The HAMAS Case

Written evidence submitted by Professor Jeroen Gunning, Dr Tristan Dunning, Dr Anas Iqtait, Dr Tareq Baconi, Dr Martin Kear, Prof Hamish Maxwell-Stewart, Dr Shannon Brincat and Dr Adel Yousif (MENA0070)

7 November 2023

Co-authors: Professor Jeroen Gunning (King’s College London), Dr Tristan Dunning (University of Queensland), Dr Anas Iqtait (Australian National University), Dr Tareq Baconi (Al-Shabaka and Institute for Palestine Studies) and Dr Martin Kear (University of Sydney).

Co-signatories: Prof Hamish Maxwell-Stewart (University of New England), Dr Shannon Brincat (University of the Sunshine Coast) and Dr Adel Yousif (University of Tasmania).

Summary

This submission was written by a group of leading academic scholars on the Palestinian Islamist movement Hamas, Palestinian politics and the Israel-Palestine conflict more broadly, and co-signed by scholars writing on decolonisation, settler-colonialism or descended from colonially displaced Palestinians. It presents evidence of the effects of the international boycott, isolation and criminalisation of the entirety of Hamas and the likely damage to the UK’s long-term interests in the Middle East and North Africa. It argues that the international community’s dismissal of the political overtures of Hamas’s political leadership since 2006, coupled to the lack of commitment to ending Gaza’s siege and pushing for a political solution to the Israel-Palestine conflict, has helped to create the conditions for the horrific attacks of 7 October 2023. The designation of all of Hamas as terrorist by the UK and other Western governments has furthermore helped to create a permissive environment for Israel to target any building or person in Gaza, as many are connected to Hamas in one way or another as the de facto government, a major social welfare provider, and a social movement with grassroots support. This, coupled with the UK’s continued support for the Israeli government, including the licensing of arms components used in the current bombardment, could make the UK complicit in war crimes committed during Israel’s punitive war on Gaza, including potentially the charge of genocide.

The attacks and Israel’s subsequent punitive war on Gaza, with apparent genocidal intent, highlights the urgency of not just a ceasefire but of resolving the underlying causes of the conflict, working towards ending Gaza’s siege and creating a Palestinian state alongside Israel. We argue that, given its unique historic links, the UK can play a far more central and constructive role in these debates and any necessary action than it has hitherto. We argue that, rather than criminalising one side to the conflict, all parties should be subjected to international judicial investigations into whether war crimes and crimes against humanity have been committed. We argue that proscription of the entirety of Hamas has made the goal of establishing a Palestinian state harder by derailing the 2006 elections and weakening the pragmatic political leadership within Hamas; hindering past humanitarian efforts to ameliorate the dire humanitarian situation in Gaza resulting from the 16-year siege; making reconciliation between Fatah and Hamas, crucial for progress towards a two-state solution, more difficult; and, indirectly, facilitating Israel’s ongoing occupation by denying a political solution. We argue that continued proscription of Hamas in its entirety will hinder the urgent work of reconstruction and moving towards a two-state solution, if Hamas continues to exist (as we expect). It will work against the long-term interests of the UK in terms of its ability to constructively engage diplomatically in the Arab and Islamic world, particularly with countries – e.g., Qatar and Turkey – which have provided support to the Hamas-led government in Gaza. We argue that the proscription has little advantage for the UK itself and is unlikely to reduce antisemitism in the UK, which should instead be fought using the legal tools of hate crime and hate speech. We finally argue that the lack of transparency in the way the decision to proscribe all of Hamas was taken, coupled with the known biases of key Ministers towards Israel and the UK’s use of the terrorism label to criminalise one party to the conflict while apparently not supporting international efforts at holding the other party to account, undermines the UK’s international standing, particularly in the Middle East and North Africa (MENA), where the memory of the Balfour Declaration is still highly salient.

1. Introduction to the authors

1.1 This submission has been co-written by Professor Jeroen Gunning (King’s College London), Dr Tristan Dunning (University of Queensland), Dr Anas Iqtait (Australian National University), Dr Tareq Baconi (Al-Shabaka and Institute for Palestine Studies) and Dr Martin Kear (University of Sydney). It has been co-signed by international scholars of decolonisation and settler colonialism and a scholar descended from colonially displaced Palestinians: Prof Hamish Maxwell-Stewart (University of New England), Dr Shannon Brincat (University of the Sunshine Coast) and Dr Adel Yousif (University of Tasmania). The content is based on our combined expertise, the breadth and depth of which is represented by the fact that we include the authors of four peer-reviewed books¹ and four PhDs² on Hamas, a PhD³ and book on Palestinian political economy,⁴ a former senior researcher for the International Crisis Group and a former employee of the United Nations Office for the Coordination of Humanitarian Affairs in the Occupied Palestinian Territories (OCHA). Four of the undersigned have taught courses on Middle East studies, terrorism studies, conflict resolution, and the Palestinian-Israeli conflict at UK and internationally renowned Universities (King’s College London, Durham University, Aberystwyth University, the University of Queensland, the University of Sydney, and the Australian National University, among others). Collectively, we have advised and taught policy makers and public servants from the US, the UK, the EU, Canada, Bangladesh, and Australia in the fields of terrorism, Middle East studies, governance, and the Palestinian-Israeli conflict.

2. Introduction and Context to Escalation in Violence

2.1 In November 2022, the UK government announced its intention to designate the entirety of Hamas, the Islamic Resistance Movement in Palestine, as a terrorist organisation, following a recommendation from the cross-government Proscription Review Group. This is in line with similar moves by the governments of the United States, Australia, Canada and the European Union. Until 2022, the UK had only designated the movement’s armed wing, the Izz ad-Din al-Qassam Brigades, as a terrorist organisation, marking a clear separation between the movement’s armed and socio-political wings. The Qassam Brigades have been listed as a terrorist organisation in the UK since 2001.⁵

2.2 The international boycott of Gaza has its origins in the economic sanctions imposed on the Palestinian National Authority and members of the Palestinian Legislative Council in the wake of Hamas’s internationally recognised election victory in 2006. Following Hamas’s victory in the elections, which international observers deemed broadly free and fair,⁶ the International Quartet, consisting of the United Nations, the United States, the European Union, and the Russian Federation, imposed a boycott of the new Hamas-led administration unless it recognised Israel, renounced violence, and abided by previous diplomatic agreements between the Palestine Liberation Organisation – of which Hamas is not a part – and the Israeli government.⁷ A more permanent siege of Gaza was imposed in response to Hamas’s violent ousting of Fatah from Gaza in 2007, in response to intelligence that Fatah was preparing a coup against it.⁸ The UK government has long criticised the continuation of the siege and urged successive Israeli governments to ease the siege. But these efforts have not been effective in ending the siege.

2.3 Attempts by Palestinian factions, violent as well as non-violent, have similarly been unable to end the siege. The current horrendous escalation in fighting has been directly linked to continuing Israeli occupation by Hamas leaders – both the occupation of Palestinian lands more broadly and the siege of Gaza itself.⁹ Mohammad Deif, head of the Qassam Brigades, said in an audio message: “This is the day of the greatest battle to end the last occupation on Earth” and, in a statement, he listed the crimes committed by the “Zionist colonial occupation”, blaming the escalation on Israeli and world leaders not heeding Palestinian demands over decades.¹⁰ The attack, he said, “was in response to the 16-year siege of Gaza”, in addition to “Israeli raids inside West Bank cities over the past year, violence at Al Aqsa... increasing attacks by settlers on Palestinians and the growth of settlements”.¹¹ Ending the siege was also a prime motive during the 2012 and 2014 wars, among others.¹² Other Arab governments, including those of Saudi Arabia, Qatar and Kuwait, have, after condemning the targeting of civilians, similarly linked Hamas’s recent attacks to the ongoing occupation, with Saudi Arabia stating that it “had issued repeated warnings of a possible escalation in light of “the ongoing occupation and the deprivation of the Palestinian people of their legitimate rights, as well as the repeated deliberate provocations against their sanctities” and specifically “denounced Israel’s siege [of Gaza]”.¹³

2.4 The reach and brutality of the Qassam Brigades’ attacks¹⁴ appear to be linked both to the failure of the past wars to end the siege and to the failure of political initiatives to do so since 2006. Between 2004 and 2007, there was a brief window when Hamas was encouraged by key international actors, including the UK, to participate in the forthcoming Presidential, parliamentary, and municipal elections that were a key demand of the Quartet’s 2003 Roadmap to Peace.¹⁵ In response to this demand, in 2005, Hamas and the other Palestinian factions signed the Cairo Declaration in which they signalled their willingness to abide by democratic processes and contest elections to achieve political power.¹⁶ This led to Hamas contesting both municipal and parliamentary elections in 2005/2006, winning the parliamentary elections and securing majorities in many local councils throughout the OPT. In 2007, in response to increasing inter-factional violence, encouraged by the then governments of the US, Israel and other key Western actors, Hamas signed the Mecca Agreement that saw the establishment of a unity government between Hamas and Fatah.¹⁷ It was in this Agreement where Hamas first publicly made key ideological concessions by acknowledging the existence of the state of Israel, respecting the primacy of the two-state solution, and respecting the various agreements signed by the PLO that included the previously reviled Oslo Accords. It was in the aftermath of this agreement that the governments of Israel and the US ramped up their efforts to excise Hamas from Palestinian politics, resulting in increased inter-factional violence that eventually led to the violent expulsion of Fatah from the Gaza Strip and Hamas assuming unilateral control in June 2007.¹⁸ In the opinion of former UN Special Co-ordinator of the Middle East Peace Process, Álvaro de Soto, a Palestinian unity government could have been formed immediately after the January 2006 elections, if the US government (and others) had adopted a more conciliatory approach towards Hamas, preventing a year of debilitating inter-factional violence.¹⁹ This is a clear indication of the benefits that can come from engaging with Hamas politically, instead of isolating it with the blanket label of “terrorist group”, which has also served to push the movement further into the orbit of other states opposed to Israel, primarily Iran. To be clear, engaging with Hamas at whatever level should not be equated with approving of Hamas and its political and military objectives. It is simply a statement of the political and diplomatic benefits to be had of retaining the opportunity for dialogue that the proscription of Hamas in its entirety by the UK government would preclude. Such a position would not be without precedence, with previous UK governments negotiating at various times with Sinn Fein while continuing to classify the IRA as a terrorist movement.

2.5 Despite the ongoing siege of Gaza and the several wars fought between Hamas and the Israel Defense Forces (IDF), Hamas’s political leadership has continued to see the benefits of seeking political engagement for most of this period, even though the hardliners within the Qassam Brigades at times scuppered these overtures. In the lead-up to the 2014 war, Hamas and Fatah formed a reconciliation government, with a cabinet devoid of Hamas- aligned politicians and accepting the aforementioned provisions, yet the boycott and siege remained. Indeed, there is research to suggest that one of Israel’s aims of this war was to prevent any reconciliation between Hamas and Fatah, thereby preventing any hope of the appearance of Palestinians speaking with one political voice.²⁰ In 2017, Hamas issued a new Manifesto which made important ideological concessions towards accepting a two-state solution and de facto recognised Israel by accepting a Palestinian state along the 1967 borders as a national consensus position. It also agreed to pro-Fatah security forces taking over control of Gaza’s border with Egypt, which was a significant concession.²¹ Between March 2018 and December 2019, Gazans engaged in “The Great March of Return”, which had been planned as non-violent protests by independent activists but was soon endorsed by Hamas and other factions. Although the protests became more violent over time, the bulk of the protesters remained non-violent, despite Israeli soldiers deploying deadly violence from the start.²² Yet none of these political initiatives led to an end to the siege. Importantly, the international community’s refusal to take them seriously and instead support the maintenance of a status quo that sees Palestinians increasingly marginalised and repressed while promoting regional normalisation without insisting on any reciprocal moves towards establishing a Palestinian state have been key factors in weakening Hamas’s pragmatist political leadership, allowing the hardliners in the Qassam Brigades to gain the upper hand.

2.6 Two further factors, which have been explicitly mentioned in Hamas and Qassam Brigades leaders’ statements, concern the increase in violence in the West Bank in the context of increasingly vocal calls by Israeli ministers for annexation of the West Bank, and regional normalisation agreements. Together, these trends made establishing a Palestinian state increasingly less likely, and the Qassam Brigades appear to have concluded that a spectacular attack was needed to derail annexation of the West Bank as well as regional normalisation before it was too late. Between January and early October 2023, over 230 Palestinians had been killed in the West Bank by Israeli forces and settler attacks on Palestinians had doubled to over 1,148 during the first half of the year, roughly equal to the total number of attacks in 2022.²³ Several ministers in Netanyahu’s government, the most right-wing in Israel’s history, have openly called for annexation of the West Bank,²⁴ and Israeli settlers have increased their attempts at entering the Al-Aqsa Mosque complex as part of their attempts to reclaim the Temple Mount.²⁵ Public support for a return to an armed uprising in the West Bank has moreover increased by 19%, from 35% to 54%, in the West Bank over the past year. The Qassam Brigades’ attack was directly linked to spurring an uprising in the West Bank, and in doing so, reclaiming undisputed leadership of the Palestinian resistance. Saleh al-Aruri, deputy leader of Hamas’s Political Bureau and exiled leader of Hamas in the West Bank, stated specifically: “We must all fight this battle, especially the resistance fighters in the West Bank... The West Bank is the final word in this battle, and it can open a clash with all the settlements in the West Bank. We call on our people to participate in the battle of Al-Aqsa Flood.”²⁶ Without the West Bank, only 1% of historic British Mandate Palestine would be left to Palestinians, namely the Gaza Strip.

2.7 The spread of regional normalisation agreements between Israel and various Arab states over the past few years appear to have been another factor in the Qassam Brigades’ reasoning. Egypt and Jordan had already signed peace treaties decades ago. But in 2020- 2021, the UAE, Bahrain, Morocco and Sudan all signed normalisation agreements with Israel and Saudi Arabia was openly rumoured to be next. Although the Saudi government’s support for a Palestinian state has been mostly rhetorical for over a decade, its signing a normalisation agreement with Israel without there being a Palestinian state would effectively have put an end to the possibility of a Palestine state and consign the Palestinian cause to the dustbin of history. This, combined with the increasing threat of annexation of the West Bank and the ongoing siege of Gaza, with no end in sight, appears to have been interpreted by the Qassam Brigades as requiring a spectacular and shocking attack, both in terms of the number of Israelis killed and in terms of the symbolism of the attack, breaking out of the prison that is Gaza and taking the fight to Israel itself. Ismail Haniyyeh, the head of Hamas’s Political Bureau, specifically linked the Qassam Brigades’ having attacked Israelis in Israel to the normalisation accords, noting both that Israel “cannot protect itself in the face of resistors, cannot provide you with any protection” and that “all the normalization agreements that you signed with that entity cannot resolve this conflict".²⁷ The attacks were thus intended to show Israel, the US and the region that Israel could not continue with the status quo without paying a serious price. As Tareq Baconi put it in an interview with The New Yorker, “we’re actually in a new paradigm, in which Hamas’s attacks are not restricted to renegotiating a new reality in the Gaza Strip, but, rather, are capable of fundamentally undermining Israel’s belief that it can maintain a regime of apartheid against Palestinians, interminably, with no cost to its population”.²⁸

2.8 The latest escalation of severe violence has seen over 10,000 Palestinians, including over 4,000 children, and 1,400 Israelis killed, the majority civilians on both sides.²⁹ This clearly shows that the status quo is untenable, and that deterrence, sieges, and political isolation do not work. Hamas’s attacks on Israeli civilians and kidnapping civilians are clear violations of international humanitarian law and Hamas should be held accountable by international judicial investigations. But labelling it all a terrorist organisation, while not dealing with the underlying causes of the conflict and failing to hold the Israeli government and armed forces to account for equally clear violations of international humanitarian law, only exacerbates the situation. Isolating Hamas without addressing the siege, the humanitarian crisis in the OPT, the ongoing violence in the West Bank, threats to the al-Aqsa Mosque, and Palestinian statehood, have created the conditions for the unprecedented violence that we have seen over the past weeks. Indeed, there is clear evidence to suggest that such blanket classifications only exacerbate the commission of violence. For decades, the Israeli government has classified all of Hamas as a terrorist organisation. This provides Israel with the excuse to target both military and non-military targets in the Gaza Strip, all under the guise of them being legitimate targets. As various reports from the UN and other independent agencies have noted in the five wars that Israel has fought with Hamas, Israel has regularly targeted schools, houses, factories, medical facilities (including hospitals), administrative buildings, water and sanitation infrastructure, as well as government buildings. These Reports concluded that this destruction was part of Israel’s policy of collective punishment of Gazans for their continued support for Hamas.³⁰ Should the UK government continue to recognise all of Hamas as a terrorist organisation it would open the government up to allegations that it condoned and/or even encouraged these clear violations of international law concerning the deliberate targeting of non-military targets by Israel.

2.9 The current escalation has created a diplomatic crisis. To date, the governments of Jordan, Turkey, South Africa, Chad, Honduras, Bahrain, Bolivia, Colombia, and Chile have all withdrawn their ambassadors from Israel in response to the increasing Palestinian death toll. With Israel becoming increasingly isolated diplomatically, it is more important than ever that the UK government plays a key diplomatic role in seeking to resolve the conflict and prevent the deaths of more Palestinians. This would only be enhanced if the government retained open lines of communication with both the Israeli government and Palestinian representative figures that should include those of Hamas – even more so since the President of the PA, Mahmoud Abbas, is increasingly seen by domestic, regional, and international actors as a marginal figure with little public support amongst Palestinians and key regional actors, and, Drs Anas Iqtait and Tristan Dunning argue, the PA itself may be significantly weakened by the current conflict.³¹ Indeed, amongst an increasing number of Palestinians Abbas and Fatah are seen as complicit in maintaining Israel’s occupation through its ongoing security cooperation, which has been on stark display these past weeks as PA security forces have clamped down harshly on protesters showing solidarity with Gaza.³² And as former Labour Prime Minister Tony Blair, and later envoy for the Middle East Quartet, retrospectively conceded, he and other world leaders were wrong to boycott Hamas after its election win in 2006.³³

2.9 The current escalation has also had regional repercussions. The Saudi-Israeli normalisation talks have been put on hold, and Crown Prince Mohammed bin Salman made his first phone call to President Ebrahim Raisi of Iran, following their earlier rapprochement under the aegis of China, to discuss “the need to end war crimes against Palestine”.³⁴ Jordan has seen large demonstrations in front of the US and Israeli embassies, with King Abdullah stating that there will be no regional stability without a Palestinian state. Both the Jordanian and the Egyptian governments are afraid of the possibility of Palestinian refugees entering their countries.³⁵ The dramatic incursion into Israeli territory also punctures the myth of Israeli military invulnerability on their “home turf”, of which other actors in the region, like Hizbullah, Syria and Iran, will take note – although, for now, Hizbullah has limited its violent exchanges with Israel.³⁶ Thus, more than ever, the current situation highlights the need for resolving the underlying causes of the conflict and reaching an all-encompassing solution centred on a two-state solution that must include Hamas and an end to the siege of Gaza. As former Conservative Prime Minister David Cameron said, already in 2010, “everybody knows that we are not going to sort out the problem of the Middle East peace process while there is, effectively, a giant open prison in Gaza”.³⁷

2.10 In this submission, we will address the following six points:

I) Importance of understanding the context of violence and approaching violence even-handedly

II) Potential impact of proscription on a political solution

III) Potential impact of proscription on Gazan population

IV) Potential impact of proscription on Palestinian Diaspora and medical, humanitarian and peacebuilding organisations in the UK

V) Lack of domestic benefits and potential cost to the United Kingdom of proscription

VI) Lack of transparency and fair representation in the process of proscription

3. Importance of understanding the context of violence and approaching violence even- handedly (I)

3.1 The current unprecedented escalation in violence on Hamas’s part is horrific and amounts, at least on the available evidence, to war crimes.³⁸ The Qassam Brigades have committed atrocities throughout much of their history, most notably the explicit targeting of civilians, and the Hamas government in Gaza has committed many human rights violations against civilians. However, this violence must be understood within the context of an illegal fifty-six-year military colonial occupation of the OPT that has been condemned by dozens of legally binding UN Security Council Resolutions. Using the lens of ‘terrorism’ and proscribing Hamas as a terrorist organisation in its entirety obscures this context and criminalises only one party to the conflict. It obscures the fact that the IDF’s violence against Palestinians, including the 1,000s of civilians killed over the years and in the last few weeks, has far outstripped Hamas’s violence against Israelis and that the UK definition of terrorism would also apply to much of the IDF’s violence against Palestinians, historically and in the current conflict.³⁹ As Ursula von der Leyen said last year in the European Parliament with regard to Russian attacks on Ukraine: “Targeted attacks on civilian infrastructure with the clear aim to cut off men, women, children of water, electricity and heating with the winter coming, these are acts of pure terror and we have to call it as such”. Similarly, regarding “Russia’s targeted attacks against civilian infrastructure. ... The international order is very clear. These are war crimes.”⁴⁰ The same applies to Israel. As the current war continues, numerous human rights organisations and media outlets have detailed the deliberate targeting of Palestinians civilians and civilian infrastructure that would, if proven, amount to incidents of war crimes, crimes against humanity, and ethnic cleansing.

3.2 Israel’s settler-colonial activities in the occupied West Bank, with over 700,000 settlers living on land that would form part of the Palestinian state under a two-state solution,⁴¹ are illegal under international law, which prohibits the capture of territory by force⁴² and the transfer of civilians into occupied territory. United Nations Security Council 242, the basis for a two-state solution to the Palestine-Israel conflict, for instance, stipulates “the inadmissibility of the acquisition of territory by war” while demanding “Withdrawal of Israeli armed forces from territories occupied in the recent conflict” and “Termination of all claims or states of belligerency.” Although this directive was issued in 1967, Israel continues to occupy the West Bank and East Jerusalem expanding its settlements in both territories and carrying out practices of de facto annexation of this territory. Despite withdrawing settlements from the Gaza Strip in 2005, Israel’s ongoing siege of the enclave means that the UN still considers Gaza to be under Israeli occupation, with all of the rules and responsibilities attendant on occupying powers.⁴³ Israel’s settler colonial activities are also arguably in breach of Article 49 of the Fourth Geneva Convention and the Rome Statute of the International Criminal Court.⁴⁴ Article 49 of the Fourth Geneva Convention states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Moreover, the current Israeli government has announced its explicit intention to and in all parts of the land of Israel” including “Judea and Samaria” – the biblical nomenclature for the West Bank.⁴⁵ The government has also transferred official responsibility of the West Bank from the military to a civilian ministerial portfolio, which has been described by Michael Sfard, an Israeli lawyer specializing in international human rights and humanitarian law, as the beginning of de jure annexation.⁴⁶ The increases in settler attacks, forced displacement of Palestinians and number of Palestinians killed in the West Bank, both leading up to October 7 and after, only underlines the severity of the situation. As of 6 November, at least 152 Palestinians have been killed since 7 October, over half of the number killed in the entire year to 7 October (230), and nearly 1,000 Palestinians, including 13 entire communities, have been forcefully displaced, compared to 1,100 over the previous 18 months.⁴⁷

3.3 Armed resistance against foreign occupation (including the siege of Gaza) is legitimate under international law, granting Palestinians the right to political self-determination and to resist foreign occupation. UN General Assembly Resolution 2708 XXV, Rights of Peoples to Self-Determination, for instance, asserts “the legitimacy of the struggle of colonial people and people under alien domination to exercise their right to self-determination and independence by all the necessary means at their disposal,”⁴⁸ thereby legitimising armed resistance in principle – though not the targeting of civilians. To put this in context, Western states, including the United Kingdom, have recently reaffirmed the right to armed resistance and provided extensive material support to Ukrainians exercising their right to take up arms against Russian aggression.

3.4 While the killing of non-combatant Israeli citizens by the Qassam Brigades is both appalling and illegal under international humanitarian law – and in this latest conflict, the number of Israeli citizens killed (1,400 according to the latest reports) has been shocking and unprecedented⁴⁹ – to understand why it happens it needs to be viewed within the context of the asymmetric struggle of Palestinians against Israeli occupation and settler colonialism. The Israeli human rights organisation B’Tselem estimates that eight times as many Palestinians have been killed as Israelis during the course of the conflict (not counting the current escalation), including many children,⁵⁰ while the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) estimates that between January 2008 and September 2023 that figure is 21 times as many.⁵¹ Israeli military actions are explicitly based on the doctrine of disproportionate force,⁵² including the targeting of civilian infrastructure during military operations, yet only receive cursory condemnation from the UK government, with no concrete consequences.

3.5 In the current war on Gaza, Israeli leaders have gone further, including calls for the annihilation of the Gaza Strip altogether and the forced removal of its citizens, raising the prospect of a second Nakba (the term Palestinians use to describe the ethnic cleansing of over 700,000 Palestinians from historic Palestine in 1948). According to an open letter by nearly 800 lawyers published on 18 October, Israel’s rhetoric and actions have raised “the possibility of the crime of genocide being perpetrated by Israeli forces against Palestinians in the Gaza Strip”.⁵³ The rhetoric has been extreme. Israeli Defense Minister Yoav Gallant stated publicly that “we are fighting human animals and we act accordingly” and that “Gaza won’t return to what it was before. We will eliminate everything.” The head of the IDF’s Coordinator of Government Activities in the Territories (COGAT), Major General Ghassan Alian, similarly 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”. IDF spokesperson Daniel Hagari further acknowledged that Israel’s bombing campaign in Gaza was about destruction: “The emphasis is on damage and not on accuracy”. Israel’s President explicitly stated that he held all Gazans responsible for the Qassam Brigades’ actions, thus justifying collective punishment and not distinguishing between civilians and fighters: “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”. Israel’s Minister of Energy and Infrastructure Israel Katz put it even more strongly, invoking both the Nakba 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 called on 7 October for “one goal: Nakba!... A Nakba that will overshadow the Nakba of 1948”, while “public banners displayed in Israeli cities [called] for a “victory” signified by “zero population in Gaza” and the “annihilation of Gaza”.⁵⁴

3.6 The IDF’s actions appear to match the rhetoric. It has already killed more civilians in four weeks than the Russian armed forces killed in twenty months in Ukraine.⁵⁵ The vast majority of the 10,002 people killed in Gaza by 6 November are women, children, and the elderly – 73% according to the Palestinian Ministry of Health in Ramallah’s statement on 5 November – and nearly half of all killed (4,104) are children, leading some to call it the ‘war on children’.⁵⁶ Over 24,000 have been injured and 1.4 million have been displaced. Many do not have access to clean and safe water, a basic human right, as a result of Israel’s total siege of Gaza and its refusal to allow water, fuel, food and electricity in beyond the far too few trucks allowed in through the Egyptian border. More than half of Gaza’s homes have been completely destroyed and roads, hospitals and shelters have been damaged. Fuel is running out, affecting hospitals, sewage systems and food production.⁵⁷ The sheer numbers, coupled to the dehumanising language used to describe Gazans and public expressions of support by politicians for eradicating all of Gaza and/or forcibly displacing its entire population, make it likely that this violence will be found to be genocidal.

3.7 Israel, as the occupying power of the West Bank, including East Jerusalem, and the Gaza Strip, where the majority of Palestinian deaths have occurred, possesses an advanced and well-armed military. Contrary to its duties under international law, which holds the occupying power responsible for “enabl[ing] the inhabitants of an occupied territory to pursue as “normal” a way of life as possible” under occupation and specifically prohibits such practices as the destruction of property outside military necessity, extraction of resources and collective punishment,⁵⁸ Israel has constructed an overarching system of control over all aspects of life of its occupied subjects, which B’Tselem, Amnesty International, Human Rights Watch, a plethora of civil society and religious organizations around the world, and numerous former senior Israeli security officials, recently including former head of Mossad, Tamir Pardo, have described as apartheid – a crime against humanity under international law.⁵⁹

3.8 This raises the question why the UK’s government’s measures are largely only aimed at one side of the conflict – particularly as it continues to support the Israeli government and failed to halt arms sales, despite human rights groups saying that these are against the UK’s own rules on not breaking international law,⁶⁰ in the midst of what could be ruled a genocidal war in international courts. A more balanced approach would include withdrawing support from the Israeli government, halting arms sales and providing support to the International Criminal Court (ICC) or the International Court of Justice (ICJ) in investigating the extent to which all parties to the conflict have committed war crimes and crimes against humanity. Past preliminary investigations by the ICC and human rights organisations have already suggested that both the IDF and Hamas may have committed war crimes during the periodic conflicts that erupt centred on the Gaza Strip.⁶¹ The ICC announced in 2021 that it will conduct an investigation into alleged war crimes beginning with the 2014 conflict in Gaza during which 2,251 Palestinians, a majority civilian (1,462), were killed, compared to 67 Israeli soldiers and 6 Israeli civilians.⁶² Despite being a subject of investigation itself, Hamas welcomed the decision “without reservation” whereas the Israeli government has vowed not to cooperate.⁶³ The UN has also documented potential instances of the IDF carrying out war crimes against non-violent resistance, particularly in the Gaza Strip, as well as enabling the expansion and proliferation of violent settler-attacks in the occupied West Bank against Palestinians.⁶⁴ The current violence almost certainly will be found to contain war crimes and likely be deemed genocide.

3.9 However, rather than opting for such an approach, the UK government has been accused of actively seeking to block the ICC and the ICJ from addressing war crimes committed in Israel-Palestine.⁶⁵ The UK’s apparent opposition to these investigations serves to provide tacit support for such disproportionate displays of military force as we have seen so vividly in this recent conflict, giving the impression that the IDF’s and the Israeli government’s actions are above international law. While no one can deny Israel’s right to self-defence, with this right comes responsibility. Under international law, Israel’s actions must be proportionate to the threat posed. Indeed, the proportionality of Israel’s response to Hamas’s attacks is now the central issue, with daily evidence that Israel’s response cannot be considered as proportionate with the seemingly deliberate targeting of civilians and the apparent use of munitions like white phosphorus that many countries have outlawed.⁶⁶

Blacklisting only one side to the conflict and blocking investigations into allegations of war crimes perpetrated by the other side casts doubt on the UK’s commitment to impartiality and, more broadly, human rights and international law. The continued silence from the UK government to allegations of war crimes and crimes against humanity committed by the IDF in this recent conflict also makes the government susceptible to allegations of complicity in the commission of these crimes.

3.10 Moreover, it could be argued that the decision by the UK and other Western governments to designate all of Hamas a terrorist organisation has contributed to creating a permissive environment for Israel to target any building or person in Gaza and regard the entirety of Gaza a legitimate target. Many civilian buildings and civilians are connected to Hamas in one way or another as the de facto government, a major social welfare provider, and a social movement with grassroots support. Israel’s current war on Gaza is predicated on the same criminalisation of Hamas in its entirety, which the UK has supported through its proscription of all of Hamas, enabling Israel to use this argument to justify attacking not just the Qassam Brigades, but the government of Gaza, its ministries and its social welfare organisations, and even, as Israel’s President stated, all of Gaza’s population. This, coupled with the UK’s unswerving support for the Israeli government, its past licensing of arms supplies to the Israel’s military (15% of the components used in the F-35 stealth fighters that are currently deployed to bomb Gaza are said to have been provided by the UK),⁶⁷ and its failure to block arms sales, makes the UK potentially complicit in war crimes committed by Israel.

4. Potential impact of proscription on a political solution (II)

4.1 Blacklisting the entirety of Hamas all but precluded meaningful engagement with the governing authorities in Gaza before 7 October 2023 and constituted a key impediment to resolving the wider Israel-Palestine conflict. The UK government’s official position, according to its ambassador to the UN, is that it “firmly believes that a two-state solution, based on 1967 lines, with Jerusalem as a shared capital and a just solution for refugees is the best way to deliver long-term peace”.⁶⁸ Proscribing Hamas in its entirety runs counter to this goal by making reconciliation between Hamas and Fatah more difficult, which both see as “a necessary step toward the realization of a two-state resolution to the Israeli-Palestinian conflict”.⁶⁹ It also serves to isolate Hamas, undermining the pragmatists amongst its leadership, and makes it challenging for the UK (and other governments in this position) to influence Hamas.

4.2 Hamas won the 2006 Palestinian election with over 40% of the popular vote in an election deemed free and fair by international observers, and it continues to enjoy between 30-40% of support in Palestinian opinion polls by the internationally respected Palestinian Center for Policy and Survey Research.⁷⁰ It is thus a central Palestinian player which cannot be ignored – something which even Hamas’s archrival Fatah has acknowledged. The Palestinian Authority’s mission to the UK, for instance, notwithstanding deep tensions between the PA and Hamas, considers “the unification of Hamas and Fatah... a necessary step toward the realization of a two-state resolution to the Israeli-Palestinian conflict”.⁷¹ Even if Israel succeeds in killing many of Hamas’s fighters and members and destroying most of its infrastructure, the movement is still likely to survive and remain a significant actor within Palestinian politics. History suggests that eradicating an indigenous, grassroots movement with significant popular support is very difficult. Israel failed to do so with Hizbullah in Lebanon in 2006. It failed to do so with Hamas in its earlier wars on Gaza. More generally, the US has failed to do so in Afghanistan and Iraq (not including transnational groups with limited grassroots support). Thus, it is important to consider how past actions have hindered engagement with and influencing of Hamas and what this may mean for post-war dealings with Hamas.

4.3 In terms of influencing Hamas before October 7, or indeed the de facto government in Gaza, as Crispin Blunt (Conservative MP) noted in the parliamentary debate:

The nearest parallel is the proscription of both wings of Hezbollah. In terms of practicality, our engagement with Lebanon is very much less than it is with Palestine and Israel. We are unable to talk to the four Ministries that have Hezbollah Ministers and the French are then seen as the lead western European nation in that space. Our relative position in the very troubled country of Lebanon—we have made difficulties for ourselves because of the extent of the popular support for Hezbollah in Lebanon—is significantly reduced from that. Of course, Hezbollah is only part of the Government of Lebanon. The difficulty we are giving ourselves here is that the jurisdiction of Gaza is run by Hamas.⁷²

4.4 The “terrorist” label all but precludes any meaningful engagement by the UK – and many other Western governments – in helping to resolve the Palestine-Israel conflict or to work towards resolving the siege of Gaza. The designation further allows the Israeli government to avoid meaningful negotiations with their Palestinian counterparts. As noted above, former PM and later envoy for the Middle East Quartet Tony Blair retrospectively conceded that he and other world leaders were wrong to boycott Hamas after its election win in 2006.⁷³ The Qassam Brigades’ actions clearly violate international law. But removing the terrorist label from Hamas’s political wing is about finding a better way forward to reach a political solution.

4.5 The proscription does not help anyone in practical terms, not even the Israeli government. The government of Israel has relied on Hamas to maintain internal order in the Gaza Strip and prevent it from collapsing into anarchy for much of the past decade. It also manages its policies vis-à-vis the Gaza Strip via consistent negotiations and engagement, albeit indirectly, with Hamas. Every war on Gaza since 2006 has ended through indirect negotiations between Israel and Hamas, and it is likely that the current war on Gaza will also eventually have to involve negotiations, regardless of Israel’s stated intentions. That even the Israeli government has needed to coordinate with Hamas to manage its relations with the Gaza Strip calls into question the wisdom of the UK’s proscription and highlights the necessity for communication, a facility that is impeded by the proscription of the entirety of Hamas.

4.6 Until very recently, the UK government’s position was that the Qassam Brigades were operationally separate from Hamas’ wider socio-political and civilian activities. In June 2020, for instance, Minister Brokenshire responded to a written parliamentary question, saying: “The political wing of Hamas is not proscribed as it is considered that there is a clear distinction between Hamas’s military and political wings”.⁷⁴ Further, the Qassam Brigades sometimes openly act against the wishes of the political leadership. Indeed, there are numerous instances where the Political Bureau were unaware of the military considerations the Qassam Brigades were pursuing and blind-sided by their military operations.⁷⁵ It is unclear what has changed since 2020. Indeed, the distinction between the wings appears to have been similarly on view during the 7 October attacks, as Hamas’s political leadership were said to have been taken by surprise on the day and not to have known any details beforehand. According to Egyptian security officials, the attacks showed that “a shift in the power dynamics in Hamas, where the military wing is now taking the lead ahead of its political leadership”.⁷⁶

4.7 The de facto separation between armed and socio-political activities, which has a long history in Hamas,⁷⁷ is a deliberate and a pragmatic approach, which echoes approaches adopted by other armed non-state organisations seeking to address socio-political grievances to allow public political engagement. Analogies with Sinn Fein and the Provisional Irish Republican Army (PIRA) or the African National Congress (ANC) in South Africa, among others, are useful here. Nelson Mandela, the leader of the armed wing of the ANC, later became the first post-apartheid President of South Africa and the ANC continues to be the ruling party today. In a similar vein, Sinn Fein received the highest number of first preference votes in the most recent elections in both the Republic of Ireland and Northern Ireland.⁷⁸ Sinn Fein leader Martin McGuinness, who was known for his previous activities in the PIRA, was elected both to Westminster and then later served in a number of ministerial positions in the Northern Ireland Assembly election. Former Israeli Prime Ministers Menachem Begin and Yitzhak Shamir were wanted terrorists under the British Mandate of Palestine. All of this underlines the capacity of militant organisations and leaders to evolve over time.

4.8 The argument that Hamas and the Qassam Brigades are one and the same because former Qassam leaders – for instance, the current head of Hamas in the Gaza Strip Yahya Sinwar, one of the founders of Hamas’s security apparatus – have become political leaders must be treated with scepticism. Members of the Qassam Brigades who are elected to Hamas’s Shura Council or Political Bureau, have to garner votes like any other Hamas leader and once elected, the demands on them and the interests they represent are different from when they were military leaders. For instance, under Sinwar’s leadership, notwithstanding him being a hardliner and inciting violence when it suits his or Hamas’s interests, Hamas has (indirectly) negotiated ceasefires with the Israeli government, kept the border calm for extended periods, supported popular protests at the border, and focused on state-building (within the limited means available).⁷⁹

4.9 There is substantial research suggesting that the terrorism label impedes conflict resolution. In the Philippines, the government refrained from proscribing the Moro Islamic Liberation Front, despite US pressure, on the ground that it did not want to scupper the peace process. In the Northern Ireland conflict, the legitimation of Sinn Fein and the political grievances it represented was key to a meaningful peace process being made possible. Indeed, as Prof Harmonie Toros argues, “the start of talks with and the legitimation of Sinn Fein... may have contributed to the end of IRA terrorist violence in at least three ways: by opening an alternative way to change for the republicans; by strengthening the factions favouring talks; and by offering the republicans the possibility to transform themselves into a legitimate entity”.⁸⁰ Conversely, as Prof Jeroen Gunning has shown in the case of the aftermath of Hamas’s 2006 victory, the international boycott of Hamas and the refusal of the international community to engage Hamas politically contributed to the weakening of those within the Hamas leadership favouring a political solution.⁸¹

4.10 In a ground-breaking study of the impact of terrorist labelling on third-party engagement with armed non-state groups, Dr Sophie Haspeslagh similarly concluded, on the basis of workshops and interviews “with high-level mediators, counterterrorism policy- makers and diplomats” as well as “policy actors and non-governmental peace-building organisations”, that the designation as terrorist hinders third-party engagement with armed groups by “affect[ing] preconditions of access and trust, thereby narrowing the possibilities for third parties to effectively understand groups, influence them, affect their strategic calculations and train them in conflict resolution”.⁸²

4.11 In protracted conflicts, there is typically no military solution. Both Israeli former intelligence chiefs⁸³ and the UN⁸⁴ have asserted that there is no military solution to the Israel-Palestine conflict. As Tareq Baconi further noted, “unless the political drivers of Palestinians are really contended with, this isn’t going to go away. If Hamas is decimated, the Palestinian anti-colonial struggle will continue in another guise and with another ideology. What I find frightening is that the Western powers and the Americans who are so bent on supporting Israel despite its apartheid somehow think that they can maintain this project cost-free.”⁸⁵ Hamas, or a future incarnation of Hamas, is therefore likely to remain a key player if occupation, displacement and settler colonial expansion Hamas remain in place. More broadly, Profs Seth Jones and Martin Libicki found that in 43% of cases involving groups labelled terrorist the violence ended because they had been able to join the political process.⁸⁶ This is particularly the case for armed groups that already function as political parties and enjoy grassroots support, such as Hamas.

4.12 Moreover, Hamas has shown that it can be responsive to political engagement. As noted in the introduction, in the lead-up to the 2006 parliamentary election, it moved from categorically condemning the two-state solution to publicly recognising that it had to accept the two-state solution and work on that basis if that was the national consensus. This was in response to encouragement by key regional actors, including the UK, for Hamas to participate in the forthcoming Presidential, parliamentary, and municipal elections, a key demand of the Quartet’s 2003 Roadmap to Peace.⁸⁷ In 2005, Hamas and other Palestinian factions signed the Cairo Declaration in which they signalled their willingness to abide by democratic processes and contest elections to achieve political power.⁸⁸ Even after Hamas’s government was boycotted following its 2006 election victory, in response to increasing inter-factional violence encouraged by the governments of the US, Israel and other key Western actors, Hamas signed the Mecca Agreement that was the foundation of a unity government between Hamas and Fatah.⁸⁹ It was in this Agreement where Hamas first publicly made key ideological concessions by acknowledging the existence of the state of Israel, respecting the primacy of the two-state solution, and respecting the various agreements signed by the PLO that included the previously reviled Oslo Accords. Although by then Hamas had been boycotted, its leaders still appeared to believe that a unity government and political concessions could result in the boycott’s lifting. Former UN Special Co-ordinator of the Middle East Peace Process Álvaro de Soto stated in his End of Mission Report that he believed that a more conciliatory approach towards Hamas’s political participation by Western governments would have resulted in a unity government immediately after the January 2006 elections, preventing a year of debilitating and rancorous inter-factional violence.⁹⁰ The boycott of the Hamas-led government also pushed it further into the strategic orbit of the Islamic Republic of Iran, including increased funding and military assistance.⁹¹

4.13 Since 2006, Hamas has at various times moved closer to the Quartet’s three principles for engagement, which the UK government still deploys. As Damian Hinds, the Minister for Security and Borders, stated in the parliamentary debate: “Hamas must renounce violence. It must recognise Israel and accept previously signed agreements. Credible moves must be made towards those conditions. They remain the benchmark against which intention should be judged.”⁹² Hamas has not renounced violence, does not recognise the state of Israel under international law and has, most recently in its 2017 Manifesto, denounced previous agreements as going against Palestinian interests. But, as Dr Martin Kear has shown, amongst others, Hamas has for long periods observed ceasefires and clamped down on other groups using violence during those periods. It has implicitly recognised the existence of the state of Israel by agreeing to a Palestinian state along the 1967 borders. And it has both de facto operated within previous agreements, for instance, when participating in the elections, and, for certain periods, expressed readiness to “respect” previous agreements if this was the national consensus (for instance, when it formed a government in 2006 and when it agreed to form a unity government with Fatah following the 2007 Mecca Agreement on the basis of respecting previous agreements).⁹³ Negotiations do not usually start out with demanding that one party concede to all demands before it is allowed to participate. Such concessions should be the goal of negotiations, not the precondition. Yet, the international community has consistently ignored these political overtures.

4.14 Since having been elected, Hamas has de facto acted within a two-state framework and policed Gaza’s border for long periods between hostilities. In between the Israel-Gaza wars, Hamas has consistently worked to prevent operations from within the Gaza Strip, leading to Israeli officials publicly acknowledging their dependency on Hamas to maintain calm in the Gaza Strip. This has also led to the emergence of militant groups within Gaza that accuse Hamas of pacification and have taken aim against the movement.⁹⁴

4.15 In 2017, it replaced its 1988 founding Charter with a new Manifesto, which, while reiterating that “Hamas rejects any alternative to the full and complete liberation of Palestine, from the river to the sea”, added the important caveat that:

without compromising its rejection of the Zionist entity and without relinquishing any Palestinian rights, Hamas considers the establishment of a fully sovereign and independent Palestinian state, with Jerusalem as its capital along the lines of the 4th of June 1967, with the return of the refugees and the displaced to their homes from which they were expelled, to be a formula of national consensus.

4.16 Though this does not meet the Quarter’s conditions, Hamas nevertheless signalled to the international community in this change of wording its willingness to acquiesce to partition along the 1967 lines, and to accept the establishment of a Palestinian state on 22% of historic Palestine – a marked contrast with its efforts in the past to undermine such a political settlement from proceeding. Parties engaged in conflict do not usually recognise the other party’s legitimacy or right to exist before a settlement is reached, making this shift significant. This is furthermore also a more developed political stance than many of the political parties in Israel have taken, given their refusal to countenance any Palestinian state. Significant, in this respect, is that even now, in the midst of the current escalation, the head of Hamas’s Political Bureau, Ismail Haniyyeh, stated that “We are ready for political negotiations for a two-state solution with Jerusalem as the capital of Palestine”.⁹⁵ This may run counter to statements from Hamas leaders in Gaza, who have vowed to continue with attacks like 7 October until Israel is defeated. But it is nevertheless important that no less than the head of the Political Bureau is still ready to publicly state this position.

4.17 The civil war in Syria, starting in 2011, was another missed opportunity to turn Hamas away from Iran’s “axis of resistance” and reorientate it in line with the parameters of a two- state solution between Palestinians and Israel. Hamas refused to back its long-standing patron, the al-Assad regime in Syria, resulting in a years-long rift with Iran and a seeming realignment with Sunni states that were not part of the “axis of resistance” and allies of the US.⁹⁶ Following the coup against the Egyptian Muslim Brotherhood’s President Morsi in 2013, Hamas gradually began to return to Iran’s sphere of influence, first tentatively, then accelerating after the election of Yahya Sinwar in 2017, and by 2022, relations were close enough for Iran to broker a rapprochement between Hamas and Syria,⁹⁷ once more underscoring that boycotting the movement is inimical to the proclaimed policies of the majority of the international community: a two-state solution. By 2021, when President Abbas cancelled the scheduled Palestinian elections, following an internal report that Fatah would lose, Hamas was again firmly embedded in the axis of resistance, creating the conditions for the hardliners to start preparing for the 7 October attacks (reports suggest that the Qassam leadership began preparing in two years ago in 2021).⁹⁸ The elections would have been an opportunity for the pragmatist political leadership to regain momentum; their cancellation weakened them further.

4.18 Direct international engagement has in the past moderated Hamas’s position, as the Swiss government’s post-2006 engagement with Hamas showcases under extremely adverse circumstances. As Gunning details,

The Swiss government... has worked with Hamas, and others, to further develop the concept of ‘hudna’, or long-term ceasefire... to see whether this could constitute a basis for restarting the peace process. It led numerous discussions on Gaza’s border management to develop an alternative to the siege policy, to which all parties, Hamas, Fatah and Israel, could agree. It has provided Hamas with copies of previous agreements between Israel and the PLO as well as documents relating to the Geneva Accord. Finally, it has made direct interventions on particular policies, such as Hamas’s appropriation of UNRWA goods in the wake of Operation Cast Lead, or the Chief Justice’s decree that all female lawyers wear a hijab in court – in both instances contributing to the policy being reversed.⁹⁹

4.19 Switzerland was working under adverse conditions in the context of an international boycott which had strengthened Hamas’s hardliners while weakening its pragmatists and as a small state with little political, economic or military leverage in the region. However, the Swiss experience shows that, even under such conditions, Hamas was responsive to political engagement. Conversely, the designation of the entirety of Hamas was counterproductive in terms of isolating Hamas more and strengthening hardliners, thereby weakening more pragmatic voices.

4.20 The UK is in many ways better placed than Switzerland to play a mediating role in the Israel-Palestine conflict. Although the UK’s credibility is less on the Palestinian side as a result of both historical actions (e.g. the Balfour Declaration, the British Mandate) and current actions (such as the proscription of all of Hamas, the celebration of the Balfour centenary without official scrutiny of the Declaration’s negative effects on the Palestinians, and its current unwavering support for the Israeli government), the UK nevertheless has a long tradition of UK Consuls, MPs, churches and charitable organisations supporting Palestinian rights and humanitarian and medical needs. While many of these relations are with secular nationalist Palestinian leaders and organisations, they put the UK in a relatively strong position vis-à-vis the Palestinians. Moreover, the UK’s historical role in the region gives it, paradoxically and potentially, more leverage, precisely because relations with the UK go back over 100 years. Its close relationship with the US, Israel and the Fatah-led Palestinian Authority, coupled with the longstanding engagement of UK-based medical, humanitarian and peacebuilding organisations in Gaza, and the Palestinian Diaspora in the UK, further strengthen its position.

5. Potential impact of proscription on Gazan population (III)

5.1 In practice, it has been hard, before 7 October 2023, to see how proscription of Hamas in its entirety could be enforceable in any consistent fashion beyond the blanket proscription of some two million Palestinians in the Gaza Strip, who rely on Hamas to provide government and social services – foreshadowing in its logic Israel’s collective punishment of Gaza. As such, it only makes life more difficult for the tiny coastal enclave with one of the highest population densities in the world, 75% of whom are refugees, and which has been subject to a crippling siege since the Hamas-backed list won internationally recognised free and fair elections in 2006.¹⁰⁰ Over 44% of Palestinians voted for Hamas in 2006, making them potentially guilty of terrorism-related offences, in a form of collective punishment, which is illegal under international law.¹⁰¹

5.2 Since then, Gaza has been subjected to repeated bombardments by the IDF in the context of ongoing hostilities between the Israeli government and Hamas, killing thousands, rendering tens of thousands homeless, and destroying thousands of buildings. Previous IDF operations in the Gaza Strip have been called, by the admission of Israeli officials themselves, “mowing the grass”, a practice of bombarding the Gaza Strip either for punitive motivations or to attempt to pacify the population and prevent further resistance to the ongoing siege.¹⁰² Often, the attacks on Gaza were in response to violence by Hamas or other Palestinian factions, typically the launching of rockets towards civilian areas. But, leaving aside that these rockets were in turn usually a response to the ongoing siege and/or events in the West Bank, the violence deployed by the IDF in Gaza has been extensive and deeply debilitating to Gaza’s infrastructure. The siege has furthermore severely hindered or prevented outright the rebuilding of destroyed buildings, by making it extremely difficult for Gazans to acquire the necessary materials. The unprecedented level of violence deployed by the IDF in the current war on Gaza threatens to destroy much if not most of Gaza’s infrastructure, rendering large parts, and especially Gaza City and the north of the Gaza Strip, unlivable. The forced displacement of an estimated 1.4 million Gazans, coupled with the ongoing blockade of food, fuel, water and electricity going into Gaza, make current living conditions dire and will render rebuilding Gaza, if Israel will allow this, even more difficult.

5.3 The 16-year siege has also crippled Gaza’s economy, which had already undergone what Dr Sara Roy has termed “de-development” for decades, first under Israeli rule, then as a result of the closures imposed by the Israeli government during the 1990s.¹⁰³ By 2021-2022, 50% of the population were unemployed¹⁰⁴ with an estimated 80% of Gazans living in poverty and 80% being dependent on humanitarian aid.¹⁰⁵ Gaza is subject to chronic electricity shortages having access to only four hours of electricity per day – two hours in the morning and two hours in evening, partially caused by the IDF’s repeated bombardment of Gaza’s only electrical power plant.¹⁰⁶ There is also a lack of clean water, partly caused by the Israeli government’s water management.¹⁰⁷ In brief, the current status quo is untenable and proscribing Gaza’s government only worsened the situation.

5.4 Since Hamas’s violent ouster of Fatah, in response to intelligence of an imminent coup in 2007,¹⁰⁸ Hamas has been the de facto government of Gaza, even if it is not recognised by much of the international community. The designation of the entirety of Hamas ignores the ubiquity of the government’s role in the everyday lives of their constituents.

5.5 Hamas runs the public services: the bureaucracy, the schools, the hospitals, the firefighters, the civilian police, even the street sweepers and garbage collectors. The de facto Hamas administration pays their salaries. The public sector – i.e., the Hamas-led government and the Palestinian Authority – account for approximately 37% of Gaza’s workforce.¹⁰⁹ Given Gaza’s high unemployment rate, an exponentially larger percentage of the population is also dependent on these salaries. The proscription of all of Hamas raises key questions about the utility and application of the decision. For instance, are these individuals or anyone who supports members of the public service (for example, a family member in the UK providing financial support through remittances) or is dependent on them potentially guilty of terrorism-related offences? Hamas collects taxes. Does a business paying import/export tariffs to the Hamas government potentially constitute acquiring funds for a terrorist organisation (as the letter from the UK Treasury to UK charities potentially suggests)? Hamas provides social services. Are beneficiaries of these guilty of association? To date the UK’s government has not indicated how it would reconcile such inconsistencies.

5.6 The multi-faceted nature of Hamas, including notionally associated charities, such as orphanages, medical clinics, youth associations, and educational institutions, means that the crime of association is extremely problematic. The blanket designation of Hamas would potentially blacklist all of these charities and thereby contribute to the dire humanitarian situation in Gaza by criminalising international support for such charities.

5.7 Research has shown that the charities colloquially considered to be affiliated with Hamas are typically organisationally distinct from the political and resistance wings of the movement, with their “own administration and... answerable to [their] own board of trustees”.¹¹⁰ While some detractors maintain that these charities are a source of recruitment, often on the basis of highly ambiguous evidence,¹¹¹ Dr Eyal Pascovich notes that, “examples of military operatives becoming integrated into Hamas’s charitable committees are quite rare” and “no clear-cut evidence of money transfers from committees to the military wings can be found”.¹¹²

5.8 The designation of Hamas-supported initiatives as those of a terrorist organisation also belies the complicated and multi-faceted nature of modern public administration with governments routinely outsourcing projects and hiring consultants. Are all those providing outsourced services to the Hamas government guilty of breaking the UK’s counter-terrorism laws?

5.9 When Israel’s punitive war on Gaza is over, the rebuilding of Gaza and the provision of humanitarian aid will be even more urgent. We do not know how much of Hamas will survive. But if significant parts of Hamas’s political and social welfare wings do survive, and Hamas’s popularity increases, as it did after every past war on Gaza, the current proscription of Hamas in its entirety will likely hinder rebuilding and humanitarian efforts, thus effectively subjecting Gazans to collective punishment once again.

6. Potential impact of proscription on Palestinian Diaspora and medical, humanitarian and peacebuilding organisations in the UK (IV)

6.1 The terrorist designation may also have dire implications for the Palestinian diaspora and medical, humanitarian and peacebuilding initiatives in the UK in support of Palestinian rights, considering the difficulties of ascertaining who is and is not linked to Hamas. This is especially the case for anyone dealing with Gaza from abroad, as they will need to go through the Hamas-led government. In the following we focus on the situation before 7 October. But if significant parts of Hamas survive the current war on Gaza, it is likely that Hamas will continue to be a powerful actor in Gaza, and many of the issues outline below will continue to be relevant.

6.2 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”¹¹³ 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 benefitting 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.”¹¹⁴ Similarly, Alyn Smyth (SNP MP) noted in the UK parliamentary debate 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”. The law is also extraterritorial in its scope, meaning that it applies to UK nationals and residents abroad too.

6.3 Remittances from the Palestinian diaspora constitute a key element of the Palestinian economy. According to the World Bank, personal remittances accounted for 17% of GDP in Gaza and the West Bank in 2020.¹¹⁵ Those who send remittances to their families to help ameliorate the debilitating economic situation in Gaza risk being found guilty of terrorism- related offences because the remittances will have to be sent to a territory controlled by Hamas. Moreover, if anyone in the family is affiliated with Hamas or the civil service, however indirectly, a remittance could be interpreted as materially supporting Hamas. With around 30-40% of Palestinians supporting Hamas in popular surveys and the boundaries of membership being deeply blurred, such a scenario is likely.

6.4 This has not only for the in the UK but also for and As the de facto government in Gaza, Hamas coordinates with international humanitarian agencies and charities, raising concerns about the extent to which the terrorism designation complicates their efforts to alleviate the humanitarian crisis in Gaza. This is especially worrying, as approximately 80% of Gazans are dependent on humanitarian aid,¹¹⁶ 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.¹¹⁷

6.5 To illustrate the potential implications of proscription for charities, in April 2023, a number of Muslim charities in the UK were sent a letter by the Treasury’s Office of Financial Sanctions Implementation (OFSI), 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”. The letter explained that, because Hamas is now a proscribed organisation, 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”. At a minimum, this increases the costs of carrying out humanitarian work in Gaza as charities are now having to seek “legal advice to ensure they properly fulfil their responsibilities” or risk “face sanctions under counter-terrorism regulations”.¹¹⁸ Any charity with offices in Gaza risks facing sanctions as they will have to pay local taxes and utilities.

6.6 Humanitarian work in Gaza also risks falling foul of the law if the government decides that it constitutes “material support” to Hamas. Oxfam faced having to pay $160 million in a New York court on the grounds that “an agriculture policy project in Gaza constituted “material support” to Hamas”, which is designated to a terrorist organisation in the US too.¹¹⁹ Norwegian People’s Aid agreed to pay a $2 million settlement for failing to disclose to USAID its “support for a democratisation project for youth in Gaza from 2012-2016”, on the ground that this constituted a “relation…to countries, organisations or persons under embargo by U.S. government designations”.¹²⁰ In the US, pro-Israel organisations have increasingly used what have been called “lawfare” tactics against charities supporting Palestinians, preventing them from operating or severely disrupting their ability to work, illustrating the potentially deeply damaging effect of a blanket designation of Hamas.¹²¹ “Lawfare” practices have also been used to attempt to prevent financial service providers to undertake audits for Palestinian entities (e.g. PwC Palestine in a UK case) or transfer money (e.g. NatWest in a US case, although it was eventually cleared).¹²² The proscription of Hamas socio-political activities facilities the use of such tactics in the UK.

6.7 Accusations of funding terrorism do not have to be founded to cause significant costs and disruption, as can be seen from the impact of such accusations levelled at the UK-based charities Islamic Relief Worldwide and Interpal, both of which have been cleared, one by an independent audit, supported by the UK’s Disasters Emergency Committee, the other by the UK Charity Commission, but not before considerable resources were spent on audits and court cases, and substantial disruption to aid to Palestinians.¹²³ Both these clearances occurred before Hamas’s proscription in its entirety. Accusations can also lead to banks stopping providing services to charities, as was the case with HSBC and Interpal.¹²⁴

7. Lack of domestic benefits and potential cost to the United Kingdom of proscription (V)

7.1 The proscription has no benefits domestically yet comes with potential costs to the UK. There is no evidence that Hamas or the Qassam Brigades operate in the UK. A Commons Library Research Briefing prepared at the time of the proscription debate noted that “Hamas IDQ [Izz ed-Din al-Qassam Brigades] has not directly attacked UK or Western interests” and “Hamas IDQ has not operated outside Israel and the Occupied Territories and has no overt representation in the UK”.¹²⁵ Although it added that “Hamas’s political wing is represented by charitable organisations which raise and remit funds for welfare purposes”, the charitable organisations in question appear to be independent from Hamas and have been allowed to continue operating by the Charity Commission, which scrutinises such links (see 6.7).¹²⁶

7.2 The Home Secretary argued that proscription of the entirety of Hamas was “an important step” in the fight against extremism, and “especially for the Jewish community”:

Hamas is fundamentally and rabidly antisemitic. Antisemitism is an enduring evil which I will never tolerate. Jewish people routinely feel unsafe – at school, in the streets, when they worship, in their homes, and online. This step will strengthen the case against anyone who waves a Hamas flag in the United Kingdom, an act that is bound to make Jewish people feel unsafe. Anyone who supports or invites support for a proscribed organisation is breaking the law. That now includes Hamas in whatever form it takes.¹²⁷

7.3 The question of whether proscribing all of Hamas will reduce antisemitism in the UK is fundamentally different to the question of whether Hamas meets the criteria for being designated a terrorist organisation. There are other mechanisms available which can and should be used vigorously to tackle the evil of antisemitism. Proscribing Hamas in its entirety is unlikely to lessen antisemitism in the UK, which predates Hamas and indeed the creation of Israel. Antisemites in the UK who have adopted the Hamas flag to express their antisemitism will not stop being antisemites because Hamas is proscribed.¹²⁸ They will find other ways to express their abhorrent views. Antisemitism should be combated under the legal framework of hate crime and hate speech, not the blunt instrument of proscription under the Terrorism Act, which focuses on whether a group has committed, participated, prepared, promoted or encouraged acts of terrorism.¹²⁹

7.4 The Home Secretary’s focus on antisemitism furthermore continues the government’s conflation of opposition to Israeli settler-colonialism with antisemitism, which was also evident in its position on the discussion of the Israel-Palestine conflict at UK universities. Unsubstantiated allegations of antisemitism have been weaponised against students and academics at British universities speaking in support of Palestinians and Palestinian rights. Three quarters of UK universities have adopted the highly controversial definition and illustrative examples of antisemitism of the International Holocaust Remembrance Alliance in 2016, following threats by Gavin Williamson, the then Education Secretary, to cut funding, if they refused. This definition, and particularly the illustrative examples, have shifted the focus from the traditional meaning of hatred of Jews to criticism of Israel, a shift ostensibly actively promoted by the Israeli government, according to Jonathon Cook, “to shield itself from critics, including human rights groups, who were highlighting Israel’s apartheid rule over Palestinians”.¹³⁰ For instance, the IHRA example of equating “claiming that the existence of a State of Israel is a racist endeavor” with antisemitism, has been used to attack or silence scholars who have viewed Israeli government practices through the lenses of Apartheid or racism. Seven of the IHRA’s examples refer to the state of Israel specifically and the way they have been used to police speech rather than to aid analysis has been criticised by Kenneth Stern, who led in developing the IHRA definition.¹³¹

7.5 A September 2023 report prepared by the European Legal Support Center and the British Society for Middle Eastern Studies has documented 40 cases of academic staff and/or students in the UK being accused of antisemitism on the basis of the IHRA definition (38 were eventually cleared and two cases are still ongoing). The report notes the toll of these investigations on those falsely accused and the negative impact on academic debate, with events cancelled and staff and students being deterred from “from speaking about or organising events that discuss Palestinian human rights and Palestinian self-determination out of fear that they will be subject to complaints, or else will face considerable bureaucratic hurdles and even costly legal action in order to allow events to take place”.¹³² Conflation of antisemitism and anti-Zionism has been used to silence pro-Palestinian activists for years. In the United States, Jared Kushner, the son-in-law and special advisor to former President Donald Trump stated in the New York Times that the definition “makes clear [that] Anti- Zionism is antisemitism.”¹³³ As such, like invocations of terrorism, charges of antisemitism are often part of a broader effort to silence critics of the Israeli government and do not need to be true to irredeemably ruin reputations, careers, and lead to costly legal battles. Moreover, such conflation is dangerous and potentially counterproductive because it may lead others to hold all Jews responsible for the actions of the Israeli government.

7.6 Antisemitism has been a major trope of mainstream commentary on Hamas over the past four weeks. Yet, Hamas’s position towards Jews cannot be readily captured by the antisemitism label. Hamas’s founding Charter (1988) contained antisemitic tropes and, for decades, its website had a link to the Protocols of the Elders of Zion, a known antisemitic forgery. However, Hamas has not attacked Jews worldwide and the cause of their violence against Israelis is occupation, displacement and settler colonialism, not hatred of all Jews.

7.7 Hamas’s leadership has, moreover, been in a process of distancing itself from its earlier use of antisemitic tropes, removing the link to the Protocols of the Elders of Zion,¹³⁴ drawing a clearer distinction between Jews and Israelis in its rhetoric, and specifying that its struggle is with Israeli settler-colonialism. This was exemplified in its 2017 Manifesto which emphasises that the conflict is political, not religious; that is to say, it is about Israeli settler colonialism and occupation, not some ancient struggle between Islam and Judaism. Article 16 of the new charter reads:

Hamas affirms that its conflict is with the Zionist project not with the Jews because of their religion. Hamas does not wage a struggle against the Jews because they are Jewish but wages a struggle against the Zionists who occupy Palestine. Yet, it is the Zionists who constantly identify Judaism and the Jews with their own colonial project and illegal entity.¹³⁵

7.7 Hamas has also publicly accepted a Palestinian state on 1967 borders in line with most other actors (see 4.13, 4.15-16). Although it reiterated that it does not recognise Israel from an international law perspective nor relinquish the right of Palestinians to all of Palestine, this is nevertheless a significant shift from its founding Charter in 1988; and its refusal to recognise Israel is rooted in its claim to all of historic Palestine, not in hatred of Jewry. To put this in context, the Republic of Ireland maintained a constitutional claim on Northern Ireland until 1998.¹³⁶

7.8 The Qassam Brigades have confined their attacks to Israel-Palestine and not targeted Jews elsewhere. Where British Jews have been killed by the Brigades, this has been in Israel- Palestine, as part of its broader war against Israeli occupation. Hamas-affiliated media and individual Hamas leaders, when delivering sermons, may still be prone to using antisemitic tropes¹³⁷ and this should be vigorously condemned. But the fact that Hamas’s formal Manifesto has staked out a clear position regarding the cause of the conflict – occupation – and clarified that its struggle is with the Israeli state, not Jews, is nevertheless significant. The failure of the UK and other governments to acknowledge this shift in Hamas rhetoric, however partial, and its position on the two-state solution only serves to weaken the pragmatists within the movement who recognise the importance of this, while strengthening its hardliners.

7.9 We have so far argued that proscription of Hamas in its entirety does not benefit the UK domestically. Conversely, if applied consistently, the proscription of Hamas in its entirety may negatively impact the UK’s foreign relations. Qatar, for instance, periodically injects large amounts of cash to enable the Hamas government in Gaza to function. Hamas has also received support from Iran and Turkey, amongst others.¹³⁸ Hamas leaders are regularly hosted at various Arab and international capitals for political discussions. The movement further has representatives and political bureaus inter alia in Qatar, Turkey, Iran, Lebanon, and Egypt, raising the question of how the terrorist designation will affect the UK’s relations with these states. The brutality of the 7 October attacks may have made governments in the region distance themselves from Hamas for now – although there is already ambiguity over the extent of this, as in the reported case of Turkey.¹³⁹ But the attacks have also put the Palestinian question and the importance of establishing a Palestinian state back on the table and, if Hamas survives, it is likely to play a role in this. Governments may thus repair their relations with Hamas, putting the UK in a diplomatically awkward position, and limiting its ability to influence discussions. More broadly, it is likely to have a detrimental effect on the UK’s influence in the Middle East and relations with Muslim majority countries in general. The UK’s relations with Palestinians overall will be further compromised if Hamas and the internationally backed Fatah-led Palestinian Authority eventually reconcile.

7.10 The designation is also likely to negatively affect academic and journalistic freedom, which will both hurt the UK’s international standing and its ability to gain a deeper understanding of Hamas and Gaza. The UK’s designation of Hamas as terrorist is extraterritorial and prohibits individuals from even arranging private meetings with Hamas members.¹⁴⁰ Most of us, through our research and work experiences, have interacted at length with Hamas officials or other individuals who could reasonably be assumed to be associated or supportive of Hamas, within the context of our academic research. Proscribing the entirety of the organisation, including its civilian aspects, could impede research on the movement, render outside actors ignorant of ongoing changes within the organisation, thereby leaving outside actors poorly informed and without leverage. Academic, journalist, and charitable endeavours are important informal backchannels of policy information and other messaging to and from proscribed organisations to blacklisting governments.

7.11 The government has issued explanatory notes to clarify when meeting with designated groups is permitted under the Terrorism Act:

the explanatory notes to TACT 2000 explain that the defence in section 12(4) is intended to permit the arrangement of ‘genuinely benign’ meetings. While the explanatory notes do not have direct legal effect, they are helpful in clarifying the intended effect of legislation and can be taken into account by the prosecuting authorities when considering whether prosecution is in the public interest, and by the courts in interpreting Parliament’s intentions. A ‘genuinely benign’ meeting is described by the notes as a meeting at which the terrorist activities of the group are not promoted or encouraged; for example, a meeting designed to encourage a proscribed organisation to engage in a peace process or facilitate delivery of humanitarian aid where this does not involve knowingly transferring assets to a proscribed organisation.¹⁴¹

7.12 However, as Hilary Benn (Labour MP) rightly noted in the parliamentary debate: “it is not a satisfactory answer to leave people in the following position: “Well, there is a defence. Hey, if you are prosecuted, you can go to court and advance the defence. You may win, you may not. You may be found guilty.”¹⁴² The proscription could thus still impede academic and journalistic research by increasing the risks to academics and journalists. Recent attempts by the government to criminalise solidarity with Palestinians and Palestine and its intervention in academic processes to silence pro-Palestinian academics are extremely perturbing in this regard.¹⁴³

8. Lack of transparency and fair representation in the process of proscription (VI)

8.1 Finally, we argue that the process followed by the UK government and the Houses of Parliament to arrive at the decision to list the entirety of Hamas as a terrorist organisation was flawed on procedural grounds, with potential implications for the UK’s international standing in the MENA region. Procedurally, there was a lack of transparency and, as far as can be surmised from the little information available, a lack of fair representation in the process followed. The government made its recommendation on the basis of advice from the cross-government Proscription Review Group, the exact membership of which does not seem to be publicly available. The details of this advice, and the way it had been arrived at, were not disclosed to Parliament and numerous MPs expressed dissatisfaction at the lack of transparency during the parliamentary debate on the proscription. MPs also questioned why no medical, humanitarian or peacebuilding organisations working in Gaza appeared to have been consulted. Furthermore, no detailed answers were given to questions regarding whether the government had sought advice on the consequences of this proscription vis-à- vis humanitarian and medical aid, future engagement with the Palestinian Legislative Council and Palestinian Authority – especially when Hamas and Fatah eventually reconcile – or the prospects for a two-state solution. Further, in spite of the importance of the topic and the potential severity of the consequences of proscription for the two million people living in Gaza and millions of Palestinians in the diaspora who have ties with them, the time allotted to parliamentary debate was one and a half hour in the House of Commons and half an hour in the House of Lords. The motion was approved without a formal vote.¹⁴⁴

8.2 Although it is unclear which parties were consulted, the parliamentary debate referenced recent high-level meetings with the Israeli President and Israel’s Ministry of Foreign Affairs, as well as the work of pro-Israel advocacy groups such as the Israel Britain Alliance. No such references were made to high-level meetings with Palestinian politicians or Palestinian advocacy groups. Given the positions of key Cabinet ministers at the time on Israel – the Home Secretary proposing the proscription, Priti Patel, was sacked in 2017 from Theresa May’s government for failing to disclose unofficial meetings with Israeli ministers, including then Prime Minister Benjamin Netanyahu, while then Prime Minister Boris Johnson was praised for strengthening UK-Israel relations in Israel¹⁴⁵ – this is not surprising. Johnson had reportedly been urged by then Israeli Prime Minister Naftali Bennett, a leading figure in the settlement movement who supports annexation of 60% of the West Bank, to proscribe Hamas in its entirety at the UN climate conference in Glasgow a month before and Patel’s announcement of the government’s intention to proscribe all of Hamas followed shortly after the Israeli government’s proscription of six Palestinian civil society groups as terrorist organisations, a move decried by human rights organisations and the United Nations Office of the Commissioner of Human Rights as targeting Palestinian civil society.¹⁴⁶

8.3 Concern with the process of proscribing groups long predates the proscription of Hamas in its entirety. In 2001, MPs and Lords critiqued the lack of transparency surrounding the process and the consequences this had for Parliament’s (in)ability to scrutinise government recommendations. In 2014, Drs Tim Legrand and Lee Jarvis noted “the lack of consultation, due process and parliamentary oversight in a regime predicated upon a presumption in favour of the Executive’s proposals”.¹⁴⁷ In the 2018 report of the Independent Reviewer of Terrorism Legislation on the Terrorism Acts, Emeritus Professor Clive Walker similarly noted the lack of transparency and fairness in the process of proscription by not inviting representations from those affected and failing to disclose evidence.¹⁴⁸

8.4 This stands in contrast to processes elsewhere. Walker discusses Australian procedures approvingly, noting that the low number of proscribed organisations is arguably due to the fact that proscription has to be reviewed by the Parliamentary Joint Committee on Intelligence and Security and that evidence submitted is published.¹⁴⁹ Australia has proscribed 29 organisations, mostly affiliates of al-Qa’ida and the Islamic State Group, compared to the 78 proscribed by the UK. Submissions and evidence on such matters are published and made publicly available in Australia. Following the initial recommendation to proscribe all of Hamas, during which the only non-governmental evidence provided emanated from advocacy groups and experts with known pro-Israeli proclivities, the Australian Parliament reopened submissions to allow for a more balanced array of analyses pointing out the potential for the de facto criminalisation of Gaza. This resulted in several concessions, including ministerial discretion to avoid inadvertently criminalising individuals or organisations with incidental ties to Hamas by nature of their engagement with Gaza.¹⁵⁰

8.5 The known political biases of key ministers at the time of proscription in the UK, coupled with the absence of information regarding the evidence sought and the way evidence was interpreted, thus cast doubt on whether the process was sufficiently impartial. This has important consequences for the UK’s standing in the Middle East and North Africa. Surveys regularly find that popular support for a Palestinian state in MENA remains high, support for normalisation with Israel in the absence of a Palestinian state low.¹⁵¹ As Hamas is an integral part of Palestinian politics, the proscription of its political wing is seen as creating another obstacle to a two-state solution. As noted above, the Palestinian Authority’s mission to the UK, for instance, notwithstanding the political rivalry with Hamas, “warned that the move makes it more difficult for Fatah and Hamas to bury their 14-year-old rift and to unite under a single government”. In a statement, it said: “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...”.¹⁵²

8.6 This is particularly costly to the UK as the memory of the Balfour Declaration still resonates strongly in the region. The 1917 Declaration expressed British support for a Jewish homeland in Palestine while stating “that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities” – that is to say, 90% of the population at the time.¹⁵³ Clearly, this was not to be the case, as was also noted in the Parliamentary debate by Conservative MP Crispin Blunt: “Obviously half of that declaration is undelivered – the bit that said it would not be done at the cost of the rights of the people already there”.¹⁵⁴ Violent protests took place in the Occupied Palestinian Territories on the centenary of the Declaration, while numerous debates were printed in the editorial and op- ed sections of regional daily publications.¹⁵⁵ The Balfour Declaration is still widely regarded in Palestine as an act of British treachery, in Arabic the “calamitous promise”, or the original sin that led to the establishment of Israel and the ethnic cleansing of Palestinians from what became the state of Israel in 1948.¹⁵⁶ The PA’s foreign ministry, no friend of Hamas, condemned the latter’s proscription as “an unjustified attack on the Palestinian people, who are subjected to the most heinous forms of occupation, and historical injustice established by the Balfour Declaration.”¹⁵⁷ Hamas similarly explicitly linked the UK’s decision to proscribe it to Balfour and the British Mandate: “Unfortunately, Britain continues in its old treachery, so instead of apologizing and correcting its historical sin against the Palestinian people, whether in the ominous Balfour Declaration, or the British Mandate that handed over Palestinian land to the Zionist movement, it supports the aggressors at the expense of the victims.”¹⁵⁸ The lack of transparency in the process of proscribing all of Hamas and the known biases of the government towards Israel thus served to reinforce this belief that the UK is betraying the Palestinian people.¹⁵⁹

9. Concluding remarks

9.1 Given the UK’s unique long-standing involvement with Palestine-Israel and its ties to both sides of the conflict, it could more proactively insert itself in future negotiations, which have long since stalled under the auspices of the United States and the United Nations. The brutality of the current violence shows the urgency of not just a ceasefire but also dealing with the underlying causes, ending the siege of Gaza and working towards the establishment of a Palestinian state. As the UK is no longer bound by the EU, it can chart a more independent path. Although at present this may be unthinkable and seem counterintuitive, de-listing Hamas’s political wing in the future, in return for quantifiable steps towards the Quartet’s preconditions, to enable a political solution to the Gaza siege and work towards a two-state solution would be a bold step that a post-EU UK would be able to take. Should the UK be successful in providing an alternative and more fruitful approach to the current deadlock, it would undoubtedly be viewed with much goodwill in the Arab and wider Islamic world. The US government’s unwavering support for Israel at this time and its proposal to increase funding to Israel as part of an emergency spending package, including funding for Taiwan and the Ukraine as well,¹⁶⁰ will have made the US an even less credible broker than it already was in the past.

9.2 Proscription of Hamas in its entirety goes against the UK’s Government’s longstanding support for a negotiated political settlement between Palestinians and Israelis based on the two-state solution, and further encourages the Israeli government to continue with the status quo and not negotiate with the Palestinians. It has served to support the continuation of Israel’s occupation of the West Bank, East Jerusalem, and Gaza Strip and impede the possibility of the Israeli government accepting to return to direct and genuine negotiations with the Palestinians it occupies. The decision has undermined internal Palestinian efforts, between the Palestinian Authority and Hamas, at unifying their political leadership for a more assertive role in restoring Palestinian rights. And it has contributed to creating a permissive environment for Israel’s current indiscriminate punitive war on Gaza, by erasing distinctions between Hamas’s different wings and between Hamas and Gazan citizens more broadly. This, coupled with the UK’s continued support for the Israeli government, may make the UK’s government complicit in war crimes and potentially genocide. The UK’s relations with Palestinians in general will be compromised if Hamas and the internationally backed Palestinian Authority eventually reconcile and continued proscription of Hamas in its entirety will severely hinder Gaza’s reconstruction and finding a political solution, if significant parts of Hamas survive. In this regard, the decision to proscribe all of Hamas is inconsistent with the UK’s stated commitment to a two-state solution.

9.3 The UK government’s concern regarding the indiscriminate targeting of and violence against civilians, particularly urgent in the current escalation of violence, would be more constructively expressed in support for international efforts at upholding international humanitarian law in Israel and Palestine through institutions such as the ICC and the ICJ, proactively working to lift the almost two decades’ old siege of Gaza, and putting serious political capital into pushing for a two-state solution.

9.4 The proscription of Hamas in its entirety further risks putting the UK’s government at odds with key international institutions, such as the United Nations, charged with maintaining international peace and security, and key US allies such as Qatar, which periodically injects large amounts of financial aid into Gaza to enable the Hamas government to function.

9.5 Palestinian society is small, tightly knit, and interconnected, and the proscription of all of Hamas will indubitably have knock-on effects for Palestinians in East Jerusalem, the West Bank, Israel, and the diaspora. Connections between Palestinians at home or in the diaspora and individuals or organisations notionally associated with Hamas – whether genuine, apparent, or confected – will be extremely difficult, if not impossible, to disentangle in any clear-cut manner and has the potential to incriminate them vis-à-vis the crime of association. In brief, who will determine if an individual is a member or supporter of Hamas? Will the UK create an independent commission that investigates such claims or depend on Israeli military courts’ classifications – which, according to Human Rights Watch, “have a near-100 percent conviction rate” for the hundreds of thousands of Palestinians incarcerated since 1967 and are therefore clearly partisan.¹⁶¹ This will be as urgent an issue after the current violence ends as it was before 7 October.

9.6 The designation of Hamas as a terrorist organisation in its entirety will be inconsequential to the UK’s domestic counterterrorism efforts as Hamas does not operate in the UK, while potentially criminalising the lives of millions of Palestinians who happen to live under its rule. It is unlikely to reduce antisemitism in the UK. Yet it will further stifle efforts at alleviating the politically induced humanitarian suffering in the Gaza Strip by potentially criminalising or severely complicating international and UK humanitarian efforts.

9.7 The lack of transparency in how the decision to proscribe all of Hamas was arrived at, coupled with the known biases of key Ministers, undermines public faith in the impartiality of the process, with potential implications for the UK’s reputation in the MENA. The one- sided use of the terrorism label to criminalise one party to the conflict, while apparently opposing international efforts at having both parties investigated by the ICC or the ICJ, raises further questions about the UK’s commitment to impartiality and human rights. The conflation of opposition to Israeli settler colonialism and antisemitism serves to deny Palestinians the right to resist and condemn occupation and to silence engagement or advocacy on Palestine within the UK.¹⁶²

10. Author Biographies

10.1 Prof Jeroen Gunning is Professor of Middle East Politics and Conflict Studies at the Department of Political Economy at King’s College London. He is Visiting Professor at Aarhus University and the London School of Economics. He has held positions at Durham University, Aberystwyth University and the University of Oxford. With Morten Valbjørn, he is co- director of the research project TOI: “Bringing in the Other Islamists - comparing Arab Shia and Sunni Islamism(s) in a sectarianised Middle East”. His publications include Hamas in Politics: Democracy, Religion, Violence (Hurst/CUP 2007/2008) and, with Ilan Baron, Why Occupy a Square? People, Protests and Movements in the Egyptian Revolution (Hurst/OUP 2013/14). He has published numerous book chapters and articles on Hamas.

10.2 Dr Tristan Dunning is an honorary research fellow at the University of Queensland. He has previously been an Associate Professor at the American University of Afghanistan and a lecturer at The University of Queensland and the University of the Sunshine Coast. He has also worked as a Senior Researcher for the Australian Parliamentary Library and the Department of Parliamentary Service House in Canberra, providing impartial briefs on request to all political parties. Tristan is the author of Hamas, Jihad and Popular Legitimacy: Reinterpreting Resistance in Palestine (2016) and the editor of Palestine: Past and Present (2019). Tristan has published in the academic journals Critical Terrorism Studies, Terrorism and Political Violence, and Small Wars and Insurgencies. His work has also been published in numerous other outlets including the Australian Broadcasting Corporation, The Sydney Morning Herald, the Australian Institute of International Affairs, and The Conversation, among others. His research examines armed non-state actors and governance in Middle East.

10.3 Dr Anas Iqtait is a lecturer at Australian National University Centre for Arab and Islamic Studies and a non-resident scholar with Program on Palestine and Palestinian-Israeli Affairs at the Middle East Institute (Washington D.C.). Previously, Anas worked in Palestine with the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), Oxfam, and the Korean International Cooperation Agency (KOICA) and served as a Research Fellow at Birzeit University in 2017. He is the author of the book Funding and the Quest for Sovereignty in Palestine (London: Palgrave MacMillan). His policy publications and analysis have appeared with leading national and international outlets such as Foreign Policy, BBC, Aljazeera International, ABC, SBS, Channel NewsAsia, and Sky News Australia.

10.4 Dr Tareq Baconi is the president of the board of Al-Shabaka and a Senior Analyst at the Institute for Palestine Studies. Tareq is the former senior analyst for Israel/Palestine and Economics of Conflict at the International Crisis Group, and author of Hamas Contained: The Rise and Pacification of Palestinian Resistance (Stanford University Press, 2018). Tareq’s writing has appeared in the London Review of Books, the New York Review of Books, the Washington Post, among others, and he is a frequent commentator in regional and international media.

10.5 Dr Martin Kear is an early career researcher of Middle East politics and international relations, contemporary Islamist movements, contentious politics, and political violence. He is a sessional lecturer and tutor at the University of Sydney. He is the author of the

book Hamas and Palestine: The Contested Road to Statehood (2019). He has published articles on Hamas in the Journals Democratization and the Australian Journal of International Affairs, as well as several chapters, most recently in the Routledge Handbook on Political Parties in the Middle East and North Africa.

10.6 Dr Hamish Maxwell-Stewart is a director of the Founders and Survivors project. He is an academic expert on convict life in Australia. Born in Nigeria, raised in England, and schooled at the University of Edinburgh, he migrated to Tasmania in 1996 where he became internationally recognised for his work on the history of convict transportation. After a highly successful 23 years at the University of Tasmania he joined the History and Archaeology team at UNE in April 2021. He has published a number of books on the subject, most notably Chain Letters: Narrating Convict Lives (MUP, 2001) with Lucy Frost for which they won the inaugural Kay Daniels award, and Pack of Thieves? 52 Port Arthur Lives (Port Arthur Historic Site Management Authority, 2001) with Susan Hood.

10.7 Dr Shannon Brincat is a Senior Lecturer in Politics and International Relations at the University of the Sunshine Coast. He works on critical and decolonial approaches to IR theory, especially concerned with questions of how to expand the circle of inclusion in cosmopolitan political community through processes of mutual recognition across borders in world politics. His current major project focuses on dialectics – a unique form of thinking through dialogue with others – and how different civilisations and times have utilised such knowledge across history. Dialectical Dialogues (Palgrave-Macmillan, 2022), engages with dialectics in Buddhist, Hindu, Daoist, Islamic, and Critical Realist thought. His upcoming book, The Spiral World, shows how dialectical thinking can help us mediate the accelerating ecological and political challenges facing humanity today.

10.8 Dr Adel Yousif is a Palestinian and the first in his extended family to have an “Australian” nationality/passport, received in 1995. His father was born in 1938, Haifa, Palestine. His family were farmers growing their olives and tending their land and livestock as they had done for generations. In April and May 1948, Zionist militia attacked his father’s village “Ayn Gazal” and members of his father’s family were killed and evicted from the area which is now part of Israel. They have been refugees ever since. His father and grandfather both died without a passport or nationality. He is now married, living in Hobart and working as an academic. Dr Yousif is a senior Lecturer at the Tasmanian Institute of Agriculture (TIA) within the Centre for Food Safety and Innovation. He is engaged in teaching and research related to food chemistry, biochemistry, processing and technology.

November 2023