Since the horrific attacks perpetrated by Hamas on October 7, Israel has launched a massive military operation in Gaza that has involved serious violations of international law and resulted in a catastrophic humanitarian and security situation. The United Nations has reported over 38,000 Palestinian fatalities, 88,000 injuries, 1.9 million internally displaced persons, 70,000 housing units destroyed, 490 health attacks, and 85 percent of schools damaged.
To date, much of the legal commentary and strategic litigation involving the Israel-Hamas war has rightly focused on tackling the core international crimes allegedly being committed by all parties – whether in the context of the International Court of Justice genocide case, the International Criminal Court (ICC) Prosecutor’s applications for arrest warrants for war crimes and crimes against humanity, or the U.N. Human Rights Council’s resolution on accountability and justice for atrocities and human rights violations. Given Israel’s justifications of its brutal military actions in Gaza as being firmly rooted in counterterrorism and security objectives, however, the absence of significant legal analysis surrounding Israel’s counterterrorism obligations is glaring. This silence likely stems from the lack of a universal definition of “terrorism” under international law and concerns about the terrorism designation impinging on political negotiations toward a two-State solution. But not addressing the counterterrorism lens, and crucially, not recognizing the requisite compliance of any counterterrorism measures with international humanitarian law (IHL) and international human rights law (IHRL), risks greenlighting counterterrorism operations that are neither lawful nor effective. Indeed, counterterrorism operations that contravene international law risk contributing to the conditions conducive to violent extremism and terrorism. This is the lesson learned from the U.S. response to the terrorist attacks on September 11, 2001 – a response that President Joe Biden has cautioned against replicating.
Of course, governments have often weaponized counterterrorism as a political and moral rhetorical device that aims to deflect if not altogether denigrate other areas of international law. But a closer look at the existing international law framework sheds light on what the former UN Special Rapporteur on the promotion and protection of human rights while countering terrorism Fionnuala Ní Aoláin has clearly enumerated as the positive interface between IHL and IHRL in counterterrorism contexts. Ultimately a better understanding of the contours of counterterrorism law – including its bounds and limitations – could help guide States in their engagement on Gaza going forward. Indeed, it is not too late for Israel and others to reverse course to prevent a forever war, guided by a more targeted, precise counterterrorism strategy that complies with international law and facilitates greater security.
Stated Counterterrorism Objectives
Immediately after the October 7 attacks, counterterrorism rhetoric pervaded, with Israeli and U.S. politicians comparing the attacks to 9/11, or according to Biden, “15 9/11s.” Although the U.N. has not designated Hamas a terrorist organization – due in part to Member States’ views of its political, legal, and liberationist activities and aims, as well as the lack of international consensus as to the definition of terrorism – numerous countries and regional organizations including Israel, the United States, Canada, the European Union, the Organization of American States, New Zealand, and Japan have designated it as a terrorist organization in whole or in part.
Since October 7, Israeli officials have repeatedly adopted counterterrorism language to justify their military operations in Gaza, insisting that Israel is acting in accordance with international law in fighting the “murderous terrorist organisation.” In November 2023, Israel’s National Security Minister Itamar Ben-Gvir stated, “when we say that Hamas should be destroyed, it also means those who celebrate, those who support, and those who hand out candy — they’re all terrorists, and they should also be destroyed — they’re all terrorists, and they should also be destroyed.” In past months, in a widening offensive in the central and eastern parts of the Gaza Strip, the Israeli military has justified attacks on hospitals, schools, and humanitarian shelters – with mounting civilian deaths, including Palestinian women and children – on the basis that “terrorists . . . are located and based in sensitive sites.”
Israeli officials have further sought to justify what UN human rights experts called extraterritorial “extrajudicial killings,” shadowy detention practices, media censorship, and other restrictions on counterterrorism grounds. And on the international stage, they have adopted counterterrorism rhetoric to mobilize support or deflect criticism – accusing other States of making statements “in support of terrorism,” urging supporters of the pending ICJ case (South Africa v. Israel) to “stop taking the side of terrorism,” and calling UNRWA, the U.N. agency for Palestinian refugees and a key provider of humanitarian aid in Gaza, “a collaborator with Hamas . . . maybe even more than that — a terror organisation unto itself.” In his July 25 speech to Congress, Prime Minister Benjamin Netanyahu slammed his critics for “refus[ing] to make the simple distinction between those who target terrorists and those who target civilians, between the democratic State of Israel and the terrorist thugs of Hamas.”
Counterterrorism Obligations and Limitations under International Law
While the counterterrorism framework is not relevant to an assessment of the law governing when States can initiate the use of force (jus ad bellum), it can complement the law governing conduct during a conflict (jus in bello, i.e. IHL) and beyond. To be clear, irrespective of how the law on self-defense and occupation applies to Israel’s recourse to force, IHL applies in the present context and all parties to the conflict are required to “respect” IHL pursuant to the Geneva Conventions and customary international law. Although IHL prohibits terrorist acts in armed conflict and violent acts against civilians, including the intentional spreading of terror among the civilian population, the distinct legal regimes of IHL and counterterrorism should not be conflated, given the risks of hindering a political resolution (potentially due to policies prohibiting “negotiating with terrorist groups” and granting amnesties) and weakening human rights protections. That said, they can overlap, and indeed there has been a growing trend since 9/11 for States to co-apply the two regimes (bracketing whether and to what extent IHL prevails over more general rules, and whether IHL or counterterrorism law are the more specific legal rules (i.e., lex specialis) here).
So what is the obligation to counter terrorism within the limits of international law? To date, the international community has adopted 19 sectoral counterterrorism treaties under the auspices of the U.N. – pertaining to a range of specific terrorism offenses from hostage-taking to terrorist financing and civil aviation. But there is no agreed definition of “terrorism” in international law, and the bounds of “terrorism” remain highly contested. Notwithstanding the lack of a consensus definition, in the weeks following 9/11, the Security Council imposed a binding obligation on all U.N. Member States (acting under Chapter VII of the U.N. Charter) to criminalize and adequately punish “terrorist acts” and to implement more effective counterterrorism measures at the national level, as well as enhanced coordination and technical assistance internationally. The Security Council has since adopted numerous additional resolutions, obliging States to take far-reaching regulatory and enforcement counterterrorism measures, including through the criminalization and punishment of terrorist financing and incitement to terrorism, and other preparatory or pre-criminal acts like association with a designated organization.
A common misapprehension of counterterrorism law stems from the cynical invocation of counterterrorism by governments trying to sidestep IHL and IHRL. But as a matter of international law, counterterrorism measures cannot be implemented without proper safeguards. The Security Council has repeatedly clarified that counterterrorism measures must comply with concurrent obligations under international law. Beginning with Resolution 1456 (2003), the Security Council obliged all U.N. Member States to “ensure that any measure taken to combat terrorism comply with all their obligations under international law, and . . . adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law.” (Para. 6). In Resolution 2462 (2019) the Council reiterated this obligation of international law compliance, and further “[u]rge[d] States, when designing and applying [counterterrorism] measures to take into account the potential effect of those measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law.” (Para. 24). All counterterrorism measures must comply with the foundational principles of legality, necessity, proportionality, and non-discrimination.
Undergirding this positive complementarity between counterterrorism law, IHL, and IHRL is the recognition that IHL and IHRL compliance is a prerequisite for effective counterterrorism. As both the Security Council and General Assembly have recognized, “effective counterterrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing.” To institute a counterterrorism strategy otherwise – in contravention of other international law obligations, including under IHL and IHRL – risks instead contributing to the very conditions conducive to terrorism.
Nor will IHL and IHRL-violating counterterrorism measures bring justice and accountability for the victims of terrorism. This is apparent from the experience of the United States and the failure to secure adequate remedy or reparation for the victims of 9/11. As the U.N. Special Rapporteur on the promotion and protection of human rights while countering terrorism “unequivocally” determined last year, “the systematic rendition and torture at multiple (including black) sites and thereafter at Guantánamo Bay, Cuba—with the entrenched legal and policy practices of occluding and protecting those who ordered, perpetrated, facilitated, supervised, or concealed torture—comprise the single most significant barrier to fulfilling victims’ rights to justice and accountability.” (Para.10).
Israel’s International Law Violations and Blatant Misuse of Counterterrorism
Over the eight months of Israel’s counteroffensive against Hamas in Gaza and beyond, a range of core international crimes and serious IHL and IHRL violations by all parties to the conflict have been well-documented. Israel’s counterterrorism operations in particular have been marred with indiscriminate and likely disproportionate attacks in stark contravention of IHL. Notably, the U.N. Office of High Commissioner for Human Rights has determined that “there is growing information … of possible widespread and systematic unlawful targeting by Israel [of civilian objects] due to erroneous interpretations of international humanitarian law, possibly at the policy level.” (Para. 29).
The U.N. has reported evidence of unlawful killings – including extraterritorial killings in Lebanon – collective punishment, deprivation of essential services, destruction of civilian infrastructure, forced displacement, torture, sexual and gender-based violence, and undue restrictions on the rights to freedom of expression, peaceful assembly, and association, among other violations attributable to Israeli officials. U.N. experts have also raised concerns about Israel’s alleged arbitrary detention of Palestinian civilians, including through the use of secret prisons and military camps outside the protection of the law. Many of these activities have been facilitated by counterterrorism laws and regulations, including through activation of and amendments to the Counter-Terrorism Law and military orders, such as Military Order No. 1651 (2009) which provides for arrest and detention procedures, among others, “during operational activity in the fight against terror.” (Art. 33).
Israel’s counterterrorism objective, simply put, cannot justify these alleged violations of Palestinian civilians’ rights. It is noteworthy in this context that Israel’s misinterpretation of international law protections animated its counterterrorism policies well before October 7. According to U.N. experts, the lack of an international definition of “terrorism” has led to a normative “black hole,” with States including Israel reportedly defining “terrorism” overexpansively and then invoking counterterrorism as pretext for security agencies to use excessive force or for law enforcement to crack down on minorities, dissidents, humanitarian workers, and civil society. In fact, two years before the October 7 attacks, eleven U.N. experts had raised concerns about Israels’ Counter-Terrorism Law 5776-2016 (2016) and broader counterterrorism legislative and regulatory framework providing law enforcement with criminal and administrative powers to prevent and punish terrorism, finding it “may not meet the required thresholds of legality, necessity, proportionality, and non-discrimination under international law.”
Israel has entrenched a security-first counterterrorism apparatus extending to the occupied Palestinian territories – directing its security and intelligence services to attack and harass both Israeli and Palestinian civil society and human rights defenders documenting international law violations by the Israeli government while actually failing to respond to the true terrorism threat posed by Hamas fighters. By way of example, before the October 7 attacks, at the same time that Israel doubled down on its designation of well-regarded Palestinian civil society organizations documenting Israeli human rights abuses as “terrorist organizations,” without any substantiating evidence, Israel was dismissing Hamas’s attack plan as “aspirational” and in fact financially assisting Hamas.
Since October 7, Israel has only exacerbated this misapplication of counterterrorism, with little evidence to suggest that its new strategy is working. In fact, its response may be helping Hamas. A March 2024 opinion poll of 1,580 Gazans by the Palestinian nonprofit and think tank, the Palestinian Center for Policy and Survey Research, showed support for continued Hamas control rising 14 points since December 2023, to over 50 percent. As some security experts have noted, this should not come as a surprise given that “counterterrorism that is purely military rarely works.”
Reversing Course
To date, Israel has largely disregarded the advice of its allies to implement a more targeted, narrow counterterrorism operation – for instance, by sending in special operations troops for nighttime raids targeting specific Hamas fighters, rather than tanks and large-scale razing operations. Moreover, third States, many of which have justified their support for Israel in the war against Hamas on counterterrorism grounds – including through extensive arms transfers and security assistance, intelligence sharing, bans and restrictions on pro-Palestinian solidarity protests and expression, and the further defunding of Palestinian and Israeli civil society organizations working on human rights – risk aiding and abetting Israel (see also the ICJ Advisory Opinion holding that third States are under “an obligation not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the Occupied Palestinian Territory,” covering the period up to December 30, 2022 (Para. 279)).
The risk of counterterrorism abuse is particularly high for the United States, where the very origin of counterterrorism law stems from its foreign policy alignment with Israel and where the post-9/11 “war on terror” paradigm has been mired in international law violations. It is incumbent on third States to heed the calls of U.N. experts to urgently suspend arms exports to Israel; safeguard the rights to free opinion, expression, and peaceful assembly including in solidarity with victims of all sides of the conflict; and reverse funding suspensions or restrictions on Palestinian and Israeli human rights and humanitarian organizations as well as vital international organizations like UNRWA.
It is not too late for Israel and its supporters to reverse course, starting with an immediate ceasefire and more precise counterterrorism operations going forward, in accordance with international law. By “withdraw[ing] the hammer,” Israel could help to facilitate hostage-recovery negotiations, long-term peace talks, and crucially from a counterterrorism perspective, legitimate justice and accountability efforts in service of the rights of the victims of terrorism to remedy and information.
Israel has already isolated itself on the world stage, doubling down in Gaza as geopolitical tensions mount amid the assassination of Hamas political leader Ismail Haniyeh. Israel’s credibility – and the legitimacy of the multilateral system and international rule of law – depends on its turn to a commitment to IHL and IHRL, without invoking counterterrorism as a carte blanche for misconduct. Should Israel fail to do so, it is up to the international community to hold Israel and its enablers, including third States, to account, not just for the core international crimes that are already being documented and pursued, but also for the blatant misuse and abuse of counterterrorism in violation of international law.