Swords of Iron: an Overview

10-16-23- Swords of Iron: an Overview | INSS

The Data Analytics Desk at the INSS provides accurate and updated data during the Swords of Iron War, covering information on the Israeli internal front, the Gazan and Northern fronts, the West Bank, and the international arena.

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The War with Hamas: Legal Basics

INSS researcher Col. (res.) Adv. Pnina Sharvit Baruch lists some points on the legal rules that govern Israel’s combat in the Gaza Strip

INSS Insight No. 1770, October 16, 2023

The violent attack by Hamas that deliberately targeted Israeli citizens, civilians as well as soldiers, and the atrocities committed by Hamas and other terrorists – among them murder, torture, rape, abduction, looting, and many other crimes – constitute gross violations of international law, and in particular, of international criminal law. These horrific acts constitute the most serious crimes in international law defined as war crimes and crimes against humanity, and amount to the crime of genocide. Hamas has an absolute obligation to release immediately all those kidnapped to the Gaza Strip whose continued imprisonment is a serious and ongoing war crime.

Despite the horrific crimes committed by Hamas, Israel is obligated to respect the laws of armed conflict (LOAC, aka IHL). There is no principle of reciprocity in these laws.

1. According to the laws of armed conflict, it is permissible to direct attacks against military targets, whereas direct attacks toward civilians and civilian objects are forbidden and considered a war crime. The definition of "military targets" includes civilian objects that by their nature, purpose, location, or use make an effective contribution to military action and whose destruction offers a definite military advantage (Art. 52(2) of Additional Protocol I of 1977). Since Hamas places its military infrastructure in the heart of the civilian population in the Gaza Strip, including in residential houses, schools, mosques, and businesses, it is permissible to direct attacks toward these sites, as they have lost their civilian nature and have become legitimate military targets due to this use.
2. According to the laws of armed conflict, even when attacking a military target, it is forbidden to attack if the collateral damage expected from the attack to civilians and civilian objects is excessive in relation to the military advantage expected from the attack. In view of the enormous threat that Hamas currently poses to Israel, the denial of its military capabilities is expected to give Israel a great security advantage. Without achieving this goal, Hamas will succeed in de facto denying Israel the exercise of its sovereignty in the areas adjacent to the border with the Gaza Strip. In light of this significant military advantage, even if many civilians in Gaza are harmed during the attacks, this is not necessarily excessive incidental damage and therefore would not be disproportionate attacks that are illegal.
3. According to the laws of war, there is an obligation to take feasible precautions to minimize harm to civilians when attacking military targets. However, there is no legal obligation to warn an individual before an attack. Under the existing circumstances, giving a general warning to civilians to leave areas that are planned to be attacked by the IDF can certainly be considered a sufficient precaution. This is not a forcible transfer of civilians or ethnic cleansing. On the contrary, it is a precautionary measure taken for the benefit of the civilian population to spare their lives.
4. Hamas’s use of Gaza residents as human shields for its military activities is a war crime. So are its actions to prevent civilians from moving away from danger zones.
5. The Gaza Strip is not under Israeli occupation. Israel withdrew from the Gaza Strip completely in 2005 and has no effective control over the territory. The ability of Hamas to carry out the sophisticated attack and to surprise Israel clearly illustrates this. Israel has no obligation to provide means to enemy territory, including electricity and water.
6. It is permissible to impose a blockade, including a naval blockade, on enemy territory. If there is a severe humanitarian shortage, aid agencies can request to allow the transfer of aid, and there will be reason to consider this. -

The opinions expressed in INSS publications are the authors’ alone.

About: Pnina Sharvit Baruch

Colonel (res.) Adv. Pnina Sharvit Baruch joined the INSS in 2012 as a senior researcher and heads the program on law and national security. She retired from the Israel Defense Forces in 2009, after serving in the International Law Department of the Military Advocate General (MAG) Unit for twenty years, five of which (2003 - 2009), she was head of the Department. In this capacity, she was a senior legal advisor responsible for advising IDF commanders and decision makers at the governmental level on a wide variety of issues relating to international law and administrative law, among them: the laws of armed conflict and occupation of territory; naval law; counter-terrorism; security liaison; border demarcation; and conflict resolution. She commanded the operational legal advisors at the IDF. Adv. Sharvit Baruch also served as a legal advisor in Israel's delegations to negotiations with the Palestinians, from the early contacts and thereafter. In 2000, she also participated in the negotiations with Syria.

The War with Hamas: Legal Basics | INSS

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Hamas Invasion Rewrites Rules in Middle East

Risk of wider war grows as U.S., Israel and its enemies respond to attack

By Yaroslav Trofimov - Updated Oct. 12, 2023

DUBAI—Saturday’s attack on Israel by Hamas militants, who killed more than 1,200 people and kidnapped many others back to the Gaza Strip, has upended fundamental assumptions about the Middle East.

Now, as Israel, its enemies and its main partner, the U.S., respond to these shocking events , the new—and untested—rules of the game risk turning the bloody confrontation between Israel and Hamas into a much wider war.

Israel’s expected land operation against Hamas in Gaza, and the reaction to it by Iran and its group of allied Islamist militias around the region, could determine the new balance of power in the Middle East and the new set of understandings about the region’s future.

“Hamas inflicted this surprise, devastating attack because it wanted to change the equation, not just between Hamas and Israel, but also between Israel and the axis of Iranian supporters and Iranian proxies,” said reserve Brig. Gen. Yossi Kuperwasser, a former head of research for Israeli military intelligence. “Israel now wants to change the equation, too, but in the other direction—if we kick Hamas out of Gaza.”

Should Israel manage to eliminate Hamas as Gaza’s dominant force, it would reverse one critical aspect of the fallout from Saturday’s events: the crumbling of the long-cultivated perception of Israel’s superior military and intelligence prowess. After swiftly breaching costly Israeli border fortifications and overrunning military bases, Hamas gunmen went on a killing spree—causing the worst loss of Jewish lives since the Holocaust.

The attack destroyed another assumption, long cultivated by Hamas’s backers such as Turkey and Qatar, and accepted by many in the West and even inside parts of the Israeli establishment: that the Islamist group had somehow moderated its original ideology, which seeks the elimination of any Jewish presence between the Jordan River and the Mediterranean.

Aiming to put a new gloss on its goals, Hamas in 2017 even issued a policy statement that said that its conflict is with “the Zionist project” rather than Jews, and implied acceptance of a Palestinian state in the West Bank and Gaza—though still rejecting Israel’s right to exist.

The horrors of the Hamas assault have also punctured the notion, long championed by Israeli Prime Minister Benjamin Netanyahu, that Palestinian aspirations could be reduced to a manageable nuisance, and that the occupation could persist, even as Israel pursues new relationships in the Arab world.

“The Netanyahu doctrine that you can ignore the Palestinians without paying a price has been shattered,” said Mairav Zonszein, an expert on Israel and Palestine at the International Crisis Group. “It turns out that, no matter how much economic and military and diplomatic power you have, your entire country can ground to a halt.”

More Israeli citizens were killed Saturday than during the entire Second Intifada of 2000-2005, she said.

The corollary of this new reality is that the U.S. is having to return to the Middle East, reversing the trend of three consecutive administrations that had tried to pivot away and focus on other global challenges such as China and, since last year’s invasion of Ukraine, Russia.

The Biden administration has already dispatched two carrier groups to the Eastern Mediterranean, as part of an effort to deter Iran and its Lebanese protégé, Hezbollah, from joining the conflict and potentially sparking a regional war that could also involve Iran and nations in the Persian Gulf. Washington is also rushing weapons to Israel.

“It’s a re-engagement. It turns out that our partners in the region are still heavily dependent on the security umbrella that the U.S. continues to provide,” said Brian Katulis, a senior fellow at the Middle East Institute in Washington. “They still look to us as the primary security partner of choice—not at China, and certainly not at Russia. And when a crisis like this emerges, we are on the speed dial.”

Israel’s enemies were celebrating the surprising weakness displayed by the country’s military and intelligence services on Saturday. Israel’s high-tech border surveillance system around Gaza was knocked down with cheap drones, senior officers were killed at captured Israeli military bases and it took several hours for Israeli forces to start driving back Hamas—time that the Palestinian gunmen used to murder or kidnap defenseless civilians .

“The blow of Saturday, Oct. 7, cannot be recovered from. You have brought this calamity upon yourselves,” Iran’s Supreme Leader Ayatollah Ali Khamenei addressed Israelis in a gloating Hebrew-language post on X, a social-media platform formerly known as Twitter. To some Arab commentators, Hamas’s success indicated that Israel could indeed be militarily defeated and that the seemingly unrealistic goal of wiping out the Israeli state isn’t that far-fetched.

But despite Israeli officials describing Saturday’s events as the country’s Pearl Harbor, the damage to Israel’s actual military capabilities was limited. The country’s powerful air force is intact, and within hours started pummeling the Gaza Strip. Several hundred Gaza residents, including civilians, have been killed since then, according to the Hamas-controlled Ministry of Health, and key infrastructure destroyed.

“It’s clear that the Israelis have underestimated Hamas, but now Hamas, Hezbollah and all the rest of the Iranian proxies stand a great risk of underestimating Israel,” said Colin Clarke, director of research at the Soufan Group intelligence and security consulting firm. “It’s still by far the strongest military in the region, and they’re now especially motivated to seek vengeance against a number of longtime adversaries.”

On Tuesday, President Biden said he expected the Israeli response to be “swift, decisive and overwhelming”—while also upholding the laws of war. Biden also compared Hamas’s actions to the “worst rampages” of Islamic State, in language seen by many in Israel as a green light to do in Gaza what the U.S.-led coalition had done to oust Islamic State from Mosul, Iraq, and Raqqa, Syria, in 2017.

Both cities were heavily damaged in sustained U.S. bombing campaigns and artillery barrages that caused numerous civilian casualties. Unlike Gaza, however, Mosul and Raqqa weren’t blockaded, and many Iraqi and Syrian civilians managed to escape to safety.

Israel’s expected ground campaign to eradicate Hamas, with the potential for the high casualties inherent in urban combat, would test the degree to which Iran and Hezbollah are committed to the Palestinian group—and the Palestinian cause.

In past conflagrations over Gaza, Hezbollah stayed largely on the sidelines, observing the rules of mutual deterrence agreed after the 2006 Israeli invasion of Lebanon. The Lebanese group possesses an arsenal of Iranian-supplied precision missiles that could inflict significant damage to Israel’s vital infrastructure and military facilities.

“At a very strategic level, Hezbollah and Iran are not very interested, as yet, to jump into this fight,” said Emile Hokayem, a senior fellow for Middle East security at the International Institute for Strategic Studies. “The fundamental calculus for Iran still holds: Hezbollah is such a unique and powerful instrument of its security policy that it’s not going to waste it on this war. Hezbollah is to be used and deployed when the regime in Iran, its very existence, is threatened.”

So far, Hezbollah has engaged in limited skirmishes along the border. Its fighters hit an Israeli armored personnel carrier with antitank missiles on Wednesday. Such clashes raise the risk of an unintended conflagration, said Nadav Pollak, a former analyst for the Israeli government who is now a lecturer on Middle East affairs at Reichman University in Israel.

“Since 2006, we have never been so close to another war with Hezbollah,” he said. “If God forbid, they fire an antitank missile and kill 10-15 soldiers at the border, Israel will have to reply or even initiate a war.”

One significant change since 2006 is Iran’s new doctrine of the “unification of the arenas” which seeks to improve coordination and joint actions of Tehran, Hamas, Hezbollah, and Iranian proxies in Iraq and Yemen, in their confrontation with Israel. An eviction of Hamas from Gaza would be a huge blow to that doctrine—one of the reasons why Tehran may decide to expand the conflict to maintain its regional influence.

“There is a very big risk that a war in Lebanon can morph into a regional conflict. I don’t think that Iran, Israel or Hezbollah want it. But they’ve locked themselves into positions where if one step is taken by one side, then the other side has to take a counter-step,” said Lebanese analyst Michael Young, a senior editor at the Carnegie Middle East Center in Beirut. “There are no real clear offramps for this steady escalation toward the worst option.”

For now, such concerns are unlikely to deter Israel’s leadership. Hardly any voices, in the just-expanded government or in the Israeli opposition, oppose a sustained land operation to defeat Hamas. “The only game in town is getting rid of Hamas, and there is tons of political pressure to do that,” said Zonszein of the International Crisis Group. “The consensus is that Hamas cannot remain intact.”

Questions about who should govern Gaza’s two million people after that, and whether Israel is prepared to once again occupy the area, are for now set aside. “I don’t think anyone is thinking about the day after right now,” said Pollak. “Everyone knows one thing: Hamas has just launched the most horrible terror attacks in Israeli history, and we need to fight back, and, sorry to say, we need to kill as many of Hamas as we can.”

Hamas Invasion Rewrites Rules in Middle East - WSJ

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