The HAMAS Case

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REPORT ON THE POLITICS AND EFFECTS OF PROSCRIPTION

BY

PROFESSOR JEROEN GUNNING

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1. INSTRUCTIONS

1. I have been instructed by Riverway Law to provide an expert report in support of the application to the British Home Secretary to deproscribe Harakat al-Muqawamah al-Islamiyyah (‘Hamas’).

2. This expert report focuses on the historical use and effects of the term “terrorism” and in particular how it has been used by states to proscribe nonstate groups, including anti-colonial resistance groups, both historically and in the contemporary, and legitimise state violence against such groups and how it inhibits the possibility of a political solution and hinders humanitarian aid. In sections C-D, it will discuss the political dynamics of proscription and how these make proscription problematic, both in general and as applied to Hamas. It will then go on to discuss the effects of proscription, and how these play out with regards to Hamas, Israel and the settler colonial conflict in Israel-Palestine, including how proscription of Hamas contributes to preventing reaching a just and lasting peace in the region. It will finally discuss arguments for deproscription and address a number of common objections to deproscription, both generally and as applied to Hamas. The arguments presented are drawn from a Critical Terrorism Studies perspective and the report will focus on setting out those arguments.

2. QUALIFICATIONS

3. I give this Report in my personal capacity.

4. I have been a Professor of Middle East Politics and Conflict Studies in the Department of Political Economy, King’s College London, since 2015. Prior to that, I was Reader at the School of Government and International Affairs, Durham University (2010-2015), Lecturer at the Department of International Politics, Aberystwyth University (2002-2010), and British Academy Post-Doctoral Research Fellow at St Anthony’s College, University of Oxford (2000-2002). I received my PhD from the Institute of Middle Eastern and Islamic Studies at Durham University in 2000.

5. I am Visiting Professor at the Middle East Centre at the London School of Economics and at the Department of Political Science at Aarhus University.

6. I am one of the co-founders of the academic field of Critical Terrorism Studies, launched in 2006 as a more self-consciously critical approach to the study of terrorism and counter-terrorism and the social, political and security effects of the application of the terrorism label. My publications in this field have been widely cited, with over 3,200 citations listed on Google Scholar.

7. I was Founding Director of the Durham Global Security Institute (2011-2014) and Co-Founder & Deputy Director of the Centre for the Study of ‘Radicalisation’ and Contemporary Political Violence, Aberystwyth University, 2005-2010.

8. I was Head of the Department of Middle Eastern Studies, King’s College London, 2017-2018, and member of the British Society for Middle Eastern Studies (BRISMES) Council, 2011-2018.

9. I am one of the world’s leading experts on Hamas and, since 2000, I have advised, been consulted by, or invited to address the House of Commons; the Foreign, Commonwealth & Development Office (and the Foreign and Commonwealth Office and the Department for International Development separately before they were merged); members of the EU External Action Service; the EU Commission; the Dutch Ministry of Foreign Affairs; the Dutch Ministry of Justice and Security; the Belgian Ministry of Foreign Affairs; the US House Committee on Foreign Affairs; and the US National Intelligence Council.

10. I was a standing member of the DFID-FCO North Africa Advisory Group, 2017-2019 and of the FCO Egypt Forum, 2017-2019 and have been asked to brief various UK ambassadors before they were posted to the Middle East.

11. I was the Director of King’s College London’s professional development course “MENA [Middle East and North Africa] – History, Politics and Societies’ for the FCO Diplomatic Academy for two years 2018-2019.

12. In writing this Report, besides drawing on the broader literatures on Israel/Palestine, Hamas, terrorism, and peace and conflict, I have drawn on nearly 30 years of studying Hamas and over 20 years of teaching and writing critically on the use and effects of the terrorism label. Key works are listed in this footnote.¹

C. THE POLITICS OF PROSCRIPTION

13. Proscription is political: The definition of the term “terrorism” and decisions regarding to whom it should be applied have been historically deeply political, rendering the concept analytically and legally unstable.² This can be seen from the way proscription decisions have been made for clearly political reasons, the absence of a universally agreed upon definition of terrorism, the imbrication of the terrorism label in colonial and post-colonial regimes of delegitimisation and violence against nonstate challengers, the ambiguity of many legal definitions, the exemption of state terrorism, and the proscription of entire movements rather than just acts of violence. I will go through each of these arguments in turn.

14. Political reasons driving definitions and proscription: There are numerous instances of definitions of terrorism being changed for political reasons or groups being labelled terrorist or having the terrorism label removed without changes to the groups’ behaviour, suggesting that the decision to (de-)label them was political rather than substantially related to their goals and tactics (which most definitions of terrorism focus on). To give a few examples, the number of terrorist incidents recorded by the CIA purportedly doubled within a year when William Casey, its then Director, reportedly decided in 1981 – despite protests from the State Department and independent advisors – to expand the definition of terrorism to include “every kind of national liberation movement, every left-wing movement that used violence, and called them terrorists”.³ In 1970s Italy, according to Professor Donatella della Porta, “the term “terrorism” started to be used… only in the second half of the 1970s. The political violence of the first half of the decade was instead called by different names: extremism, subversivism, squadrismo, and stragismo”. ⁴ In 1988, the Pentagon listed the African National Congress as a terrorist organisation but labelled RENAMO an “indigenous resurgent group”, even though it acknowledged that the latter had killed over 100,000 civilians (a core feature of many terrorism definitions; see section 19) – a decision Professors Edward Herman and Gerry O’Sullivan link to the US’s then support for South Africa, RENAMO’s main sponsor.⁵ In 2003, the United States Government designated three Chechen and three Basque organisations as terrorist, apparently in return for respectively Russia acquiescing in and Spain supporting the US-led invasion of Iraq.⁶ There is also significant variance on which groups are proscribed, even amongst closely allied states. As Professor Lee Jarvis and Associate Professor Tim Legrand noted in 2018, the total numbers of formally proscribed groups in the US, Canada, Australia and the UK were respectively 61, 53, 24 and 71 (plus a further 14 Northern Irish groups designated under older UK legislation) while “only 16 groups [were] proscribed across all four of these countries”.⁷ As for the proscription of (parts of) Hamas, the UK government’s decision to proscribe Hamas’s military wing, the Qassam Brigades, in 2001 appeared to have been driven by the government’s response to the 9/11 attacks, rather than any fundamental changes in the Qassam Brigades’ tactics (e.g., they had been targeting civilians in suicide bombing operations since 1994); and its decision to proscribe Hamas’s political wing in 2021 in addition to its military wing, the Qassam Brigades, similarly appears to have been driven by political considerations, rather than any substantive changes to the relationship between Hamas’s political and military wings, which have been organisationally distinct for political and security reasons since the 1990s, or in Hamas’s actions.⁸ The fact that the UK’s decision to proscribe Hamas occurred 18 years after the EU had decided to do so and 24 years after the US (2021 vs. 2003 vs. 1997) further underlines the political nature of the proscription process.⁹

15. No agreed upon definition: Legal and academic definitions of terrorism vary greatly and there has been no universal agreement on a definition to date. Leading terrorism studies Professor Alex Schmid listed 250 definitions in the 2011 Routledge Handbook of Terrorism Research.¹⁰ The UN has attempted to arrive at a universal definition for decades but has so far failed to do so.¹¹ Significantly, two of the reasons why international agreement has been elusive stem from the insistence of many states (usually former colonies in the Global South) that a “universally accepted definition” should “differentiate [terrorism] from the legitimate struggle of peoples in the exercise of their right to self-determination from foreign occupation or colonial domination” and “address the issue of State terrorism and include in its scope activities of military forces that may not be regulated by international humanitarian law”.¹² These objections are particularly pertinent for this case, as Hamas, as a self-proclaimed resistance organisation, is fighting for self-determination from foreign occupation and colonial domination while the Israeli government (henceforth “Israel”) has been repeatedly accused of carrying out acts that can be described as state terrorism (see section 21.d).

16. Colonial history of proscription: Use of the terrorism label by Western states, including Great Britain, which was at the forefront of this practice, to delegitimise nonstate challengers to the status quo and legitimise the state’s violent response has roots in colonial history. The British government used the label, for instance, in India, Egypt and Kenya to delegitimise anti-colonial movements and legitimise its harsh responses to them.¹³ At the League of Nations’ 1937 Convention for the Prevention and Punishment of Terrorism, where Britain played a key role, terrorism was defined specifically as “criminal acts directed against a State” and framed as “barbarism”, a “world crime” by “enemies of the human race” against “the whole civilised world”¹⁴ – thus supposedly justifying (and papering over) the brutality of counter-terrorism/counter-insurgency violence meted out by colonial powers.¹⁵ The colonial legacy of the term is illustrated by the fact that opposition to UN definitions that do not differentiate national liberation movements from terrorism has come predominantly from states in the Global South.¹⁶ After decolonisation, the term continued to be used to delegitimise nonstate challengers to the status quo and legitimise state violence against them, its use having been broadened to also cover left-wing, anti-racist, and Islamist movements more broadly – but the dynamics of proscription have been shown to indicate a continuation with colonial practices (including its racist and Orientalist logics) in the labelling of, for instance, Black Liberation Movements in the US and well-known anti-racist abolitionist activists such as Angela Davis (in the 1970s) as well as the dominant focus on Islamist groups in proscription regimes over the past few decades.¹⁷ None of this is to deny the violence used by most of the organisations designated as terrorist or the fact that acts of violence were committed that violated international humanitarian law. However, the violence used by those designated as terrorist was typically significantly smaller in volume and effect than the violence of the colonial powers, which likewise engaged in acts of violence that violated international humanitarian law and often to a far greater degree – the terrorist designation obscures this, erasing the political context of the violence. I will return to this in section C, especially section 21.

17. Ambiguity of legal definitions: Definitions are furthermore often so broad and ambiguous that most acts of violence would fall under them, thus further underlining the political quality of decisions regarding who falls under this definition. The UK definition of terrorism in the Terrorism Act 2000, Section 1, Subsection (1), for instance, is: “(b) the use or threat [of a list of violent or threatening actions, listed under (a)]… designed to influence the government [F1or an international governmental organisation] or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious [F2, racial] or ideological cause”. An action in pursuit of the above counts as terrorism if (Subsection 2) it “(a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system.” Moreover, “the use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied”.¹⁸ If this definition were applied just on the basis of what it says, rather than for political reasons, then any use of firearms or explosives to intimidate a government, IGO or a (section of the) public for a political, religious, racial or ideological cause could be classed as terrorism – including, arguably, acts conducted by the UK’s armed forces in armed conflicts in, for instance, Kosovo, Iraq and Afghanistan. Yet state armies are typically not labelled terrorist, unless they belong to states considered “rogue” by their enemies. To further underline the political quality of the law, given the politics of proscription described above, Subsection (5) of Section 1 defines any “action taken for the benefit of a proscribed organisation” as terrorism, thereby both introducing a circular logic and removing any direct link between a person perpetrating particular acts of violence and their designation as a terrorist.¹⁹

18. Exemption of state terrorism: Despite the term originating at the time of the French Revolution to describe a state regime of terror, the dominant practice in both law and mainstream academic work has come to be to apply the terrorist label to nonstate actors, not to state actors – and in particular not to Western state actors and their allies. Yet, most state actors have carried out similar acts of violence as described by common terrorism definitions and typically on a far larger scale.²⁰ If political assassinations are considered terrorism (the assassination of King Alexander I of Yugoslavia was a key driver behind the League of Nations’ Convention for the Prevention and Punishment of Terrorism),²¹ then MI6, the CIA and Mossad, among many other intelligence agencies, should arguably be labelled terrorist for the assassinations (whether direct or sponsored) of political leaders, especially in the Global South.²² If terrorism is defined as “the peacetime equivalent of war crimes” (as suggested by Schmid to the UN Crime Commission in 1992 on the ground that there was already a consensus on what constituted war crimes), then many state armed forces have carried out acts that would fall under this definition, particularly in the Global South where the war/peace binary often does not apply. As Professor Tarak Barkawi, a renowned scholar of war and armed force in world politics, has powerfully argued, this binary – developed in a European context – does not travel well to the Global South where the war/peace binary is usually replaced by “a battle/repression schema in which the use of force is an ordinary, not extraordinary, dimension of politics”.²³ If we focus specifically on attacks against civilians not taking part in hostilities and against non-military objects (which constitute the bulk of examples provided by Schmid as universally accepted war crimes – this is also a core feature of many definitions and suggestions for differentiating terrorism from national liberation movements),²⁴ whether in a context of declared war or along Barkawi’s “battle/repression” continuum, then most state forces have reportedly been involved in terrorist acts: from British counter-insurgency operations in, e.g., Malaysia, Kenya and, more recently, Afghanistan,²⁵ to the allied bombing of German cities in World War II, to – more relevant for this case – the Israeli military’s conduct in the 1948 war (leading to the ethnic cleansing of Palestinians from what became Israel, known as the Nakba in Arabic),²⁶ the 2006 war in Lebanon (when it implemented the Dahiyeh Doctrine, which explicitly targeted civilians and civilian infrastructure in order to turn the population against Hizbullah; this doctrine also guided the 2008-2009 and subsequent wars on Hamas and Gaza)²⁷ and the current war on Gaza (see section 21.d).

19. Designation of groups rather than acts: The designation of entire organisations as terrorist is furthermore deeply problematic in that it designates all actions of the organisation and all who are part of it or could be considered to have any connection with it as terrorist.²⁸ Commenting on the difficulty of labelling an individual actor – let alone a group – on the basis of acts described as terrorism, Professor Alex Schmid, one of the foremost scholars concerned with defining terrorism, pertinently asks, if “a laws-of-war-abiding soldier can become a war criminal”, then “if members of an armed group use legitimate conventional and guerrilla tactics most of the time, but occasionally also engage in criminal acts of terrorism, should they no longer be called soldiers or insurgents but terrorists? Where should one draw the line?”²⁹ Scaled up to the level of group this is even more challenging as group members and organisations linked to the group are likely to be engaged in many different activities that do not involve violence, let alone the type of violence defined as terrorism (e.g., defined with reference to targeting unarmed non-combatant civilians; see section 19). This is particularly problematic when political parties with armed wings are designated as terrorist – as is the case with Hamas, and previously with groups like Fatah, Sinn Fein, the ANC, the People’s Front of Liberation Tigers– as this designation is then used to justify targeting any member of the organisation, whether or not they have been involved in acts of violence, let alone acts of terrorist violence.

20. In summary: the term terrorism is deeply political, legally and analytically unstable, and part of upholding an unequal international order that has been profoundly shaped by violence. It is also arguably superfluous as existing international agreements on what constitute war crimes and crimes against humanity can be used to prosecute individuals purportedly involved in such crimes – whether state or nonstate, during war, peace or a battle/repression continuum. One could retain the notion of terror as an additional quality to those war crimes that have been carried out with the intent to terrorise populations or governments in order to pressure them into concessions. Using the war crime frame restores the focus on specific acts of violence, rather than criminalising entire movements, which, particularly if they have legitimate cause, undermines the international rights-based order and rule of law. The term is furthermore seldom used to describe state violence, even when the latter clearly and intentionally targets civilians in order to put pressure on nonstate groups or carries out genocide against civilian populations. Conversely, it is used widely to delegitimise entire movements opposed to the status quo, even those with legitimate cause, branding everything they do and all their members as “terrorist”, including violent acts against armed forces that fall within international humanitarian law and members who have not been involved in violence against civilians, as well as acts or members involved in politics and social welfare. The term has devastating effects not just on those to which it is applied but also on the credibility of a rights-based international order. The next section will elaborate on these effects.

D. THE EFFECTS OF PROSCRIPTION

21. Erasing historical and political context: Application of the term terrorism has the effect of erasing the history and political context of violence.³⁰ Violence becomes “just evil”, coming out of nowhere, rather than being historically situated and, often, a product of preceding structural violence and oppression. Without a history, the state using the term can then claim to be simply acting in self-defence, erasing its culpability in contributing to creating conditions that make such violence more likely. In Israel’s case, this means sidestepping its history of settler-colonial expansion and continued occupation, including its obligations towards Gaza as an occupying power.³¹ The altercation between Israel’s Ambassador to the UN and the UN’s Secretary-General in October 2023 illustrates this dynamic poignantly. In response to Guterres telling the UN security council that “it is important to also recognise the attacks by Hamas did not happen in a vacuum. The Palestinian people have been subjected to 56 years of suffocating occupation”, Erdan said: “It is a disgrace to the UN that the secretary general does not retract his words and is not even able to apologise for what he said yesterday. He must resign. The secretary general once again distorts and twists reality. He clearly said yesterday that the massacre by Hamas did not happen in a vacuum. Every person understands well that the meaning of the words is Israel has guilt for the actions of Hamas or at the very least it shows his understanding of the ‘background’ leading up to the massacre that Hamas perpetrated.” Hamas’s 7 October attacks did not happen in a vacuum. They occurred against a background of a century of settler colonialism (21.a), in which Israel played a part in contributing to creating the conditions that made the violence of 7 October possible (21.b), with especially its continuing occupation and expansion of settlements constituting an existential threat to Palestinians (21.c), and which displayed a similar extreme disproportion between the violence of the colonial power and the violence of the anti-colonial resistance found in other historical colonial contexts (21.d).

    1. The ongoing conflict in Israel/Palestine plays out within a context of settler colonialism and anti-colonial armed struggle against occupation and for self-determination. There are many different lenses one could use to understand the conflict, each highlighting specific aspects and downplaying others. But the settler colonial paradigm is particularly important for situating and understanding the actions of Israel and Hamas within a broader settler colonial and anti-colonial history, rather than as two ethnic groups fighting over the same territory, a paradigm which elides the starkly uneven power dynamics of settler colonialism. It roots the current practices of proscription and counter-terrorism/counter-insurgency within this longer colonial history. And it highlights the central logics of expulsion, segregation and erasure typically found in settler colonial contexts, which shape both Israel’s and Hamas’s actions.³² Conceptualising the conflict through the lens of settler colonialism has become widespread within both academia and among human rights practitioners. Its use dates back to the 1960s and 1970s but the paradigm has become adopted more widely over the past two decades, spearheaded by Palestinian scholars, but also including key Israeli scholars, and scholars and practitioners globally.³³ Numerous ICJ judges who issued Advisory Notes in addition to the Summary that described the court’s finding Israel’s occupation to be illegal in July 2024, while not explicitly using the term “settler colonialism”, drew a straight link between occupation, the racial segregation policies they found amounted to Apartheid, and Israel’s “policy of settlement expansion and annexation” (Judge Salam); Judge Xue underlined that “the effects of Israel’s occupation… have little difference from those under colonial rule” while Judge Yusuf noted that “any belligerent occupation which substitutes an indefinite occupation for the legally sanctioned temporariness of belligerent occupation takes on the characteristics of colonial occupation”.³⁴ Francesca Albanese, UN Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967, explicitly argued that the genocide she concluded had been taking place in Gaza (see also section 20.d, footnote 63) was inherent to settler colonial logic: “Genocidal intent and practices are integral to the ideology and processes of settler-colonialism, as the experience of Native Americans in the U.S., First Nations in Australia or Herero in Namibia illustrates. As settler-colonialism aims to acquire Indigenous land and resources, the mere existence of Indigenous peoples poses an existential threat to the settler society. Destruction and replacement of Indigenous people become therefore ‘unavoidable’ and take place through different methods depending on the perceived threat to the settler group. These include removal (forcible transfer, ethnic cleansing), movement restrictions (segregation, largescale carceralization), mass killings (murder, disease, starvation), assimilation (cultural erasure, child removal) and birth prevention. Settler-colonialism is a dynamic, structural process and a confluence of acts aimed at displacing and eliminating Indigenous groups, of which genocidal extermination/annihilation represents the peak.”³⁵ Note that the methods listed by Albanese were commonplace among historical colonial powers.³⁶ Michael Mann famously characterised colonialism as a “reign of terror for the subjugated population” while Fabian Klose underscored that “war crimes were nothing less than an essential characteristic of… colonial warfare. […] Grave breaches of the Geneva Conventions were an essential element of colonial warfare and had a strategic function in the military’s calculation. By conducting a war that violated all principles of international humanitarian law, Great Britain and France [the focus of Klose’s research] wanted to deliver a “demonstration of strength” meant to… secure their colonial domination. The indigenous population was to be intimidated by a “climate of counterterror” and deterred from offering the rebels any means of support.”³⁷ State terror thus has been a core feature of colonial rule historically and the settler colonial lens highlights this comparatively. Conversely, Hamas – just like Fatah and the PLO before it – has situated its own actions within this longer global history of anti-colonial resistance. In the document Hamas issued explaining 7 October, they urged readers that “the events of Oct. 7 must be put in its broader context, and that all cases of struggle against colonialism and occupation in our contemporary time be evoked. These experiences of struggle show that in the same level of oppression committed by the occupier; there would be an equivalent response by the people under occupation.” Knowingly or not, these words seemed to echo the words of decolonial political philosopher Frantz Fanon written in the context of the Algerian war of independence 60 years earlier: ““The violence which governed the ordering of the colonial world, …this same violence will be… appropriated when, taking history into their own hands, the colonized swarm into the forbidden cities”.³⁸ Abu Obaida, spokesperson for the Qassam Brigades, similarly “harness[ed] anti-colonial and anti-imperial narratives that have shaped resistance and independence movements for decades” and “invoke[d] Algeria and South Africa as examples of how freedom needs to be retaken with blood, bodies, and fighting”.³⁹ And Hamas’s head in Sidon (Lebanon) invoked the millions killed in Algeria’s and Vietnam’s liberation struggles: “How many did they sacrifice? Millions of martyrs. Therefore, I am saying that there is a high price to pay on the path of resistance, and we will bear this price.”⁴⁰ Wherever one stands politically, the settler colonial lens brings these dynamics to the fore and situates them within a long history of brutal colonial rule and violent anti-colonial resistance. In this context, it is telling that the majority of states supporting cases lodged at the ICC and ICJ accusing Israel of war crimes and genocide in Gaza as of January 2024 were former colonies based in the Global South, while many of those not supporting or opposing these cases were former colonial powers in the Global North (see map below).⁴¹

2. Without downplaying Hamas’s own agency or the contribution of other (f)actors, Israel, supported by among others the US and the UK, has contributed to creating conditions that made attacks such as those of 7 October possible. Israel created the settler colonial context that has shaped the central dynamics of the conflict by forcefully evicting over 700,000 Palestinians from their land and homes in what became Israel in 1948 in what has been widely recognised as a process of forced transfer or ethnic cleansing, resulting in the tripling of Gaza’s population almost overnight (with two thirds of Gazans continuing to be refugees or descendants thereof before 7 October 2023).⁴² Hamas’s demands for the liberation of all of Palestine and the return of Palestinian refugees must be understood within that context. Israel has similarly been responsible for occupying Gaza in 1967 and maintaining an occupation since then, de-developing its economy, imposing what has been widely agreed to be an Apartheid regime, and, after 2007, ostensibly using the siege to starve both the population and the economy just short of causing a humanitarian crisis.⁴³ More immediately, it refused to lift its then 16-year old siege of Gaza despite numerous attempts (both violent and political) by Hamas to end it; it rebuffed Hamas’s various political overtures over the years (see section 24.b); and it refused to accept the establishment of a Palestinian state, while pursuing regional normalisation and an aggressive expansion of settlements in the West Bank, which Hamas interpreted as eliminating the very possibility of Palestinian statehood.⁴⁴ These conditions form the context within which the Qassam Brigades decided to carry out the shocking 7 October attacks, purportedly to end the occupation (including Gaza’s siege), to stop annexation and normalisation that would have prevented the prospect of a Palestinian state, and to force Israel and the international community to take the demand for Palestinian statehood seriously.⁴⁵ Acknowledging this context does not equate with justifying the war crimes and crimes against humanity that the ICJ has found were plausibly committed during the 7 October attacks, for which the perpetrators should be held accountable. ⁴⁶ Rather, it provides us with a better understanding of why they happened in the way that they did, putting policy-makers on a better footing for anticipating such acts and responding constructively to them when they occur in a way that deals with underlying causes, rather than just the symptoms thereof. Conversely, the terrorism label erases this historical context, enabling Israel to depict the Qassam Brigades (and Hamas and Gazans more broadly) as unhuman barbarians acting without cause (see section 22) and obscuring the underlying causes of the violence.

3. The application of the terrorism label further serves to downplay the fact that Israel’s occupation of the West Bank and Gaza and its ongoing settler colonial project constitute an existential threat to the Palestinians. The occupation of Gaza and the West Bank has been judged illegal by numerous UN Security Council and General Assembly Resolutions and, most recently, in a landmark Advisory Opinion by the International Court of Justice in July 2024.⁴⁷ Expansion of settlements and settler violence has increased markedly over the last years. A September 2024 Crisis Group report warned that “Israeli settler violence… is at an all-time high” and noted that “over the past few years – since Prime Minister Benjamin Netanyahu’s current government, which includes far-right parties, assumed power and especially since the Hamas-led attacks on 7 October 2023 – the tempo of both settlement activity and acts of settler violence against Palestinians has increased dramatically”.⁴⁸ Peace Now reported already in July 2023 that “2023 has emerged as the highest year on record in terms of [new settlement] units approved” and in July 2024 that “the year 2024 [already] marks a peak in the extent of declarations of state land”.⁴⁹ Israel’s far-right Minister in charge of the administration of the West Bank has even gone so far as to “[order] preparations for the annexation of the occupied West Bank ahead of US President-elect Donald Trump”.⁵⁰ By focusing on those labelled terrorist, without recognising the historical context of the violence or the culpability of the state doing the labelling in contributing to creating conditions that make such violence more likely, the occupying state seeks to obscure its own preceding violence (structural as well as direct) and portray any violent response as “self-defence” against an existential, even civilisational threat. Israel has used this strategy with great success with regards to Western states, most of whose governments have uncritically adopted Israel’s claim that it is acting purely in self-defence – a self-defence, moreover, that has no limits – and continue to support Israel in its war on Gaza, regardless of the fact that it is the occupying power which has obligations to the occupied population yet has both actively prevented the establishment of a Palestinian state and has committed purported war crimes and crimes against humanity, including plausibly genocide.⁵¹

4. The conflict in Israel-Palestine shows a similar disproportion between the volume and effect of the violence perpetrated by the colonial power and anti-colonial resistance organisations as in other colonial contexts, which underlines the colonial character of the conflict, including its terrorist features (if understood as targeting civilians to change their behaviour through terror; see section 19), and provides further context for 7 October and Israel’s response (see also section 16). From September 2000 until October 2023, the respected Israeli human rights NGO B’Tselem recorded 11,201 Palestinians killed by Israelis versus 1,352 Israelis killed by Palestinians – thus, for every Israeli killed, over 8 Palestinians were killed. Focusing on the number of civilians killed, B’Tselem recorded 4,918 Palestinians who did not participate in hostilities killed by Israeli forces, and a further 777 where it is unknown whether they participated in hostilities. The figure for Israeli civilians killed by Palestinians was 893 – thus, for every Israeli civilian killed, 6 Palestinian civilians were killed. In the period 2008-2023 (prior to 7 October), the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) recorded 21 Palestinian civilians killed for every Israeli civilian killed.⁵² Since 7 October 2023, which happened within this context of disproportionate violence, the discrepancy in volume and effect of violence has increased dramatically. According to a detailed Human Rights Watch report, 1,195 Israelis were killed on 7 October, of which 815 were civilians and at least 282 women and 36 children, and 251 people, including 39 children, were taken hostage. The International Criminal Court has found that there is plausible evidence to conclude that the Qassam Brigades have committed war crimes and crimes against humanity on that day.⁵³ Estimates of Palestinians killed in Gaza since 7 October 2023 range from 45,338 (OCHA, 8 January 2025) to a projection of 186,000 in an article in The Lancet (Khatib et al., 14 July 2024). ⁵⁴ American medical personnel who have served in Gaza since 7 October estimated in a public letter to President Biden that, as of May 2024, at least a further 10,000 Gazans were buried under rubble and that, as of 30 September 2024, an additional 62,413 Gazans could die of starvation, based on how many Gazans were living in famine-like conditions. ⁵⁵ Professor Devi Sridhar, chair of global public health at the University of Edinburgh, estimated in September 2024 that, following the method used in The Lancet article, the total number of deaths “attributable to the current conflict” (including from war-related disease and starvation) could be as high as 335,500.⁵⁶ Although these figures do not differentiate between combatants and noncombatants, the UN’s Office of the High Commissioner for Human Rights (OHCHR) estimates on the basis of an analysis of the 8,119 Palestinians killed in Gaza that had been verified by OHCHR by 2 September 2024 that 70% of those killed were women (26%) and children (44%), while 94% had been killed “in residential buildings or similar housing”.⁵⁷ Oxfam reported in September 2024 that “6,000 women and 11,000 children were killed in Gaza by the Israeli military over the last 12 months”, concluding that “more women and children have been killed in Gaza by the Israeli military over the past year than the equivalent period of any other conflict over the past two decades”.⁵⁸ Although Israel has called the credibility of the numbers provided by the Hamas-run Health Ministry into question, the UN and other major humanitarian organisations have all said that they find the numbers credible, based on both their own observations of deaths and past conflicts.⁵⁹ While Israel claims that it takes every precaution to limit civilian deaths, there is mounting evidence that Israeli officers explicitly permitted the targeting of civilians and civilian infrastructure.⁶⁰ Intelligence sources claim that officers permitted the “collateral” killing of civilians when targeting members of the Qassam Brigades, from 20 for low-level to 100 for high-level targets; this practice was supported by two AI-supported systems (“Lavender”, “The Gospel”), with reportedly limited human oversight, and a tracking system, “Where’s Daddy?”, which was said to specifically target the homes of suspected members, thus increasing the likelihood of civilian casualties. Some intelligence sources with first-hand experience go further, saying that high-rise buildings or “power targets” were bombed with the specific intention “to harm Palestinian civil society: to “create a shock” that, among other things, will reverberate powerfully and “lead civilians to put pressure on Hamas”.⁶¹ The use of 2000lb bombs in densely populated areas and near hospitals, the limited time given to people to evacuate their homes, the attacks on evacuation routes and areas designated as safe spaces, among other evidence, strongly suggest that, at a minimum, Israel is permitting the killing of civilians on a vast scale.⁶² However, taken together with statements made by top Israeli officials that they intended to punish all Gazans, with no distinction between unarmed civilians and combatants (see section 22), and a long history of Israel intentionally targeting civilians as part of military doctrine (most explicitly expressed in the Dahiyeh Doctrine – see section 19), it is reasonable to conclude that Israel has committed acts of terrorism in Gaza on a far greater scale than Hamas, if terrorism is understood as targeting non-combatant civilians with the purpose of changing the behaviour of larger populations through instigating terror (common elements of terrorism definitions). The International Court of Justice, 15 UN Special Rapporteurs and numerous UN officials and experts, and a large body of legal and genocide scholars, including the Lemkin Institute for Genocide Prevention, the University Network for Human Rights, Euromed Human Rights Monitor, as well as high-profile genocide scholars and the Middle East Studies Association have all furthermore concluded that Israel’s violence in Gaza plausibly amounts to genocide.⁶³ The terrorism label applied solely to Hamas, however horrifying the violence of 7 October was, including mass atrocities, obscures this extreme asymmetry in the level and effect of violence carried out and Israel’s complicity in violence that can be described not just as terrorist but as genocidal.

22. Dehumanisation to justify violent response: The terrorism label also serves to dehumanise, denying those labelled their right to human rights, to freedom, justice and self-government. This in turn enables the state wielding the term to seek to justify extreme and often illegal violence – from collective punishment and targeting civilians to ethnic cleansing and genocidal violence. Here, the construction of what has been termed “suspect communities” plays a central role. Originally coined to describe how the UK government turned the Irish in Britain into a “suspect community” under the 1989 Prevention of Terrorism Act, the term has been used to show how Muslim communities in their entirety have been rendered “suspect” during the War on Terror.⁶⁴ The terrorism label, particularly if it is conceptually linked to Muslims as, e.g., “Islamic terrorism”, allows the state doing the labelling to paint the attackers and their community as not only “irrational” and “demonic” but as an “existential threat”, a threat to civilisation itself – and thus those killed in the violent response are blamed for their own deaths.⁶⁵ In Israel’s war on Gaza, a similar dynamic can be seen at work, with Israeli officials labelling all Gazans as culpable of the 7 October attacks and unhuman, and through this discursive strategy seeking, in its extreme form, to legitimise the erasure of Gaza. Already on 18 October 2023, an open letter signed by nearly 800 lawyers warned that Israel’s rhetoric and how this was translated into action had raised “the possibility of the crime of genocide being perpetrated by Israeli forces against Palestinians in the Gaza Strip”.⁶⁶ Israel’s President, Isaac Herzog, reportedly explicitly held all Gazans responsible for the 7 October attacks, erasing the distinction between civilians and armed fighters to justify collective punishment: “It is an entire nation out there that is responsible. It is not true this rhetoric about civilians not being aware, not involved. It’s absolutely not true. They could’ve risen up, they could have fought against that evil regime.”⁶⁷ Then Israeli Defense Minister Yoav Gallant was reported to have “ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel,” adding “we are fighting human animals and we act accordingly” and “Gaza won’t return to what it was before. We will eliminate everything.”⁶⁸ Prime Minister Benjamin Netanyahu linked dehumanisation of the Palestinians to the notion of an existential threat, telling the Knesset that Israel’s war on Gaza was a “struggle against those who have risen up against us to destroy us. Our goal is victory – a crushing victory over Hamas, toppling its regime and removing its threat to the State of Israel once and for all. … Hamas is part of the axis of evil of Iran, Hezbollah and their minions. They seek to destroy the State of Israel and murder us all. They want to return the Middle East to the abyss of the barbaric fanaticism of the Middle Ages, whereas we want to take the Middle East forward to the heights of progress of the 21st century. This is a struggle between the children of light and the children of darkness, between humanity and the law of the jungle.”⁶⁹ These words echo Netanyahu’s foreword to his 1984 book Terrorism: How the West Can Win which stated that “the battle against terrorism was part of a much larger struggle, one between the forces of civilization and the forces of barbarism”,⁷⁰ itself echoing the wording of the 1937 League of Nations’ Convention described above (section 16). Israel’s Minister of Energy and Infrastructure Israel Katz not only blamed all Gazans but appeared to publicly propose a combination of ethnic cleansing and genocide: “All the civilian population in Gaza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.” Member of Knesset Ariel Kallner explicitly invoked the Nakba of 1948, reportedly saying: “Right now, one goal: Nakba! A Nakba that will overshadow the Nakba of 1948”. This message was also spread on public banners in cities calling for “zero population in Gaza” and the “annihilation of Gaza”. Head of the IDF’s Coordinator of Government Activities in the Territories, Major General Ghassan Alian, told Gazans: “Human animals must be treated as such. There will be no electricity and no water, there will only be destruction. You wanted hell, you will get hell”.⁷¹ Palestinian civilians who were killed were thus supposedly to blame for their own deaths – whether because they had elected Hamas, not risen up against it, accepted its “culture of martyrdom”, continued to live and move in declared war zones, or supposedly allowed the Qassam Brigades to use them as human shields (the human shields narrative is both contested evidentially and deeply problematic in that it does not absolve Israel from observing the fundamental principles of distinction and proportionality).⁷² This logic was on clear display in testimony from IDF officers and soldiers in a recent Ha’aretz article, with the commander purportedly having said: “Anyone crossing the line is a terrorist, no exceptions, no civilians” and “declaring anyone entering the kill zone a terrorist conducting reconnaissance”, so that soldiers apparently understood that “the kill zone extends as far as a sniper can see”, ending up “killing civilians there who are then counted as terrorists”.⁷³ The terrorism framework is not the sole cause of this process of dehumanisation. The collective dehumanisation of the Palestinian people has a long history and is steeped in racism and Orientalist tropes, as Israeli officials over the decades have likened Palestinians to “cockroaches”, “cancer”, “vermin”, etc. It goes hand in hand with settler colonialism, which has a historical record globally of seeking to erase indigenous peoples. Within this racialised, colonial context, Palestinian attacks on Israelis over the years have further served to reinforce dehumanising racist stereotypes.⁷⁴ Proscription is thus only a contributory factor. However, the terrorism label, with its connotations of “moral disgust”, “taboo”, and treating those labelled as “pathologically anti-social” and against human civilisation itself, facilitates such dehumanisation.⁷⁵ It facilitates Israel’s apparent strategy of systematically destroying Gaza’s health sector, with Israel claiming – on the basis of usually limited and contested evidence – that these sites were used extensively by Hamas, thus supposedly exculpating it from having to observe the fundamental principles of proportion and distinction in international humanitarian law.⁷⁶ It also contributes to enabling Israel to steer attention away from the inhumane brutality of its own killing in Gaza.

23. Denial of right to resist occupation: The practice of labelling national liberation and anti-colonial resistance movements terrorist further has the effect of denying them their right to resist occupation and fight for self-determination by any means, including violence (within the boundaries of international humanitarian law), as enshrined in numerous UN Resolutions. It also has the effect of perpetuating colonialism and settler colonial occupation, which are considered crimes by the UN. UN General Assembly Resolution (UNGA) 2621 (XXV) (1970), for instance, both “declares the further continuation of colonialism in all its forms and manifestations a crime which constitutes a violation of the Charter of the United Nations, the Declaration on the Granting of Independence to Colonial Countries and Peoples and the principles of international law” and “reaffirms the inherent right of colonial peoples to struggle by all necessary means at their disposal against colonial Powers which suppress their aspiration for freedom and independence”. Dr Shahd Hammouri, a lecturer in law, lists nine UNGA Resolutions which reaffirm in broadly similar wordings that the struggle for self-determination against occupation can be conducted “by all legitimate means available at their disposal”.⁷⁷ UNGA Resolution 2787 (XXVI) (1971) specifically confirms this right with regards to the Palestinian struggle. UNGA Resolutions 35/35 (1980), 38/17 (1983), 43/21 (1988) and 44/235 (1989) further reaffirm this right with regards to the Palestinian struggle, either expressly or by expressing solidarity with the Palestinian Intifada which began in 1987.⁷⁸ As for who is entitled to take up this right, Hammouri notes that “there is no established legal test to determine who is to practice the rights of a people on their behalf in the context of an illegal occupation. Such practice may be taken up collectively by those who have associated themselves with resistance in the exercise of their right to self-determination.” These UN Resolutions thus appear to grant any self-proclaimed resistance organisation the right to use violence against occupation, including attacks on soldiers that actively take part in hostilities. Yet, because Hamas is designated as terrorist, even acts that are explicitly permitted by UN Resolutions become labelled terrorist, thus denying Palestinians their fundamental right to resist occupation and fight for self-determination.

24. Preventing a political solution: Application of the terrorism label further creates obstacles for pursuing a political solution, favouring military “solutions” or indefinite suppression and surveillance. In particular, it denies the possibility of political transformation as “terrorists” – and the sub-category of “religious terrorists” in particular – are typically cast as inherently intransigent and incapable of change.⁷⁹ Peace studies scholars, who have long argued for engagement with armed groups, have critiqued the terrorism approach for preventing engagement. “In the name of security policy and the ‘war on terror’”, Professor Robert Ricigliano, a globally leading peace studies and conflict resolution scholar and practitioner, noted, “the preferred course of action for dealing with many armed groups is to proscribe and shun them in the hopes that they will somehow wither away or be eradicated by military force”.⁸⁰ Yet, as Professors Seth Jones and Martin Libicki, leading defence and security studies scholars and practitioners, found in their survey of 648 “terrorist groups” between 1968-2006, only 7% ended through military force. The most common way in which they ended was “a transition to the political process” (43%).⁸¹ Such a transition is hindered by the terrorism label. Liz Philipson, former director of Conciliation Resources and a conflict analyst, concluded from her study of engagement under conditions of power asymmetry that “listing an organization as ‘terrorist’ potentially lengthens the path to non-violent politics for that group as negative perceptions of the group are encouraged, and the group’s own perceptions about whether they can or should have a place in non-violent politics may also be negatively affected”.⁸² Labelling a group as “terrorist” makes political negotiations more difficult as talking with terrorists is considered taboo (whether because it is believed to reward nonstate violence, to legitimise the violent nonstate actor or to be an admission of weakness). The government of the Philippines resisted pressure to label the Moro Islamic Liberation Front terrorist precisely because it did not want to scupper a political solution.⁸³ Dr Sophie Haspeslagh, a scholar combining critical terrorism and security studies with conflict and peace studies, similarly concluded from her analysis of the effects of proscription that the “consequences of proscription regimes appear to be making the achievement of successful peace processes that much harder”, including by limiting the involvement of third parties that have historically played an important role in getting the conflict parties to the negotiation table through “affect[ing] their strategic calculations and train[ing] them in conflict resolution”.

    1. Alvaro de Soto, former UN Special Coordinator for the Middle East Peace Process, notes the effects of proscription for the settler colonial conflict in Israel/Palestine specifically, underlining that “the global war on terror has dealt a set-back to conflict resolution as a whole. It has brought about issues that mediators never had to deal with before. (. . .) There is no agreed definition of what constitutes terrorism or terrorist acts, they use pre-existing lists. As a result, groups on those lists, which may have resorted to terrorist acts tactically or out of desperation, find themselves amalgamated with nihilist groups like Al Qaeda (. . .). A sort of stigma has been attached to dealing with the likes of Hamas, without which peace is difficult to imagine. With Hamas’s election under George W Bush nobody even dared mention the possibility of engagement. Until that time it had been unquestioned UN practice since Dag Hammarskjold to talk to whomever you need to talk to for peace. That could be people from Hamas just like from the other side. … Excluding such important interlocutors can result in prolonging conflict.”⁸⁴ Leading peace studies scholars Professor Oliver Richmond and Dr Jason Franks have similarly argued that an “orthodox terrorism approach has allowed successive Israeli governments to maintain the conflict rather than make difficult concessions (for example, over territory and settlements), reaffirm their national security discourse, allow the pursuit of terrorist actors in both a military context (as enemies) and legal context (as criminals), and legitimise extra-judicial, pre-emptive assassinations”.⁸⁵ Israel has used the terrorism label to depict Hamas as an absolute spoiler, incapable of compromise and thus not a serious negotiating partner, despite Hamas having been elected in a landslide victory in the 2006 legislative elections and having made significant political overtures over the years in terms of moving towards accepting a Palestinian state on the 1967 borders, especially in 2006-2007 (before the violent ousting of Fatah from Gaza, following intelligence of an impending coup),⁸⁶ the first half of 2014 and the second half 2017.⁸⁷

    2. Under the influence of its pragmatic leaders who had more leverage within the movement when the external political opportunity and threat structure made a pragmatic response more compelling, Hamas showed an increasing willingness to accept a Palestinian state on the 1967 borders, culminating in the publication of its 2017 Manifesto, and was involved in negotiations towards – and (briefly) participation in – national unity governments with Fatah based on a de facto acceptance of a two-state solution. In each case, there were tensions within Hamas and between Hamas and the Qassam Brigades, and escalating tensions with Fatah (2006-2007, 2017) and Israel (2006, 2014) contributed to these overtures being undermined or overturned.⁸⁸ In the evidence I submitted with colleagues to the UK Parliament in November 2023, we argued that it was in part Israel’s refusal to take Hamas’s political overtures seriously, combined with its aggressive pursuit of regional normalisation and increasing annexation of the West Bank threatening the very possibility of a Palestinian state on the 1967 borders, that created the conditions for the hardliners within Hamas and the Qassam Brigades to gain power and plan the violence of 7 October.⁸⁹ The terrorism label arguably facilitated Israel’s refusal to engage with these earlier political overtures.

25. Obstructing a two-state solution: Proscribing the entirety of Hamas has directly affected the possibility of a two-state solution and a Palestinian state being achieved. Other factors, including, significantly, Israel’s refusal to agree to the establishment of a Palestinian state on the 1967 borders and its continued settlement, annexation and normalisation policies, but also deep divisions between Hamas and Fatah, and continued, apparently unconditional, international support for Israel, inspite of its continued occupation, have played key roles. However, proscription has further served to obstruct a political solution. It has arguably emboldened Israel in its refusal to engage Hamas and its pursuit of a military rather than a political solution. It has made engagement and negotiations with Hamas more difficult. Because it is one of the two key parties in Palestine and the main armed force on the Palestinian side, from a pragmatic perspective, Hamas has to be included in any political settlement to make it work. Obstructing political engagement with Hamas is thus deeply detrimental to achieving a political solution – a point retrospectively acknowledged by former UK Prime Minister Tony Blair who was instrumental in instigating the international boycott against Hamas following its 2006 election victory.⁹⁰ Proscription has further served to undermine the pragmatists amongst its leadership, and to make it difficult if not impossible for third parties (whether governments or INGOs) to influence Hamas’s decision-making through engagement.⁹¹ Proscription has also contributed to thwarting the creation of national unity governments and reconciliation attempts between Hamas and Fatah, which both parties see as “a necessary step toward the realization of a two-state resolution to the Israeli-Palestinian conflict”.⁹² Responding to the UK’s proscription of Hamas in 2021, the Palestinian Authority’s Mission in London to the UK warned that, “with this move, the British government has complicated Palestinian unity efforts and undermined Palestinian democracy… It is a retrograde and one-sided step that will do nothing for efforts to secure a peaceful two-state outcome…”.⁹³

26. Impeding humanitarian aid: Proscription further impedes humanitarian aid by labelling anything that can be seen, broadly interpreted, as supporting a group that has been labelled terrorist as terrorism. As we wrote in the evidence submitted to the UK Parliament in November 2023, “Under UK law, the proscription of Hamas in its entirety “[creates] a series of criminal offences under UK law punishable by imprisonment and fines”, including “arranging a private meeting with members of the groups” and providing any material benefit, even indirectly (which could include paying local taxes and utilities or carrying out humanitarian work if this is seen as indirectly benefiting Hamas). According to Dr Ben Saul, an advisor to the United Nations and the Challis Professor of International Law at the University of Sydney, commenting on the Australian proscription of all of Hamas, which is similar to the UK’s, “The Australian law is saying that anyone who provides support, funding, training or assistance to the Hamas public administration, even… to help civilians in Gaza, is breaking Australian counterterrorism laws.” Similarly, Alyn Smyth (SNP MP) noted in the UK parliamentary debate [on Hamas’s proscription] that “You cannot get anything done—you cannot get aid delivered, you cannot have a medical project, you cannot have a civil society dialogue—without Hamas’s active involvement one way or another”. […] This is especially worrying, as approximately 80% of Gazans are dependent on humanitarian aid [this figure represents the situation prior to 7 October], much of which stems from UN bodies, such as the United Nations Relief Works Association for Palestinians in the Near East (UNRWA). The proscription unnecessarily complicates the UK’s relations with international organisations operating in Gaza such as UNRWA, but also the World Bank, UNOPS, and OCHA. Hamas’s affiliation with highly regarded NGOs, employment of Hamas members in UNRWA and other humanitarian organisations, and contributions of aid organisations such as the UNDP, the World Food Programme, USAID, Save the Children, Médecins sans Frontières, Medical Aid for Palestine, to Hamas-affiliated charities or zakat committees makes the blanket terrorist designation of Hamas potentially deeply destructive for Gazan civil society and their dependents.”⁹⁴

    1. Illustrating the legal implication of proscription for charities, in April 2023 the UK Treasury’s Office of Financial Sanctions Implementation sent a letter to Muslim charities, asking “to supply details of all payments made in Gaza since 31 December 2020”, including “any payments such as local authority charges, taxes, utilities, and services including water supply, waste services, telephone or broadband payments”. Because of Hamas’s proscription, the letter explained, the law prohibits anyone “from making available funds to or for the benefit of an organisation designated under the 2019 Regulations… This can include any payments to a designated organisation or entities owned or controlled by it, or to entities independent of that organisation but where payments will be for its benefit… As a charity with operations in the OPT, potentially in Gaza, it is your responsibility to ensure you are compliant with financial sanctions obligations”. Charities were thus already facing the prospect of increased costs for carrying out humanitarian work in Gaza as they had to seek “legal advice to ensure they properly fulfil their responsibilities” or risk “face sanctions under counter-terrorism regulations”.⁹⁵ Proscription has rendered humanitarian aid to Gaza potentially open to criminal charges because all humanitarian organisations had to go through Hamas as the de facto government of Gaza – and if Hamas continues to play a role in Gaza post-ceasefire, it will potentially criminalise humanitarian aid and reconstruction in the future.

    2. The cost of proscription-related charges to humanitarian NGOs working in Gaza can be enormous. Norwegian People’s Aid was ordered to pay $2 million for not disclosing its “support for a democratisation project for youth in Gaza from 2012-2016”, as this was ruled to constitute a “relation… to countries, organisations or persons under embargo by U.S. government designations”. Oxfam was asked to pay $160 million in a New York court because the court had ruled that “an agriculture policy project in Gaza constituted “material support” to Hamas”. These cases are examples of what has been termed “lawfare” against entities supporting Palestinians, including not just charities but also financial service providers, to deter them from continuing their support.⁹⁶ The proscription of Hamas is central to these cases as it allows prosecutors to argue that charities or financial services providers are materially supporting terrorism, even if their money or their services were exclusively concerned with humanitarian aid.

    3. Since 7 October 2023, Israel has used the accusation of supporting terrorism to criminalise and shutdown UNRWA, the main UN agency supporting Palestinian refugees, on the basis that some of its staff had been involved in the 7 October attacks (the UN found evidence for nine of the 19 accused – out of a total staff of 30,000 – and dismissed them).⁹⁷ Aid groups have accused Israel of ““systematic” attacks on civilians and NGOs working [in Gaza]” and Jan Egeland, head of the Norwegian Refugee Council, has noted that “Israel has now killed more aid workers in Gaza than all other armies, militias, and terrorists in all other wars combined”.⁹⁸ Combined with Israel’s policy of effectively starving Gaza’s population by only allowing in a fraction of the truckloads of humanitarian aid required to keep the population alive (between July-November, the daily average was 37-80, against 500 before 7 October; see graph) and reportedly deliberately depriving Gazans of water,⁹⁹ the continued proscription of Hamas by key international players such as the UK and the US is likely to hinder not only the humanitarian effort to keep Gaza’s population alive but the enormous task of reconstruction that will be needed for Gaza to become inhabitable again.

E. DEPROSCRIPTION, LEGITIMACY AND VIOLENCE

27. Case for deproscription: For the reasons set out in section D, a reasonable case can be made that the UK government’s proscription of Hamas has made it complicit – as a contributory actor supporting and legitimising the international proscription regime around Hamas – in contributing to effacing the historical and political context of Hamas’s violence, dehumanising not just Hamas but Gazans more broadly, creating further obstacles to a political solution, and making humanitarian aid more difficult. By continuing to label Hamas terrorist, it can be argued that the UK government has indirectly facilitated and legitimised Israel’s collective punishment of Gaza, including plausible genocide, as well as facilitated Israel’s continued occupation of Gaza and refusal to deal with Hamas politically. The ICJ found in July 2024 not only that Israel’s occupation of Gaza and the West Bank is illegal but that “all States… are also under an obligation not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the Occupied Palestinian Territory. It is for all States, while respecting the Charter of the United Nations and international law, to ensure that any impediment resulting from the illegal presence of Israel in the Occupied Palestinian Territory to the exercise of the Palestinian people of its right to self-determination is brought to an end.” For the reasons set out above, continued proscription of Hamas, in conjunction with the UK government’s continued support for Israel and its failure to impose sanctions, appears to go against the UK’s stated support for a two-state solution. It could also be argued that it goes against the legal obligations the ICJ’s finding imposes on states in that it facilitates Israel’s continued occupation and hinders a political solution – and in doing so, violates international law and undermines the international legal order.¹⁰⁰

28. Deproscription, engagement and legitimacy: One of the reasons for deproscription is the possibility of engagement. A key argument against engagement and negotiations with armed nonstate groups is that it grants them legitimacy.¹⁰¹ However, this argument discounts the complexity of both legitimacy and the effects of engagement. As Professor Harmonie Toros, a leading critical terrorism and peace studies scholar, notes, because legitimacy is socially constructed, “the state can only confer legitimacy upon an entity for itself (thus accept for itself the legitimacy claim being made); it cannot do this for society as a whole or any broader social grouping”.¹⁰² Armed nonstate groups usually derive most of their legitimacy from their reputation among the population they seek to represent, while states often lack legitimacy in the eyes of those who have been oppressed or occupied. In El Salvador, for instance, as Joaquín Villalobos observed, “it was the insurgency that held greater legitimacy, not the authoritarian regime, which reacted disproportionately to resistance to its political model in a way that only escalated the violence”.¹⁰³ Hamas has enjoyed public support for decades, in part because of its status as a resistance movement. It won student and professional union elections in the 1990s through its opposition to the Oslo Accords; it won the 2006 legislative elections in part because of its role in the Al-Aqsa Intifada; and after each subsequent war on Gaza its public support has typically increased.¹⁰⁴ After 7 October, its popularity in opinion polls increased significantly and in the most recent poll by the widely respected Palestinian Center for Policy and Survey Research (PSR 92, June 2024), it enjoyed the highest percentage of support of all Palestinian political parties (40% vs 20% for Fatah and 8% for third parties; see figure 17 in graphs below – numbering taken from PSR report). Support for the 7 October attacks, meanwhile, remained high (57% in Gaza, 73% in the West Bank; see figure 1 below).¹⁰⁵ Being deproscribed and engaged by powerful states would likely increase Hamas’s legitimacy and its room for manoeuvre. But proscription has conversely also arguably increased its legitimacy in the eyes of its supporters by being seen as confirmation that Hamas has stood up to an international order that many hold to be deeply flawed and illegitimate, even more so since 7 October. Calls by Western states for a Palestinian state based on the Fatah-led Palestinian Authority, which has lost much of its support after 7 October, to the exclusion of Hamas are therefore deeply unrealistic and counter-productive, besides carrying colonial overtones. The June PSR poll shows that, after 7 October, 70-75% of respondents say that they are satisfied with Hamas’s “performance in the current war”, against 22-27% for Fatah, while 61% prefer Hamas to be “in control of the Gaza Strip” against 6% preferring the “Current PA under [President] Abbas” and 6% preferring the “Current PA under someone other than Abbas” (see figures 10 and 7 below). Even in the year leading up to 7 October, Hamas polled broadly equal to Fatah when those surveyed were asked who they would vote for in parliamentary elections (see graph of “Voting Intention” below), a pattern roughly observed over the past decade.¹⁰⁶ Whether Western governments like it or not, Hamas is one of the two dominant political parties in the Palestinian occupied territories. Engagement with it in pursuit of a political solution is thus not a question of legitimacy but a question of respecting the will of the Palestinian people and of seeking a locally credible way forward.

29. Deproscription, engagement and violence: A second concern often raised is that deproscription and engagement reward violence and undermine the rights-based international order.¹⁰⁷ Negotiations, however, often involve demands around ceasing violence – thus, they can also be used to strengthen the norm of non-violence¹⁰⁸ (although this norm has already been severely weakened by the continued support of key Western allies for Israel’s war on Gaza and ongoing occupation). Negotiations can further serve to “eliminate one of the reasons why the insurgents may have engaged in violence in the first place (lack of a legal outlet to voice their grievances)”, strengthen the more pragmatic leadership and potentially create “a path of change or transformation towards nonviolence” (though only if the reasons for violence, in this case occupation and denial of self-determination, are resolved).¹⁰⁹ In an important precedent for the UK, the UK’s government dropped its demand that the Provisional Irish Republican Army disarm prior to the negotiations leading up to the Good Friday agreement in Northern Ireland, making it instead part of the negotiations. According to Jonathan Powell, chief negotiator for the British government in Northern Ireland, Sinn Fein’s chief negotiator Martin McGuinness had said in private that “there would never have been a ceasefire if decommissioning had been made an issue in advance” while “Sinn Fein made it clear that the IRA would not surrender weapons before a political settlement, demanding the issue be dealt with in talks”.¹¹⁰

    1. In Hamas’s case, the prospect of free and fair legislative elections in 2006, which were no longer tied to the Oslo Peace Process (as the 1996 elections had been), strengthened the pragmatists within the movement and it agreed to cease violence in 2005-2006 in the run-up to the legislative elections (which constituted a domestic form of political engagement).¹¹¹ Swiss engagement with Hamas post-2006 only had a marginal effect on the position of the pragmatists but this engagement was low-key and did not have the clout that engagement with the Quartet (the four entities overseeing the peace process: the UN, the USA, the EU and Russia) would have had.¹¹² The 2011 Cairo Agreement between Hamas and Fatah created some space for the pragmatists but the lack of international engagement and continued tensions with Fatah weakened its effect. Nevertheless, Hamas’s response to the demand of the Quartet that it reject violence was that it would cease violence when occupation ends – and, significantly, it only focused on the occupation of the West Bank and Gaza, not of all of British Mandate Palestine, thus foreshadowing its formal acceptance of a Palestinian state on the 1967 borders in its 2017 Manifesto.¹¹³ Moreover, temporary escalations of violence notwithstanding, for most of the period between 2007-2023, Hamas has observed de facto or agreed ceasefires with Israel, even going so far as at times imprisoning other resistance factions for launching rockets.¹¹⁴

    2. In April 2024, a high-ranking Hamas leader involved in the Qatar-led negotiations with Israel went on record to say that Hamas would dissolve the Qassam Brigades and “lay down its weapons and convert into a political party if an independent Palestinian state is established along pre-1967 borders”.¹¹⁵ This followed a statement in November 2023 by then Hamas leader Ismail Haniyeh (who was assassinated in Iran in July 2024, purportedly by Israel) that “we are ready for political negotiations for a two-state solution with Jerusalem as the capital of Palestine”, though “only if the ongoing fighting ceases, humanitarian corridors are opened, and aid is allowed to enter Gaza”.¹¹⁶ Following the failure of the Oslo Accords, which Hamas blames on Fatah having given up arms before the establishment of a Palestinian state, Hamas is unlikely to lay down its weapons without an end to the occupation and Palestinians achieving self-determination. But if its past behaviour is anything to go by, it is possible that it will consider laying down its arms if it is engaged in meaningful negotiations that actually lead towards a meaningful Palestinian state. Without deproscription, this process will be much harder, if not impossible; deproscription, conversely, would send a signal of intent and can serve to reinforce the norm of non-violence by linking a demand for a ceasefire to a clear and credible process for achieving a Palestinian state and ending Israeli occupation – and, as part of that process, the question of disarmament and demobilisation can then be addressed, rather than as a precondition for entering into negotiations.

    3. A further objection could be that Hamas has so far refused to recognise the state of Israel and continued to insist on the right of return of Palestinian refugees to historic Palestine.¹¹⁷ Regarding the recognition of the state of Israel, other significant anti-colonial movements have not recognised the sovereignty of their coloniser over part of their historic homeland – not while the conflict was ongoing but also not necessarily immediately afterwards. Ireland did not recognise the Union of Northern Ireland and Great Britain (or rather, that this was “the present wish of a majority of the people of Northern Ireland, freely exercised and legitimate”) until 1998, when it agreed to “drop its territorial claim on Northern Ireland and instead define the Irish nation in terms of people rather than land”. Notably, it only recognised British sovereignty over Northern Ireland conditionally, “for as long as that has the consent of a majority of its population”.¹¹⁸ In the case of Aotearoa/New Zealand, the Maori version of the Treaty of Waitangi – te Tiriti o Waitangi – did not grant sovereignty over tribal lands to the British Crown, only “kawanatanga” (the right of governance), and the Waitangi Tribunal, set up in 1975, found that the Māori had not ceded sovereignty and was set up specifically to deal with claims of restitution regarding lands and resources taken by the Crown. For some, the Tribunal was discussed in terms of (re)granting Māori sovereignty and placing them on an equal footing with the Crown.¹¹⁹ Thus, recognition of a state’s sovereignty should be treated separately from the question of whether violence is used – a distinction the terrorism label tends to blur. The key question for policy-makers should be whether Hamas is willing to cease fire if a meaningful and sovereign Palestinian state were established rather than whether Hamas will recognise Israel at this stage. Regarding the question of Palestinian refugees, this question has remained unresolved in numerous Israeli-Palestinian negotiations and continues to constitute a major issue. However, insistence on the right of return should not be equated with an intention to destroy Israel. As Dahlia Scheindlin, an international political and strategic consultant, put it in a Century Foundation report, “the notion that Palestinians demanding return automatically signal an intention to destroy Israel should be laid to rest. International law and convention have evolved, if unevenly, to support refugee rights, including the right of return, and thus contradict Israel’s argument that Palestinians cannot claim the legal right. Further, refugee return has been incorporated into conflict resolution in practice. The cases examined in this report show that the Palestinian demand for return is not unique. Refugees elsewhere make similar claims in similar circumstances, and other conflict resolution processes have sought solutions, if imperfectly, rather than dismissing the claims.”¹²⁰ Thus, here too, the focus should be on finding a resolution, not on inherently equating insistence on this right with continued violence, which the terrorism label facilitates.

F. EXPERT OBLIGATIONS

30. I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete opinions on the matters to which they refer.

31. I understand that proceedings for contempt of court may be brought by anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

32. I confirm that I have not received any remuneration for preparing this report.

Jeroen Gunning

London

United Kingdom

8 January 2025