
meaning that the primary source of
jurisdiction is still supposed to be the
relevant national criminal justice
system. Because the IDF does
investigate allegations of wrong-doing,
a very powerful argument can be made
– if and when it becomes relevant –
that the Court does not have
jurisdiction over events related to the
IDF because the IDF has a very robust
internal investigation mechanism.
However, to be fair, this is for the
future, because I assume that
argument will be raised only if and
when the Prosecutor decides to pursue
specific cases; and, secondly, it has
been made public that the Prosecutor
sent a letter to the Israeli government
with respect to her intention to launch
an investigation, and the Israeli
government did not avail itself of the
opportunity to claim complementarity
at that stage because it did not wish to
be seen as collaborating with what it
sees as an unlawful and unjustified
legal process.
Israel, Hamas and the media
One of the mistakes often made by the
media is that they assess everything on
the basis of publicly-available
information. Take the famous IDF
strike on the tower in Gaza where AP
and other international media were
stationed. I was asked after that strike
by international media why the IDF
attacked this building when journalists
were stationed there. I said I talked
with the IDF, and the IDF had
perfectly credible and multiple-source
verified evidence that that that
building was being used for highly-
sensitive purposes by Hamas. It was
later published by IDF itself that
Hamas was using this building to
develop an electronic capability to
prevent Israel from shooting down its
rockets so that it could kill more men,
women and children. The IDF gave a
12-hour advance notice to everyone in
the building – including Hamas – to
leave the building. I can tell you that in
warfare, giving 12-hours warning is not
recommended practice, nor is it legally
required. Israel does so because it is
not only fighting on the battle-field, it
is also fighting a battle of perception.
Israel sacrifices a lot of its military
capability in order to be able to show
everyone what it is doing, but
unfortunately that does not stop
people making determinations based
on limited information in accordance
with personal or political bias.
I s I s r a e l ’ s f i g h t a g a i n s t H a m a s j u s t i f i e d u n d e r i n t e r n a t i o n a l l a w ?
8
IMPLICATION S OF THE ICC “SITU ATION IN P ALESTINE” FOR PROSECU TION O F ISR AELI LEADER S FOR WAR CR IMES AND CRIMES AGAINST HUM ANITY – DR. DOV J ACO BS
The ICC, legitimacy and
illegitimacy
There is a legitimacy battle going on
and it is really fundamental to
understand how that plays out in the
ICC. Beyond being a legal process, at
the ICC there is also a question of
narrative. And because it is a court of
law, the ICC produces both legitimacy
and illegitimacy. This is inherent in
any international judicial process, and
we must bear this in mind when
considering the relationship between
the various parties and actors within
the Court. This is not specific to Israel;
the ICC produces legitimacy and
illegitimacy in every case it touches
upon. This is not a question of bias;
even a perfectly objective process
produces both legitimacy and
illegitimacy – a well-constructed
narrative that can be used by people
outside the Court. It is inherent in the
system.
One difference which applies in
relation to Israel, is that the allegations
that are made concerning Israel – and
this includes in relation to settlements
– are an existential threat to Israel.
There are very few situations in which
the allegations can constitute the base
of an existential threat to the existence
of a state – by putting in doubt its right
to live in a specific territory.
Does this mean the ICC should be
ignored? I don’t think so. I’ve always
believed you should not ignore the ICC.
To do so is a lose-lose situation, it
involves abandoning the battlefield.
The fact is that the ICC will produce
illegitimacy against Israel if no-one
goes there, and that illegitimacy will in
turn be used by outside actors to
further delegitimize Israel. There is
more to gain by intelligently and
strategically interacting with the court,
rather than abandoning the battlefield
to those who want to use the Court
against Israel.
I would like to make three general
points about ICC and Israel.
ICC’s jurisdiction in “Palestine” –
this issue is not over
The Pre-Trial Chamber (PTC) in its
ruling on 5th February 2021 decided
the Prosecutor can exercise jurisdiction
A criminal trial is not a human rights report. There is a huge disconnect
between the public discourse about international criminal law, and the
reality about what an international criminal trial requires.
I s I s r a e l ’ s f i g h t a g a i n s t H a m a s j u s t i f i e d u n d e r i n t e r n a t i o n a l l a w ?
9
on the territory of Palestine, which it
recognized as being East Jerusalem,
West Bank and Gaza. This decision
has a weak legal basis (e.g. over-
reliance on non-binding UN
resolutions, inconsistent use of
principles of law, ignorance of Oslo,
etc). Nevertheless, the fact is that the
Prosecutor has opened an
investigation, based on that decision,
and there is no doubt the recent events
fall within the scope of that
investigation. But the fact of the ruling
does not mean the issue of jurisdiction
is over; the PTC stated explicitly that
the decision was limited. It is
important to keep putting this issue of
jurisdiction back on the table at every
opportunity. Various actors can
influence this, as they had an impact
on the PTC’s decision, which is weak
also because so many amicus curiae
intervened: they pushed the Court to
make mistakes on some aspects and to
be careful on others.
The difficulty of proving
international crimes
It should be stressed that a criminal
trial is not a human rights report.
Human rights reports don’t provide
the same quality of evidence, because
they are based on publicly available
information, which is usually limited to
issues like how many people died (and
even that is often in doubt) and
following a low standard. However, it
is very difficult to prove an
international crime. There are many
legal and factual issues that need to be
proved. So there really is a disconnect
between the public discourse about
international criminal law, and the
reality about what an international
criminal trial requires.
Immunities
A remark about the issue of
immunities. The Court issued a
judgment in the ‘Bashir case’
concerning immunities. If the
Prosecutor were to move forward with
arrest warrants, we would need to
revisit this issue. I believe there are
strong arguments to support the view
that Israeli officials could benefit from
immunities when they are under ICC
investigation.
It is important to keep putting this issue of jurisdiction back on the table at
every opportunity. Various actors can influence this. This is shown by the fact
that the PTC’s decision is weak because so many amicus curiae intervened;
they pushed the Court to make mistakes.
I s I s r a e l ’ s f i g h t a g a i n s t H a m a s j u s t i f i e d u n d e r i n t e r n a t i o n a l l a w ?
10
ABOU T THE AU THOR S
Andrew Tucker is Director of Programs at The Hague
Initiative for International Cooperation (thinc.). He studied law
in Australia (BA/LLB) and the UK (BCL Oxford). He has worked
since 1988 as an adviser and consultant to private companies,
governments and (semi-)public entities in various fields of
international law. Andrew was a Fellow of the Law Faculty of the
University of Melbourne from 1994 to 2001, and Research
Associate at the TMC Asser Institute in The Hague from 1996-
1998. Andrew is co-author of the book Israel on Trial (2018).
Prof. Laurie R. Blank is clinical professor of law and the
director of the International Humanitarian Law Clinic at Emory
University School of Law, Atlanta, USA. She teaches the law of
armed conflict and provides assistance to international
tribunals, non-governmental organizations and militaries
around the world on cutting edge issues in humanitarian law and
human rights. Blank is the co-author of International Law and
Armed Conflict: Fundamental Principles and Contemporary
Challenges in the Law of War, a casebook on the law of war.
Col. (Res.) Daniel Reisner started out his career in the mid
80’s with around 20 years of military service, specializing in
international law and national security. From 1995 - 2004 he
served as the head of the IDF’s International Law Department.
In this capacity, Reisner was the senior lawyer responsible for
advising the Israeli leadership on a wide variety of issues,
including international law, the middle-east peace process,
Israeli-Palestinian relations and counter-terrorism operations.
I s I s r a e l ’ s f i g h t a g a i n s t H a m a s j u s t i f i e d u n d e r i n t e r n a t i o n a l l a w ?
11
Dr. Dov Jacobs is an International Law and International
Criminal Law expert, and Defense Counsel at the ICC and
MICT. He is currently on the Defense teams of Laurent Gbagbo
and Mahamat Said at the ICC and on the case of Félicien
Kabuga at the MICT. He has also been involved as an Amicus
Curiae in both the Afghanistan and Palestine situations at the
ICC. He teaches law at Leiden University in the Netherlands.
ABOU T THE ORGANISATION S
The European Leadership Network (ELNET)
brings together leaders who believe in the importance
of close relations between Europe and Israel, based on
shared democratic values and common interests.
ELNET provides unique opportunities for mutual
dialogue and encourages exchanges among policymakers from different political
backgrounds. ELNET facilitates in-depth policy discussions on key strategic issues and
hosts high-level delegations to experience the realities on the ground.
The Hague Initiative for International
Cooperation (thinc.) is is a non-profit research
organization, a think tank, based in The Hague, the
Netherlands. thinc. comprises a global network of
experienced legal practitioners and academics in
the field of international law. thinc. -
• Monitors the way International Law is used and abused in international institutions
and tribunals,
• Combats anti-Semitism and bias against Israel in International Law,
• Promotes the unbiased and fair development of International Law to achieve UN
Charter values of justice, cooperation and friendly relations between nations.