The Illegitimate Instinct to Delegitimize Israel

iStockphoto.com/ Credit: Moshe Einhorn

Hamas is playing a dangerous game. The terror organization is illegally and indiscriminately firing Iranian-provided rockets at Israeli civilian centers. It hopes to provoke Israel into reacting as Israel has before: with short-term, withering Israel Defense Forces (IDF) military action that delegitimizes Israel while perversely strengthening Hamas.

The threat emanating from Gaza in Israel’s south has, to date, appeared far more manageable than Hezbollah’s massive, highly sophisticated missile arsenal on its northern border. This may no longer be the case. The attacks Israel has endured this past week are different in intensity and sophistication than past attacks, indicating that Hamas’ arsenal is more dangerous than ever before.

These developments may lead Israel to throw out the normal playbook and choose to eliminate Hamas’ capability to perpetuate this threat. And while a broader military campaign to achieve this strategic objective would almost certainly trigger widespread international condemnation, Israel would be well within its rights under international law based on this ever-present threat.

The effectiveness of the Iron Dome defense system has protected Israeli civilians and allowed Israel the strategic space to avoid a much more destructive ground offensive in Gaza to eliminate the Hamas threat. However, the capability of Iron Dome is not unlimited, and Israel cannot afford to confront a missile threat of equal magnitude on both its southern and northern borders. At what point will the IDF tell Israeli leaders that destroying Hamas’ capability at its root source is the only viable option to secure and defend the nation?

This all leads to critical questions of international law: What right does Israel have to respond to this threat, and what measures are justified in response? The answer is clear: Israel has the same right that every sovereign nation has to defend itself from unlawful attacks. Hamas’ efforts to exploit the explosive civil unrest in Israel by unleashing this rocket barrage—portraying itself as a defender of the oppressed and launching rockets against Israeli civilians as a purported show of solidarity in an effort to win Palestinian and international sympathy—is a blatant act of unlawful aggression.

To be sure, the Israeli response must itself comply with international law—it must include the obligation to use only proportional measures to defend itself. But international law does not restrict Israel to a mere tit-for-tat response; rather, it is the nature of the threat that dictates what self-defense actions are necessary and proportional in any given scenario. This means Israel may already be justified in the determination that the time has come for a much more extensive military campaign to destroy Hamas’ capability for future attack.

The destructive effects of combat, especially in urban areas like Gaza, is difficult to watch without a deep sense of pity for innocent civilians caught in the fray. Hamas knows this. Hamas also knows that media focus on such destruction is not only logical—it is the most evocative information related to the entire conflict. The public, digesting images of dead families and toppled buildings in Gaza, instinctively concludes that Israel acted in wanton disregard for civilian safety—or worse, intentionally targeted noncombatants.

Creating this international public perception of Israel as the unjustified, and illegal, aggressor is Hamas’ strategic objective. Hamas deliberately embeds military objectives within Gazan homes, schools, hospitals and even high-rise buildings used by journalists because civilian casualties are the most valuable weapon in its strategic arsenal—a weapon employed to perpetuate the distorted image of Israel as an oppressive, brutal Goliath. For Hamas, combat is the supporting effort to its information campaign; as long as it comes out standing, it wins.

What Hamas is exploiting is a deeply embedded confusion between cause and responsibility that allows for spread of distorted legal narratives. Israeli attacks may cause damage and destruction, but the responsibility for the tragic impact on Gaza civilians belongs exclusively to Hamas. This is because the terror organization pervasively and illegally exploits the presence of civilians to shield its targets and complicate IDF attack decisions. And Hamas knows that no matter the attack decision the IDF makes, it wins: If the IDF exercises restraint, Hamas wins a tactical benefit, but if the IDF launches the attack, Hamas wins a strategic information benefit by exploiting the attack’s collateral civilian impact.

Hamas’ exploitation of the widespread misunderstanding of international law undermines the legitimacy of the law for all nations, not just Israel. When the law-abider faces strategic condemnation for following the law while the lawbreaker reaps rewards, the law’s efficacy is eroded. And the irony is palpable: one party to the conflict—the IDF—seeks to mitigate the risk to Gaza civilians and their property as best as it can under the circumstances; the other party to the conflict, Hamas, not only deliberately attacks Israeli civilians, but intentionally exposes its own civilians to the deadly consequences of the hostilities it provokes itself. In truth, it is Hamas—and only Hamas—that is illegally attacking civilians. But it is always Israel that is condemned.

So Hamas should be careful what it asks for. At some point, Israel may decide to endure the international criticism based on false factual and legal narratives and defend itself as most law-abiding nations would: by destroying Hamas’ ability to threaten Israel in the future. If that happens, it will be Hamas that bears responsibility for any tragic suffering that results.

Geoffrey S. Corn is the Gary A. Kuiper distinguished professor of national security law at South Texas College of Law Houston, a distinguished fellow with The Jewish Institute for National Security of America’s (JINSA) Gemunder Center and a retired U.S. Army lieutenant colonel. Rachel E. VanLandingham is professor of law at Southwestern Law School, Los Angeles, a Gemunder Center expert and a retired U.S. Air Force lieutenant colonel.

Originally published in Newsweek