It is extraordinary that a Russian ambassador can tell the United Nations (UN), as he did on November 1, that Israel has no right to self-defense against Hamas.
Referring dismissively to a central tenet of the UN Charter, Vasily Nebenzya, said that “as an occupying power, it does not have that power [of self-defense].”
Of course, Israel has not occupied Gaza for 18 years, and anyway, the Russian ambassador’s contention is arguable, to say the least.
But the Russian assertion matters nonetheless. The Kremlin’s latest demonstration of its indifference to, and willingness to twist, international law for its own political ends has a purpose. After all, Russia launched an unprovoked all-out war of aggression war against Ukraine in February 2022 and has every reason to muddy the waters on behalf of Hamas, despite the slaughter of October 7.
Russia is entirely wrong. Unprovoked acts of aggression give the victim an undeniable and clearly stated legal right to respond.
This is not merely a form of words. It has real-world consequences.
In recent decades, the problem of gross violations of the laws of armed conflict (LOAC) has been growing, with civilians and prisoners of war tortured and executed in the former Yugoslavia, in the Rwanda genocide, in chemical attacks by the Assad regime on civilians in Syria, as well as over 75,000 suspected war crimes in Russia’s war on Ukraine.
There is a pattern emerging of an absolute indifference to the laws of war, even as regards children. Russia has kidnapped many thousands of young Ukrainian people, while Hamas has taken under-18s as hostages and murdered others.
The resolve of the rules-based international order is being sorely tested.
Hand-wringing is not enough. The international community, through the UN which was established to end such wanton lawlessness, must even be prepared to insist on a legal process and even to apply force to bring about compliance with international law. The alternative is to sink into the morass of inhumanity and violence reminiscent of medieval history.
The issue is made more pressing by an axis of largely lawless anti-Western states — take Russia, Iran, Syria, and North Korea as examples, not to mention China — which means that we must act quickly to preserve the requirements of civilized conduct.
International law has been reinforced through certain provisions included in the Treaty of Rome, which entered into force on July l, 2002, and encompassed in the Statute of the International Criminal Court, which strictly proscribes unlawful violence towards civilians, prisoners of war, and shipwrecked individuals, along with Common Article Vl of the Geneva Convention of 1949, which prohibits the targeting of civilians in armed conflicts and also specifically prohibits the taking of hostages.
The law is clear, well-recognized, and has been repeatedly affirmed and enforced in modern tribunals.
Hamas acted in complete and utter disregard for these tenets, for which the world community recognizes universal jurisdiction: criminal conduct committed anywhere is a crime everywhere. The same applies to accused Russian war criminals, including the indicted Vladimir Putin.
Israel, and indeed the entire civilized world, has a legal obligation to confront the criminal elements responsible for such horrendous acts and seek justice for the crimes committed.
It must be recognized that the full panoply of the LOAC has been breached in the most violent and horrific manner, and that our international regime of judicial power is under the most severe threat. The range of charges will include:
- crimes against the peace,
- crimes against humanity,
- war crimes,
- and genocide.
But while Israel has the legal right and the moral authority to seek a reckoning, and is allowed to use force, there must be a concomitant concern for the protection of innocent Palestinian non-combatants at risk during bombing, an invasion, or any military operations in the dense urban areas of Gaza.
That is because Palestinian civilians, like their Israeli counterparts, are protected under the laws of war. While it is understandable to hear the emotional language used to describe these terrorists as “bloodthirsty animals” from Israeli officials, it would be more accurate to call them unlawful combatants or international criminals.
The moral authority to seek justice does not recognize revenge, and Israeli forces should be given clear orders that recognize the duty to obey and enforce international law. When it takes unlawful combatants as prisoners of war, they must be held until such time as proper judicial procedures can used to charge, try and punish them.
This author would further suggest that since we have an International Criminal Court, created for this type of eventuality, the persons detained be transferred to the Hague where they can be tried under the ICC Statute and punishment meted out.
This would preserve Israel’s moral authority, while simultaneously making the entire international community responsible for enforcement of law. Only in this way can the world’s law-abiding nations demonstrate their intolerance for the reprehensible conduct unleashed upon the world by Hamas forces.
James Holmes Armstead is a retired professor of Strategy and International law from the US Naval War College. He is a former RAND analyst and Department of Defense team member who assisted in negotiating 13 new members states’ entry into NATO, and has taught international law, strategy, and national security policy for over 40 years both in the US and abroad.
Europe’s Edge is CEPA’s online journal covering critical topics on the foreign policy docket across Europe and North America. All opinions are those of the author and do not necessarily represent the position or views of the institutions they represent or the Center for European Policy Analysis.
