FRESH AIR

IN THE MEDIA

Distorting international law gives terrorist groups like Hamas impunity

October 25, 2023 | Jamie Hyams

(source: IDF)
(source: IDF)

The Mercury – 25 October 2023

As sure as night follows day, terrorism against Israel will be followed by claims Israelis brought it upon themselves by allegedly oppressing the Palestinians, and then Israel’s response to any particularly serious attack will be labelled a breach of international law, and war crimes. Greg Barns’ last two columns are prime examples.

The logical conclusion of such war crimes allegations is that no country attacked by an enemy that embeds itself within a civilian population can respond with effective military action. This would simply give terrorist groups like Hamas impunity, which surely cannot be international law’s intention.

Israel has a duty to defend its people, which, following the horror Hamas unleashed, means stopping the rockets, preventing further incursions, rescuing the hostages, and uprooting Hamas to ensure it can never repeat an attack like October 7.

Much criticism of Israel’s various campaigns against Hamas results from a misunderstanding of international law regarding proportionality. This law doesn’t limit Israel to using the level of force used against it, or causing the number of casualties it incurs. And while Israel takes great measures to avoid civilian casualties, such as warnings to evacuate before bombing, often impeding its military objectives, it also doesn’t automatically make civilian casualties a war crime.

Proportionality basically entitles combatants to use the level of force necessary to achieve a legitimate military objective, but prohibits excessive force. For example, if Hamas is using a house to launch rockets, or an apartment complex to house command posts, Israel may destroy that house or those apartments, but not level the entire block. And if, tragically, civilians are killed, Israel has committed no crime unless it exceeded the necessary force.

Hamas, cynically, embeds its military infrastructure deep within its civilian population, a war crime known as perfidy. Under international law, it therefore bears the blame for resultant civilian casualties. It hides weapons and fighters in homes, apartments, mosques, schools and even hospitals. Its military headquarters is actually in tunnels under Gaza’s main hospital.

Under Hamas’ evil calculus, either the civilian presence protects it, or Israel accidentally kills civilians, damaging Israel’s reputation, so Hamas wins either way.  When Israel urged Gaza City’s civilians to flee a few kilometres south for their safety, their Hamas government not only ordered they remain, but actively blocked the roads!

Israel’s siege and restriction of food, water and fuel has also been called a war crime, but nothing in international law requires a country at war to actively assist its enemy, and Gaza does also border Egypt. However, Israel has restored water to the south and is allowing the entry of humanitarian assistance.

As for Israeli “oppression” causing the violence, history shows otherwise. Hamas aspires not to a Palestinian state alongside Israel, but to destroy the Jewish state, and kill or drive out all its Jews. Its rhetoric, behaviour and founding charter make this clear. In the mid-1990s, when Israel and the Palestinians were taking their first steps toward a two-state peace under the Oslo Accords, Hamas tried to scuttle the process by blowing up Israeli buses. After Israel twice offered a Palestinian state, in 2000 and early 2001, Hamas took the lead in the terrorist Intifada, suicide bombing restaurants and nightclubs.

Israel totally withdrew from Gaza in 2005, hoping a peaceful Palestinian entity flourishing alongside it could lead to further withdrawals in the West Bank. However, Hamas took over in 2007, turning Gaza into a terror enclave. Israel only then imposed its blockade, something the UN’s Palmer Commission determined was legal in 2011.

The blockade is often blamed for causing the Palestinian frustration leading to violence, but only kept out goods with military uses. Prior to October 7, Israel supplied Gaza with electricity, while many truckloads of food, water, fuel and other consumer goods entered every day. Israel was also allowing Gaza residents into Israel daily – 17,000 to work, to help Gaza’s economy, and others to receive medical care.

Gaza’s poor living standards are also blamed, but Hamas uses the billions of dollars of international aid on its military instead of its people, uses imported concrete for its vast tunnel infrastructure instead of houses, and even digs up water pipes to use in rockets.

Palestinian terrorism is also attributed to the failure to achieve a two-state peace, and Israeli restrictions on the West Bank. However, the two-state peace has been prevented by Palestinian leaders rejecting every offer of statehood or other serious attempt to negotiate, while the restrictions were only imposed to prevent the terrorism now being wrongly attributed to those restrictions.

The October 7 Hamas atrocities caused the largest loss of Jewish life on any single day since the Holocaust, and were characterised by a barbarity not seen since ISIS. And just as was the case with ISIS, peace will only have a chance when Hamas is no longer in a position to thwart it.

 

Jamie Hyams is a senior policy analyst at the Australia/Israel & Jewish Affairs Council

RELATED ARTICLES

(image: Shutterstock/Svet Foto)

Houthi deal is a dangerous blow to US credibility and deterrence

May 14, 2025 | Featured, Fresh AIR

In conversation with Dr Einat Wilf

May 8, 2025 | Fresh AIR
(image: Shutterstock/Svet Foto)

Military strikes alone won’t stop the Houthis without direct pressure on Iran

Mar 20, 2025 | Featured, Fresh AIR
(Image: Shutterstock)

Israel didn’t target the IVF clinic

Mar 14, 2025 | Fresh AIR
Image: X

Pay-for-Slay is likely still Pay-for-Slay

Mar 7, 2025 | Fresh AIR
Image: X

The missing pieces of the Thai hostages story

Feb 21, 2025 | Fresh AIR
D11a774c 2a47 C987 F4ce 2d642e6d9c8d

Bibi in DC, the Houthi threat and the politicised ICJ opinion

Jul 26, 2024 | Update
Image: Shutterstock

Nine months after Oct. 7: Where Israel stands now

Jul 10, 2024 | Update
Palestinian Red Crescent workers from Al-Najjar Hospital in the city of Rafah, south of the Gaza Strip (Image: Shutterstock)

Hamas’ impossible casualty figures

Mar 28, 2024 | Update
455daec3 C2a8 8752 C215 B7bd062c6bbc

After the Israel-Hamas ceasefire for hostages deal

Nov 29, 2023 | Update
Screenshot of Hamas bodycam footage as terrorists approach an Israeli vehicle during the terror organisation's October 7, 2023 attack in southern Israel, released by the IDF and GPO (Screenshot)

Horror on Video / International Law and the Hamas War

Oct 31, 2023 | Update
Sderot, Israel. 7th Oct, 2023. Bodies of dead Israelis lie on the ground following the attacks of Hamas (Image: Ilia Yefimovich/dpa/Alamy Live News)

Israel’s Sept. 11, only worse

Oct 11, 2023 | Update
Screenshot 2025 05 30 At 11.22.09 AM

Albanese urged to visit Israel instead of ‘throwing mud’ over Gaza war: Joel Burnie on Sky News

May 30, 2025 | Featured, Video
Screenshot 2025 05 09 At 12.06.51 PM

The Australian elections and the Middle East: Joel Burnie on the Middle East Forum podcast

May 9, 2025 | Video
Screenshot 2025 05 07 At 9.28.49 AM

Greens ran a ‘toxic and divisive’ election campaign for Jewish voters: Joel Burnie on Sky News

May 7, 2025 | Featured, Video
Screenshot 2025 04 09 At 12.12.01 PM

Hamas sees live Israeli hostages as their “ultimate insurance policy”: Ehud Yaari on Sky News

Apr 9, 2025 | Featured, Video
Screenshot 2025 04 05 At 8.28.58 AM

Ehud Yaari in conversation with Joel Burnie

Apr 5, 2025 | Featured, Video
Screenshot 2025 03 28 At 11.35.48 AM

The day after the end of the Gaza war – and the new opportunities it presents: Ehud Yaari at the Sydney Institute

Mar 28, 2025 | Video

RECENT POSTS

Screenshot 2025 05 30 At 11.22.09 AM

Albanese urged to visit Israel instead of ‘throwing mud’ over Gaza war: Joel Burnie on Sky News

Hamas' October 7 attack produced scenes that Israelis can never forget (Image: Hamas bodycam)

The hypocrisy of international outrage

“Palestine” may have a flag, but it does not currently meet the criteria for statehood. Prematurely recognising it will not bring the day it does closer (Image: Shutterstock)

Nine reasons premature recognition would be bad for Palestine

The raw anti-Israel hate on Western streets is a symptom of a deeper social malaise, writes Murray (Image: Shutterstock)

Biblio File: Israel and the pathologies of the West

A wounded Palestinian arrives at Al-Najjar Hospital in the Gaza Strip (Image: Anas Mohammed/ Shutterstock)

Scribblings: Interpreting Hamas’ casualty numbers

SORT BY TOPICS