Shuma Talukdar

Shuma Talukdar is a corporate lawyer and corporate governance professional based in Kolkata, India. Her latest publication is a co-edited volume, Judicial Responses to Climate Change in the Global South: A Jurisdictional and Thematic Review (Berlin: Springer, 2023). More about her can be read by clicking here.

The notions of ‘self-defence’ and ‘retaliation’ within the realm of international law present intricate ideas, but their principles are well-established. International law unequivocally acknowledges the right to ‘self-defence’ as an inherent entitlement of sovereign states. According to Article 51 of the United Nations Charter, member states have the authority to employ force in ‘self-defence’ when faced with an armed attack. This entitlement has been confirmed by the International Court of Justice (ICJ) in the context of the Nicaragua Case, which pertained to the utilization of force.

Under International law, ‘retaliation’ is typically seen as a reaction to an assault or transgression committed by another nation. The interpretations of international law propose that a state may employ force in ‘self-defence’ when dealing with non-state entities if the country hosting these entities is incapable or unwilling to control them.

Is Israel legally justified under international law in the current situation? Absolutely, yes. Israel’s actions in its conflict with Hamas are in accordance with several principles of international law. Israel’s acts are ‘self-defence’, as stipulated in Article 51 of the United Nations Charter, in response to attacks by non-state actors, Hamas.

Hamas as a Synonym for Palestinians:

In these circumstances, it is surprising that Hamas is often used synonymously with Palestine. In some contexts, this is due to the fact that it is a significant political and military organization within the Palestinian territories. Hamas, which stands for “Islamic Resistance Movement”, was established in 1987 during an uprising against Israel’s occupation of Gaza and the West Bank. It later seized power in Gaza in 2007. From its inception, Hamas has chosen terrorism, which they and their apologists call ‘armed resistance’, in their efforts to allegedly liberate Palestine from Israeli occupation. In actuality, their actions aim to annihilate the State of Israel. It is designated as a terrorist organization by several countries, including the United States, Israel and the European Union, among others. This designation is based on its activities, which have included acts of violence and terrorism.

However, it is important to note that while Hamas is a major force within the Palestinian territories, it does not represent all Palestinians. There are other political groups and many diverse views within the Palestinian population. The use of “Hamas” as a synonym for “Palestine” can oversimplify the complex political landscape of the region.

Supporting Hamas is Illegal:

Supporting Hamas is considered illegal under certain national laws. For example, in the United Kingdom, Hamas has been proscribed as a terrorist organization under the Terrorism Act. Supporting or expressing support for Hamas, displaying their flag, or arranging meetings for the organization is considered illegal under United Kingdom law. The atrocities committed by Hamas against Israel have been considered violations of International Humanitarian Law.

Reason for Inability International Criminal Court (ICC) to Prosecute Hamas:

The ICC theoretically holds the authority to prosecute individuals for war crimes, crimes against humanity and genocide. However, Israel is not a party to the ICC, and it does not accept the court’s jurisdiction over its nationals. This presents challenges when it comes to prosecuting individuals affiliated with Hamas in the ICC.

Final Remarks:

Using Hamas as a synonym for Palestinians indirectly extends support for the actions of Hamas. It is important to note that the situation in the Middle East is complex, and there are various perspectives. This is not to suggest that it is wrong for Muslims in the rest of the world to extend emotional and moral support to the Palestinians, but it should always be accompanied with condemnation of Hamas and its terrorism. Unfortunately, some Muslims fail to realize that their support for the people of Gaza is projected by Hamas as global Muslim support for their cause when these expressions of support are not accompanied by condemnation of Hamas and their terrorism. It is even more perplexing that the so-called left-liberals who advocate for the cause of the people of Gaza, do not comprehend that the Gazan people are suffering due to the actions of Hamas, not Israel.

Any display of support for Hamas attacks on Israeli civilians while criticizing Israel’s retaliation evidently shows lack of moral rectitude. Hamas deliberately targeted civilians and caused extensive injury, including killing of children and rape of women. On the other hand, the civilian loss that resulted from the retaliation of Israel is not deliberate but ‘collateral damage’. It is a recognized outcome of armed conflicts, and the law of armed conflict (LOAC) allows soldiers to conduct operations targeting military objectives while acknowledging that civilians may lose their lives. Evidently, Hamas is solely and directly responsible for the loss of Palestinian lives, which in spite of being fully aware of the repercussions of its attack on 7 October 2023, went ahead with it, driven by its desire to derail the prospects of peace under the auspices of Abraham Accords. Hamas’ attack on Israeli civilians is a clear violation of International Humanitarian Law and should be condemned by all ungrudgingly and unreservedly without any caveats and preconditions.

Supporting wrongdoing only serves to perpetuate it. Rather than denouncing Hamas’ attack on Israel, some Muslims appear to endorse it. Through justifying the terrorism of Hamas, these Muslims fuel prejudice against the wider Muslim community. Endorsing religious brotherhood, regardless of morality, exacerbates religious tensions and disputes, eroding the values of equality, tolerance and social cohesion that are crucial for promoting peace and justice in diverse societies and the world as a whole.