The unprecedented attack by Hamas, a Palestine-based organisation that controls Gaza, on Israel and Israel’s subsequent retaliation, has led to the bloody eruption of the long-standing conflict between Israel and the Palestinians. The tragic events of Oct. 7, 2023, resulting in the loss of civilian lives and hostage situations with Israel’s persistent bombing in Gaza, quickly escalating into a most intense conflict, including a potential war and a regional conflict in the Middle East. This article aims to delve into the historical backdrop of the conflict, elucidate the nature and origins of Hamas, and shed light on international violations that may have transpired. Furthermore, it explores potential avenues for a peaceful resolution to the present conflict.
The present conflict traces its origins to the year 1917, when Arthur James Balfour, the British Foreign Secretary, issued the Balfour Declaration of 1917, supporting the “home for the Jewish people” in Palestine. After the First World War, the League of Nations gave the United Kingdom the mandate to rule Palestine. The Arabs resisted British rule, leading to a revolt in 1936. The British crushed the revolt and promised to restrict Jewish immigration which was on the rise. Soon, the Jewish Militias were formed to resist the British rule and to fight local Arabs. The Second World War and Holocaust resulted in growing support for the Jewish state and many more Jews fleeing to British Mandatory Palestine. After Jewish resistance also turned violent, the British handed the issue to the newly formed United Nations, with the United Nations in 1947 voting to partition Palestine into two separate states, one for Jews and the other for the Palestinian Arabs. Israel accepted the UN plan and declared independence, whereas most Palestinians saw the UN plan as a form of European colonialism. Many neighbouring states declared war on Israel to create a unified Arab Palestine instead of British Palestine. Israel not only won this war but also passed the borders as per the UN plan, including the western part of Jerusalem expelling many Palestinians from their home and creating a massive refugee crisis in the West Bank and Gaza Strip. After the armistice agreements between Israel with both Jordan and Egypt in 1949, Israel came to occupy a lot of the Palestinian territory, with Egypt controlling Gaza and Jordan controlling the West Bank. In 1967, Israel and the neighbouring Arab States fought another war, which Israel won, occupying the whole of the Palestinian Territories and seizing the Golan Heights from Syria and the Sinai Peninsula from Egypt. Israel, since has come to govern the Palestinian territories, with Israel and Egypt signing US-brokered Camp David Accords in 1978 returning the Sinai Peninsula to Egypt and normalising relations with each other. Thus, what began as de facto borders has since started evolving into internationally recognised de jure frontiers. The Palestine Liberation Organization (PLO) was created in the 1960s to seek a Palestinian state through all means including violent methods. The international community took a significant step in 1972 by permitting PLO in the United Nations Security Council (UNSC). In November 2012, the United Nations General Assembly voted to give Palestine a non-member observer status in the UN.
Hamas: Origin and Nature
Hamas is an Islamist militant movement founded by Sheik Ahmed Yassin, a Palestinian cleric who transitioned from Islamic scholarship in Cairo to activism within local branches of the Muslim Brotherhood. It was partly created due to the fact that a group of Palestinians in Gaza believed the Palestinian Authority to be seeking compromise and is often criticised as being ineffective, whereas a violent extremist group in Hamas was dedicated to Israel’s total destruction.
History has shown that extremist violence on both sides has been used in the past to derail peace. The ongoing conflict has witnessed numerous violations of international law. Hamas’s act of taking hostages, in particular, is in violation of Article 8 of the Rome Statute, which established the International Criminal Court (ICC). The total seige of Gaza with electricity, food and water prohibited is resulting in collective punishment being awarded to all residents of Gaza which is also illegal in international law. It is essential to note that the ICC may play a pivotal role in addressing these violations. The broader international law questions related to the conflict include the conditions under which nations can use force in international relations (jus ad bellum) and the regulations governing how wars should be fought (jus in bello). These principles are enshrined in the UN Charter and International Humanitarian Law. The blatant violations of these laws underscore the urgency of finding a resolution to the ongoing crisis.
The Road to Peace
One Potential Avenue for resolving the conflict involves the ICC exercising jurisdiction ratione loci over Palestinian territories encompassing the West Bank, East Jerusalem, and the Gaza Strip. However, challenges arise in ascertaining the specific territory in which the investigation may be conducted. A vital step forward is the establishment of a Special Tribunal that focuses on local-level efforts to address human rights violations and provide survivors with a platform to share their experiences and punish those guilty.
The recent escalation in the Israel-Hamas conflict highlights the urgency of taking steps to end the mass suffering of the people on both sides. The avenues like the ICC and local-level efforts through a Special tribunal offer hope of resolution to the suffering and uncertainty that plagues the West Asian Region. It is important and essential to support both Israelis and Palestinians without resorting to selective outrage and calls for more violence with the international community and politicians prioritizing fixing accountability to restore peace and order to allow diplomacy and peaceful methods to be used to resolve the wider conflict affecting Israel and Palestinians.
[Photo by Ted Eytan, via Wikimedia Commons]
Abhinav Mehrotra is an Assistant Professor at the Jindal Global Law School, O.P. Jindal Global University, Sonipat, India.
Amit Upadhyay is an Associate Professor at the Jindal Global Law School, O.P. Jindal Global University, Sonipat, India. The views and opinions expressed in this article are those of the authors.