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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 ?

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Is Israel’s Fight against Hamas justified under International Law?

WEBINAR REPORT | 9 June 2021

Andrew Tucker, Pieter Hoogendoorn


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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.

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Cover photo: Anas Baba/AFP


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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,


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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.


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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


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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.


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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.


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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.


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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.


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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.


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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.


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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.


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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.

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