COMMENTARY: Hamas is not a sovereign, just like ISIS wasn’t

Hamas’ ultimate objective — as it has clearly declared it — is the abduction of as many Israeli civilian hostages as possible — especially women and children. As such, it has clearly shown itself as unworthy of being considered a potential candidate for any future recognition of sovereign statehood.

One is hard-pressed to recall a sovereign state that declaratively proclaimed as its prime objective the taking of civilian hostages. For the “classical” example of such conduct, one must return to Heinrich Himmler, who in 1943-1944 ordered on Germany’s behalf (then a sovereign state) to abduct 100 civilians and have them executed on account of every German soldier killed by partisans and French Résistance fighters in the Nazi-occupied Balkans and France.

Japan behaved similarly manner during its destruction of Manila in the Philippines in 1944.

By the end of World War II, Germany and Japan temporarily ceased to exist as sovereign states under international law as they became fully militarily occupied. The Allies changed Germany and Japan’s sovereign borders, altered their governance systems, and even legislated new constitutions for these occupied countries absent their inhabitants’ consent. For Germany and Japan, 1945 has been termed as “Year-Zero.”

In its effort to take as many civilians hostage as possible, in its summary execution of babies and systematic rape of civilian Israeli women, Hamas in Gaza has proven that it cannot be considered — by any margin — a state sovereign. As such, and with the single exception of Article 3, no Article in the Fourth Geneva Convention for Civilians of 1949 applies to it.

Article 3 prohibits the murder and summary execution of civilians. It explicitly prohibits the taking of hostages and illegalizes torture. Last, it demands that any civilian put to death shall first be sentenced by a normative court of law. Article 3 applies to any human anywhere. Hamas does not recognize Article 3, nor the Geneva Conventions, and clearly does not see itself bound by them in any manner.

In contrast, Israel has not, and must not, avail itself from Article 3’s prohibitions, which the Israel Defense Forces continues to abide by, notwithstanding Hamas’ complete abrogation thereof. And rightfully so.

Since Gaza is not a recognized state, and Hamas (Gaza’s ruler) is not sovereign, none of the Fourth Geneva Convention’s other Articles applies to the IDF’s current actions. The Palestinian Authority’s accession to the Geneva Conventions and its ratification of the International Criminal Court’s Rome Statute are substantively meaningless. Before the ICC, Palestine maintained its borders to be those of 1967. Before the International Court of Justice, in the pending case Palestine v. United States, Palestine declared its borders to be those of the 1947 U.N. Partition Plan. No recognized sovereign state in the world has its territory completely undefined, and none has argued two contradictory territorial boundaries before two international tribunals simultaneously.

Given Hamas’ recent conduct, Israel and other governments would do well to stop addressing it as a sovereign. This concept, which held sway in European capitals and even with some Israelis, has collapsed. Rather, and as reiterated by President Biden, Hamas should be considered on par with ISIS — a terrorist organization that controls a swath of territory with civilians in it. There is no such thing as “the Hamas state in Gaza.” Correspondingly, Israel is bound only by Article 3’s prohibitions: no summary executions, no taking of hostages, no torture. Any other action, including partial or total destruction of Gaza’s infrastructure, buildings or any other target to uncover Hamas’ underground cities, are clearly legitimate military targets.

The IDF must maintain its strict codes of conduct in warfare. In tandem, it is essential to avoid the illusion that Hamas’ rule has anything to do with sovereignty. There is no state on the other side here, just like there was none in ISIS’ control of eastern Syria.

Gilad Ben-Nun is a professor of global studies at Leipzig University and is the author of “The Fourth Geneva Convention for Civilians: The History of International Humanitarian Law.” He wrote this for InsideSources.com.