Our Shared Horror

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Since Hamas’ fighters entered Israeli territory less than a week ago at least 1,200 people in Israel and 1,100 in Gaza have been killed, more than 100 have been taken hostage, thousands have been wounded, more than 2 million are cut off from food, fuel and clean water, millions more have suffered trauma. Hamas has wiped out whole families. Israel’s armed forces are reacting by wiping out whole families. While some questions await answers, these facts are not contested. They have polarized a discourse that was always harsh. Beyond unqualified affirmations of Israel’s right to defend itself, some politicians, commentators, and scholars now endorse indiscriminate harming of Palestinians as a response to Hamas’ terrorism. Other politicians, civil society organizations, and scholars cast this terrorism as justified resistance to Israel’s occupation. The logic of collective punishment characterizes not only the actions of Hamas and the Israeli government, but also many statements justifying them. Anything goes when you defend yourself against terrorists? Anything goes when you resist occupiers?

Legal Answers

International law has a clear answer: the ends do not justify the means. Even assuming it had a legally sound cause to use violence against Israel, Hamas’ deliberate killing of civilians and hostage taking would remain war crimes, and possibly crimes against humanity. During previous military operations against Gaza, the IDF consistently claimed that, unlike Hamas, it did not intentionally or indiscriminately kill civilians. Official statements to this effect are hard to find now. It is courageous civil society actors who plead that “international law is not nonsense”. Prime Minister Netanyahu instead announced that “what we will do to our enemies in the coming days will reverberate with them for generations”, a statement notably lacking differentiation between Hamas and Palestinian civilians. Yoav Gallant, Israel’s Defense Minister, reportedly told troops that he had “released all restraints”. The destructiveness of attacks against residential structures in Gaza against the backdrop of these statements has raised concerns that they are harming civilians indiscriminately, an allegation also made by the Mission of MSF in Gaza, a team of special rapporteurs and independent UN experts, as well as CIVIC.  

Does the siege of Gaza amount to “intentionally using starvation of civilians as a method of warfare”, which is prohibited and a war crime at least in international armed conflict (Article 8(2)(b) xxv ICC Statute)? Or does the Israeli government just callously disregard the basic needs of more than 2 million civilians? International law puts stock in the difference between deliberate and callous civilian harm and thereby incentivizes statements that carefully gerrymander the intended purpose of military operations. Yet, on this occasion, Israel’s Defense Minister bluntly announced a “complete siege on Gaza …no electricity, no food, no water, no gas”, referring to Palestinians as “beastly people”. Israel also reportedly warned Egypt not to allow supplies to cross the border. After Prime Minister Netanyahu told civilians in Gaza “to get out”, the IDF repeatedly bombed the Rafah crossing, the only possible way out. In the clearest admission yet of intent to starve the civilian population in order to compel Hamas, Israel’s Energy Minister, Israel Katz, wrote on social media that “no electrical switch will be turned on, no water hydrant will be opened and no fuel truck will enter” until the ‘abductees’” are released. As a leading expert on the legal prohibition of starvation puts it: the objective of fighting Hamas is “being pursued through an operation that purposively denies sustenance to the civilian population [emphasis added].”

Hostage taking, deliberate and indiscriminate attacks against civilians, and starvation as a method of warfare do not become legal just because “the other side did it first” or engages in even worse barbarism. Reprisals against the civilian population are prohibited, a rule now widely accepted as customary law (also Article 51(6)). Hamas has threatened to kill Israeli hostages in response to attacks against civilians in Gaza. Asked whether they would warn civilians before attacking densely populated areas in accordance with the customary obligation to take precautions in attack (also Article 57(2)c), the IDF spokesperson said “when they came in and threw grenades at our ambulances they did not knock on the roof. This is war.” Yet, nowhere does international law suggest that, in war, its demands depend on reciprocity. Quite the contrary, the Protocol cautions that violations of the law “shall not release the Parties to the conflict from their legal obligations with respect to the civilian population …, including the obligation to take … precautionary measures” (Article 51(8)). In short, international law prohibits and even criminalizes many Hamas and IDF actions over the last days. Neither their supposed goals nor the conduct of the other side changes that.

Moral Answers

Is law the right framework through which to view this conflict? Should we not take a moral stance? The historically evolved laws of war prohibit some actions that are morally justified and certainly fail to prohibit many that are not. From a moral point of view, whether the use of force has a just cause, such as self-defense or resistance to foreign occupation, matters for the permissibility of violence. Unless it advances a just cause, arguably all violence in war is morally wrong. But that does not mean that all violence committed in furtherance of a just cause is permissible. Some acts are morally prohibited regardless of the ends they supposedly serve because they are in a category of acts that are intrinsically wrong—they cannot be redeemed by good consequences. Deliberately killing or starving innocent bystanders, for example, is categorically wrong. It remains prohibited even if it were somehow necessary for achieving a just cause. When talking about this conflict in moral terms, a common refrain is “what are they supposed to do to defend themselves against terrorism/occupation?” The answer is “not this.”  

Not everyone accepts categorical prohibitions. But even if we take a consequentialist approach and judge acts of violence purely by whether they have moral benefits (chiefly the contribution to a just cause) that exceed their moral costs (such as harm to innocent bystanders), we find that Hamas and the Israeli government are acting unjustifiably. Deliberate and indiscriminate attacks against civilians are associated with political failure in the context of many different types of conflict. One reason is that this kind of violence hardens attitudes. Whether it is civilians harmed by aerial bombardment or by terror attacks or by retaliation to terror attacks, whether they witness house-demolitions or experience rocket fire, civilians become less willing to compromise, more radical and more willing to assume the costs of resistance. We have little reason to believe that harming thousands of innocent bystanders actually advances the frequently stated goals of ending either the occupation of Palestine or the terror attacks against Israel.

Helpful Questions

Political commentary that ends with “both sides” is often seen as unhelpful. But just because major media outlets have one too many times equated balanced inquiry with the amplification of arguments that are outside the bounds of logic, we should not hesitate to point out when a conflict is in fact characterized by massive moral wrongdoing “on both sides”. But is there really nothing more nuanced to say? Yes, murdering a child at close range is even worse than flattening an apartment block in the knowledge that there is one inside. My point is not to argue the exact moral equivalence of actions on both sides in recent days. But once the question “who is worse?” also requires comparing violations of categorical moral principles, like intentionally killing or starving the innocent, when it requires comparing war crimes, what do we do with the answer? Meanwhile the question “who started it” very likely entrenches our disagreement about the conflict as the answer chiefly depends on when you think “it” started. The further back in time we go, the less meaningful the answer becomes as we should no more punish civilian populations for the crimes of their ancestors than we should punish them for those of their governments.  

One conclusion to draw from the unhelpfulness of many moral and legal comparisons would be to say nothing at all. When wondering what to say about a conflict like this one, I tend to imagine the archetypal innocent bystander who suffers unjustified harms from the conflict and ask what type of question would actually be helpful, and ideally not offensive, to them. I imagine an Israeli friend who has, for decades, often at personal cost, fought for Palestinian human rights and who has been hiding in a safe room, getting notice of friends’ deaths, wondering how to shield his children if he had to. And I imagine a Palestinian mother, whose every right has been restricted by the occupation, but who educated her children not to hate, children she now does not know how to keep safe from the bombs. I would not want to face either of them and tell them: “after a detailed moral and legal comparison, I have determined your side is somewhat worse/started it”.

From the perspective of the Israeli human rights campaigner and the Palestinian parent, the crucial moral question is neither “who is worse?” nor “who started it?”, but “who has the power to stop it?”. Of course, both sides have the power to stop killing civilians, stop abducting, starving, and terrorizing innocent bystanders. Both sides can do this today, right now. But more nuanced answers than “both sides” emerge if we ask more concrete questions. Who has the power to free the hostages? Hamas and any ally with leverage over it. Who has the power to allow humanitarian access to Gaza? Israel and any government with leverage over it, and yes, also Egypt. Who has the political power to change the situation more fundamentally? Political power can be defined in many different ways, but almost regardless which way we chose, Israel has more of it: more military and economic capacity, more friends, a seat at the table at various institutions, and more territory. Of course, the Israeli human rights campaigner has no power right now. So, while I ask the question for Israeli civilians as much as Palestinians, it is not to them that I would direct the answer.

To everyone else – politicians, civil society organizations, media commentators, and scholars –particularly those tempted to justify terrorism as resistance to occupation or occupation as defense against terrorism: not calling for freeing the hostages and providing humanitarian access to Gaza because we are too distracted by “who is worse” or “who started it” is a moral failure. How can we stop the mutual collective punishment now and how can we change the situation that has given rise to it? Finding answers to these questions is where we should channel our shared horror.


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Alan Nissel says

October 13, 2023

Dear Janina. I would like to share my reaction with you to your post.

I appreciate your insightful comments. They are refreshingly honest. But I do not believe that you appreciate (at least so it seems) how much things have changed in Israeli eyes since Oct. 7.

To Israelis, the nature of IL applicability in Gaza is being rethought at the highest levels. The use of force is no longer about proportionality and necessity -- key IHL concepts. Hamas actions on Oct. 7 have required MAG (IDF ILyers) and their client (the IDF) to completely rethink how to apply IL in Gaza. In the past, the US and others have described fighting terrorism with force as "asymmetric warfare." But that term really was applied to the nature of the use of force.

There is something fundamentally different (morally, intuitively) about defending against barbarism on the level we just saw this week.

Did you know that Israel has effectively made the area around Gaza a military zone and evacuated its population from there? This is because it is considered inhuman and below the standard of reasonable care to allow its citizens to live near an area within the vicinity of Hamas. The level of threat (to civilians not soldiers) is simply unacceptable domestically. This is new.

In the past, Israelis (as others in other regions of the world) had come to reluctantly accept some terrorism as part of their quotidian lives. Today, they are clearly stating that they cannot accept (nor should they) the possibility that the events of Oct. 7 could be repeated. Phosphorous bombing may violate IL. Home demolitions may violate IL. Settlements may violate IL. Etc. But these breaches — though very dire — are categorically different from the brutality of Oct. 7. Whether you agree or not, that is how Israelis feel.

The beautiful thing to me is that within MAG it is clear to everyone — both morally and ethically — that IL should apply. But how it applies is now a new and very open question in Israel.

Marko Milanovic says

October 13, 2023

Note by the editors: an anonymous comment to this post was removed. This is because our general policy is not to allow anonymous comments, since they are not necessarily conducive to a rigorous and respectful debate. We will permit an anonymous comment only if the commenter writes to us and explains the reason why they need to remain anonymous (e.g. fear of some kind of retribution), and we consider such a reason to be valid. This policy has not always been consistently enforced, e.g. we permitted anonymous comments re the letter to the editors last week to avoid any impression that we are suppressing criticism of our editorial policy. But we will not permit anonymous comments on something as sensitive as this topic unless the commenter writes to us to explain themselves.

Our rules are available here https://www.ejiltalk.org/about/

Bill Boothby says

October 13, 2023

Janina, Very good - well said and of course absolutely right. One has the feeling that in any context once a certain level of mutual hatred becomes entrenched, it will only be by dismantling that hatred that we can get to a situation in which your questions can start to be addressed. If, in a hypothetical situation, protagonists derive their power and authority from the perpetuation of that hatred, if indeed they allow themselves to be defined by it, it becomes difficult to see a positive way forward. So we are thrown back to condemnation of violations of applicable law and of morality. That is a condemnation that must be heard and thank you for expressing it.

Hannah Woolaver says

October 13, 2023

Thank you, Janina, for this thoughtful comment in these times of horror and inhumanity. And thank you, EJILTalk editors, for publishing such comment - it is much needed given the Fanonian quips that pass for scholarly comment on these events in other corners of the internet.

Nicolas Boeglin says

October 13, 2023

Dear Professor Dill

Many thanks for your extremely valuable post.

I consider that many States have, mainly in Europe, reacted on Octobre 7th to the attack suffered by Israel emphasising only "the right of defense" of Israel and forgetting to refer to all the rest.

Many of us have still in memory the Israel´s military operations in 2009 and 2014 in Gaza made under the official pretext "to eliminate Hamas´s terrorist". The UN reports on these two operations can give an idea of the brutality of Israel againt the civilian population in Gaza.

May I just cite the official comuniqué made by South Africa available here:


Or this other one made by Chile:


and suggest to compare their content with the "communiqués" circulated by many States the very same Oct 7 with respect to the attack perpetrated by Hamas in Israel territory.

If you or some of our colleagues have in mind an analysis of the diverse official reactions wordlwide registered on Oct 7th, please feel free to share it.

I wrote (in Spanish, sorry) this text on the same issue:


SIncerely yours

Nicolas Boeglin

Liron A. Libman says

October 14, 2023

This is so bitterly disappointing. I woke up to the sixth day after the genocidal attack on my people, dreading to find more friends, colleagues, students on the list of those butchered, tortured, burned alive, or abducted. I read what EJIL Talk, a blog I have followed with interest and respect for many years, has to say about it.
What I found was a very eloquently written tightrope walk. I have reservations about some of the factual assertions in Prof. Dill's piece, but that is not my point.
In exceptional times, a sophisticated analysis is not needed, but a simple humane reaction to inhumane horrors. Such as the clear disgust on President Biden's face in his morally unequivocal speech:
I would expect the EJIL editorial board to post such a clear statement, as 58 members of the Fritzker School of Law at Northwestern University did:
Was it that hard?
Apparently, the editorial board succeeded in convening and posting a very thoughtful response to an open letter demanding the exclusion of my colleagues (I was the IDF head of the International Law Department between 2009-2011) from the conversation. In your response, you wrote: "We agree that we should not publish pieces that aim to promote international crimes or other serious violations of international law." I humbly agree.
Ironically, one of the signatories of that open letter, Noura Erakat (Associate Professor of Africana Studies, Rutgers University), had this to say about the events of that black day, October 7th, three days after the slaughter:
""Our interview with Erakat took place prior to the counter-offensive launched this past weekend. Tragically, these developments have only underscored the pertinence of our conversation. Many have noted that a fair few international lawyers approach decolonisation more as a theoretical exercise than as a tangible practice, and even less so as praxis. As Fanon insightfully quipped, 'decolonisation is always a violent phenomenon' for the colonizer 'does not give up their loot easily', Sukarno added."
How would you describe this if not as "promoting international crimes"? Perhaps I got it wrong, but it looks like the "tragedy" is not the burning alive of children but the misunderstanding of international lawyers to see this as a necessary "praxis" of "decolonization." I know it is not your blog, but that remark is still there. Only two people protested there. Where are you all?
Indeed, the betrayal of intellectuals, 2023 edition.
As hard as it is, I trust my Israeli colleagues from the Israeli international law community, scholars, and practitioners, from government, military, and civil society, will continue to express a clear voice about the necessity of abiding by international law, even against the perpetrators of a genocidal attack on us. I certainly intend to continue. I will do it in Hebrew because I need to speak to my heartbroken and angry people, not to you. I don't need your applause, not after this week.
For years, we have been struggling against people in Israel who think that international law is a sham, just nice words manipulated to tie our hands and justify our murderers. After this stab in the back, it will be harder for us, but I try to remember that this is our heritage, these are our values, not some foreign import. For the title of my book on security measures and collective punishment (in Hebrew), I chose the biblical quote: "Will you sweep away the righteous with the wicked?" (Genesis 18, 23). My answer is clear: No.

John Cubbon says

October 15, 2023

Dear Professor Dill,

Many thanks for your comprehensive and insightful analysis of the complex legal and moral issues raised by recent events in Israel and Gaza.

I would want to add that the focus that the post, in my view, rightly advocates can be achieved by insisting on adherence to IHL and striving as much as possible to stop breaches.

Looking backwards, accountability under IHL is individual and attaches to particular perpetrators and not to one side or another. The question “who is worse?” is to be answered on this basis. “Who started it?” can be understood in different ways. The post explains why “the other side did it first” does not justify actions by Hamas or the IDF under IHL. If the question is taken to refer to ultimate responsibility for the conflict it lies outside the scope of IHL as applied to recent events.

“Who is worse?” and “who started it?” have very little relevance to the question of how best to minimise future possible violations. In the short term, irrespective of the quantum of violations committed in the past by either party, conformity with IHL will be substantially advanced if the Israeli hostages are freed and the civilians in Gaza are protected. In the longer-term, the occurrence of future large-scale breaches of IHL in Israel and Gaza can only be prevented by addressing the question “who has the power to stop it?”

Many people would accept the principle of aiming to maximise adherence to IHL irrespective of the justice of any one party’s cause but applying it in the emotions generated by an armed conflict is often extremely difficult.

Kind regards,

John Cubbon

Elizabeth Talbot-Jones says

October 22, 2023

“ Anything goes when you defend yourself against terrorists? Anything goes when you resist occupiers?”
You seriously err when you put Israel & Hamas on an equal footing like this.
Israel’s right to defend itself is enshrined in international law.
Hamas’s claim that Israel is an occupier is based on a repudiation of international law, an international law that designated all the land between the Jordan River and the Mediterranean Sea to the Jewish National Home by League of Nations Mandate in 1922.
There can be no Justice or peace until the claim—that Israel is an an illegal occupier, held by Hamas, some Western states, and by many in the Arab/Islamic world—is thoroughly dismissed as the lie, misinformation, or ahistorical ignorance it is.

Miri Sharon says

October 22, 2023

Dear Dr. Dill,
I found the paper to be very interesting and to present relevant questions. A few comments about what I see as gaps in many of the current responses to the situation:
1 - current attacks in Gaza are only understood as retaliation to the 7 October massacre, while ignoring the ongoing missile attacks toward many cities in Israel for the past two weeks, killing civilians and making some areas totally unsafe for anyone. Doesn't Israel have a right to self-defense from an ongoing attack? is it not under an obligation to protect the lives of its citizens? More so when the declared goal of the attack is to kill as many civilians as possible.
2 - when talking about the occupation you cannot equate Gaza with the West Bank where Israel is much more present and actively controls many aspects of civilians' lives. The intention of Israel in 2005 was to disengage from Gaza and let Palestinians control it. There were discussions with the World Bank and others about certain arrangements for import and export. However, the takeover by Hamas killed all those plans. This also brings us to the question of responsibility - who is responsible for the lack of proper shelters in Gaza for civilians that could meaningfully decrease the numbers of casualties? who is responsible for the non-separation of military activity from civilian areas? with all due respect to the legal construct that attributes all the responsibility to Israel since it controls the borders, one cannot ignore the realities on the ground and the responsibility of a local government to how it uses its resources and fulfills the rights of its citizens. One can also not ignore Egypt's refusal to open its own border.
Finally, I agree that what we need are some better answers from leaders with vision and solutions for the future and not more of the same.
thank you,

Jonathan Gray says

October 23, 2023

In reply to Elizabeth Talbot-Jones :

Regarding your criticism of the author equating "Israel & Hamas" the author offered several examples to demonstrate the
similarities between the conflicting powers. You have not addressed them.

Regarding your second point I think once again you have erred. In response to the claim by Hamas that Israel is an "occupier" you
reference the L of N Mandate for Palestine by claiming that Israel is not "an occupier".
In the preamble to the Mandate it clearly states the Allied Powers were "in favor of the establishment in Palestine of a national home for the Jewish people."
Legal documents can stand or fall depending on word usage ; the word "state" for the Jews does not appear. Furthermore, a "national home" is
not synonymous with a state. Since when was a "national home" a "state" within the world of international law? Also, the "National Home"...was to be "in" Palestine ;
no mention was made of a supposed state of Israel.

Third and final point Israel is the illegal occupier of Palestinian territory. In September of this year the International Court of Justice published
a "Position Paper of the United Nations Independent International Commission of Inquiry on the Occupied Palestinian Territory,
including East Jerusalem, and in Israel".
The concluding paragraph clearly states :
"The Commission has concluded that Israel has violated and continues to violate the right of
the Palestinian people to self-determination by its prolonged occupation, settlement and
annexation of the Palestinian territory occupied since 1967. The legal consequence of the
violation of right to self-determination, which is an obligation erga omnes, is the
responsibility of the State of Israel. The current occupation, which has lasted 56 years to
date, is unlawful under international law. The result of the unlawful acts entails legal
consequences for Israel to bring an end to the “internationally wrongful act”...to an end."

Nicolas Boeglin says

October 23, 2023

Dear Professor Dill

May I add to my previous comment an interesting information given by the Chinese Ambassador at UN last Oct 18 when suprisingly, US vetoed a draft presented by Brazilian diplomacy:

"They said that they wanted more time to seek consensus on the basis of the draft resolution tabled by Brazil. Our colleagues from Brazil and many other Council members showed a constructive attitude and agreed to postpone the voting for 24 hours, and later further postpone it till now. However, in the past 40 hours, those countries have neither commented on nor expressed opposition to the Brazilian draft, which led us to expect that today hopefully the Council would be able to adopt the resolution. The final result is unbelievable".

Source: http://un.china-mission.gov.cn/eng/hyyfy/202310/t20231019_11163497.htm

Comparing the first draft rejected on Oct 16 and the comments made by US to vote against, with the Brazilian draft vetoed by US on Oct 18, it seems evident the lack of consistency of US delegates.

If you or any colleague at EJIL talk know about an article, analysis on how US is ready to protect Israel at UNSC, even been inconsistent with its own position 48 hours before, please feel free to share it.

Yours sincerely

Nicolas Boeglin

Note: I refer you (and our EJIL Talk colleagues) to a note I wrote on this very last US veto (in French, sorry) at:


Nicolas Boeglin says

October 26, 2023

Dear professor Dill

With regard to the tittle of your great post, may I refer you and our colleagues to the last update made by OCHA on the situation in Gaza (Oct 25), in which we can read that:

"Since 7 October, 6,547 Palestinians have been killed, including at least 2,704 children and 1,292 women, and about 17,439 have been injured, according to the MoH in Gaza. Some 68 per cent of the total number of Palestinian fatalities were reported in Gaza city and North Gaza governorates".

Source: https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-19

If you of some colleages have heard of an official communiqué by EU members or a European State denouncing the disporportionnate and indiscriminate military answer of Israel, let me know and feel free to share it.

Sincerely yours

Nicolas Boeglin

Nicolas Boeglin says

November 3, 2023

Dear Professor Dill

May I add to my previuos comment the last UN report on the situation in Gaza at Nov. 2:


I was wondering if scholars and international law specialists have circulated a collective call. If you or some colleagues have see such a call circulating, please feel free to share it.

For the moment, I share with you this one circulated in Spain by our international colleagues, still open to signatures:


Yours sincerely

Nicolas Boeglin

Nicolas Boeglin says

November 3, 2023

Dear Professor Dill

May I add to my previous comment the last UN report on the situation in Gaza at Nov. 2:


I was wondering if scholars and international law specialists have circulated a collective call. If you or some colleagues have see such a call circulating, please feel free to share it.

For the moment, I share with you this one circulated in Spain by our international law colleagues, still open to signatures:


Yours sincerely

Nicolas Boeglin

Nicolas Boeglin says

November 23, 2023

Dear Professor Dill

May I add to my previous comments what we heard at UNSC yesterday, November 22, from UNICEF Executive Director:

"More than 5,300 Palestinian children have been reportedly killed in just 46 days – that is over 115 a day, every day, for weeks and weeks. Based on these figures, children account for forty per cent of the deaths in Gaza. This is unprecedented. In other words, today, the Gaza Strip is the most dangerous place in the world to be a child.“We are also receiving reports that more than 1,200 children remain under the rubble of bombed out buildings or are otherwise unaccounted for.

Source: https://www.unicef.org/press-releases/unicef-executive-director-catherine-russells-remarks-un-security-council-briefing

By the way, Southafrica has presented a common referral to ICC, and in my view, European States could join this initiative. On this collective referral to ICC, please find this modest note:


Yours sincerely

Nicolas Boeglin