DAVID WABOGA: Navigating Complexities of ‘Jus Ad Bellum,’ ‘Jus in Bello,’ ‘Jus Pos Bellum’ in Israel-Hamas Conflict

The conflict between Israel and Hamas has been one of the most protracted and violent in the Middle East, this conflict did not start on the 7th of October 2023 when Hamas militants attacked Israel killing 1,200 people and taking about 240 hostages, Neither did it start on the day the IDF responded to the atrocities committed by Hamas. Rather, this conflict has a long and complex history that spans over a century, involving political, territorial, religious, and legal disputes between Israelis and Palestinians, as well as regional and international actors, some of the main questions and controversies are:

1. Who has the right authority to initiate or respond to the use of force? Is Hamas a legitimate representative of the Palestinian people or a terrorist organization? Is Israel acting in self-defense or aggression? How does the role of the United Nations, the Arab League, and other international actors affect the legitimacy of the parties’ actions?
2. What is the just cause for the use of force? Is Israel justified in defending its citizens from rocket attacks and tunnel infiltrations by Hamas? Is Hamas justified in resisting the Israeli occupation and blockade of Gaza? How do the historical and political grievances of both sides affect their claims to justice?
3. What are the proportionate and necessary means of using force? Is Israel using excessive and indiscriminate force against the civilian population and infrastructure of Gaza? Is Hamas violating the principle of distinction by hiding among civilians and targeting Israeli civilians? How do the asymmetry of power and the availability of weapons affect the conduct of the parties?
4. What are the goals and outcomes of the use of force? Is there a reasonable chance of success for either party to achieve its objectives by military means? What are the short-term and long-term consequences of the use of force for the security, stability, and well-being of both peoples? How can the cycle of violence and retaliation be broken and a lasting peace be achieved?
5. What are the responsibilities and obligations of the parties after the cessation of hostilities? How can the parties restore the dignity, rights, and needs of the victims and survivors of the conflict? How can the parties reconcile their differences and build trust and cooperation? How can the parties hold accountable those who committed violations of the law and human rights? How can the parties compensate for the damages and losses caused by the conflict
   These legal principles, like oil and water, blend and clash in a symphony of international law, shaping the narrative from the outset of hostilities to the post-conflict landscape some of the complex and sensitive issues that the ‘jus ad bellum’, ‘jus in bello’, and ‘jus pos bellum’ frameworks attempt to address. However, these frameworks are not always clear, consistent, or universally accepted. They also depend on the facts, circumstances, and perspectives of each case. Therefore, applying these frameworks to the Israel-Hamas conflict requires careful analysis, dialogue, and negotiation among the parties and the international community.
   To try and attempt to answer these questions without giving a background of the conflict is like jumping into the pool without checking the depth.
   The Origins of the Israel-Hamas conflict is much more complex in nature and history, the Israel-Gaza, or the broader Israel-Palestine conflict, is a long-standing struggle between Israelis and Palestinians that emerged in the mid 20th century. When the Zionist movement began to promote the idea of a Jewish homeland in Palestine, then part of the Ottoman Empire. This led to a wave of Jewish immigration to the region, which was met with resistance and hostility by the Arab population, who saw themselves as the indigenous people of the land. The British mandate of Palestine, established after World War I, further complicated the situation, as it promised to support both the Jewish national home and the rights of the Arab majority.
   The conflicting promises and interests of the British, the Jews, and the Arabs resulted in violence and unrest throughout the mandate period.
   The UN partition plan of 1947, which proposed to divide Palestine into two states, one Jewish and one Arab, was accepted by the Jewish leadership but rejected by the Arab side. This led to the outbreak of the first Arab-Israeli war in 1948, which ended with the establishment of the state of Israel and the displacement of about 700,000 Palestinians, who became refugees in neighboring countries or within Israel.
   The war also left the Gaza Strip under Egyptian control and the West Bank under Jordanian control, creating the so-called Green Line as the armistice border between Israel and the Arab states. The subsequent wars of 1956, 1967, and 1973 further reshaped the map of the region, as Israel occupied the Gaza Strip, the West Bank, East Jerusalem, the Sinai Peninsula, and the Golan Heights.
   The occupation of these territories, which are claimed by the Palestinians as part of their future state, has been the main source of tension and conflict ever since. The Palestinian resistance to the occupation took various forms, from armed struggle to popular uprising, and gave rise to different political and militant factions, such as the Palestine Liberation Organization (PLO), Fatah, and Hamas.
   The PLO, led by Yasser Arafat, became the internationally recognized representative of the Palestinian people and engaged in negotiations with Israel, resulting in the Oslo Accords of 1993 and 1995, which established the Palestinian Authority (PA) as a self-governing entity in parts of the Gaza Strip and the West Bank.
   However, the Oslo process failed to resolve the core issues of the conflict, such as the status of Jerusalem, the borders of the Palestinian state, the Israeli settlements, the Palestinian refugees, and the security arrangements. The failure of the peace process, coupled with the continued expansion of the Israeli settlements and the violence and repression by both sides, led to the outbreak of the second Palestinian uprising, or intifada, in 2000, which lasted until 2005.
   During this period, Israel built a separation barrier along and inside the West Bank, which it claimed was necessary for security reasons, but which the Palestinians saw as a land grab and a violation of their rights.
   In 2005, Israel unilaterally withdrew its troops and settlers from the Gaza Strip, but maintained a blockade on the coastal enclave, which it tightened after Hamas, a rival faction of Fatah and an Islamist militant group, won the Palestinian legislative elections in 2006 and took over the Gaza Strip in 2007, ousting the PA.
   Since then, the Gaza Strip has been under the de facto rule of Hamas, which is considered a terrorist organization by Israel, the US, and the EU, and has been subject to repeated Israeli military operations and attacks, as well as internal divisions and humanitarian crises.
   The West Bank, on the other hand, has been under the control of the PA, led by Mahmoud Abbas, the president of the Palestinian state, which is recognized by more than 130 countries, but not by Israel or the US. The PA has pursued a diplomatic strategy to gain international recognition and support for the Palestinian cause, but has also faced criticism and challenges from its own people, who accuse it of corruption, authoritarianism, and collaboration with Israel.
   The last round of direct talks between Israel and the PA collapsed in 2014, and no serious peace efforts have been made since then. The current situation is characterized by a stalemate and a lack of trust and dialogue between the parties, as well as a growing sense of despair and frustration among the Palestinians, who see their hopes for statehood and freedom fading away.
   The recent events, such as the US recognition of Jerusalem as the capital of Israel, the Israeli annexation plans in the West Bank, the Palestinian reconciliation attempts, the Israeli normalization agreements with some Arab countries, and the outbreak of the Covid-19 pandemic, have added new layers of complexity and uncertainty to the already intractable conflict
   Despite established peace agreements with neighboring Egypt and Jordan, the long-term peace process between Israel and Palestine has failed to produce a comprehensive agreement–therefore earning the moniker of the world’s “most intricable conflict’’
   Numerous attempts have been made to try and develop a “two-state solution” that would involve the creation of an independent Palestinian state alongside Israel. However, key issues remaining include mutual recognition, border disputes, security, control of Jerusalem, Israeli settlements, Palestinian freedom of movement and Palestinian claims of a right of return for their refugees.

First forward into the question at hand is Who has the right authority to initiate or respond to the use of force? Is Hamas a legitimate representative of the Palestinian people or a terrorist organization? Is Israel acting in self-defense or aggression? How does the role of the United Nations, the Arab League, and other international actors affect the legitimacy of the parties’ actions?
These are very complex and sensitive questions that do not have simple or definitive answers. The international law on the use of force is based on the principles of sovereignty, non-intervention, and collective security, but it also faces many challenges and controversies in its application and interpretation.
The right authority to initiate or respond to the use of force is generally determined by the United Nations Charter, which prohibits the use of force against the territorial integrity or political independence of another state, except in self-defense or with the authorization of the Security Council. However, some states may claim other grounds for the use of force, such as humanitarian intervention, protection of nationals, or pre-emptive self-defense, which are not explicitly recognized by the Charter and may be contested by other states or the international community
The legitimacy of Hamas as a representative of the Palestinian people or a terrorist organization depends on the perspective and criteria of the actors involved. Hamas is a political and militant faction that emerged from the Muslim Brotherhood movement and has been the de facto ruler of the Gaza Strip since 2007. Hamas has a dual identity as a social service provider and a resistance fighter, and has a political wing and a military wing. Hamas is considered a terrorist organization by Israel, the United States, and the European Union, among others, because of its use of violence against Israeli civilians and its rejection of Israel’s right to exist. However, Hamas is also recognized as a legitimate political actor by some states and organizations, such as Turkey, Qatar, and the Arab League, because of its popular support among Palestinians, its participation in democratic elections, and its willingness to engage in dialogue and reconciliation with other Palestinian factions
The characterization of Israel’s actions as self-defense or aggression depends on the interpretation and application of the legal criteria of necessity and proportionality. Israel claims that it acts in self-defense against the armed attacks and threats posed by Hamas and other militant groups, which fire rockets and launch incursions into its territory, and that it complies with the rules of international humanitarian law in its conduct of hostilities. However, Israel’s actions are criticized by many states and organizations, such as the United Nations, the Human Rights Council, and Amnesty International, as disproportionate and excessive, causing unnecessary harm and suffering to the civilian population and infrastructure of Gaza, and violating the human rights and humanitarian law obligations of the occupying power.
The role of the United Nations, the Arab League, and other international actors affects the legitimacy of the parties’ actions in various ways. The Security Council, as the primary organ responsible for maintaining international peace and security, has the authority to authorize or condemn the use of force, impose sanctions, or deploy peacekeeping forces. However, the Security Council has often been divided and paralyzed on the Israel-Palestine issue, due to the veto power of its permanent members and the divergent interests and positions of its members.
The General Assembly, as the representative organ of the UN membership, has the power to make recommendations, express opinions, and mobilize support for the Palestinian cause, but its resolutions are not legally binding and often lack implementation. The Secretary-General, as the chief administrative officer and the spokesperson of the UN, has the role of mediation, facilitation, and coordination, but has limited influence and leverage over the parties.
The Arab League, as the regional organization of the Arab states, has the role of solidarity, advocacy, and assistance, but has also faced internal divisions and challenges in its effectiveness and credibility. Other international actors, such as the United States, the European Union, Russia, China, Iran, Turkey, and Egypt, have different roles and interests in the conflict, ranging from mediation, arbitration, and facilitation, to support, influence, and intervention.
In conclusion
The complexities surrounding the use of force, legitimacy, and the role of international actors in the Israel-Hamas conflict underscore the intricate nature of ‘Jus Ad Bellum,’ ‘Jus in Bello,’ and ‘Jus Pos Bellum.’ These legal frameworks attempt to address pressing questions, but their application is contingent on careful analysis, dialogue, and negotiation among the involved parties and the international community.
As we journey deeper into the subsequent articles, a thorough exploration of the conflict’s historical backdrop will be unveiled, shedding light on the multifaceted roots that have nurtured this enduring struggle. The myriad questions posed—ranging from the legitimacy of Hamas, the just cause for the use of force, to the proportionate means employed—demand a nuanced understanding of the conflict’s evolution.
To attempt answering these questions without delving into the conflict’s historical complexities is akin to plunging into a pool without gauging its depth. The intricate history of the Israel-Hamas conflict, shaped by political, territorial, religious, and legal disputes over the past century, sets the stage for the ongoing tensions. Understanding this historical context is crucial before navigating the thorny terrain of international law and ethics surrounding the conflict.
In the upcoming segments, we will unravel what is the just cause for the use of force? Is Israel justified in defending its citizens from rocket attacks and tunnel infiltrations by Hamas? Is Hamas justified in resisting the Israeli occupation and blockade of Gaza? How do the historical and political grievances of both sides affect their claims to justice?

By Waboga David
PGDLP Candidate