Under international law, what will happen if the Gazan militant groups linked to the October 7 massacres lay down their arms and surrender?

How much international pressure will Israel face if Hamas and other Gazan militant groups linked to the October 7 massacres decide to end hostilities?

Will Israel be able to continue its use of lethal force against Gazan fighters when they give up violence and wave a white flag of peace?

This article critiques these questions in the context of customary international law and normative practices of international relations.

The Current Reality

As of mid-August 2024, the Hamas-controlled Ministry of Health in Gaza states that over 40,000 people have died in Israel’s offensive in the Strip since October 8, 2023 (Shurafa & Frankel, 2024). These figures do not separate combatants from civilians. Israel insists they use precise intelligence and targeted strikes that separate militants from among the 2.3 million people of Gaza. Israeli officials estimate that of the tens of thousands of Gazans killed in the war, some 17,000 are militants and combatants with connections to the October 7 massacres (Nawaz, Schifrin, & Warsi, 2024).

While all deaths are tragic, there is little anyone can do about the cycle of killings. With over a hundred Israeli hostages held in the Gaza Strip, the Israeli military has a right under international convention to knock on every door in Gaza and search any tunnel to find and rescue their hostages.

Hamas’ guerilla tactics coupled with their primary ideology, assert that they should continue to fight and take aim at Israeli soldiers whenever the opportunity presents itself. To them, Israel is a perpetual aggressor, and it is “necessary” to go up against Israeli military personnel everywhere and at any time (Al-Jazeera, 2024). They have killed over 300 Israeli soldiers in Gaza in this war and wounded many more (Berger, 2024). Some of these attacks on Israeli soldiers came from “safe zones” where Gazan civilians were supposed to live in peace without any Israeli military activity. As part of Israeli military doctrine, any zone where shots are fired at their soldiers is re-classified in real-time from a “civilian zone” to a “combat zone”. The IDF’s pursuit of such hit-and-run combatants contributes significantly to the civilian death toll in this war.

If Hamas Surrenders…

A Hamas surrender in the October 7 War will force Israel to stop using lethal force in Gaza. Israel will have to yield to international pressure, which is most likely to lead to the exile of Hamas operatives. Both parties will be forced to review their role as actors in the international community.

The following pointers are likely to influence the outcomes:

Point 1: Practical Considerations

The IDF estimated before the war that Hamas had over 30,000 fighters in Gaza (Thomas, Horton, & Garman, 2024). There are other militant groups in Gaza with different militant development programs and varying sectarian and ideological affiliations. Aside from this, there are preachers, ideologues, and other political persons who have known nothing but an ideology of perpetual war against Israel for over 15 years.

In effect, a surrender in this war will leave Israel with at least 10,000 Gazans trained to use firearms and other military devices. There will be tens of thousands of others who can easily regenerate the militant ideologies of Hamas, even in Israeli prisons.

Thus, it is fair to say that Israel cannot or will not be able to imprison all Gazan militants if they surrender. This is not like World War II, where denazification came with a total Nazi surrender. Such an absolute victory cannot happen in this war on the Gaza Strip. Hence, Israel, as a small country, will, at the very least, struggle to keep such persons under control.

This means a surrender gives Hamas and the Gazan militant groups some leverage they would not get in the current war. At the moment, the status quo benefits hardliners as it culminates in the execution of Hamas militants when they are armed in the Gaza Strip. This comes with the inevitable deaths of innocent persons who did not partake in the October 7 massacres and have no means of ending this war.

Point 2: International Legal Pressure Will Mount on Israel

Upon surrender, Hamas members will automatically become “political prisoners” under customary international law. Israel abolished the death penalty in 1954. This means no Hamas fighter can be killed if they voluntarily surrender.

Ideologically, there is no evidence that Hamas fighters will give up their beliefs if they are arrested and put in Israeli prisons. It did not happen in the past, and it is not likely to occur in the future. Thus, Hamas fighters who surrender in this October 7 War will naturally be considered political prisoners.

As political prisoners, the onus will be on Israel to take care of them and ensure their safety. While this will have implications for further radicalization and the maintenance of a hardline population of Hamas activists in the tens of thousands in Israel, it will also have a significant toll on Israel’s economy.

Thus, Israel will come under immense pressure when Hamas fighters surrender.

Point 3: The Guantanamo Precedent Will Limit Israel

Keeping an indeterminable number of prisoners in a precarious international legal situation is always complicated. A large country like the United States, which had to deal with such a situation, kept enemy combatants on its military base in Guantanamo. In 2002, the Guantanamo detention facility was opened, and it became the point for deporting and holding enemy combatants during the US War on Terror in Iraq, Afghanistan, and other parts of the region.

A small country like Israel will have to give up a lot per capita to run a detention system similar to Guantanamo to hold Hamas fighters who surrender en masse. Therefore, Israel will naturally be disposed to consider other options.

One of the most appropriate options is exile.

Point 4: Inevitable Mass Exile of Hamas Fighters Who Surrender

The only reason Israel cannot be stopped under international law in its military offensive in Gaza is that Hamas is armed, they hold Israeli hostages, and Hamas is still firing rockets into Israel as well as militarily attacking and killing Israeli soldiers in Gaza (Berger, 2024). This justifies Israel’s offensive and stops any state or non-state actor from demanding a unilateral end of hostilities on the part of Israel.

Islamic countries have condemned Israel from afar and placed different tags of “crimes against humanity” on Israel. These accusations are no more than nominal, as long as Hamas remains actively armed and intent on fighting a sovereign state and killing Israelis.

This will change significantly if Hamas surrenders.

Almost every Islamic country will make offers to host Hamas fighters and leaders as a political group if they surrender. Obviously, states on the frontlines of what has become known as the “Islamic Cold War” [waged primarily between Riyadh and Tehran] will be cautious in how they admit Hamas’ military and political figures. However, there is no limit on what lesser-involved states in the Islamic world will do. There are also “neutral” and “emerging” countries in the Islamic world that will be able to take in Hamas members.

Point 5: Amnesty & Categorization of Gazan Militants in the Quest for Immunity

When Hamas surrenders, the collective voice of Islamic countries and the international community will automatically guarantee immunity for certain involved persons not closely linked to the October 7 massacres. As history has shown, Israel and other players would expect that Gazan militants directly involved in the October 7 attacks will find a way of escaping the Gaza Strip before a surrender deal is arranged. However, they will find a way of going after them in other ways and forms. But it is likely that a large-scale immunity and amnesty will be granted to Hamas and Islamist militants in Gaza when they collectively surrender.

Point 6: Modification of Israel & Hamas’ Role As International Actors

It is also logical to expect that some radical elements of Hamas will consider surrender as a betrayal, and they will actively work against it. This will create significant gaps and uncertainties in the decisions and choices of the group. Whether they are exiled or go underground, Hamas will find ways of returning to continue their guerilla tactics against Israel. Such discontent and disagreements within the group will naturally cause them to restructure and reframe their narratives to fit into new jurisdictions they would relocate to.

Israel will naturally be forced to increase its surveillance and track down potential threats more extensively. The rebuilding of Gaza will cause Israel to play a greater role in the security of the region so as to avoid the possibility of another October 7-type of attack. This will be preceded by a long debate of who will participate and who will not be included in the rebuilding effort of Gaza from the Palestinian side.

Conclusion

The status quo gives Israel a reason to continue using its mechanism of targeted executions on Hamas members linked to the October 7 massacres as well as likely participants of future military attacks on Israel. This is highly controversial under international law, but it seems there is no other alternative, given the realities of the circumstances.

A Hamas surrender will be considered a generous deal for all sides. It will end the killings in the Gaza Strip as they relate to the violence that started on October 7, 2023, and will actualize the international pressures placed on Israel to end the military offensive in Gaza. The civilian death toll will end, and it is likely the Hamas members involved in October 7 will find ways of disappearing into other regions of the Islamic world. They will be followed by other significant members of Hamas and other Gazan militants in exile. This will create the circumstances necessary to rebuild the Gaza Strip in the short run.

Will Hamas surrender?

Only Hamas’ top leadership can answer that question and understand the rationale for their choice. Till then, the world is likely to endure an uneasy situation in the Gaza Strip.

References

Al-Jazeera. (2024, January 21). Hamas says October 7 attack was a ‘necessary step’, admits to ‘some faults’. Retrieved from https://www.aljazeera.com/news/2024/1/21/hamas-says-october-7-attack-was-a-necessary-step-admits-to-some-faults

Berger, M. (2024, August 15). More than 40,000 killed in Israel’s war in Gaza, Health Ministry says. Retrieved from Washington Post: https://www.washingtonpost.com/world/2024/08/15/gaza-death-toll-israel-hamas/

Nawaz, A., Schifrin, N., & Warsi, Z. (2024, August 15). Gazan families shattered as war’s death toll crosses 40,000. Retrieved from PBS News: https://www.pbs.org/newshour/show/gazan-families-shattered-as-wars-death-toll-crosses-40000

Shurafa, W., & Frankel, J. (2024, August 15). More Than 40,000 Palestinians Have Been Killed in Gaza, Territory’s Health Ministry Says. Retrieved from TIME: https://time.com/7011371/palestinians-killed-gaza-israel-death-toll/

Thomas, M., Horton, J., & Garman, B. (2024, February 29). Israel Gaza: Checking Israel’s claim to have killed 10,000 Hamas fighters. Retrieved from BBC Verify: https://www.bbc.com/news/world-middle-east-68387864