Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia.
There is no equivalency between Hamas and Israel.
Hamas is a terrorist organization that deliberately targets civilians. The Oct. 7 attacks were designed to cause horrific suffering. War crimes were committed, and Israel has the right to pursue the perpetrators – to capture them if possible, and kill them if not. Israel, in contrast, is a democratic state with an unwritten constitution, a still mostly independent judiciary, peaceful changes of government, and a tradition of spirited debate.
Two decades ago, as a visiting professor at Tel Aviv University, I taught a course on the laws of war. The Israeli Defense Forces sent a dozen of their young lawyers to study with me. We had many spirited debates.
It was during the Second Intifada. Sheikh Ahmed Yassin, the founder of Hamas, had recently been assassinated in Gaza by an Israeli missile. The strike was an attempt to stop a wave of suicide bombings in buses and cafés in Tel Aviv. Mr. Yassin was partly blind and confined to a wheelchair. Could he be part of the kill chain and therefore a legitimate target?
Thanks to my students, I learned that where you stand on this question depends on where you sit – in an office in Vancouver, or on a bus in Tel Aviv.
Israelis are feeling even more vulnerable today. They are also burning with rage. The nature of the Oct. 7 atrocities and their dissemination on video have ripped open Holocaust scars that were never fully closed.
But while the demand for retribution is understandable, it must be resisted.
Israel governs itself under the rule of law. A sovereign state, it has also chosen to ratify numerous international treaties, including the 1949 Geneva Conventions.
Unlike the United Nations Charter, which sets out the rules governing the recourse to force, including self-defence, the Geneva Conventions concern international humanitarian law – the rules governing the conduct of armed conflicts.
At the moment, it is impossible to say whether Israel’s target selection in Gaza complies with those rules.
It is at least conceivable that Israel is only targeting Hamas’s military infrastructure, its leadership and militia members. It is even conceivable that Israeli military lawyers have, in each instance, balanced the military necessity of the strike against the anticipated deaths and injuries to civilians.
However, we can say that, when bombs are dropped in densely populated neighbourhoods, the military advantage would have to be enormous to exceed the civilian harm.
We can also say that in no circumstance may attacks on civilians or civilian infrastructure be justified by similar violations on the other side. Hamas’s use of civilians as human shields is illegal, but two wrongs do not make a right.
Finally, there are two rules which Israel is clearly violating.
The first is the prohibition on collective punishment, which extends beyond “collective penalties” to include “all measures of intimidation.” Cutting off water, food, fuel, and electricity to more than two million people is collective punishment. The siege of Gaza cannot be justified because Hamas is holding hostages: again, two wrongs do not make a right.
The second clearly violated rule is the prohibition on forcible transfers within or from an occupied territory, for instance, from Gaza City to southern Gaza. An alleged violation of this rule is the basis of the arrest warrant issued by the International Criminal Court for Russian President Vladimir Putin earlier this year.
Israeli lawyers will point out that there is an exception to the rule, namely that transfers may occur “if the security of the population or imperative military reasons so demand.” But even then, the transferring power “shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.”
Clearly, those responsibilities are not being fulfilled in southern Gaza today.
Democratic countries adopt laws to control their own futures. Crafted in times of peace that allow for reflection and debate, laws are intended to guide our actions during moments of crisis and raw emotion.
The same is true among the community of nations.
Hamas seeks to drag Israel into a downward spiral of suffering and retribution, but Israel can prove that it is better than that.
As U.S. Secretary of State Antony Blinken said last Thursday: “We democracies distinguish ourselves from terrorists by striving for a different standard – even when it’s difficult – and holding ourselves to account when we fall short.”