I. Introduction
This essay is written a year after October 7, 2023, when Hamas attacked civilians, whether at a music festival or in their homes, in an area referred to as the “envelope” in southern Israel, bordering the Gaza Strip. In addition to the 1,269 innocent civilians brutally murdered that morning, [1] 251 men, women, and children were taken hostage by Hamas, subject to sexual violence, torture, abuse, and murder. [2] As of October 15, 2024, there are 101 hostages still held by Hamas.[3]
For many Israelis, the events that day were the worst in the state’s history, recalling the Holocaust. The comparison, while uncomfortable, reflects the horror of the day.
In the aftermath of that day, the Israel Defense Forces (IDF) attacked Gaza, primarily by land and air. While the articulated goal was to destroy Hamas, and to kill those directly responsible for what transpired on October 7th, the conflict exacted a significant cost on the Gaza civilian population.
While there have been calls for a cease-fire, and negotiations regarding release of the Israeli hostages have had some success, albeit not resoundingly, the conflict has continued, although not with the same intensity, force, and impact as in the initial stages. As part of the military operation, the IDF called up hundreds of thousands of reservists to significantly bolster the standing army. Many reservists served for an extended time, stretching over the course of many months.
While the financial, social, and emotional costs of this are of great importance in the Israeli public debate, they are beyond the scope of this contribution. That is, however, not to minimize the costs imposed on—and absorbed by—different sectors of the Israeli public, as that is an important aspect of the domestic political debate.
The decision to attack Hamas was widely understood, if not universally supported, particularly regarding the organization’s leadership and those who either committed the rampage or were involved in holding hostages. In that vein, the public celebration in Gaza of the “arrival” of the Israeli hostages suggested the broader population was a legitimate target for the IDF. There was a sense October 7th would not have been possible without wide support of the civilian population, extending beyond those who crossed into Israel and murdered innocent civilians and took hostages.
Therefore, voices urging caution were a minority, as the Israeli public overwhelmingly acknowledged there must be significant consequences for the attack. A powerful military response was the inevitable result; the sentiment was magnified when Israelis were increasingly confronted with pictures of the devastation to communities and the violence, particularly sexual violence, to which the hostages were subjected.
The combination of hostages, murder of innocent people attending a music festival, innocent civilians seeking shelter in their homes and elsewhere, reports of beheading of soldiers, and burning of children, literally left—whether one agreed with the decision or not—the government with but one choice: unleash the IDF on Hamas specifically, the Gaza Strip in general.
The question this essay explores is whether the expansive articulation of legitimate target and resulting collateral damage is justified given what transpired on October 7th. The background to this essay is an “Experts Meeting” held at Case Western Reserve School of Law on September 26-27, 2024. A preliminary draft of a White Paper prepared by Professor Michael Scharf framed the treatment of non-state actors as follows:
The Geneva Conventions explicitly recognize only two statuses – civilians and combatants. Both are entitled to specific protections when detained. In 2002, the Bush administration argued that the Geneva Conventions did not apply to “unlawful combatants” captured in the so called “Global War on Terror.” Since the Obama Administration, the U.S. has used the term “unprivileged combatants” instead of “unlawful combatants,” but with a similar effect. After the 9/11 attacks, such individuals were taken to Guantanamo Bay and subjected to extraordinary methods of interrogation which would have been prohibited by the Geneva Conventions if applied to civilians or POWs. The U.S. position engendered criticism, but the debate about what protections apply to terrorists continues to this day.[4] And while the U.S. Supreme Court’s Hamdan decision was viewed as confirming that basic protections of Common Article 3 of the Geneva Conventions did apply to terrorists, it has also been interpreted to provide legal justification for the United States’ controversial policy of targeted killing of terrorists beyond the traditional “hot battlefield.”[5] Meanwhile, the number of non-state armed groups engaging in armed conflicts have grown exponentially, with some States opting to enter into partnerships with them.[6] This in turn has required the application of IHL to regulate their conduct and to ensure the protections under IHL to populations in their control, bringing with it complications and questions relating to the interpretation of IHL rules in this regard.[7]
Admittedly, the analysis in this essay is conducted under the cloud of war, with imperfect information, misinformation, disinformation, whilst the conflict—no longer war—continues.
Road Map
To address the issue of defining, and implementing the limits of legitimate state response in the aftermath of October 7th, this essay will be organized as follows: Section I: Introduction; Section II: Rhetoric is Not Strategy; Section III: What This Essay Does Not Address; Section IV: The Questions the Essay Does Address; Section V: The Hostages; Section VI: International Law: Legitimate Target and Collateral Damage; Section VII: The Day After; Section VIII: What Does All This Mean?; Section IX: Where Do We Go From Here?
A Personal Note
A word of personal introduction and reflection: while serving in the Israel Defense Forces, Judge Advocate General’s Corps (1986-2004), I was the IDF Legal Advisor in the Gaza Strip, from 1994-1997. In that capacity, I was entrusted with providing commanders with legal advice, primarily regarding operational counterterrorism measures. The focus was on person-specific measures, rather than broad scale population-wide impacts, in accordance with traditional tests of proportionality and collateral damage.
The events of October 7th—both that day and in its aftermath—forced the IDF to respond in a manner unlike previous engagements in the Gaza Strip. In examining the question of international law, as reflected in the White Paper, there are, in essence, two separate but related questions: the legal and the strategic, particularly whether a re-articulation of a legitimate target and collateral damage will contribute to a realignment of the political character and make-up of the Gaza Strip.
For me, that is not an abstract question given my intensive involvement in the implementation of the Oslo Peace Process in the Gaza Strip. While that is beyond the scope of this essay, what is within our purview is the complicated interaction between the use of force (whether limited or broad) and the strategic consequences, if any.
It is, then, in that context that the issues below are framed as an expansion-extension of established principles of the use of force and must be commensurate with broader strategic consequences and implications. Otherwise, the re-articulation (if adopted/deemed acceptable) will be devoid of impact, beyond additional killing and property damage.
That, of course, must not be in contradiction to condemnation in the strongest possible terms of Hamas’s actions on October 7th. The murderous rampage, brutal sexual violence, and murder of hostages can never be justified, rationalized, or tolerated. Any effort to do so defies any basic humanity and must be resoundlingly rejected.
In addition, a note of caution is in order: while there is no doubt regarding the consequences of IDF actions in Gaza, one must recall Hamas leaders’ and fighters’ use of civilians as “human shields” in clear violation of international law. That has significantly contributed to the loss of life amongst the Gazan population.
II. Rhetoric is Not Strategy
The call for a strong—an unusually strong—response should not be equated with a strategy, focused not on the immediate, but rather reflecting long-term consequences of attacking Hamas in a manner distinct from any previous undertaking. More than that, the decision, given the circumstances under which it was made, created the environment whereby the Gazan civilian population would be subjected to aerial and ground attacks on a level not previously encountered.
Israeli Prime Minister Benjamin (Bibi) Netanyahu claims “total victory,” referencing the oft-repeated slogan, “Together we will win,” when explaining the military objective is defeating Hamas. In doing so, whether deliberately or not is unclear, Netanyahu equated Hamas to a state that can be defeated on the battlefield harkening back to World War II, or any other war between state actors.
While the slogan may be effective in some quarters from a political perspective, it creates a false dichotomy. While engaging in aggressive operational counterterrorism against Hamas operatives has been the Israeli model for years, the goal of “defeating” Hamas is a direct result of October 7th. However, while the term is largely performative, its importance is not insignificant as it legitimizes measures extending beyond traditional, person-specific counterterrorism. Its importance, intended or not, is in its ambiguity, suggesting commanders lack clear articulation of attainable goals and objectives.
While rhetoric has long been understood to be one of Netanyahu’s strengths, that must not be understood as reflective of strategy, much less the articulation of clear objectives. Claiming the commitment to total victory does not ensure its attainment, much less present to the public the way the goal—however defined—will be achieved.
That is important both with respect to the Israeli public and to the broader issue this essay addresses. Given that the impetus for this undertaking is to examine the expansion of legitimate targets and the inevitable rise in collateral damage, the purpose for this is critical to the discussion. There is, then, a tension between the lack of an articulable goal coupled with an understanding that the events of October 7th justify the recommended expansiveness, notwithstanding Netanyahu’s emphasis on rhetoric.
III. What This Essay Does Not Address
The anger directed at Hamas did not deflect from shock at the failure of the IDF to defend the civilian population and the ease with which Hamas was able to destroy Israeli communities, overrun IDF bases, and capture soldiers and civilians alike. The pictures throughout the day stunned Israelis who recognized they had been abandoned by the IDF. The word abandoned has been similarly applied throughout the past year by many Israelies to the actions of the government, particularly regarding the hostages.
While stories of extraordinary personal courage of civilians and soldiers alike who sought to save Israelis from being murdered or taken taken hostage speak loudly, that does not minimize the colossal institutional failure of the IDF, and the Israeli security, and intelligence communities. That issue, which must be examined by a commission of inquiry, is beyond the scope of our undertaking, as our exclusive focus is the actual conflict and not issues that directly, or indirectly, contributed to the events of October 7th.
That also applies to a discussion regarding the history of the Gaza Strip in the aftermath of the Six-Day War of June 5, 1967, when Israel occupied Gaza which had been under Egyptian rule until the signing of the Oslo Peace Accords. This resulted in the IDF’s withdrawal from Gaza, turning all civilian and police, not security, matters over to the newly established Palestinian Authority which ruled Gaza until losing to Hamas in democratic elections. In addition to the IDF withdrawal, the 10,000 Israelis who lived in Jewish settlements in the Gaza Strip were evacuated by order of the government.
In the subsequent years, Israel and Hamas have been engaged in seemingly endless rounds of conflict, including significant IDF Operations in response to Hamas rocket attacks aimed at Israeli civilians in southern communities. The Hamas charter, which calls for the destruction of the state of Israel, has been the basis for the refusal of Israeli governments to negotiate resolution of the conflict.
Similarly, tensions between Hamas and the Palestinian Authority are no less acute, as evidenced in significant acts of violence committed by the former prior to their coming to power in the Gaza Strip. Discussions regarding establishment of a Palestinian state, in accordance with the Oslo Agreement, focused exclusively on the West Bank. While public opinion polls amongst the West Bank population indicate support for the events of October 7th, the Palestinian Authority was not involved in what transpired that day or in its aftermath.
Additional conflagrations, in Lebanon (Hezbollah), Iran, Syria,[8] the West Bank (Jewish and Palestinian terrorism), and Yemen (Houthi), involving Israel, the U.S., and other regional powers is similarly beyond this essay’s scope.
Finally, this essay does not address the U.S. approach to ISIS in 2014-17 under the Obama Administration and its 35,000 airstrikes against ISIS in Syria.[9] Michael Scharf’s excellent essay on How the War Against ISIS Changed International Law provides manifold insights into the questions of necessity, proportionality, and lawful collateral damage in an age of evolving concepts of terrorist groups.[10]
These evolving standards are highly relevant to operations in Gaza – and beyond. While much can be gleaned from how the U.S. addressed conflict with ISIS, there are important differences regarding the IDF’s actions in the Gaza Strip.
The IDF responded forcefully to Hamas’s three-fold attacks: crossing into Israel and killing Israelis in their homes and at a music festival; the taking of hundreds of innocent Israelis hostage into the Gaza Strip, denying them the most basic of humanity and humanitarian protection; and committing unremitting sexual violence and the murder of some hostages.
In expanding the scope and scale of legitimate targets, the IDF not only identified those who planned the October 7th attack[11] but also those who attacked the hostages when brought to Gaza that day and those responsible for the attacks of violence committed against the hostages.
In expanding the definition of legitimate target, and the manner in which the attacks were conducted using ground forces, armored units, special forces, and the Israel Air Force, the collateral damage—indiviuals and property—was significant. However, distinct from the U.S. response to ISIS, the IDF was responding to an attack that occurred in Israel when Hamas crossed the border and the taking of hostages. The questions that Professor Scharf raises in the White Paper regarding necessity, proportionality, and lawful collateral damage when analyzed regarding the IDF in the Gaza Strip must be examined in this context, which while bearing some similarities to the US response to ISIS is significantly distinct.
IV. The Questions the Essay Does Address
The question before us is stark: whether an attack on the scale of October 7th justifies a broad scale response, not only targeting participants but also expanding the scope of legitimate targets and, perhaps, more than that, justifying an expansive articulation of justifiable collateral damage.
To answer that question requires recognizing two important realities: the impact on Israeli society of the crimes committed against the hostages and understanding the reponse required the IDF to engage with Hamas “as if” it were more akin to a military than a terrorist organization as traditionally understood.
The IDF employed many of the military resources at its disposal including ground forces, armed corps, fighter planes, and special units. The call-up of hundreds of thousands of reservists, at significant costs, was the reality confronting broader Israeli society; the daily toll of soldiers killed in Gaza was a grim reminder the conflict is on a scale different from any previous engagement with Hamas.
Whether it is understood to be in accordance with international law principles of proportionality, distinction, and military necessity is a question that demands our attention, both with respect to the current conflict and future engagement between state and non-state actors.
While Hamas is a non-state actor, consideration must be given to the question whether October 7th fundamentally changes our understanding of the interaction between the state and the non-state. That is not an insignificant nor trivial question; answering in the affirmative would suggest Israel’s actions since October 7th fall, for lack of a better term, under a new construct of how a state actor engages with a non-state actor, whereas answering in the negative would suggest October 7th does not justify a re-articulation of the relationship, and arguably justifying the broad international condemnation of Israel and the IDF.
V. The Hostages
It is hard to over-state the impact on Israeli society of the fate hundreds of hostages, subjected to unremitting abuse, harm, and murder, face. Pictures of the hostages came to dot the Israeli landscape, hundreds of thousands of Israelis took to the streets calling on the government to act on their behalf with a clear sense of urgency.[12]
For many, the recognition Hamas is subjecting women and, as subsequently disclosed, men to sexual violence led to two seemingly unrelated responses: calls for a cease-fire to effectuate hostage release and a tolerance of the use of military force that, otherwise, would have been unacceptable to a majority of Israelis. The call for a cease-fire was not universal as—according to public open polls—a third of the population opposed such an effort, construing it as surrender to Hamas, notwithstanding the grave danger imposed on those held in tunnels, apartments, and other locations in the Gaza Strip..[13]
The direness of their fate was made abundantly clear when, on the weekend of August 31, 2024, the IDF found the bodies of six hostages who had been murdered in the tunnel where they had been held. Shortly thereafter, Hamas announced armed guards would kill hostages if IDF units were identified in the immediate area. Similarly, on September 14, 2024, the Israeli public learned three hostages were killed when the IDF conducted a targeted killing of a senior Hamas leader.
While obviously unintended, the three deaths meet the definition of collateral damage; that is distinct from three other hostages killed previously when an IDF commander made a tragic error in judgement and authorized opening fire, notwithstanding the fact the three were signaling their attempt to surrender while speaking Hebrew.
Emphasizing the hostages is a critical component in the decision to expand the definition of legitimate target to Gaza beyond those directly involved in the killing and capturing of Israelis on October 7th.
That frames much of the discussion below.
VI. International Law: Legitimate Target and Collateral Damage
The “war-like” (air quotes deliberate) undertaking, with the Gaza civilian population under heavy and consistent attack resulted in significant civilian deaths, reported to be 41,802.[14] While the IDF reports 20,000[15] are affiliated with Hamas, the question—relevant to our inquiry—is whether the ratio between civilian and non-civilian deaths is within the boundary of “acceptable” (air quotes deliberate) collateral damage.
To answer that requires understanding participant has been expanded as reflected in the three categories suggested below, meaning a target defined as legitimate need not pose a direct, much less, imminent threat to Israeli national security.
International law does not ascribe a numerical quantification of collateral damage.
The requirement is collateral damage will be “minimal,” a term left to interpretation and, perhaps, confusion given its lack of clearly articulated guidelines and limits. In response to the criticism, Israeli officials have relied on October 7th as the all-encompassing justification, and rationale, for the IDF’s attacks in Gaza. From the Israeli perspective, the conflict is suggestive neither of traditional war nor counterterrorism as there is, seemingly, no clear delineation between legitimate target narrowly defined and legitimate target broadly defined. The failure to carefully delineate legitimate target seemingly applies to property. This, however, does not rise to the level of charges Israel is committing genocide, ethnic cleansing, and war crimes, albeit the significant loss of life in the Gaza Strip.
In combatting terrorism (non-state actor), distinct from a nation state (state actor) it is widely understood defeating an idea—the essence of terrorism—is not possible, unlike conquering an enemy on the battlefield, as traditionally understood. In declaring, as the stated policy, the goal of defeating Hamas, Netanyahu created a false paradigm, setting unreasonable expectations, and imposing on the IDF a mandate that is, from all perspectives, impossible to fulfill. No less important in analyzing the legality of the IDF’s actions is seeking to determine whether there was a broad-based strategic goal, or rather, if the decision making and on-the-ground implementation did not extend beyond tactical considerations and calculations.
There is a triangular relationship between collateral damage, failure to identify-articulate an overall strategy, and the lack of an articulable-implementable “day after.” While the failure of the last two points reflects the reality of Israeli politics, particularly Prime Minister Netanyahu’s inability-refusal to articulate an attainable goal—rhetoric is not a goal—that does not mask the reality of the events of October 7th and its consequences.
While there is no doubt regarding the nation state’s right to self-defense, the more complicated question must focus on the interaction between legitimate target/collateral damage, a “day after” goal and a clearly articulated military strategy, extending beyond Netanyahu’s misbegotten “vivtory” rhetoric.
Legitimate Target and Self-Defense
As depiected in the graphic below, narrowly defined self-defense model applies when the state identifies an individual who poses an immediate threat to national security and determines there are no viable alternatives when implementing a targeted killing. Israel and the U.S. have implemented such a policy regarding specific individuals over the years. For the “hit” to meet international law standards, collateral damage must be at a minimum and the target must reflect military necessity in the context of national security. By example, Israel—prior to October 7th—targeted previous Hamas leaders, including Sheikh Yassin and Abdel Aziz al-Rantisi. In the same vein, the U.S. killed Osama Bin-Laden and Qasem Soleimani.
The significant shift that distinguishes October 7th from previous person-specific operational counterterrorism is the creation of three categories who, seemingly, meet the definition of legitimate target, with a resulting increase in collateral damage. By all accounts, this is a unilateral decision that potentially has implications extending beyond the Hamas-Israel conflict.
The three categories are:
- Hamas members who directly participated in October 7th;
- individuals who participated in the attacks on Israeli hostages when brought to Gaza; and
- individuals who participated in the captivity-degradation-sexual assaults-murder of the hostages.
While controversial, and much criticized, the question is whether international law, as articulated in the White Paper draft,[16] tolerates this unilateral decision. Notwithstanding the lack of articulable strategy, the IDF’s tactical response—in accordance with the misbegotten “victory” mantra—reflects this expansive approach.
This extended well beyond self-defense as traditionally understood and previously implemented by the IDF.
Of that, there is no doubt.
VII. The Day After
There is no concrete “end game” beyond the political mantra of “defeating Hamas,” which has proved to be beyond elusive. From all reports, it is clear no thought has been given to what is referred to as the “day after.” The reference is to what will be the fate of the Gaza Strip and the civilian population after—in the spirit of Netanyahu’s mantra—Hamas is defeated.
While various options (perhaps an exaggeration) have been discussed, ranging from the Palestinian Authority assuming control over civil affairs to an international presence to Jewish settlements, there is no workable plan bearing semblance to genuine understanding to addressing the the local populations acute needs when the conflict ends. The question must be viewed under an expansive articulation of the questions posed in Professor Scharf’s “White Paper” draft.
Given the significant impact on the Gazan civilian population, the question regarding the day after cannot be separated from the military conflict. The word “conflict” is deliberately used; one year after October 7th, Hamas and Israel are not at war, but rather in a stagnant state of engagement.
That is particularly true (as these lines are written), given the IDF entrance into Lebanon after the killing of Hasan Nasrallah and direct engagement with Hezbollah in Lebanon. Similarly, the IDF (via the Israel Air Force) is determined to minimize the threat posed by the Houthis in Yemen, whilst engaging with Palestinian and Jewish terrorism in the West Bank. Were that not enough, the IDF is also conducting aerial attacks against targets in Syria, and is posed to counter attacks directly from Iran.
In that vein, it is not outside the realm of possibility that the Palestinian question in general, and Gaza in particular, will once again be marginalized. That historical pattern, stretching over many decades, will continue unabated unless the opportunity presented by the events of the past year are not maximized. Failure to do so would suggest the response to October 7th and the ongoing hostage crisis (at the time these lines are written) will reflect a tactical approach exclusively, devoid of strategic considerations. That is of particular importance when considering the “day after” and the options presented.
The efforts to resolve the hostage crisis involved, primarily, the U.S., Egypt, and Qatar. Seemingly that presented a unique opportunity extending beyond a cease-fire hostage release. The question of a Gaza without Hamas was given some consideration, albeit not resolved. Whether Netanyahu intended to pursue this option is an open question, reflecting political considerations.
That is of particular importance when addressing whether collateral damage directly resulting from an expansive articulation of legitimate targets is justified, both from a military and political perspective, or must be understood strictly from a use of force question. If the latter, then the justification is cloudier; if the former, then subject to strict scrutiny, clear guidelines, and articulated standards, expansiveness would be tolerable, under limited circumstances.
Which leads us to the following question: what is in store for Gaza, and its civilian population, when the conflict in its present permutation concludes? “End” of hostilities is an elusive term, fraught with uncertainty. As these lines are written, Hamas leadership has been significantly impacted by the IDF, the world is increasingly disengaged from the conflict, and the Israeli public—notwithstanding the unimaginable pain of hostage families—has increasingly resigned itself to the fate of the hostages.
That, however, does not minimize the question of the “day after.” The question whether Hamas has benefitted the Gazan population is one only the Palestinians can answer; however, the query is not asked in the abstract, as there are consequences for Israel, Egypt, the Palestinian Authority, the U.S., and Qatar.
VIII. What Does All This Mean?
Answering this question requires focusing on how moral, legal, and strategic objectives must align for legitimate action to be understood in accordance with the model proposed in this essay. There is no intention to create a carte blanche model whereby the use of force is instinctively tolerated, facts and consequences be damned.
The model recognizing the justification for an expansion of legitimate target/s and consequent collateral damage is conditioned on rational based objectives, rather than arbitrary, possibly egregious, use of force. Implementation of the model discussed in this essay is conditioned on the articulation of goals, rather than mere rhetoric that served political-partisan needs.
However, and herein lies the tension, the unique events of October 7th and the days, weeks, and months thereafter presented Israeli decision makers with challenges on a scale fundamentally different than any previous engagement with Hamas. The extraordinary combination of hostages, killing of innocent civilians, and the brutal sexual violence represent an accumulation of circumstances that demanded a response fundamentally distinguishable from previous responses.
While this essay does not examine what led to October 7th, it seeks to propose a different model regarding the way the nation state applies the force available to it when confronting a situation profoundly distinct from any previous attacks by a non-state actor. However, a critical caveat applies: the expansiveness must be in accordance with strategy, not rhetoric, and conditioned on criteria reflecting respect for international law, albeit the re-articulation of legitimate target/s and collateral damage.
There is no doubt the civilian population in the Gaza Strip has paid a significant price for Hamas’s actions on October 7th. There must be no gainsaying that as pictures and reports make that compellingly clear. In the same vein, Israel and Israelis have greatly suffered in the past year. While the conflict has changed in nature from war-like to stagnant conflict, Hamas continues to both engage with the IDF and hold Israelis hostage.
While the IDF’s primary focus has shifted to Lebanon, and potentially Iran, there is still a strong IDF presence in Gaza, albeit not reflective of the months subsequent to October 7th. The expression “holding pattern” seems fit, particularly as units are re-positioned, particularly to engage with Hezbollah. The importance attached to the fate of the hostages, which dominated the news cycle, has largely receded, whether reflecting public fatigue or a determined effort by the government to deflect attention from its extraordinary and unfogiveable failure to successfully negotiate their release.
Notwithstanding the fact much of Hamas’s leadership has been killed, whether in the Gaza Strip, Iran, or Syria, there is no doubt Hamas presented the IDF with significant operational challenges, resulting in heavy casualties, in addition to loss of civilian life. Given both sides have greatly suffered, with no victor or victory in the offing—the Prime Minister’s politically motivated rhetoric notwithstanding—the larger question is what the long-term consequences are relevant to the issue this essay addresses.
In asking what the boundaries are of existing definitions of legitimate target and collateral damage, the working assumption (of this essay) is that October 7th represents a significant change in the interaction between state and non-state actors. While there has been reference to September 11th, seeking to equate October 7th to the al-Qaeda attacks on the World Trade Center and Pentagon, the similarity falls short in the context of the question this essay addresses.
This is not, in any way, to minimize the loss of civilian life resulting from the attacks in New York City and Washington, D.C. or to brush away the Bush Administration’s declaration of “war on terror” (intended or otherwise), resulting in the U.S. invasion of Iraq and Afghanistan and incorporation of counterterrorism measures, including torture-based interrogation (Bybee Memo). However, notwithstanding the attack in/on the U.S., and without suggesting one event is more/less serious than another, for all loss of innocent life is tragic, there are significant differences between the two attacks.
The 9/11 attacks on soil were contained to one day, two cities and one area in Pennsylvania where, thanks to the extraordinary courage of passengers on United Airlines Flight 93, a plane headed to Washington, D.C. crashed. October 7th resulted in continuous harm to Israelis held hostage and resulted in intensive fighting with Hamas both in the Gaza Strip and firing of rockets into Israel. After the 9/11 attack, the U.S. engagement with al-Qaeda took place thousands of miles from U.S. soil and did not involve American civilians, distinct from October 7th which resulted in both the capture of innocent Israelis and efforts to save them.
It is for that reason the Israeli response, distinct from the U.S. response, has focused on a single geographical region, both in an effort, with minimal success, to save hostages and to impose an unremitting price on Hamas members directly and the Gazan population indirectly. That “price” has been criticized, suggesting genocide, ethnic cleansing, and war crimes, However, a more nuanced—and temperate—analysis would suggest while the IDF has expanded, unilaterally, the definition, and application, of legitimate target/s and collateral damage, it has not done so in a vacuum, devoid of circumstances and events.
This is not, notwithstanding critical voices, a random action, reflecting a “bombs away” approach devoid of rationale and basis. Quite the opposite. While there was, without doubt, a determined effort to exact a price, it focused on those responsible –broadly defined—for the events that transpired on October 7th. The challenge is assessing the legality of the unilateral expansion of legitimate target.
Distinct from the U.S. response to September 11th, over significantly more expansive territory, the IDF reaction was focused on a narrow strip of land, between Israel, Egypt, and the Mediterranean Sea. The local population, largely locked between these three geographical realities, had little, if any, maneuverability, as the IDF increasingly narrowed areas where the civilian population could find respite.
The plight of those seeking to escape was exacerbated by the consistent unwillingness of the Arab world to provide haven to Gazans, much less offer support. That reflects significant discomfort regarding Hamas, widely perceived to be an Iranian proxy; in the broader Middle East geo-political configuration, the organization is understood to be a force of instability, if not threat. Similarly public comments aside, the Palestinian Authority has not offered any practical assistance to their fellow Palestinians.
In many ways, the primary source of support for Hamas has been on U.S. college campuses, and in certain American and European cities. Whether the demonstrations reflect antisemitism or anti-Israel sentiment is beyond the scope of this essay. However, the clear lack of support for Hamas in the Middle East is noteworthy.
Which brings us to the penultimate inquiry: is Israel’s expanding the “pool” of targets and the consequent collateral damage justified given October 7th, or do the IDF’s actions merit the wide-spread condemnation?
The answer to that question, when viewed through the narrow lens of the law—rather than the perspective of the broader public debate—depends on how October 7th is framed and who bears responsibility for the murder of 1,269 innocent Israeli civilians, coupled with unremitting sexual violence and the murder of helpless hostages.
If the answer focuses exclusively on Hamas members who conducted the attack, then the answer is that Israel’s actions are violative of international law. Conversely, if one recognizes that Hamas’s ability to prepare, commit the acts of October 7th, and, in its aftermath, require widespread support beyond those who crossed into Israel, then the broadening of legitimate targets and the resulting collateral damage is justified, subject to a re-articulation of international law.
Similarly, the question of the “day after” is no less important, for it highlights the need—when the conflict ends (“ends”)—to address broader issues to enable the Gazan polity to join the proverbial league of nations, rather than pay a consistent price resulting from sexual violence and murder of innocent Israelis. Absent that, the continuing cycle of violence will be just that, and the mutual price exacted on the Gazan and Israeli populations will be a painful reminder that terrorism imposes extraordinary harm on the terrorists’ own population as well as the targeted population.
IX. Where Do We Go From Here?
As these lines are written Israel is in a seven-front war: Hamas-Gaza, Hezbollah-Lebanon, Houthi-Yemen, Iran, attacking targets in Syria, Palestinian and Jewish terrorism in the West Bank. The phrase “no end in sight” is, sadly, accurate with the tragically predicable loss of life and significant property damage. The past year makes that clear and suggests, compellingly, what will be the predictable results of the on-going conflict.
Regarding the issue this essay raises, nation states and the international law community/ies, need to engage in a complicated conversation—doubtlessly controversial—whether the manner in which Israel responded to October 7th and its aftermath represents a significant change regarding the use of force and international law. The question is not posed in the abstract, nor is it so intended, for the challenge is how nation states protect themselves, including more aggressively than perhaps otherwise presently tolerated, when the attack on its innocent civilians is representative of an act of war, rather than terrorism as historically understood.
It is in that context that October 7th must be understood, for it represents something significantly different, from the attack itself to the unremitting violence imposed on the hostages over a year, to the actual engagement with the IDF in Gaza. It is in that sense that both the needle of terrorism was shifted by Hamas and the commensurate significant shift in response took place. There is no doubt the Gazan civilian population has paid a direct price emanating from both realities; to minimize that is factually inaccurate and serves no purpose. However, the larger question is whether October 7th indeed reflects a shift from terrorism to an act of war by a non-state actor, justififying the unilateral decision by Israel regarding legitimate targets and collateral damage.
While that decision has been condemned, it is the reality one year after Israelis were murdered in their home taken hostage, abused and killed whilst held hostage, with 97 still in Gaza’s tunnels. The response resulting in over 40,000 Gazan deaths and very significant property damage represents a significant challenge to the international community in confronting a complex legal dilemma that may well shape the future both of international humanitarian law and the laws of war.
While doubtlessly challenging, avoiding the complex dilemma is akin to sticking the proverbial head in the ground and ignoring a reality that demands attention and discussion, even if unpleasant, and anger filled with mutual accusations.
The time is ripe for jurists and others to confront the challenges resulting from October 7th, not in an unhelpful accusatory fashion which serves no strategic purposes, as this is not the time for performative behavior, but rather for serious conversation on a critical issue.
It is hoped this essay contributes to the undertaking of this much needed process.
Endnotes
[1] https://aoav.org.uk/2023/an-analysis-of-the-7th-of-october-2023-casualties-in-israel-as-a-result-of-the-hamas-attack/
[2] https://www.ajc.org/news/what-is-known-about-israeli-hostages-taken-by-hamas
[3] https://www.wsj.com/world/middle-east/hamas-hostages-israel-gaza-41432124; https://news.sky.com/story/a-year-, https://www.haaretz.com/israel-news/2024-10-15/ty-article/.premium/i-wont-block-roads-or-yell-what-makes-me-speak-is-the-longing-for-my-daughter/00000192-8f09-d9c2-a7f3-8f0fd7680000
[4] Sean Murphy, Evolving Geneva Convention Paradigms in the “War on Terrorism”: Applying the Core Rules
to the Release of Persons Deemed “Unprivileged Combatants, ’75 George Washington Law Rev. 1105 (2007), https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1901&context=faculty_publications;
[5] Shane Reeves, Winston Williams and Amy McCarthy, How Do You Like Me Now> Hamdan v. Rumsfeld and the Legal Justifications for Global Targeting, 41 University of Pennsylvania Journal of International Law 330-371 (2019), available at: https://www.armfor.uscourts.gov/ConfHandout/2022ConfHandout/Williams41UnivOfPAJournalOfInternationalLaw329.pdf
[6] ICRC engagement with armed groups in 2023 – Humanitarian Law & Policy Blog
[7] The Need to Strengthen International Humanitarian Law to Address the Challenges of 21st Century Warfare, A White Paper Prepared by the Cleveland Experts Meeting, September 26, 2024, published in 57 Case W. J. Int’l L. __ (upcoming 2025)
[8] https://www.timesofisrael.com/israel-allegedly-strikes-syria-area-believed-to-house-iran-forces-5-killed-19-hurt/
[9] Michael P. Scharf, How the War Against ISIS Changed International Law, 48 Case W. Res. J. Int’l L. 16 (2016)
Available at: https://scholarlycommons.law.case.edu/jil/vol48/iss1/3
[10] Id.
[11] On October 17, 2024 the IDF killed Yehiah Sinwar, the head of Hamas who masterminded the October 7th attack, https://www.cnn.com/2024/10/18/middleeast/yahya-sinwar-death-israel-gaza-explainer-intl-hnk/index.html
[12] In full disclosure, I have participatd in many such public events and wear clothing calling for their release
[13] Bruce Ogron interviews Amos Guiora.
https://us02web.zoom.us/rec/share/aYjWyShhPMY8_IrXmcwb5aV19J9VkNYlvCAEcdal5jkJ6qWPyEk2Go5FYgvyNDai.0mGMIZYZZpnLgmp3 (Passcode: rVzB3D@#)
[14] https://www.statista.com/statistics/1422308/palestinian-territories-israel-number-fatalities-and-injuries-caused-by-the-israel-and-hamas-war/
[15] https://news.sky.com/video/idf-spokesperson-peter-lerner-claims-the-israeli-defence-forces-have-killed-20-000-hamas-fighters-13229776
[16] See footnote 8
