Guest post: Prof Joel Trachtman on “Hamas’ Peak Lawfare”
Today Professor Joel Trachtman provides an insightful analysis of Hamas’ lawfare. Readers may recall this post from 2023: Five ideas to counter Hamas’ lawfare strategy…and why which warned about Hamas’ potential to wage lawfare.
Prof Trachtman assesses their success since that time, and provides a stark warning:
Hamas’ strategy may be characterized as peak lawfare, and the result has been to cast extreme doubt on the legality of a legitimate defense by Israel against an attack that posed an existential genocidal threat to Israel and its people.
If the liberal international system, and the system of humanitarian law, are to endure, they must be safeguarded from this type of abuse. Their neutrality, veracity, and integrity must be augmented, or they will no longer be able to serve their legitimate intended purpose.
Here’s Professor Trachtman:
Hamas’ Peak Lawfare
by Joel P. Trachtman
Hamas has perfected legal judo in warfare: using the opponent’s greater military strength against it. Hamas used this legal judo to great effect in the theater of public opinion, as well as on the ballistic battlefield where Israel was threatened by supplying countries with weapons denial and forced to take greater risks to its soldiers and expend more resources to protect itself than if Hamas had not carried out this extraordinarily effective lawfare campaign.
There are several Israeli actions in the recent war defending against Hamas and its allies’ aggression that will be studied by students of strategy and tactics for years to come—in addition to stunning attacks on Hezbollah and Iran, these include the best humanitarian practices in fighting an enemy that hides below and among civilians.
But the more significant strategic development is Hamas’ innovation, after years of refinement, of its lawfare technique: making it nearly legally impossible for its enemy to defend itself. This innovation will be studied by others on the short end of the asymmetric warfare stick, as well as by powerful states.
There are five main components of this strategy:
First, Hamas and its allies shaped the public opinion battlefield with years of intensive propaganda targeting universities, think tanks, and news outlets in the U.S. and other key countries.
This preparation ensured a receptive audience for later claims. Hamas’ strategy built on historic antisemitism, Soviet era propaganda seeking to undermine Israel’s legitimacy as the U.S.’ key ally in the Middle East, the United Nations General Assembly’s Resolution 3379 of 1975 equating Zionism with racism and racial discrimination, the 2001 Durban strategy labeling Israel “an apartheid regime,” and the boycott, divest, and sanction (BDS) movement launched in 2005.
As a supporter of the Muslim Brotherhood, which has deep ties to Hamas, Qatar has funded Al Jazeera, which is closely linked to Hamas. Qatar also engaged in extensive lobbying operations in the U.S. and Europe, and provided billions of dollars of funding to U.S. universities.
Finally, Hamas successfully linked its cause to anti-colonialism and to the intersectional antiracism movement in the U.S. and Europe, capturing the support of progressives who might otherwise object to its fundamentalism.
Second, Hamas built its tunnel fortresses under residential structures, hospitals, and schools so as to maximize harm to its own civilians.
The collateral harm to Gazan civilians that ensued when Hamas’ October 7, 2023, attack on Israel compelled Israel to defend itself was viewed by Hamas as a benefit. Israel was compelled to defend its people against further attacks and an expected coordinated attack by Hamas, Hezbollah, Iran, and the Houthis, presenting an existential threat to Israel and its citizens, as well as to rescue the hostages taken by Hamas.
Yahya Sinwar, the main architect of this strategy, believed that a high civilian death toll was a “necessary sacrifice” to generate international pressure on Israel. This component of the strategy required Hamas to be an unaccountable government, and to prepare its populace, in UNRWA schools and elsewhere, to be willing martyrs for its cause.
Third, Hamas actively sought to manipulate some facts and to hide other facts in order to make its claims of war crimes and genocide more plausible in the fog of war, even if courts deliberating on real evidence are unlikely to uphold most of these claims.
Hamas manipulated the information available to NGOs and to the media, such as mortality counts and harms to civilian assets like Al Ahli Hospital. Hamas has manipulated the mortality figures to exaggerate deaths of children and women, thus exaggerating civilian casualties. Furthermore, once deaths of combatants and normal incidence of death are stripped from the statistics, it becomes evident that Israel has achieved an admirably low ratio of civilian mortality to combatant mortality in urban warfare.
There is little doubt that some Israeli personnel committed war crimes, but most of the alleged crimes relating to targeting and intentional killing of civilians have already been shown or are likely eventually to be shown to be false. It is also highly likely that the claim of genocide will be shown to be false. Israel lacked the specific intent to kill Palestinians that the law and jurisprudence requires.
This shaping by Hamas of the information space caused many academic and NGO analysts to call for limitations on the supply of arms to Israel and other sanctions, even before formal proof of the relevant crimes.
Their policy was “punish Israel first, investigate later.” But Hamas knew, as Mark Twain famously said, that “a lie can travel halfway around the world while the truth is still putting on its shoes.” The damage to Israel’s reputation, and to some extent its defensive warfighting ability, has been done.
Fourth, Hamas and its supporters have sought to expand the definitions of war crimes and of genocide to make it impossible for Israel to carry out its defensive war in compliance with applicable law.
So, for example, they incorrectly argued that the proportionality requirement in the law of armed conflict requires that the casualties on their side not be excessive in relation to Israeli casualties. There is no such requirement.
The actual requirement seeks proportionality between expected harms to civilians on the one hand, and military gain expected from the strike, on the other hand. Whether Israel has complied with the actual proportionality requirement will depend on information about what commanders knew and intended at the time of each strike.
As to genocide, Hamas supporters, including Amnesty International and the government of South Africa in its complaint before the International Court of Justice, have revised the existing legal definition to eliminate the requirement for proof of specific intent to commit genocide, and have taken statements by Israeli politicians out of context.
They need to do this to charge Israel with genocide because it is clear that Israel’s actual intent is defensive. Hamas has hacked the law of armed conflict and of genocide.
Fifth, in addition to the steps above to turn the humanitarian law system into a prohibition of defensive war by a liberal state, Hamas and its sponsors and allies usurped and expended the moral authority and power of the United Nations system in each of the phases of its lawfare campaign detailed above.
It trained children to become Hamas’ martyrs in UNRWA schools. It provided material support for Hamas’ tunnels and allowed its facilities to be used as shields and access points for those tunnels.
The United Nations made delegitimizing Israel one of its principal missions and focused on Israel to the exclusion of much more significant human rights violators. For example, it appointed “special rapporteurs” like the notorious Francesca Albanese, whose mandates largely focused on Israel and who, at least in Albanese’s case, harbored extreme biases against Israel. The US imposed sanctions on Albanese in July of 2025.
The United Nations often provided biased information and claims against Israel, and sought advisory opinions from its judicial organ, the International Court of Justice, that were designed to undermine Israel’s ability to defend itself.
The United Nations, originally established in the aftermath of World War II as a liberal international organ, was turned by those who control its votes, appointments, and finances against a liberal state and in support of illiberalism.
Conclusion
It is clear in retrospect that Israel could have done a better job in countering some dimensions of the lawfare strategy. See Charlie Dunlap’s October 15, 2023, post for some ideas. Israel was surely hampered by limitations on personnel available to counter Hamas’ Lawfare outside the judicial realm, and by the need to focus resources on ensuring that it won the ballistic war.
But this is not only Israel’s problem. Hamas’ strategy may be characterized as peak lawfare, and the result has been to cast extreme doubt on the legality of a legitimate defense by Israel against an attack that posed an existential genocidal threat to Israel and its people.
If the liberal international system, and the system of humanitarian law, are to endure, they must be safeguarded from this type of abuse. Their neutrality, veracity, and integrity must be augmented, or they will no longer be able to serve their legitimate intended purpose.
About the Author
Joel Trachtman is Emeritus Professor of International Law, The Fletcher School of Law and Diplomacy, Tufts University. He is the author of the 2016 article “Integrating Lawfare and Warfare.”
The views expressed by guest authors do not necessarily reflect my views, those of the Center on Law, Ethics and National Security, or Duke University. See also here.
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