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Israel vs. Hamas: between legitimate state self-defense and proportionality

October 17, 2023

Published in

The Conversation

Gabriela Fajardo

Doctoral candidate of International Office of the School of Law

The State of Israel is under attack by the terrorist group Hamas, the de facto authority in the Gaza Strip since it took control of the territory by force in 2007. From the conflict zone have come images of civilians being taken hostage, families tortured and massacred, and the international community's condemnation of the most heinous crimes committed against Israelis.

In response, Israel has mobilized more than 300,000 reservists, has been accused of resorting to white phosphorous weapons and has seen the support of its staunch ally - the United States - which has mobilized a second aircraft carrier to the Mediterranean and has assured that Israel will have everything it needs to defend itself.

Israel declared an all-out offensive. The response, which should have military objectives, has also taken the form of cutting off water, food and electricity supplies. The Israeli army has attacked civilian infrastructure, causing the death of thousands of Palestinians and the collapse of the health system in Gaza.

Following the military escalation of Operation Iron Swords, Israel warned the population of Gaza that it had 24 hours to leave the north of the strip, while the international community observed the advance of the offensive and continues to fear the opening of another front at the hands of Hezbollah from the border with Lebanon. So far, more than half of the population of northern Gaza has left their homes for fear of the bombing.

An asymmetric war

In the face of these events, what should the international community demand of Israel, which, as a sovereign state, has resorted to an unprecedented response to ensure the survival of the state in line with its primary responsibility to protect its population? How should a state respond when the aggressor does not respect the most basic human rights and attacks the civilian population in a widespread and systematic manner?

Once again we are faced with a reality that is little addressed by international law: asymmetrical conflicts, where the actors are not only States and the aggressor, as in this case, does not have international recognition. This implies that it does not adhere to the basic rules of international humanitarian law and human rights in status of conflict.

Beyond the legitimate defense of a State that is due to it, considering that its sovereignty derives indisputably - among other factors - from its capacity to protect its population, its defensive actions must also be guided by proportionality and respect for the international humanitarian law that binds it. But what is the limit when the aggressor does not adhere to these limits and does not intend to adhere to them either?

We find a gray area between, on the one hand, the insurmountable limits owed to States, which oblige them to respect international humanitarian law, and, on the other hand, an aggressor whose actions will not be limited by the spectrum of non-coercive measures developed in recent years to put an end to barbarism. When heinous crimes are committed by terrorist groups, the aggressor's behavior is unpredictable and involves violations that go against human dignity.

The danger of equating Hamas with the entire population of Gaza

However, a response that equates Hamas with the population of Gaza must be questioned by the international community. The total blockade of a population and the alleged use of prohibited weapons by a state is contrary to international humanitarian law. It must be made clear that attacking civilians and their infrastructure, limiting basic services, as well as causing starvation, can constitute crimes against humanity. A State's responses must be limited to measures that affect the civilian population as little as possible.

Israel's offensive should target goal those responsible for committing heinous crimes and not civilians. It is imperative that humanitarian corridors be established to allow the civilian population to leave the Gaza Strip.