The attack launched by Hamas at dawn on October 7 against military and civilian targets in Israel is the first entry of “foreign armed forces” into Israeli territory since 1948. The definition of “foreign armed forces” refers to an objective situation, independent of the debate over the designation of Hamas as a terrorist organization. In 1967, the armed forces of Arab countries were unable to penetrate the internationally recognized borders of Israel, and the war ended with the occupation of Syrian, Jordanian, and Egyptian territories by the Israeli army. By the end of the Six-Day War, the territories occupied by Israel were two and a half times larger than before 1967. The 1973 war took place on these occupied territories, including the Golan Heights and the Sinai Peninsula. Israel later withdrew from the Sinai Peninsula and the Gaza Strip. Since 1967, the West Bank, the Golan Heights and, despite Israel’s withdrawal of its military presence in 2005, the Gaza Strip, have been recognized as territories occupied by Israel under international law. Therefore, the attack launched by Hamas on October 7, should be considered within the context of the ongoing de facto state of war. The de facto state of war allows for the prosecution of actions by both parties, where appropriate, under the categories of war crimes and crimes against humanity.
Hamas armed forces, mainly the Izzedin al-Qassam brigades, managed to infiltrate Israeli territory for the first time, briefly occupying certain military positions, and killing approximately 1,400 people, including 300 soldiers. Among the civilian casualties were young children, women, the elderly, and migrant workers. Moreover, Hamas took more than 200 civilians hostage, including infants, children, and the elderly. According to Israeli sources, about 1,500 Hamas militants lost their lives during and after the assault. In this environment of de facto war, the premeditated and planned entry of armed Hamas militants into homes to deliberately kill civilians constitutes war crimes without dispute. The fact that the perpetrators of these crimes are deceased does not alter the fact that those who ordered and directed them are equally complicit and responsible.
In the days following October 7, the assertion that these actions, organized and directed by Hamas, were acts of terrorism, was quickly emphasized not only by Israel but also by many Western governments, citing that numerous Western countries recognize Hamas as a terrorist organization. The Israeli army’s bombings of civilian targets in Gaza, the deaths of thousands of people and counting, as well as the imposition of a severe blockade that threatens the right to life of over two million people were later denounced as state terrorism by Palestinian organizations and supporters of the Palestinian cause.
In this great humanitarian tragedy, where accusations of terrorist acts, terrorist organizations, and state terrorism abound, it is essential not to dwell on the rather vague concept of terrorism, but to refer to the repertoire of clearly defined acts as crimes under current international law. The concepts in this repertoire are not terror, terrorism, or terrorist organization, but rather aggression crimes, war crimes, crimes against humanity, and genocide.
Since October 7, the mutual attacks, bombings, and massacres targeting civilians, committed by Hamas and other Palestinian organizations, on the one hand, and the Israeli Defense Forces, on the other, are unquestionably war crimes. The assassination and hostage-taking of hundreds of civilians in the kibbutzim, the deaths of thousands of civilians in Gaza due to bombings, the bombing of schools, hospitals and places of worship, the forced displacement of nearly a million people, and the fact that many of these crimes were committed in a premeditated and large-scale manner allow for considering many of them as crimes against humanity.
On the other hand, it is important to recall that terrorism and terrorist offences, which are included in the national criminal law of some countries (such as anti-terrorism laws in Turkey), do not have a place in international law. Terrorism is a concept widely used for political purposes, and its definition and scope vary widely. For instance, in autocratic regimes like Iran, Russia, China, and even Turkey, those who oppose the regime or the government in power can be labeled as terrorists and sentenced to extremely severe punishments. Turkey ranks among the highest globally for the number of people tried for “terrorism” charges and sentenced to lengthy prison terms, even if they have not committed, participated in, or supported any acts of violence. Today, not only in authoritarian regimes but also in democratic countries, where the rule of law prevails, the “fight against terrorism” is used as one of the primary justifications to restrict fundamental rights and freedoms and target opponents. Therefore, although the October 7th attack by Hamas aimed to create an atmosphere of terror in Israeli society and thus exhibits characteristics of a terrorist act, these massacres – the deliberate killing of civilians – are war crimes because they fundamentally occur within the context of an ongoing war. This qualification is a requirement for these crimes to be considered under international law. They can also be classified as crimes against humanity if it can be proven that they constitute a widespread and systematic attack on a civilian population.
The same applies to Israel’s counterattack in Gaza, which resulted in massive civilian deaths. It is even possible that the collective punishment, which includes the partial extermination of a significant civilian population, deliberate bombing of civilian targets, and the mass expulsion of a certain group of people from their homes, may be defined as genocide, if not as crimes against humanity. Since October 7, not only in Gaza but also in the West Bank, civilians have been killed, though in smaller numbers, by the Israeli Defense Forces and settler militias under the auspices of the racist Israeli Interior Minister. Families are being driven from their homes. The recognition of the Srebrenica massacre as genocide by international law sets an important precedent for all these massacres today.
Originating in 1948 with the displacement of certain Palestinians from their homeland and evolving into a prolonged conflict, this situation reflects the Israeli policy of occupation and annexation that has been in effect since 1973. It has now escalated to a point where the opposing parties perceive each other as less than human. Hence, achieving a two-state solution or a federation of two regions within one state is considerably more complex today than it was in the past. Furthermore, the presence of two million Palestinians living in Israel and seven hundred thousand Israelis living in the occupied territories of the West Bank poses a challenge to implementing either solution without involving new waves of immigration and displacement. Hamas, which has embraced the idea of eliminating Israel, and radical nationalist-religious movements that emphasize Israel’s claim to Greater Israel based on the Torah, ranging from the Mediterranean to the Jordan River, share little common ground except for their mutual rejection of potential solutions.
A natural consequence of the dominance of these two identity-based fundamentalisms in the political sphere is that it is much more difficult, though still essential, to envision peace in an environment where feelings of hatred, vengeance, fear, and obsessive passions have largely taken hold of the social imagination in both camps. While the future course of this conflict remains uncertain, the initial action required by the international community to establish a basic level of peace is undoubtedly a ceasefire. However, the U.S. veto of the call for a ceasefire submitted to the UN Security Council on the grounds that it did not specify “Israel’s right to attack for security reasons” demonstrates that the United States is willing to turn a blind eye to the fact that Israel is imposing a heavy human toll on the Palestinian people in its efforts to destroy Hamas. This is confirmed by President Biden’s statements when seeking congressional support for “unprecedented military assistance” to Israel, while stressing that it is a “smart investment that will benefit America’s security for generations to come”. After October 7, a new era of violence, fear, and oppression will open not only in the region, but also in various parts of the world, and these concrete signs indicate that it will not be limited to the Israeli-Palestinian conflict.
Despite these extremely pessimistic future prospects, one initiative that should not be overlooked in the context of a possible peace is the prompt handling of these serious mutual crimes by the International Criminal Court. It is also possible to advocate for the exercise of the universal jurisdiction that international law currently grants to states in relation to the perpetrators of heinous crimes such as crimes against humanity, war crimes, and genocides. However, the prohibition of interference in the internal affairs of states limits the exercise of this jurisdiction. On the other hand, since October 7, the International Criminal Court (ICC) has become the primary authority for addressing such serious crimes.
In 2012, the United Nations General Assembly granted the Palestinian National Authority the status of “Non-Member Observer State.” Although Israel does not recognize this, in 2015, the Palestinian National Authority officially became a party to the Rome Statute, the founding treaty of the International Criminal Court (ICC). Subsequently, in 2019, the ICC prosecutor initiated an investigation into war crimes committed since 2014, involving Israeli leaders and leaders of several Palestinian armed groups, including Hamas.
In 2021, the ICC Prosecutor requested the Court’s opinion on extending its investigative jurisdiction to alleged crimes committed in Gaza and the West Bank. In 2021, the ICC Pre-Trial Chamber confirmed that “the Palestinian territories are Gaza and the West Bank, including East Jerusalem”. Since then, the ICC Prosecutor’s Office has officially opened an investigation into war crimes committed by Israeli and Palestinian officials and personnel. However, the new ICC Prosecutor, who took office in 2021, appears to have taken no action in the context of this investigation since then. While the prosecutor quickly issued arrest warrants for Russian President Vladimir Putin and Russian Commissioner for Children’s Rights Maria Lvova-Belova for war crimes following Russia’s aggression in Ukraine, he has not demonstrated equal determination in addressing the offenses committed by Israeli and Palestinian authorities. This is likely due to the fact that Ukraine allowed the ICC to conduct an investigation, while Israel has prevented the ICC prosecutor from entering Israel and the occupied territories. Recently, the ICC prosecutor has restricted his actions to delivering a message about the crimes committed after October 7, specifying that these acts are part of the investigation that was initiated in 2021.
It would, of course, be naive to expect an international judicial authority to put an end to an eighty-year conflict and establish peace on its own. But, at the same time, one cannot deny the importance of defining the crimes committed, identifying and punishing their perpetrators and masterminds by the International Criminal Court.
Beyond the enduring occupation of Palestinian territories and the ongoing systematic policy of confiscating Palestinian land and erasing Palestinian identity from the region, the regime governing the occupied territories, often referred to as “apartheid” by numerous Israeli journalists, academics, and politicians holds the greatest share of responsibility in this immense human tragedy. Additionally, the Palestine Liberation Organization (PLO) leadership, characterized by corruption, nepotism, and authoritarianism, shares a significant portion of the responsibility for the lack of a solution to the Palestinian issue. The fact that Hamas, unlike the PLO, makes the elimination of the State of Israel its primary goal, refusing in principle to engage in peace negotiations with Israel, undermining any measures taken in that direction, and considering anyone living on Israeli territory as an occupier, thus making it legitimate to target them, also carries an equally important responsibility for the tragic stage that the problem has reached today.
The Hamas charter, adopted in 1988, contains the following phrase attributed to the founding leader of the Muslim Brotherhood, Hassan al-Banna: “Israel exists and will continue to exist until Islam obliterates it, just as it obliterated others before it”. However, until recently, the Netanyahu administration considered Hamas as a lesser evil and a more manageable option to create a rift with the PLO. All of this is exacerbated by the defeats and marginalization of Israeli and Arab-Palestinian left-wing factions—events that have created a wide range of political and social opportunities for radical fundamentalists and racist groups on both sides.
Are there rational reasons for Hamas to undertake such an operation, knowing that the Palestinian people will pay a heavy price? Three reasons can be cited:
- To compel the Israeli army to enter Gaza, to engage in a long and bloody resistance war, and thus lay the groundwork for the Israeli army to commit blatant war crimes, as it did in the days following October 7th.
- To hinder the rapprochement between Israel and Arab countries, especially Saudi Arabia, and erode the already weakened support for Mahmoud Abbas and Fatah, while bolstering support for Hamas in the West Bank.
- Additionally, it is also that Hamas, whose popular support in Gaza has waned recently, aims to silence its critics for an extended period with this spectacular aggression.
However, more than anything, it is hard to believe that such an operation would lead to a “victory” without being guided by a metaphysical, religious type of thinking typical of a fundamentalist organization like Hamas. Once again, we are confronted with the fact that politics is not only motivated by calculated interests, but often by passions and obsessive beliefs. As long as the hegemony of these two far-right, extremist, and mutually reinforcing forces persists, the outcome of the new phase of the conflict initiated after October 7 remains unpredictable. Nevertheless, it is already evident that it will expand beyond the region and exacerbate the international divide between the “North” and the “Global South”.
These manifestations of extreme violence once again reveal a fundamental characteristic of the politics of violence. It involves considering the people it confronts and the human community it targets as non-human or sub-human creatures (to borrow the terms of the Israeli Defense Minister, “humanoid animals”). Today, neither the deliberate killing of civilians by Hamas nor by the Israeli Defense Forces can be justified by the defense of the right to life. On the contrary, these massacres are motivated by the perception that those on the other side are subhuman creatures. To achieve resolution in such conflicts and establish lasting peace, both parties must mutually acknowledge each other’s equal rights and recognize and address the crimes committed rather than allowing them to be forgotten.
Today, a spiral of violence, hatred, and fear is engulfing the world, growing stronger and wider. To prevent our social and political imagination from falling prey to this dreadful development, to find ways to stop this vicious cycle of extreme violence, we must not get absorbed in the escalating mutual accusations of terrorism. Instead, we should support and promote the initiatives and actions of those who are trying to articulate the concrete conditions for ending this extreme violence and who are fighting for peace, sometimes in the most challenging circumstances. In any case, if we have not lost faith in our shared humanity…