Eliminating Hamas is a legitimate Israeli war aim backed by international law
Israel’s critics find themselves particularly vocal after the largest slaughter of Jews since the Holocaust. Their transformation into International Law Experts was earlier than usual this time, calling for a ceasefire at just about the moment that Israel uncovered the rape and slaughter of teenagers at a Peace Festival (along with the abduction of toddlers and the elderly) and began to act to prevent this from happening again.
A sovereign state has a right to self-defence as a matter of international law. In circumstances where Hamas has performed, and continues to pursue, a campaign of genocidal intent, it is unquestionable that it is a legitimate war aim of Israel to eliminate them. Hostilities did not cease when the terrorist incursion ended with the last perpetrator on Israeli soil captured or killed. Hamas continues to fire hundreds of rockets into Israel daily.
Hamas’s continuing aim and objective is the elimination of Israel and Jews. It is not just on October 7 when Hamas decided this. It is a terrorist organisation whose own Covenant commits it to the genocide of Jews and the obliteration of Israel. How many of Israel’s critics have actually read it? The text is explicit. Even the Met Police, with their most benevolent interpretations of chants on the streets of London, would struggle to find an alternative intent.
Israel accordingly has every right to consider that meaningful self-defence comprises the destruction of Hamas. But the next armchair lawyers’ objection is always proportionality. The difficulty is that this is a concept often invoked by people who do not understand it. Proportionality neither means acting leniently; or taking actions which are equivalent to the actions which they are taken against. Any notion that Israel should do back to Hamas what Hamas has done to Israelis is plainly not something any democracy could countenance. What it means is that a state can use force that fits its defensive objectives. Force that is strictly proportionate to its ends is force specifically to prevent further attacks from Hamas, whilst minimising any other harms not commensurate with this objective.
That is why we see Israel messaging the civilian population of Gaza telling them to flee south. That is why Israel use precision drones to target terrorists. Whereas Hamas aims to maximise the death of innocents (like Islamic State), the IDF, for all its superior capabilities, seeks to minimise civilian casualties. That is not to say the IDF does not kill innocents. Of course it does. But there is no moral or legal equivalence between deaths of civilians as part of lawful and proportionate operations to prevent genocide and the acts of those who seek to inflict it.
If there was an alternative means of neutralising Hamas, like negotiating a peace treaty, you might say that Israel should meet its objectives in a different way. But anyone who looks at recent events and considers that is viable is not arguing in good faith. Even a pause would be taken by Hamas as a chance to reload and refire. The rockets do not stop coming even now.
Perhaps the ultimate failure of Israel’s critics is one of imagination. They simply cannot comprehend that what Israel really faces is an Islamic State-like organisation which will exploit any chink in its armour, or border, to act with monstrous barbarity, including the use of chemical weapons as recent evidence has indicated. This is an existential threat. Faced with that reality, it is hard to deny the additional affirmative obligation on Israel (and other signatories) to act to prevent genocide under the UN Convention on the Prevention and Punishment of Genocide. It was signed when people said “Never Again” and they meant it.
It should appal all people when any innocent person dies, Israeli or Palestinian. Blame for that must be rightfully apportioned to those inflicting terror rather than those seeking to prevent it. International Law recognises the moral imperative of self-defence. Until its critics can suggest another way, Israel can neutralise its genocidally-inclined enemy, they should probably think twice before making ill-informed statements about the law.
Jeremy Brier KC is a member of Essex Court Chambers
