A Legal Analysis of Hamas’ International Law Violations and Israel’s Law-Abiding Response

 October 7, 2023... the day Hamas kidnapped over 250 innocent people.[1]  It has been over a year since that devastating day, and 101 hostages remain in captivity, even though Palestine’s non-member observer state status in the United Nations means that the government is expected to adhere to international human rights laws.[2]  Having ratified all three protocols of The Geneva Convention, Palestine is undeniably bound by their terms. Additionally, as a state party to the Rome Statute of the International Criminal Court (ICC), Palestine is accountable to the ICC.[3]  Hamas, as the de facto governing body over the Gaza Strip “with control over its own militant forces, is obligated as part of the state of Palestine to comply with the Geneva Conventions” and the Rome Statute of the ICC.[4]

Hamas’ inhumane treatment of the hostages, as well as their failure to return hostages, clearly breaches the Geneva Conventions, which hold that hostage-taking is forbidden and “there is no exception for any actor (State or non-State) or cause, including liberation movements in peacetime or in armed conflicts where hostage-taking is not covered by an obligation to prosecute or extradite under humanitarian law.”[5] As for the ICC, Hamas leaders and personnel can be held liable for acts of genocide, crimes against humanity, and war crimes committed on Israeli territory or in Gaza.[6]

Hamas’ crimes clearly violate international law, and while many argue that Israel’s response to the taking of the hostages is also a violation of the law, this claim is unfounded as States have a legal right to use force to rescue hostages.[7] Article 51 of the UN Charter gives states an inherent right to defend themselves.[8]  Using forceful action to rescue hostages is a legal form of self-defense if “the magnitude, necessity, immediacy, and proportionality requirements” are met.[9] In analyzing each of the four factors, it is clear that Israel meets the necessary requirements to use forceful actions.[10]  Kidnapping over 200 innocent people in an armed attack is undeniably enough to satisfy the magnitude element.[11] As for the second requirement of necessity, this is clearly met as there is a threat of violence against the hostages, and negotiations may prove ineffective.[12] As for immediacy, Many of the hostages have already been killed, and the fate of those still living worsens each day.[13]  As for proportionality, this means using “only the level of armed force that is necessary to rescue the hostages.”[14] Regardless, “[t]he final criterion of proportionality would be superseded by the anticipated Israeli incursion into Gaza because that intervention would be made under the right of self-defense—a much larger-scale objective—and not only to rescue the hostages”.[15]

In conclusion, various legal theories support the argument that Palestine has acted in bad faith in violation of many human rights laws while Israel has responded in good faith to rescue their hostages and defend the state.

 Kayla Kranz is a staff member of Fordham International Law Journal Volume XLVIII.

[1] Erin McLaughlin & Alexander Smith, Parents of slain Hamas captive push for deal, warning remaining hostages won't 'make it much longer', NBC News (Oct. 14, 2024, 6:30 PM), https://www.nbcnews.com/news/world/israel-hamas-war-hostages-hersh-goldberg-polin-parents-cease-fire-deal-rcna174557.

[2] Id.; United Nations., History of the Question of Palestine, United Nations Information System on the Question of Palestine https://www.un.org/unispal/history/  (last visited Nov. 11, 2024).

[3] David J. Scheffer, What International Law Has to Say About the Israel-Hamas War, Council on Foreign Relations https://www.cfr.org/article/what-international-law-has-say-about-israel-hamas-war#:~:text=Israel%20and%20the%20%E2%80%9Cstate%20of,four%20Geneva%20Conventions%20of%201949 (last visited Nov. 11, 2024).

[4] Id.

[5] Ben Saul, International Convention Against the Taking of Hostages, United Nations Audiovisual Library of Int’l L., Historical Archives (2014), https://legal.un.org/avl/ha/icath/icath.html.

[6] Scheffer, supra note 3

[7] Id.

[8] Kristen E. Eichensehr, Note, Defending Nationals Abroad: Assessing the Lawfulness of Forcible Hostage Rescues, 48 Va. J. Int'l L. 452, 484 (2008).

[9] Id.

[10] Scheffer, supra note 3

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.