From the Battlefield to the Courtroom:
Asymmetric Warfare, Lawfare and Israel’s War Against Hamas
Summer 2026
EXECUTIVE SUMMARY: The Israel–Hamas war demonstrates that modern asymmetric conflict is fought not only on the battlefield, but also in courts, international institutions, and the information environment. Hamas’s use of civilian areas, infrastructure, and indistinct combatant practices creates ambiguity that can be translated into legal and diplomatic pressure against Israel. While advanced targeting systems and artificial intelligence may improve military precision, they cannot by themselves resolve disputes over legitimacy, civilian casualties, or proportionality. Israel and other states confronting non-state actors must therefore integrate legal, diplomatic, and strategic communications planning into military operations from the outset, treating lawfare as a central component of contemporary warfare.
One of the main topics of discussion in the international system is how artificial intelligence (AI) is redefining modern warfare. Lethal autonomous weapons systems (LAWS) are quickly becoming fundamental instruments of war because of their low cost, dual-use nature, software-driven scalability, and rapid development cycles. They are a special class of weapon systems that use sensor suites and computer algorithms to independently identify a target and employ an onboard weapon system to engage and destroy it without manual human control. Israel has integrated these autonomous precision-guided technologies into its military operations, particularly in Gaza, the West Bank, Lebanon, and Syria, to identify and eliminate specific targets. During the war of October 7th, the Israel Defense Forces (IDF) used AI systems like “Lavender” and “The Gospel” that allowed them to analyze large quantities of surveillance data, social media information, and communications to create a list of Hamas targets.
However, the use of LAWS in the war of October 7th has drawn such significant attention to the point where it has caused another aspect of modern warfare to be completely overlooked—lawfare. In Dale Stephen’s The Age of Lawfare, he defines lawfare as the strategic use or misuse of legal systems, lawsuits, and legal proceedings to exhaust, intimidate, or hinder an opponent. He also shows that the weaponization of international law is a fundamental characteristic of lawfare and is used by non-state actors engaged in asymmetric warfare. Non-state actors use international law as a tool to undermine state military forces by generating negative international backlash. Non-state actors will often use guerrilla warfare tactics that generate political costs and moral dilemmas for the attacking force. Lawfare, as mentioned by Stephens, is present in many instances of war between state versus non-state actors. Still, one of the most prevalent cases in which it has been exhibited is in Israel’s recent war against Hamas. The events of October 7, 2023, launched Israel into a two-dimensional war. The first dimension of this war was an invasion of Gaza.
In contrast, the second dimension was a legal battle—a war against the International Criminal Court (ICC) and the International Court of Justice (ICJ). These two dimensions, however, are not mutually exclusive. In fact, the legal dimension of Israel’s war against Hamas is a direct consequence of the first dimension. ‘Hamas’ use of guerrilla tactics, particularly its blending of combatants with civilian populations, creates the conditions of ambiguity that make legal and diplomatic accusations against Israel possible in the first place. While Israel uses LAWS in part to minimize civilian harm, Hamas’ tactics are built to maximize ambiguity. In the current conflict, this ambiguity is dominating public discussion and is what fuels the legal war Israel now faces. This ambiguity begins underground, in the very infrastructure Hamas uses to fight.
In an article published by the Lieber Institute in 2023, David Wallace and Shane Reeves state that the underground tunnel system created by Hamas in Gaza is estimated to span roughly 300 miles in length and connects residential buildings, hospitals, schools, and mosques into a single operational system. In addition to the tunnels, distinguishing between innocent civilians and Hamas militants is extremely difficult since members of Hamas dress like civilians, drive civilian vehicles, and act in civilian-dense areas. The inability to identify militants from civilians severely increases the likelihood of death for Gazan civilians. It leads to human shielding—the intentional use of non-combatants, civilians, or protected persons to deter an enemy from attacking a specific location or military target. By operating in heavily populated areas and utilizing hospitals and mosques for military purposes, civilians and public infrastructure are treated as military targets—and this is exactly what Hamas intends to do. This makes every casualty contestable because of the argument that a Hamas terrorist in civilian clothing was actually just a civilian who just happened to be murdered by Israel. It is also easy for Hamas to reject claims that they built military infrastructure in hospitals like al-Shifa. A dead militant can easily be reported as a dead civilian, and the destruction of residential buildings will always be met with skepticism. This level of ambiguity fostered by Hamas is not only strategic but also effective, and it is not a problem that can be solved on the battlefield. The issue of ambiguity is not with weapons, but instead with casualty counts, legal filings, and international institutions. The ambiguity in guerrilla warfare has made it easy for the nations and organizations that are already critical of Israel to make war crime accusations, and the confusion surrounding the true civilian-to-combatant death toll only fuels their arguments. The guerrilla warfare in Gaza creates an atmosphere in which accusations against Israel can gain traction, contributing directly to the lawfare being carried out in international courts.
Hamas and other members of the international community have used lawfare against Israel consistently throughout the duration of the conflict. An example of this can be seen in the report published by the Australia/Israel & Jewish Affairs Council (AIJAC) that showed how South Africa weaponized the ICJ against Israel. Since South Africa filed its genocide complaint against Israel with the ICJ on December 29, 2023, over the situation in Gaza, it has continued to seek additional intervention from the court. In February, South Africa requested “an order prohibiting an Israeli military operation in the Gaza city of Rafah, where Hamas has its main remaining military battalions” and another “calling for full Israeli withdrawal from Gaza” on May 10. South Africa’s labeling of this conflict as genocide, paired with its repeated appeals to the ICJ, makes this a clear instance of lawfare; a pattern the AIJAC described as an effort to subvert the laws of genocide and armed conflict in pursuit of South Africa’s alliance with Hamas and Iran. South Africa’s genocidal accusations against Israel show how the ambiguity created by ‘Hamas’ guerrilla tactics works effectively. The death of a Hamas terrorist, given that they can be dressed as non-combatants, can be misconstrued and seen as the death of a civilian, feeding into inflated civilian casualty figures that are then used to fuel further legal and diplomatic pressure against Israel. This reinforces the cycle in which Hamas embeds itself among the civilian population, provokes military responses, and then relies on sympathetic international actors like South Africa to translate the resulting casualties into legal claims of genocide or war crimes. In this way, lawfare becomes an extension of the battlefield, allowing Hamas to compensate for its military disadvantages by moving its conflicts into courtrooms and international institutions where narratives, rather than battlefield outcomes, determine legitimacy.
This tactic also extends beyond direct lawfare against Israel since Israel’s allies are targeted as a way of indirectly attacking Israel. On March 1, 2024, Nicaragua opened a case in the ICJ against Germany, accusing it of being complicit in genocide. According to an article published in the Times of Israel, Nicaragua stated in its legal filings that Germany’s decision to send military equipment to Israel and defund the United Nations Relief and Works Agency (UNRWA) means that it is “facilitating the commission of genocide.” Although Germany is the named defendant, the case rests entirely on the premise that Israel is committing genocide, effectively turning it into an indirect attack on Israel. ‘Hamas’ murder of 1,195 people and capture of 251 civilians on October 7, 2023 was not considered an act of genocide by international courts, despite its founding charter in 1988 that explicitly states: “The Day of Judgement will not come about until Moslems fight the Jews” “” and that “the stones and trees will say O Moslems, O Abdulla, there is a Jew behind me, come and kill him””.” Hamas has made it clear its intent to kill Jews, yet Israel is the nation facing lawfare through genocidal accusations. In addition to Nicaragua’s accusations of genocide, it attacked Israel through its criticism of Germany as a result of its decision to defund UNRWA. While ‘ UNRWA’s mission is to provide humanitarian aid to Gazan civilians, it was discovered that 12 UNRWA workers participated in the events of October 7th, prompting countries such as Germany, Britain, Japan, and the United States to suspend funding for the organization. The accusations that Israel is committing genocide and that Germany is complicit in one are not only false rhetoric, but acts of lawfare. Nicaragua is evidently weaponizing the Genocide Convention of 1948 against Germany in response to its support of Israel to further extend the genocide accusation beyond Israel and onto a broader network of states.
The strong connection between guerrilla warfare and lawfare is evident when examining the international community’s reactions to Israel’s war against Hamas. Ambiguity is the defining feature of guerrilla warfare, and it is precisely this ambiguity that connects it to lawfare. When South Africa and Nicaragua engage in lawfare against Israel and its allies, they are doing exactly what Hamas wants. If Israel is constantly receiving accusations that the IDF is targeting civilians and committing genocide, it makes it harder to operate and forces Israel into a no-win scenario. Israel can continue to fight aggressively to eliminate Hamas and ensure an event like October 7 never happens again, but by doing this, it tarnishes its global image. An article published in the Wall Street Journal stated that Israel’s relationship with the United States has been “strained” and potentially “irreversibly damaged” due to its actions in Gaza. Although the safety of the Israeli people increases as Hamas militants continue to be eliminated, damaging the relationship with an ally as powerful as the United States is a steep price to pay. On the other hand, if Israel were not to have retaliated at all against Hamas after October 7th, it would not have faced the international condemnation it is currently facing, but it would have left the group responsible for the deadliest attack on Israeli civilians in the country’s history unpunished. A lack of retaliation could have even encouraged Hamas and other militant groups to carry out similar attacks in the future. More broadly, this dynamic of guerrilla warfare and lawfare will extend far beyond the Israel-Hamas conflict. Hamas has shown the world the template for how non-state actors can compensate for their lack of military strength with the weaponization of international law and organizations. Lawfare continues to cement itself as a key part of modern warfare between state and non-state actors, and international courts and institutions are shifting from unbiased mediators to tools that can be exploited through ambiguity and narratives. Israel, as well as other states waging wars against non-state actors, are going to need to be prepared to fight both an armed enemy and legal and diplomatic campaigns. Israel’s investment in LAWS reflects its efforts to operate efficiently and with high precision, but that same precision offers no defense in the courtroom, where lawfare thrives on ambiguity that LAWS cannot resolve. Better sensors will not win Israel’s battle to maintain its global image; better legal and diplomatic strategy will. The international community must recognize lawfare for what it is and prevent non-state actors from exploiting international law going forward.
Josh Rosenstein is an undergraduate at the University of Pennsylvania and a Summer 2026 intern at the Begin-Sadat Center for Strategic Studies.
Works Cited
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Al Jazeera. “Hamas Rejects Israeli Claim over Installations under Al-Shifa Hospital.” October 27, 2023. https://www.aljazeera.com/news/2023/10/27/hamas-rejects-israeli-claim-over-installations-under-al-shifa-hospital.
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