Hamas’ Lawfare: The Plot of Accusing Israel in Genocide

Barak Medina

The Landecker-Ferencz chair in the study of Protection of Minorities and Vulnerable Groups, Faculty of Law, the Hebrew University of Jerusalem

 barak.medina@mail.huji.ac.il

Introduction

Two aspects of the war in Gaza, which started on October 7, 2023, are undisputed: First, the consequences are horrific. Thousands of Palestinians and Israelis have been killed, and many suffer severe injuries. Extensive parts of the civilian infrastructure in the Gaza Strip, including hospitals, schools, and dwellings, have been destroyed. Second, none of this immense loss would have occurred had Hamas not launched its deadly attack against Israel on October 7. The attack included, among other things, the brutal murder of more than 1,200 Israelis, while committing ISIS-like atrocities, and kidnaping 250 people, including infants, children and elderly people. It was an attack aimed at achieving the stated goal of Hamas, namely eliminating the State of Israel. So far for the undisputed facts.

Israel is accused by some of committing genocide. The claim is that it deliberately killed civilians, and that it has done so with the intent to destroy the Palestinian people in the Gaza Strip. Contrary to some suggestions, in its preliminary Order in the case of South Africa v. Israel, the International Court of Justice (ICJ) did not make a ruling on whether the claim of genocide is plausible. As explained by Schöndorf, the meaning of the Court’s finding on plausibility is that “the Court found that South Africa invoked rights that are explicitly stipulated in the Genocide Convention, and that it presented factual arguments that purported to at least partially correspond with those rights.” The Court did not assess or opine on the strength of South Africa’s factual assertions. Following some media publications misrepresenting the Court’s decision, the President of the Court at the time, Joan Donoghue, explained in an unusual interview that “contrary to some reporting, the court did not make a ruling on whether the claim of genocide was plausible […].” It seems, however, that this clarification had only minor effect, and the claim that Israel has committed genocide continues to gain considerable support.

The main argument of this short article is that accusations of genocide or of Israel deliberately killing civilians are baseless. The discussion offers three main arguments: 1. Israel’s war was launched for a just cause, and there are strong indications, including the war-tactics of Hamas, that the harm to civilians and civilian infrastructure is not deliberate. 2. The accusation of Israel committing genocide is intentionally misleading, aimed at bringing about unjustifiable formal and informal sanctions against Israel. 3. Israel should be scrutinized for some of its war tactics, which may have resulted, in some instances, in imposing unintentional but foreseeable harm on civilians that was not justified. Israel should also be criticized for its insufficient efforts to reach a peace agreement that would end the occupation of the West Bank. However, it is morally wrong and politically counter-productive to address these two aspects in the simplistic, biased approach presented through the genocide discourse. Identifying the just ways of acting in both aspects—the legitimate war-tactics against Hamas and the path to end the occupation—requires a nuanced, fact-based, and thoughtful analysis. The international community has a critical role in pushing both the Israelis and the Palestinians in the right direction. An uninformed and often prejudiced approach only perpetuates the state of war.

Before presenting these three arguments, a brief reminder of the recent history of the Gaza Strip is in order. In 2005, Israel unilaterally uprooted all its settlements in the Gaza Strip and ended its control of this 360 square-kilometer (140 square-miles) area, which is supposed to be part of the future Palestinian State, along with the much larger, 5,800 square-kilometer (3,600 square-miles) area known as the West Bank. Israel’s disengagement resulted in granting Egypt exclusive control over the southern border of the Gaza Strip, beyond the reach of Israel. Israel handed the powers in the Gaza Strip to the Palestinian Authority, led by the PLO, the representative of the Palestinian People (and the entity which rules parts of the West Bank, according to the 1993 Oslo Accords). However, in 2007, after it won the popular vote, Hamas quickly took control of the Gaza Strip, brutally murdering hundreds of PLO officials and supporters. Since then, Hamas and other terrorist organizations have launched constant attacks against Israel, at the rate of about 100 rockets per month, imposing life-threatening risk to the almost 100,000 people who live in Israel’s Western Negev. Israel responded with limited military campaigns over the years. It also imposed, since 2007, a blockade on three of the four borders of the area that it controls, as a mild reaction to Hamas’s terror activities, while enabling thousands of Palestinians to enter Israel for work. This measure, which was exclusively designed to prevent Hamas from obtaining weapons while enabling supplies to the civilian population, was proved completely futile. As was tragically revealed on October 7, 2023, the border between the Gaza Strip and Egypt was effectively breached, enabling Hamas to obtain a huge number of weapons and build a large-scale network of about 500 km (310 miles) of concrete-made warfare tunnels. Hamas made the entire Gaza Strip a fortress, and trained its army of 50,000 strong militants to attack Israel, a plan that was eventually carried out on October 7. Moreover, the organization’s constant terror attacks against Israel, its denial of Israel’s right to exist, and its successful military campaign against the Palestinian Authority in the Gaza Strip, are among the central reasons for the collapse of the peace process.

1. Israel did not Commit Genocide

The consequences of Israel’s military operation that began in response to the October 7 attack are undoubtedly horrific. In addition to killing thousands of Palestinian militants, Israel also killed civilians and destroyed a substantial part of the civilian infrastructure in the Gaza Strip. These tragic consequences, however, are insufficient to substantiate the claim that Israel intentionally targeted civilians and civilian infrastructure, let alone did so with the intent to destroy the Palestinian people in the Gaza Strip.

In principle, two mutually exclusive alternatives are possible: either Israel targeted only militants (terrorists), with harm to civilians being collateral due to Hamas’s war tactics; or Israel intentionally harmed civilians. The extensive available data indisputably supports the former alternative and refutes the latter. Note that the conclusion that Israel did not commit genocide does not exclude the possibility that it presented indifference or otherwise an insufficient care regarding civilian lives while targeting combatants, an issue that will be addressed below. But indifference is morally (and legally) qualitatively different from intention to destroy the Palestinian People, by killing civilians or deliberately inflicting on them conditions of life calculated to bring about their physical destruction, which is an essential component of the accusation in genocide.

Israel’s military campaign was launched for a just cause. Hamas did not only launch a devastating attack, but also stated its plan of launching “a second, a third, a fourth” October 7 attack, and has held 250 Israeli hostages. Thus, the Israeli response cannot be considered as a mere retaliation or revenge. The Israeli government was obliged to take action to prevent Hamas and other Palestinian terror organizations from realizing their evil intentions and to release the Israeli hostages. Based on nearly 20 years of experience with Hamas’s rule over the Gaza Strip, the only way to substantially lower the imminent risk posed by this group and advance the release of the hostages was an extensive military operation. Sadly, the defensive-based alternatives that Israel has employed over the years (mainly, the construction of an advanced barrier and the development of air defense systems to intercept rockets) have all proved to be ineffective.

There is ample evidence which suggests that Israel has refrained from intentionally killing civilians, and none that directly sustains the genocide claim. The IDF’s rules of engagement strictly prohibit targeting civilians and impose various restrictions to minimize the risk to civilians’ lives when aiming at military targets. While these rules are sometimes criticized for being too loose in defining circumstances for the use of lethal force against individuals posing a risk, they do not permit, let alone require, targeting civilians who do not pose a threat. The IDF has reportedly conducted investigations against dozens of soldiers suspected of violating these rules. There is no indication—neither an order from any commander, senior or junior, nor a policy set by the government—of an order to intentionally target civilians. About 300,000 IDF soldiers participated in the war, many of them reservists, and not even one of them reported such an order or a general policy. Moreover, during the war, the IDF’s Chief of Staff published from time to time guidelines to the soldiers, emphasizing that “[t]he IDF fights professionally while operating according to its values and according to the principles of international law.” The publication of such statements is important in communicating the IDF’s principled policy. The IDF’s internal rules prohibit targeting militants if an attack is likely to kill civilians above a certain threshold, a policy that may be criticized for the thresholds set, an issue that will be further discussed below, but is inconsistent with intentions of committing genocide. Additionally, calls for civilian relocation to safe areas and the provision of humanitarian aid, further indicate a lack of intent to kill civilians.

The accusation of genocide is based exclusively on statements made by several Israeli politicians. Most of these statements were made by office-holders who have no control over setting Israel’s policies. More importantly, these terrible statements, which were rare, were not translated into official or unofficial orders within the ranks of the IDF or government policy.

The damage to civilian infrastructure is of a huge scale. However, it is explained, in great part, by the war-tactics employed by Hamas. Hamas extensively and intentionally uses civilian infrastructure—including hospitals, schools, and residential buildings—for military purposes, storing weapons, launching rockets, and holding Israeli hostages in these facilities. Hamas constructed pits in civilian infrastructure leading to a vast network of tunnels used exclusively for military purposes. The military infrastructure is embedded entirely within a civilian one. This unlawful war tactic denies the relevant civilian infrastructures their immunity. Indeed, the fact that Hamas uses regularly civilian infrastructure for military use does not rule out the possibility that Israel has destroyed some of the buildings unjustifiably. But reaching such a conclusion requires further inquiry, which is based on a case-by-case analysis. Without reference to such specific inquiry, and given the practice of Hamas, referring exclusively to the reality on the ground is insufficient to support the accusation of genocide or even that of deliberate destruction of civilian infrastructure.

The same is true with regards to the high number of civilian casualties. The Hamas regularly uses civilians as human shields, deliberately conducting military activities within the civilian population. This practice does not deprive these civilians of their right to protection from harm. They remain absolutely protected from intentional harm. However, Israel is allowed to act against military targets even if it imposes a risk of harm to civilians, as long as this risk is necessary to achieve the military goal and is not excessive. Determining the exact scope of permissible risk requires a detailed case-by-case analysis, and as mentioned, it is plausible to debate whether Israel acted right in this respect. The point here is that the Hamas’ cynical and unlawful use of the Palestinian population as human shields explains why, despite Israel’s lack of intent to kill civilians, so much harm and damage occurred.

The same applies to the accusation that Israel deliberately starved the civilian population in the Gaza Strip. In the first weeks of the war, Israel did not allow sufficient humanitarian aid to enter the area. However, this practice is not an indication of intent to harm the civilian population. First, Israel could not have effectively prevent the entry of supplies, as the southern border of the Gaza Strip is controlled by Egypt. Second, Israel’s policy was based on the finding that Hamas is stealing food and humanitarian aid from the civilian population, and the aim of the blockade was to prevent Hamas from obtaining supplies for its militants. While it may be debated whether this short-term policy was permissible, it does not amount to intentionally starving the population, as the harm to civilians was a byproduct of a military strategy.

To sum up, the only evidence presented to support the accusation of genocide is the scope of damage in the Gaza Strip and several statements by Israeli politicians. This evidence does not substantiate the harsh accusation of committing genocide, the worst of all crimes. The evidence that supports the possibility that the harm has been unintentional and was necessary due to the Hamas’s war tactics, is conclusive. The available information about the IDF’s practices refutes claims of intentional killings of civilians, let alone an intention to destroy the Palestinian People. This conclusion does not rule out the possibility that Israel has committed other war crimes, an issue that is discussed in Section 3 below.

2. The Genocide Accusation is a Lawfare against Israel

The war in Gaza, horrific as it is, is yet another phase of the ongoing conflict between Israel and Palestine. As expected, radicals on both sides exploit the current war situation to advance their distorted ideologies.

Within Israel, right-wing extremists who believe in “Jewish Superiority” and advocate for establishing a Jewish State between the River and the Sea, call for reoccupying the Gaza Strip, and reestablishing Israeli settlements. Some even go as far as calling for the annihilation of the Gaza Strip, suggesting that all Palestinians there are involved, directly or indirectly, in terror activities. This position is both morally unacceptable and politically disastrous for the future of the region. Indeed, there are strong indications of overwhelming support among the Palestinian population for Hamas in general and the October 7 massacre in particular (according to polls conducted by a Palestinian research center, about 70% of Palestinians justify the massacre). However, while expressing support for Hamas and the massacre is appalling, it is not equivalent to actual involvement in terror activities, and cannot justify deliberate killings of civilians just because of their nationality. This is a cynical attempt to distort the facts to promote the agenda of denying Palestinians’ right to an independent state. The conflict will not be resolved by counter-terrorism but through a political compromise that ensures both peoples live in dignity and security.

This practice of falsely blaming the other side for conducting horrific actions as a means to promote one’s immoral agenda is also employed, on a much larger scale, by radicals on the Palestinian side. Those who deny Israel’s right to exist and call for the establishment of a Palestinian State between the River and the Sea exploit the tragedy of the war in Gaza to advance their agenda through lawfare, namely the strategy of misusing law to achieve a political goal. Their main tool in this respect is the dissemination of the accusation that Israel’s military campaign is a genocide against the Palestinian People in the Gaza Strip. While past attempts to advance this plot have failed, this time, given the unprecedented number of casualties, this strategy is gaining momentum.

As early as October 10, three days after Hamas’ horrific attack and long before Israel started its ground operations, Palestinian officials (for instance, the Palestinian envoy to the United Nations) were quick to accuse Israel’s operation of being “nothing less than genocidal.” The claim that Israel has committed genocide has gained a growing number of supporters. Anti-Semites and die-hard anti-Zionists endorse this libelous accusation, which now serves as the main basis of large-scale calls, in some instances already translated into actions, for economic and academic boycotts of anything connected to Israel, marking the IDF and all Israelis as wicked.

The accusation that Israel has committed genocide is not only wrong but intentionally misleading. This lawfare effort consists of two main elements. One aspect is the dissemination of deliberately false data about the number of Palestinians who died in this war. The reports of the Hamas-controlled Gaza Strip Health Ministry have been proven to be statistically impossible; the data was found to make no sense, leading to a consensus among impartial statisticians that the numbers are faked and fraudulent. Moreover, the data deliberately avoids any indication of the number of combatants among the reported total number of casualties. The fact that the Hamas’s reports are not only unreliable but deliberately misleading supports the suggestion that it is disseminated as part of the group’s efforts to wrongly blame Israel for genocide. The second element in Hamas’s lawfare is the denial of the reports about its war tactics. The supporters of genocide accusation insist on ignoring the Hamas’s extensive military use of civilian infrastructure, the practice of using civilians as human shields, and other aspects that are essential in evaluating the activities of the IDF.

This fraudulent and manipulative approach of Hamas and its supporters is not surprising. For an organization that commits terror activities regularly, who killed over the years hundreds of PLO officials and thousands of Israeli civilians, holds civilians as hostages, and uses Palestinian civilians as human shields and denies them basic rights, disseminating lies comes naturally. It would be surprising if it acted differently, given its overall horrible record. The disappointment lies in the position of Palestinians and those in the international community who support just peace and object Hamas, and yet endorse the false accusation of genocide. While adopting the lies of Hamas does not amount to supporting terrorism, the ultimate aim of both practices is identical: bringing about the elimination of the State of Israel.

3. The Genocide Plot Enables Israel to Escape the Necessary Critique of its Policies

Somewhat counter-intuitively, the genocide narrative serves not only those who advocate for the destruction of the State of Israel but also the current Israeli government. While there is no substantial basis for accusing Israel of committing genocide, and Hamas bears primary responsibility for the ongoing tragedy on both sides of the border, it is wrong to conclude that the Israeli government and the IDF should be immune from scrutiny. The international genocide campaign, because it is simplistic and biased, and thus viewed by the overwhelming majority among the Jewish community in Israel as false, enables the Israeli government to avoid addressing the core issues of the current conflict. In what follows, I will focus on two of these issues: Israel’s war tactics, and the strategy for resolving the conflict.

The characteristics of the war in Gaza raise difficult moral dilemmas. At the heart of the issue is a conflict between two basic considerations: On one hand, it is morally justified, in fact morally required, for Israel to defeat Hamas. Israel must act against Hamas to thwart the imminent risk it poses to the lives of millions of Israelis (and others who live in the country), as well as to peace and security in the region. Defeating Hamas is also necessary for promoting the release of the hostages it holds. On the other hand, it is practically impossible to achieve the aim of defeating or substantially weakening Hamas without unintentionally killing a large number of Palestinian civilians. The required assessment is not only about the overall decision to respond to Hamas but also about specific military measures. It is essential to explore, for instance, whether killing a combatant or destroying a device programmed to launch rockets is justified given that it would inevitably risk civilian lives, and if so, what threshold of expected casualties can be justified. It is crucial to assess what types of war tactics are permissible, such as the evacuation of people from their homes.

These moral contemplations are essential for critically evaluating the IDF’s policies and activities. This assessment should be conducted through thoughtful, well-informed public deliberations. It requires addressing procedures: who sets the relevant policies, what are the feedback and reevaluation mechanisms for these policies, what are the enforcement procedures, and more. At issue is to what extent the decision-makers are aware of their responsibility to consider the lives of the civilian population. It also requires specific assessment of the substance of the moral dilemmas.

These are issues in which there is more than one right answer. The moral conflicts cannot be resolved without careful factual and analytical analysis. This kind of rational deliberation is completely missing in the current political atmosphere, both internationally and within Israel and Palestine. A biased, simplistic approach from both sides—namely, that it is either absolutely permissible or impermissible to unintentionally harm civilians—is counterproductive in improving the war tactics employed by Israel.

The same is true for the more strategic aspect regarding how to resolve the underlying conflict. Here too, referring exclusively to the occupation in the West Bank and putting all the blame on Israel is simplistic. The establishment of Israeli settlements in the West Bank cannot be justified, and the occupation is inherently problematic and causes great harm to the Palestinian population. As long as the occupation is aimed to serve the aim of expanding the Israeli territory, at the expense of the Palestinians, and to prevent them from establishing an independent state, it is a project that cannot be defended. However, the occupation also serves security purpose. An unconditional and immediate end of the occupation in the West Bank, as suggested by the ICJ’s in its Advisory Opinion regarding the Occupied Territory, might well be even worse than the current grave consequences of the occupation. Repeating Israel’s disengagement from the Gaza Strip in 2005, which was done unilaterally, without an agreement with the PLO, might well result in the same, and possibility even worse horrific consequences, with terrible losses on both sides. One cannot resolve the issue of whether the occupation is legal or morally justified without addressing the claim that it is based on Israel’s right of self-defense.

Similarly, it is equally wrong to focus exclusively, as is common among many Israelis, on Palestinian terror activities, while ignoring the fact that the Palestinians do not enjoy freedom and do not have a state in which they can realize their right to self-determination. Here too, a nuanced, well-informed approach is needed, addressing the just concerns of both sides, also considering the unique situation of the Arab-Palestinian minority within Israel, and much more.

The Israeli government should be criticized for its principled objection to the establishment of a Palestinian State next to the State of Israel. The Palestinian leadership should be similarly criticized for its principled objection to the existence of Israel as a Jewish and democratic State. Both sides should be pushed, and if needed, even be subject to sanctions, if they refuse to resume their negotiations in good faith and to accept the principle of two states.

One should strongly call for an immediate ceasefire, that will include the release of all Israeli hostages and the withdrawal of Israeli forces from the Gaza Strip. Both sides should act according to the laws of war and avoid indiscriminate attacks against civilians. There should be thorough investigations of incidents where civilians were killed and criminal proceedings against those who violated applicable legal norms. However, one should not join the spin about genocide. It is legally untenable, morally wrong and politically counter-productive to address the conflict in the ridiculously simplistic, one-sided approach that is prevalent in much of the international discourse. In this respect, the ICJ preliminary decisions in the genocide case has created unjustifiably great damage by installing the wrong perception that it is even plausible that Israel has committed genocide. These are decisions which harmed not only the interests of the State of Israel, but the pursue of peace more generally.