This is a follow-up to a prior legal-evidence brief on Gaza. It does not seek heroes or villains. It asks who can, today, prevent foreseeable civilian death—and what it would take to do so.
This essay takes up a common rejoinder to critiques of Israel’s Gaza campaign: Yes, the conduct has been brutal, but Israel is pursuing reasonable hostage-release terms that Hamas keeps rejecting; the escalation is therefore at least partly justified. That framing is incomplete. The record since late 2023 shows both sides have repeatedly tied the fate of civilians—Israeli hostages and Palestinian noncombatants—to maximal end-state demands, and that has kept diplomacy stuck. But it also shows something more basic: regardless of negotiations, Israel controls the tempo of violence and the gates to life-support for Gaza’s population. That confers primary, immediate agency to reduce mass harm—today, not after a perfect deal. (UN Press)
Nobody here is noble. Hamas continues grave crimes—above all hostage-taking and intermittent indiscriminate fire. Israel stands accused by authoritative bodies of the gravest crimes as well, and it rejects those findings. The question for the present is who can unilaterally reduce civilian death and suffering right now.
Hamas The October 7 abductions, the continued holding of civilian hostages, and indiscriminate rocket fire are war crimes; hostage-taking can also rise to crimes against humanity when part of a widespread or systematic attack. Hamas has kept some offensive fire while largely fighting as an insurgency inside Gaza. (ICRC IHL Databases)
Israel Beyond extensive allegations of IHL violations, the UN Commission of Inquiry (COI) has concluded Israel committed genocide in Gaza; the International Court of Justice (ICJ), while litigating the merits, has issued binding provisional measures premised on a plausible risk of genocide, ordering Israel to ensure food, water, fuel, and medical care reach civilians. Israel rejects the genocide characterization; litigation continues. Human Rights Watch has separately found the crime against humanity of extermination and acts of genocide, focusing in particular on deliberate deprivation of water and the collapse of life-support systems. (OHCHR)
As such, any honest accounting must hold both actors responsible for grave war crimes. That moral symmetry does not necessarily mean symmetry of capacity or control.
Claiming that Hamas refuses to release prisoners is true—but it’s also an oversimplification of the realities both actors have to manage:
May 2024, the “three-phase” outline. A full ceasefire, staged hostage releases (beginning with women, elderly, and the wounded), a surge of aid, and a path to a permanent end of hostilities and withdrawal. Hamas pressed for firmer guarantees on permanence; the framework gained international backing but faltered in implementation. (The White House)
Spring 2025, Hamas’s maximalist offer. Hamas signaled readiness to release all remaining hostages if the war ends—i.e., a permanent ceasefire and Israeli withdrawal. Israel rejected those terms as rewarding October 7 and entrenching Hamas. (Reuters)
Summer 2025, partial-pause iterations. Mediators floated a 60-day truce with partial hostage releases and prisoner swaps. Hamas indicated acceptance of a version; Israel sought broader conditions on releases and security guarantees. Talks stalled. (Human Rights Watch)
Aid as leverage. Senior Israeli officials, at multiple points, publicly linked humanitarian aid access to hostage releases—an unlawful linkage under IHL, and corrosive to negotiations because it turns civilian survival into bargaining currency. (Reuters)
Interim assessment: The narrow demand—“release all civilian hostages now”—is facially reasonable. In practice, both sides coupled hostage steps to maximal conditions the other rejects. That’s why diplomacy has lurched from pause to breakdown, punctuated by public recriminations and protests from Israeli hostages’ families who argue government choices are endangering their loved ones. (Reuters)
Kinetic dominance. Since October 2023, Israel has overwhelmingly set the tempo and scale of force—airstrikes, urban clearance, and sieges. Hamas’s offensive capacity is degraded; its fire continues intermittently but does not dictate overall civilian risk in the way a national military’s doctrine, targeting decisions, and operational tempo do. (Human Rights Watch)
Gatekeeping life-support. Israel effectively controls entry for food, fuel, chlorine and other water-treatment inputs, medical supplies, and humanitarian access. UN food-security bodies and WHO attribute famine and mass malnutrition trajectories primarily to constricted aid and fuel. This gatekeeping confers immediate, unilateral capacity to curb civilian death irrespective of a hostage deal. (World Health Organization)
Legal obligations that track moral agency. ICJ orders are binding; compliance—ensuring sustained flows of essentials—would dramatically reduce mortality even if talks remain stuck. The COI’s genocide finding and other rights-body assessments underscore why the burden falls mainly on policy choices in Jerusalem, not on the outcome of negotiations. (International Court of Justice)
The hostage variable—leverage vs. protection. Continuing to hold civilian hostages is a crime and a moral outrage. But that fact does not mechanically determine whether civilians in Gaza starve or receive care: Israel can de-link aid from the hostage track, open corridors at scale, pause wide-area fires, and accept monitored ceasefire frameworks—all without prior capitulation by Hamas. Those decisions save lives immediately. (Reuters)
Hamas’s demand—no releases without a permanent ceasefire and withdrawal—is maximalist, and keeps civilians in peril. It is also strategically coherent from Hamas’s vantage point: interim lulls without firm end-state guarantees are read as time for Israel to reset and resume. Conversely, Israel views Hamas’s position as rewarding horror and locking in Hamas’s survival. That is the crux of the stalemate: both sides have fused the hostages to end-state guarantees rather than treating them as a discrete humanitarian track (the humane approach to the unfolding tragedy). (Reuters)
A serious attempt to break the cycle would:
This is not naïve; it acknowledges incentives. The point is to design steps that save lives now while longer-horizon questions are argued in courts and at negotiating tables.
Two truths must coexist. Hamas is culpable for ongoing crimes, above all hostage-taking. Israel, as the dominant actor with decisive control over firepower and life-support gates, bears the greater immediate responsibility—and the practical capacity—to stop the mass dying now. Diplomacy should reflect that asymmetry of agency even as it insists on the release of civilian hostages and accountability for crimes on all sides. (OHCHR)