Since the advent of civilization, humans started to live in communities. While cooperation enabled them to live in a hostile environment and better fend off the challenges posed to them collectively, conflict also started to emerge between them. This conflict had various reasons ranging from resource distribution to control the area or just asserting power over others to alleviate their social status in social hierarchies that emerged as a result of social interactions between humans and communities. At times when conflict escalated and was unable to be resolved with negotiations or non-violent means, the violence became inevitable and led to the use of force between the individuals or parties. To regulate this use of force, communities developed some ethical frameworks that led to the formation of moral laws that eventually turned into legal laws. This formation of law or framework in general was quite comprehensive and early to be formed to work within a community or society and there were overarching authorities to enforce them. However, the development of laws to regulate the use of force and violence between different groups and communities of humans always lagged. Of many reasons, the lack of consensus between communities on the framework and the absence of binding authority to enforce it are key reasons that such a framework didn’t become mainstream. However, philosophers and thinkers since antiquity tried to suggest such frameworks. While vague ideas of this framework existed in the thinking of philosophers like Aristotle and tradition like that of ancient China where some moral rules were followed during the conduct of war, it was Saint Augustine who first proposed a comprehensive framework for the moral conduct of war known as Just War theory. It laid the foundation that war is a just war and is ethical to wage and what should be the course adopted during that war by the warring parties. What makes the Just War theory very important is the fact that while both sides in a war claim they are on the right, a third party that is not involved directly in the conflict but is affected by that conflict, has to decide what stance or side it has to take. In this regard, the Just War theory set the precedent for that. Similarly, it pushes the parties to adhere to the norms of the conduct of war to claim the moral high ground and garner support for their cause.
The October 7th invasion of Hamas of Israel and retaliatory invasion of Israel on Gaza sparked a new debate in the international arena. On one side Hamas claims that it had waged a war as a result of atrocities committed by Israel and to protect the supreme national interests of the Palestinian people, on the other side, Israel regards this attack as a terrorist attack driven by antisemitism. In this article, the author will first establish whether the war launched by Hamas was a just or unjust war. One of the two main divisions of Just War theory is Jus Ad Bellum (Right to War) which establishes which war is a just war. This principle dictates that a war must be waged by a legal or legitimate authority and should be declared publicly. Hamas won the last election held in Palestine (Both Gaza and West Bank) in 2006. Although the term of government has long ended as no new elections have been conducted in Palestine, Hamas is still governing the Gaza Strip as it won most of the seats in Gaza electoral districts in 2006. Further, many polls show that Hamas is the most popular organization in Gaza and its popularity is on the rise in the West Bank too as more and more Palestinians consider it to be their sole or best representative. Also Hamas before the attack, announced the commencement of the Al Aqsa Flood Operation on the morning of the 7th of October 2023, thus fulfilling the first requirement of the Jus Ad Bellum. The next postulate of the Jus Ad bellum is a ‘Just Cause’. Hamas has officially stated that it has waged the war as a response to atrocities committed by Israel in Gaza and the West Bank along with illegal settlements by Israel in the West Bank and to end the Israeli occupation of Palestine. Now this is again allowed both morally and in International Law that a national or sub-national group can resist a foreign occupation and protect their supreme national interest of protecting their land thus fulfilling this criterion too. Next postulate talks about the ‘probability of success’ in a war as a necessary thing to consider. Hamas can’t win a full-fledged conflict with Israel which has a proper army with billions of dollars of budget while Hamas relies mostly on in-house built capabilities along with minimal support from Iran. But winning the war was never a stated goal of this war. As pointed out by Khalil Al Hayya, a senior leader of Hamas, “We succeeded in putting Palestinian issue back on the table”, the main goal of Hamas was to revive the dying Palestinian issue in the international arena. Hamas succeeded in its goal as the whole international community’s attention was drawn to this conflict even putting the Russo-Ukrainian war on the back end. So, Hamas was quite successful in its stated goal. Further, it is always likely that a struggle for statehood and self-determination can never match in capability to a state but even then it is justified to wage as other factors like international support, cost of war being barred by the opposing party, norms, values, identity etc. give the prospect of its success. The last postulate of this principle is the use of violence as a ‘Last Resort’. In the case of the October 7 attack this postulate although have some ground its a shaky foundation. Some argue that despite the repeated engagements and peace talks the Palestinian issue is still not resolved and Israel continues to grab Palestinian lands, build Jewish settlements and commit atrocities like illegally detaining Palestinians, torturing civilians, putting illegal checkpoints and restraints on the movement of Palestinians in West Bank, it is also a matter of fact that Israel has signed Oslo Accords and allowed the formation of Palestinian Authority, recognizing it as a legitimate authority of Palestinians. Similarly, Israel also unilaterally withdrew from Gaza in 2005 and ended its Jewish settlements there, supplied water and electricity in Gaza, allowed foreign aid through its channels to reach Gaza, and allowed around 17000 Gazan citizens to work and earn in Israel, and was engaged in peace talks with Palestinian National Authority. So, it depends on the one’s perspective whether he saw this war as a last resort to bring the issue to the international arena or whether other ways could have been adopted.
Now the second principle of Just War theory is Jus in Bello (Justice in War). It deals with three main postulates that are discrimination, Proportionality and Humanity. According to the discrimination postulate the force being used in a war must be used only against military targets and combatants while civilians shouldn’t be harmed. Hamas’s attack from the start was directed against the civilian settlers in the areas near the border of Gaza. Hamas fighters engaged and killed mostly civilians including men, women and children, while very few military personnel were attacked. Similarly, most of the persons detained and brought back to Gaza were noncombatants. So, Hamas violated this postulate of a just conduct of war. The next postulate of Proportionality states that the amount of force being used in war must not exceed than required to achieve the target. Now this again depends on the perspective from which you are seeing the war. While, it is evident that only a small attack on Israel could have brought the issue back into the limelight, bringing Israel to negotiating terms surely required that Hamas should be in a good position militarily and have some negotiating cards in its hands. The last postulate in Humanity establishes that force must not be used against the captured personnel during the war who are known as ‘prisoners of war’. But videos and eye witnesses circulating on the internet show multiple incidents where captured persons by Hamas were humiliated, injured and killed later on thus violating the established norm of immunity to prisoners of war. So, one can say that the Hamas attack on Israel on the 7th of October 2023 was a just war but was conducted unjustly. So, it can be regarded as an unjustly conducted just war.
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