Maintaining Clarity in the Debate Over Gaza Tactics

If the past is any guide, increased conflict in Gaza will be accompanied by international demands for Israeli restraint, frivolous accusations of Israeli war crimes, and perhaps even complaints to the International Criminal Court. Before the outcry even has a chance to build, it’s important to remember how the Law of Armed Conflict (LOAC) actually applies to Gaza.  

The fundamental aim of LOAC is to prevent unnecessary casualties and destruction within the context of military conflict. In pursuit of that goal, three principles govern: necessity, distinction, and proportionality. In general, “necessity” requires that combatants only attack targets necessary to accomplish military objectives. “Distinction” requires that combatants not only distinguish between civilians and combatants, but they also distinguish themselves from civilians (through the wearing of uniforms, use of clearly identified military vehicles, etc.). Finally, “proportionality” requires a combatant to use only that force necessary to accomplish the military objective. It does not require you to use the same force as your enemy (you can bring a JDAM to a gun fight). Applying these principles to the Gaza conflict, three truths emerge:

1. Every Hamas rocket attack is a war crime. Hamas rocket attacks — which are aimed directly at Israeli civilians — clearly violate the rules of necessity and distinction. In fact, it’s difficult to discern any true military purpose for attacks that are more likely to hit schools and homes than they are military targets. Worse, there’s no indication that Hamas even tries to aim its rockets at military targets. But there’s an additional, less obvious manner in which these rocket attacks constitute war crimes: Because they’re conducted from civilian areas by men wearing civilian clothes, Hamas violates its obligation to distinguish its own noncombatants from combatants. Wearing civilian clothes and blending in to the civilian population is a violation of the laws of war. In fact, the wearing of civilian garb is a war crime even if Hamas attacks only military targets.

2. Hamas’s use of civilian buildings changes the status of targets from civilian to military. It is vital to understand that obligations under LOAC are not unilateral and unconditional; they are often reciprocal and conditional. For example, a civilian object can be converted to a legitimate military target when used for military purposes. Even buildings specially protected under international law — including mosques and hospitals — lose their protected status when used for military purposes. So when Hamas fires a rocket from a school, or reinforces its fighters by transporting them in ambulances, that school and those ambulances become legitimate military targets. They are no longer “civilian” in any meaningful sense.

3. Hamas bears legal responsibility for civilian deaths in Gaza. Unless there is evidence that Israel clearly and intentionally targets civilians, Hamas is responsible for the civilian deaths that result from its decision to wear civilian clothes and launch rockets from civilian buildings even when Israel makes mistakes. In other words, but for Hamas’s decision to use human shields, those civilians would not be in the zone of conflict or subject to military targeting. Any other legal construct would only further incentivize Hamas’s violations of laws of war by placing on Israel an impossible burden — the burden of certainty in the face of illegal obfuscation.

For some time the international community has viewed the laws of war as a one-way ratchet — always tightening Israeli (and American) rules of engagement even as they’re deemed irrelevant to terrorists. This is the essence of “lawfare” — the abuse of international legal norms to accomplish otherwise unattainable battlefield objectives — and it only prevails when Western governments and militaries allow it to prevail. Even in the fog of war there can still be legal clarity, and it is clear that the criminal entity in Gaza is Hamas, not the Israeli Defense Force.

[Ed. Note: This column originally appeared at National Review Online.]

  • livia sklar

    Thank you for writing this, David. Many people are unaware of what exactly goes on during a conflict between Israel and Hamas terrorists in Gaza and the Middle East.
    As we speak, my daughter Orit is landing in Israel to support family and friends there. We will all be awaiting her messages and her safe return.

  • John I.

    “Hamas fires a rocket from a school, or reinforces its fighters by transporting them in ambulances, that school and those ambulances become legitimate military targets. They are no longer “civilian” in any meaningful sense.”

    Why is it assumed that the contamination is one way? Why is it not that the mere presence of civilians transforms a military target into a civilian one? Because the latter rubrik wouldn’t salve the consciences of those who kill the civilians.

    Boo hoo hoo, the terrorists don’t play fair and they hide behind their mommy’s apron. So what? I don’t see how that justifies killing mommy just so one can blow up the terrorist. Especially for a Christian.

    John

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  • Alan Wood

    David, does a just war require that one’s strategy make sense? Long term, how do blockade, periodic reprisal and alienation serve to bring peace? What’s the plan?

  • R Green

    So are you ok with this also?…… The Israeli army bombed Al-Shoroq Tower (or the “Journalists’ Tower”) in Gaza City. The 15-story building housed both local Arab and international media agencies such as Al Arabiya, Al Quds TV, Sky News, France 24, and Russia TV.
    By the Israeli army’s own admission, they knew journalists were in the building at which they fired: “We obviously knew there were journalists in the building, so we did not attack other floors in the building. But my advice to journalists visiting Gaza is to stay away from any Hamas position, site or post for their own safety,” army spokesperson Avital Leibovich told the press today (BBC Middle East Bureau Chief Paul Danahar recorded her admission).

    • David French

      It would have been just fine for Israel to have destroyed the building.

  • Theresa Mason

    Nobody…Jews included…has a God-given mandate to that or any other land! It’s utterly immoral! Besides…if there were no oil in the ME…nobody would care!

  • Theresa Mason

    “…no one has the privilege to lay claims to any land simply on the grounds of ” divine right”. John M. Wilson. Our Father Abraham:Jewish Roots of the Christian Faith. ppg.266

  • David

    This is one of the most disgusting bits of writing I have ever come across. There is only one aggressor in Palestine – the racist political movement from the US and Europe that has invaded Palestine, driven millions from their homes, herded them into reservations, and now massacres a few hundred more civilians whenever it suits their domestic political purposes, and justifies it all by claiming that God told them to commit these crimes. They’re backed to the hilt with money and weapons from the US and others, and in the end the destruction of the people of Palestine may be complete – history is after all full of examples of successful genocides – but we should never, ever, ever let anyone pretend that it is anything but an absolute evil.


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