JUSTICE - No. 71

20 No. 71 JUSTICE The ICJ largely ignored these atrocities in its January 26, 2024 order. For decades, Hamas has committed war crimes by using the civilian population in Gaza and civilian facilities including schools, hospitals, and ambulances as human shields.45 They have continued this behavior over the course of the war as well. Yet Article 8(2)(b)(xxiii) of the Rome Statute strictly prohibits “[u]tilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.” Indeed, Hamas has publicly declared for years that sacrificing innocent Palestinian civilians is a key element of its strategic doctrine. In a speech delivered on February 29, 2008, Hamas official Fathi Hammad said: for the Palestinian people, death has become an industry, at which women excel, and so do all the people living on this land. The elderly excel at this, and so do the mujahideen and the children. This is why they have formed human shields of the women, the children, the elderly, and the mujahideen in order to challenge the Zionist bombing machine.46 Senior Hamas official Khaled Mashal repeated the claim in a televised interview on Al Arabiya television on October 20, 2023, in which he bragged about sacrificing Gazan civilians.47 Israel’s Lawful Right to Self-Defense The October 2023 Hamas attacks triggered Israel’s lawful right to defend itself pursuant to the United Nations Charter. Specifically, Article 51 provides that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations . . .” In Nicaragua v. United States, the ICJ made clear that terrorist strikes, such as the Hamas attacks, constitute an “armed attack” that triggers Article 51’s right to selfdefense.48 Conclusion In the wake of October 7, 2023, Israel experienced a brief period of sympathy from the international community. However, it was not long before the international community quickly (and predictably) turned against the Jewish state as the death toll in Gaza mounted amidst Israel’s military response against Hamas. Calls for a ceasefire replaced expressions of sorrow for Israel’s horrific losses. The media and many others accused Israel of engaging in a “disproportionate” response to the losses it suffered on October 7, so much so that Israel was accused of committing “genocide” in the Gaza Strip. As discussed, the factual inaccuracy of these claims is stunning. The Israeli military is not perfect, but it takes far more steps to avoid civilian casualties than any other army in the world. As early as October 13, Israel asked Gazans to leave the northern half of the tiny territory and move a few kilometers south for their own safety. The Israeli military was, in effect, notifying civilians in advance of upcoming military operations, saying it did not want to hurt them. Moreover, Israel worked with Egypt and the United States to allow trucks carrying humanitarian relief supplies to enter Gaza as early as October 23, 2023. Since then, hundreds of truckloads of aid have been delivered through the Rafah border crossing, according to Palestinian Red Crescent officials.49 Further, Israel announced on November 9, 2023, that it would begin to observe four45. “Hybrid Threats: Hamas’ Use of Human Shields in Gaza,” NATO STRATEGIC COMMUNICATIONS CENTRE OF EXCELLENCE, June 6, 2019, available at https:// stratcomcoe.org/pdfjs/?file=/publications/download/ hamas_human_shields.pdf?zoom=page-fit 46. Howard Adelman, “Research on the Ethics of War in the Context of Violence in Gaza,” 7 J. ACADEMIC ETHICS 93, 110 (2009). 47. “Hamas official says group ‘well aware’ of consequences of attack on Israel, Palestinian liberation comes with ‘sacrifices’,” ARAB NEWS, Oct. 20, 2023, available at https://www.arabnews.com/node/2394966/middle-east 48. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. 14, 103-04 ¶ 195 (June 27). 49. Jacob Magid, “Over 100 aid trucks enter Gaza in a day for 1st time since start of Israel-Hamas war,” TIMES OF ISRAEL, Nov. 3, 2023, available at https://www. timesofisrael.com/over-100-aid-trucks-enter-gaza-stripfor-first-time-since-start-of-israel-hamas-war/; The news item stated that the “Palestinian Red Crescent says 374 trucks of food, water and medicine or medical supplies have entered via Rafah since October 21.”