The laws of war must guide Israel’s response to Hamas atrocity

We write as Jews, many of us with family and friends directly affected by the tragedy that has befallen Israel. Like so many others, the vile crimes perpetrated by Hamas in Israel have shaken us to our core.

We also write in our capacity as lawyers. We do so because, instilled with our Jewish values, we believe that law, and the adherence to the rule of law, provide an invaluable guide to begin to make sense of what we are witnessing and to provide a path to govern responses to it. In these darkest of days, we write to emphasise the importance of international law as a guide to all.

Three points bear emphasis. First, the despicable actions of Hamas are not simply a moral outrage but an egregious violation of all norms of international law. The murder of hundreds of civilians in cold blood, and the range of other atrocities committed are, without doubt, crimes against humanity.

They are also war crimes, indeed they amount to the most grave form of breaches of the Geneva Conventions. So too, the taking of hostages — it will surprise no one that grabbing terrified young children, holding them in captivity and using them as pawns in a gruesome form of negotiation is a gross violation of all applicable legal standards. To be clear, there are no possible defences to these crimes — whatever the context, there is no room for legal, let alone moral, equivocation when it comes to (for example) the slaughter of hundreds of young people enjoying a party.

Second, Israel has a clear right in international law to respond in self-defence, indeed like all states it has a duty to defend its citizens. Its international borders have been breached by a paramilitary force and its civilians brutally murdered and subjected to severe atrocities. It also has a clear right to seek justice for the crimes that have been committed on its soil, not simply against those captured by Israeli forces but against the Hamas organisation itself and those who enable its military operations.

Third, just as international law provides the means for categorising and criminalising the barbaric acts of Hamas, so too does it provide a framework for governing how Israel must respond. Any nation, conducting any armed conflict, no matter what the provocation, is bound in law to comply with all the “laws of war”. The laws of war are not pacifist. Rather, they are the opposite — they are an admission that there are occasions when war is necessary. They are designed to ensure that when war must be conducted, there are limits on what harm can be done to other human beings. As the leading Israeli lawyer Michael Sfard describes it, they represent humanity’s renunciation of the pacifist idea of a complete prohibition on the use of force in exchange for rules protecting basic humanity. These laws apply irrespective of the level of outrageous conduct of an enemy and no exceptions to those rules can be derived from the level of suffering caused by Hamas’s actions.

There are some aspects of Israel’s response that already cause significant concern. International law forbids sieges of civilian populations. Gaza is home to some 2mn fellow human beings (almost half of whom are children) and it would be a grave violation of international law to hold them under siege and while doing so deprive them of basic necessities such as food and water. To be clear, collective punishment is prohibited by the laws of war. Equally, international law requires combatants to ensure minimum destruction to civilian life and infrastructure. An intent to cause indiscriminate damage, rather than behaving in a precise manner to minimise damage would, if established, constitute a grave violation of international law. In the conduct of any military campaign, politicians and commanders alike must be careful to ensure that their words do not imply to their troops that the laws of war can be disregarded, nor employ language whose effect is to dehumanise a civilian population.

In these early days when emotions are so understandably raw, many might be reluctant to remind Israel of its international law obligations, considering to do so insensitive or inappropriate. However, we disagree. In these times of pain and terror the notion that there are laws that we must all live by is challenging but essential. Jewish history teaches us that we cannot give up on them.

Lord Neuberger, Former President of the UK Supreme Court

Professor Philippe Sands KC

Professor Sandra Fredman, University of Oxford

Richard Hermer KC

Danny Friedman KC

Anthony Metzer KC

Jon Turner KC

Adam Wagner

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