The movie Team America: World Police starts off with the counterterrorism group saving Paris from a bunch of ruthless Islamic terrorists that wanted to blow up the city. In the process, Team America ended up destroying the Eiffel Tower, the Arc De Triomphe, and the Louvre. Albeit for comic reasons, nevertheless, the producers of the movie, Matt Stone and Trey Parker (also the creators of South Park) demonstrated a fundamental insight: yes, Team America may have effected the same result that the terrorists wanted but a profound difference remains: Team America had not intended to destroy Paris, the terrorists did.
To equate the two as the same amounts to committing the “fallacy of accident,” in which a general rule (in this case, death and destruction are bad) are applied to a particular event that has a specific circumstance that makes the application of the general rule invalid.
The foregoing should be the starting point when looking at the situation in the Gaza Strip. The results may seem the same but underlying it all is a fundamental difference between the acts done by Hamas and that of the Israelis. The former is an act of barbarism and the latter of self-defense.
Note, however, that even the foregoing premise is inaccurate because the actions done by the two entities are certainly not the same: it is undeniable that Hamas committed the slaughter of innocent civilians, raping women in front of their families, beheading babies or burning them in ovens, murdering grandmothers and then livestreaming it on social media for their families to see. No amount of context or historical baggage could possibly justify such acts of monstrosity.
To argue that Hamas was forced to engage in terrorism due to continued oppression of Palestinians is a lie. Even now, no one from their side is actually calling for a “two State solution” and instead what is repeatedly seen on media are demands of “from the river to the sea,” which is essentially code for the wiping out of Israel.
Occupation? The whole thing wouldn’t have even occurred if the 1967 Six Day War was not launched against Israel. Before that, from 1948, the Israelis had no control over the West Bank, the Jordanians did and with nary a complaint from the Palestinians. It was only after the Israelis gained control over the West Bank in 1967 that the Palestinians started demanding “independence.” Even then, the Palestinians were offered compromises seven times and promptly rejected every single one of them: 1937, 1939, 1947, 1949, the 1990s, 2000, and 2008.
Add the fact that the Palestinian Liberation Organization already controls 49% of the West Bank, while the Gaza Strip itself is under Hamas rule. The point of all this is that this isn’t about territory. It’s about Islamic terrorists wanting to commit genocide on Israel. It is as simple as that.
That is why to demand a ceasefire at this point, essentially to require Israel to stop its military operations, is ridiculous. It is analogous to wanting the US to agree to a ceasefire after the Japanese bombed Pearl Harbor.
The question then shifts as to what rules of engagement apply. An argument can be made that since Hamas has control of the Gaza Strip, then the provisions of the international law on armed conflict should apply. In this regard, Israel is a signatory to the four 1949 Geneva Conventions since 1951. The Geneva Conventions essentially govern the rules on warfare, the treatment of combatants, prisoners of war, and non-combatants.
There is also the Martens Clause, which require the humane treatment of population, inhabitants, and belligerents, including that of francs-tireurs (which generally refer to fighters operating outside a regular force and not necessarily governed by the laws of war). The Clause is not found in the 1949 Geneva Conventions but is found in the 1977 Additional Protocol 1 and 2. Israel has not signed those two Protocols but regardless as the Clause is already considered as constituting customary international law.
Israel, interestingly (and wisely) has not signed the Rome Statute of the International Criminal Court. On the other hand, Palestine acceded to the Statute in 2015 and is thus explicitly bound by and must be made liable to the laws against genocide, crimes against humanity, war crimes, and crimes against aggression.
Even more interesting is that Palestine is a signatory to the Geneva Conventions, including Protocols 1 (the protection of civilians during war), 2 (protection of victims in non-international armed conflicts), and 3 (protection of individuals wearing distinctive emblems).
While indeed Israel’s actions need to be regulated by international law, nevertheless, the difficulty comes when Hamas itself is blatantly violating it without accountability. It has been well documented for years that Hamas is predisposed to using its own civilian population as human shields against Israeli attacks. The application of international law also becomes more difficult when one considers that the Palestinian civilian population is apparently supportive of Hamas and its atrocities. Surely, the “clean hands doctrine” alone should absolve Israel from responsibility arising from Hamas’ duplicity.
Ultimately, Israel has the right to defend itself. The UN General Assembly should be ashamed in calling for a ceasefire, in complete violation of Article 51 of its own Charter, which recognizes the inherent right of individual self-defense if an armed attack occurs against a UN Member. Any peace should only come as a result of justice.
Jemy Gatdula read international law at the University of Cambridge and is a Philippine Judicial Academy lecturer for constitutional philosophy and jurisprudence.
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