Behind the Gaza Conflict: ­­­Hamas in the Context of International Law

The recent flare-up of violence in the Gaza Strip between Hamas and Israelhas brought tragedy before our eyes, and the death toll will get worse if Israel follows through on its threat to invade the Gaza Strip. Oddly enough, the violence is accompanied by a public relations war on Twitter, with the Palestinian Authority trying to obtain recognition as a non-member observer state at the United Nations at the same time. If Hamas really wants to improve its image in the world and hope for the legitimacy that international recognition can bring, it should begin by following the rules of war prescribed by international law as is expected of all states.

Violence in Gaza

Photo from US State Department

Long dismissed as a terrorist group, Hamas can no longer be relegated to the role of “lunatic fringe,” since they won Palestinian elections in 2006. While Hamas is not recognized as an independent state, it could be considered a belligerency, a lesser level of recognition often applied to rebel groups. Under international law a belligerency must meet three conditions, according to Dr. James Wolfe: “rebellion must be organized around a government, the revolt must extend a local uprising, and a substantial area must be under the de facto control of antigovernment forces.” Based on these criteria, Hamas fits the bill. They are organized and have popular support, and they control the Gaza Strip.

However, this criteria for belligerency omits a critical point. Belligerency status in the context of international law specifically gives both the protection and obligations of the laws of war and the Geneva Convention. This principle was established in 1861 during the Civil War, when although formal recognition of independence was withheld, Britain, Spain and France recognized the Confederacy as a belligerency subject to the laws of war. The Geneva Convention lays out some specific criteria for privileged combatants (those protected by the Geneva Convention) who are not members of the armed forces of a recognized nation-state:

“(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.”

Hamas is an organized resistance movement with a command structure. However, they do not wear uniforms or other distinctive insignia, carry arms openly, or follow the laws of war. They deliberately target civilians and hide behind white flags amongst the population; the civilian blood on their hands makes them unprivileged combatants, not protected by the Geneva Convention.

It is both politically and morally contradictory to recognize Hamas as a belligerency or to think of recognizing Palestinian statehood and expect Israel to be restrained without also holding Hamas to the standard of the rules of war. If Hamas wants to improve its image and have a hope for international recognition, let it start by restricting its attacks to military targets and stop shooting rockets into Israeli cities.

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