Insights from Prof. Samuel Estreicher (NYU) on the Legalities of the Hamas-Israel Conflict

From the perspective of Prof. Samuel Estreicher, on the matter of the conflict between Hamas and Israel, the two primary arguments against Israel’s right to self-defense are not valid. The argument that Israel’s “inherent right” is nullified because it is the “occupying power” of the Gaza Strip is questionable because Israel withdrew all military forces from Gaza in 2005 and thus does not meet the requirements to be considered an occupying power. Furthermore, even if it were an occupying power, this would not justify Hamas’ attacks on civilian targets in Israel. The second argument, which asserts that Israel cannot invoke its right of self-defense against non-state actors like Hamas, is also untenable. Article 51 of the UN Charter states that nothing shall “impair the inherent right” of self-defense possessed by all member states, and recent years have seen many governments, including the United States, adopt the view that this right applies against non-state actors. In the case of the Gaza conflict, Israel’s right to self-defense is particularly strong, as it is protecting against Hamas’ direct, indiscriminate killing of Israeli civilians. It is crucial that Israel exercise its right of self-defense in accordance with international humanitarian law, also known as the laws of war or armed conflict. The Israel Defense Forces’ (IDF) attacks on Hamas military targets in Gaza are likely to comply with these principles. However, Hamas’ actions involving civilian casualties and its use of civilian populations to shield military installations and fighters are in violation of these principles. Therefore, the argument that Israel does not have a right to self-defense in this situation does not hold.