Hamas, Israel and International Law

??????????? Let me preface my comments by stating that I have no dog in this fight. As a Roman Catholic American citizen I hold no allegiance to either Israel or the citizens of Gaza. I am a firm believer in George Washington’s admonition in his farewell address:

The nation which indulges towards another a habitual hatred or a habitual fondness is in some degree a slave. It is a slave to its animosity or to its affection, either of which is sufficient to lead it astray from its duty and its interest. Antipathy in one nation against another disposes each more readily to offer insult and injury, to lay hold of slight causes of umbrage, and to be haughty and intractable, when accidental or trifling occasions of dispute occur …So likewise, a passionate attachment of one nation for another produces a variety of evils. Sympathy for the favorite nation, facilitating the illusion of an imaginary common interest in cases where no real common interest exists, and infusing into one the enmities of the other, betrays the former into a participation in the quarrels and wars of the latter without adequate inducement or justification.[i]

??????????? With that said I am also a believer in abiding by the laws of Chivalry in warfare as enunciated in the Geneva and Hague Conventions. And, I am a believer in calling a spade a spade in accordance with those laws.? Sadly, most of the mainstream media and certainly the United Nations appears to insist upon calling a spade a rose in regards to the perfidy and war crimes of the radical Islamists in Gaza and in regards to the actions in self-defense of the State of Israel.? Why do I say this? Three simple points.

1. The media and too many national leaders refer to the Hamas terrorists as “fighters” or “soldiers” when they are neither. They deliberately and premeditatedly butchered, murdered, raped and beheaded civilian noncombatants in Israel.? The level of depravity exhibited is worse than anything I have seen as a police officer, prosecutor and soldier. They simply do not warrant any protections under the law of war.? To label them as Hamas “soldiers” or “fighters” imbues them with something not warranted by law or morality. But, this is typical for a media that often labels rioters and brigands in our major cities as "teens."

2. Contrasted to the behavior of the Hamas, Israel responded under the authority of self-defense and pre-emptive self-defense acknowledged by hundreds of years of scholarship and authority. In order to appreciate to depth and breadth of the right of self-defense, it is worth examining its historical roots.

Consistently, since at least 60 B.C., laws and customs have recognized individuals’ inherent right to reasonably defend themselves from an attacker threatening to inflict death or serious bodily injury. Historically, the right of self-defense has been viewed not as a statutory or legal right, but as a divine natural right permanently bestowed upon all persons by virtue of existence.? Over 2,000 years ago Markus Tullius Cicero wrote:?

[t]here does exist therefore, gentlemen, a law which is a law not of the statute-book, but of nature; a law which we possess not by instruction, tradition, or reading, but which we have caught, imbibed, and sucked in at Nature’s own breast; a law which comes to us not by education but by constitution, not by training but by intuition—the law, I mean, that should our life have fallen into any snare, into the violence and the weapons of robbers or foes, every method of winning a way to safety would be morally justifiable.[ii]

In 529 AD, the Roman scholar Justinian observed, “that which someone does for the safety of his body, let it be regarded as having been done legally.”[iii]? The Old Testament provides, “If a thief be found breaking up, and be smitten that he die, there shall be no bloodshed for him.? If the sun be risen upon him, there shall be bloodshed for him.”[iv]?

William Blackstone, the father of English Common law,[v] wrote, “[s]elf defense is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the laws of society.”[vi]? “The right of having and using arms for self-preservation and defense” is one of the five auxiliary rights people possess to “protect and maintain ‘the three great and primary rights’ personal security, personal liberty, and private property.”[vii]?

Sir Michael Foster went further, observing in the Crown Cases:

[t]he right of self-defence [sic] in these cases is founded in the law of nature, and is not, nor can be, superseded by any law of society.? For before societies were formed for mutual defence and preservation, the right of self-defence resided in individuals; it could not reside elsewhere, and since in cases of necessity, individuals incorporated into society cannot resort for protection to the law of society, that law with great propriety and strict justice considereth them, as still, in that instance, under the protection of the law of nature.[viii]

English philosopher John Locke observed, “self defense is a part of the law or nature, nor can it be denied the community, even against the king himself”[ix]? In his treatise on civil government, self-defense is fundamental to the very existence of mankind.? Much like one is justified in killing a wild animal if it displayed intent to attack; one is justified in taking the life of another person if that person displayed intent to do harm to you.? Locke reasoned:

it being reasonable and just, I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion; because such men are not under the ties of the common law of reason, have no other rule, but that of force and violence, and so may be treated as beasts of prey, those dangerous and noxious creatures, that will be sure to destroy him whenever he falls into their power.[x]

Like Locke, St. Thomas Acquinas believed self-defense derived from natural law, but defined self-defense not based on the assailant’s act, but the defender’s intent. He reasoned that one acts in self-defense where his intent is not to cause harm, but to preserve his own life.? The other person may be harmed, but that is a product of the innocent defender’s intent, which was to prevent the attacker from causing him harm.

[K]illing one’s assailant is justified provided one does not intend to kill him. Nothing hinders one act from having two effects, only one of which is intended, while the other is beside the intention. Accordingly, the act of self-defense may have two effects; one, the saving of one’s life; the other, the slaying of the aggressor. Therefore, this act, since one’s intention is to save one’s own life, is not unlawful, seeing that is natural to everything to keep itself in being as far as possible.”[xi]

Similarly, Israel has an inherent right to hunt down “those dangerous and noxious creatures” who identify or act as Hamas did on 6-7 October 2023. They ought to destroy them root and branch.

3. Targeting. When I served as Command Judge Advocate for Special Operations Command – Central in Iraq, our theater rules of engagement at the time only required us seeking strike permission from the four-star level if the anticipated collateral damage casualties would exceed 20 persons. And, the four-star –if the military necessity deemed it so – could approve a strike where higher noncombatant casualties were anticipated. This was U.S. policy written in accordance with the Law of War.? Israel is as discriminate in its targeting decisions as we were, if not more careful.? The fact that Hamas is using protected places – churches, mosques, schools and hospitals – as ammunition dumps, rocket and missile emplacements and quartering locations is indicia of their perfidy not Israel’s.? This is not a fine legal point requiring an in-depth knowledge of International Law, yet the media and those national leaders militating for Hamas must be either woefully or willfully ignorant to ignore this point.

Yes, noncombatants are dying in Gaza. Is it a tragedy? Yes. But, a tragedy wrought by no one other than Hamas terrorists. Why isn’t the U.N. seeking ways to bring the Hamas terrorists – or leaders in Iran and elsewhere who support them – to justice?? No, the opposite seems to be happening, which makes me wonder why?

?

[i] Washington's Farewell Address 1796, cited from The Avalon Project: Documents in Law, History and Diplomacy, Yale Law School’s Lillian Goldman Law Library, New Haven 2008 ?https://avalon.law.yale.edu/

[ii] ?Cicero, Marcus Tullius Cicero, Defense Speeches, Translated by D. H. Berry,

London: Oxford University Press, 2000

?Markus Tullius Cicero, Cicero:? On Behalf of Milo, 60 BCE.

[iii] Justinian:? Digest of Roman Law, 529 CE.

[iv] Ex. 22:2-3.

[v] Cantrell, Charles L., The Right to Bear Arms:? A Reply, 53 Wis. B. Bull. 21-26 (Oct. 1980).

[vi] 3 Blackstone, William, Commentaries on the Laws of England, at 141 (1766).

[vii] Id.

[viii] Foster, Sir Michael, Crown Cases, 273-274 (London 1776).

[ix] Locke, John, Two Treatises of Government, “The State of War,” §16 (1689).?

[x] Id. .

[xi] https://www.newadvent.org/summa/3064.htm, St. Thomas Acquinas, Summa Theologica II-II, Q. 64, art. 7 (13th century).