Dispelling the Media Myth That Israel Must Be Constrained in Rooting Out and Eliminating Hamas – It Has Every International Law Right To Wage a Just War

The State of Israel continues to defend itself against the terrorist organization Hamas, and the fog and chaos of war are only going to grow thicker as the Israeli Defense Forces (IDF) prepare for a full-ground incursion into Gaza. International Humanitarian Law (also known as the Law of Armed Conflict or the Law of War) is meant to impose a framework through which the international community can judge the legality of actions in a just war. However, whenever it comes to Israeli military actions, there is a tremendous amount of deliberate indifference or willful ignorance on the part of anti-Israel media pundits and politicians who tend to falsely and baselessly accuse the IDF of all manner of crimes, the exact legal meaning of which they clearly do not understand.

The central feature of the Law of Armed Conflict is to prevent unnecessary casualties and protect innocent civilians. It does this primarily through the application of three fundamental governing principles that work together (the principles of distinction, military necessity, and proportionality), with a fourth principle, humanity, underlying them all.

The principle of humanity forbids the infliction of all suffering, injury, or destruction not necessary for achieving the legitimate purpose of a conflict. But if one does have to go to war for a necessary and legitimate purpose, hard decisions must be made as part of the risk analysis for any operation. War is hell, but international law recognizes that some risk of collateral damage is ultimately acceptable in meeting a justified objective, because the best way to save the most lives is to take out the bad guys as efficiently as possible. That is where the other three principles come into play.

The principle of distinction requires that “the parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.” Hamas obviously disregards every aspect of this convention – even daring the world to act by filming themselves killing innocent and helpless non-combatants – but that does not absolve Israel of its requirement to follow the rules of law. Per experts at the Lieber Institute for Law & Warfare at West Point, despite Hamas’ openly slaughtering innocent civilians, “[t]here are no reliable reports that the Israel Defense Forces (IDF) have intentionally targeted civilians.”

Of course, the IDF is responding to the atrocities committed against the Israeli people, and no one is denying that innocent Palestinians could very well be tragically killed as the IDF strives to rid the world of Hamas’ terror once and for all. The principle of military necessity permits “measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by international humanitarian law.” (Importantly, blockades or sieges, like the one in Gaza, are not prohibited by international law. Of course, siege law does have humanitarian aspects – including facilitating the passage of food and medicine by third parties if, and only if, they can be reliably delivered without diversion to the enemy. Last week the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) admitted that Hamas had stolen fuel and medical equipment that could have powered Gaza for days.) Given that the IDF has a need to go to war for a legitimate military purpose, just how much risk of collateral damage are they allowed to take?

The short answer is just as much as necessary to achieve the military objective, and no more. Which brings us to the next part of the equation. Humanitarian law must somehow strike a balance between military necessity on the one hand and humanitarian exigencies/protecting innocent people on the other. It does so by operation of the third fundamental principle: the principle of proportionality. The principle of proportionality forbids attacks in which the expected incidental loss of civilian life, injury to civilians, damage to civilian objects, or any combination thereof would be excessive in relation to the anticipated military advantage gained.

Despite what you might hear on Twitter, the calculus involved in proportionality is not about revenge, i.e., you don’t get to hit back at your enemy in direct proportion to how hard you were hit. So Israel will not find a comparable-sized Palestinian community and destroy it; aside from the inherent evil of acting in that manner, such a response would be illegal under international law because it would accomplish nothing and achieve no legitimate military objective. Nor is proportionality a capabilities comparison that tries to balance weaponry or technological ability – of course, Israel, which invests in security, has better weapons than Hamas, which invests in digging terror tunnels. There is no requirement to make sure that your enemy has the same capacity for offensive or defensive engagement. Nor is proportionality an effects-based relative comparison that looks at the amount of damage, or the number of dead bodies, on both sides after a battle. Such perverse reasoning is one of the reasons why Hamas continues to engage in the use of human shields, murdering their own women and children to artificially widen the asymmetrical (but not the legally proportional) aspects of the fight.

Proportionality is instead simply this: a prospective analysis, i.e., a forward-looking calculation made by soldiers in the field given all the information available to them at that moment that legally permits the risk of collateral damage necessary to achieve a just military objective. The greater the objective being sought, the greater the extent of permitted risk of incidental damage or even death. The relevant standard for the determination of the legality of an action is also not whether the officer was right but rather whether the decision was reasonable at the time. It does not forbid attacks that are likely to cause any civilian casualties, even a lot of civilian casualties, or even attacks that are likely to cause civilian casualties slightly greater than the anticipated military gain. The proportionality standard teaches us that not all deaths in wartime are unlawful; even civilian casualties are sometimes inevitable. They just cannot be excessive in light of a reasonably anticipated military gain.

As it relates to Israel’s current operations, the legitimate military purpose for going to war is to wipe out Hamas, an openly genocidal terrorist organization that indiscriminately kills men, women, and children of Israeli, Palestinian, American, and any other nationality that they can. Aside from the standard IHL principles of self-defense under Article 51 of the U.N. Charter, under the Convention on the Prevention and Punishment of the Crime of Genocide, Israel actually has an affirmative obligation on behalf of the international community to prevent and punish genocide. Of course, Israel must still do everything it can to minimize civilian casualties, which is why the IDF takes important measures, up to and including even telegraphing their own attacks by warning civilians to leave endangered areas before they shell them. But because the calculus is so clear in this instance, even secondary complaints like the contentions that Israel is engaging in collective punishment, forced transfer, etc., are gaining less traction than they usually do. For reference, a proportional response is, by definition, not collective punishment, and there is a massive difference between warning citizens to temporarily evacuate a danger zone for their own safety (a requirement under the Geneva Conventions) and illegally driving them out as part of an attack against a civilian population.

To be clear – none of the above means that innocent people on both sides won’t suffer as Israel works to eradicate Hamas’ capabilities; in all terrible likelihood, they will. But it does mean that any unavoidable loss of life or collateral damage is entirely on Hamas’ account. No innocent Israeli or Palestinian man, woman, or child should ever be hurt or killed, and each life lost is an inexcusable tragedy. But each of those tragedies was caused by the murderous decisions and actions of Hamas, not by Israel’s legitimate, necessary, and proportionate response to those actions.