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Democracies obey laws of armed conflict, while their enemies flout them

The intentional blending of civilians and combatants is the foundation stone of Islamist “military” strategy around the world—a settled part of their playbook.

Soldiers with the Israel Defense Forces' 906th battalion on a training exercise in the Negev Desert. Credit: IDF Spokesperson Unit.
Soldiers with the Israel Defense Forces' 906th battalion on a training exercise in the Negev Desert. Credit: IDF Spokesperson Unit.
Jerome M. Marcus
Jerome M. Marcus
Jerome M. Marcus is a lawyer in Philadelphia.

Do Jews really make matzah with the blood of Christian children? And does the army of the Jewish state really have a policy of committing, or even tolerating, war crimes?

Only the ignorant—often, the willfully ignorant—think the answer to either of these questions is “yes.” But while accurate information on the first issue is visible on the side of every box of Manischewitz matzah, most people don’t have easy access to accurate data on the second question.

But the information exists. At an important program held by the Israel Defense Forces last week in Herzliya—the IDF’s Third International Conference on the Law of Armed Conflict—lawyers from the IDF were joined by more than 150 attorneys from the armies of 20-plus countries, as well as from the International Committee of the Red Cross and from law schools around the world, to discuss the current state of the Law of Armed Conflict.

The charge that the army of the Jewish state commits war crimes is a crucial tool in the hands of those who seek to delegitimize Israel and to impair its ability to defend itself. Otherwise respectable organizations like Amnesty International, for example, call Israel a “chronic human-rights violator.”

Israel’s enemies partner with groups like Amnesty to make real military use this accusation by breaching the basic distinction that underlies of the law of armed conflict: the divide between a soldier and a civilian. At the border fence inside the Gaza Strip and in every single attack on Israelis, no Arab attacker wears a uniform—the unique tool whose purpose is to enable armies to tell a fighter, who can legally be shot, from a noncombatant, who is legally immune from the use of force. And the basic “military” strategy of Hamas and Hezbollah is to surround their fighters and weapons with civilians, and civilian buildings and resources, so as to insulate the fighters from attack by Israel’s soldiers, who are trained to do what the law of armed conflict requires: distinguish between combatants and non-combatants, and to refrain from attacking the latter.

This, by the way, is why you so often see smoke in videos of the weekly riots at the Gaza fence. The smoke comes from tires that rioters set alight, and is generated precisely to impede the IDF’s ability to see who is a civilian and who is a Hamas soldier, throwing an IED or cutting the fence to enable Arab fighters to enter Israel and, in their easy-to-understand phrase, “tear out the [Jews’] hearts from their bodies.”

That strategy of mixing fighters and weapons among women and children is the clearest and most outrageous possible violation of human rights. It breaches the rights of both the civilians used to surround the weapons and the civilians attacked by the weapons so surrounded. But it’s a strategy that is somehow of little interest to Amnesty, the United Nations or most other organizations that pretend to be interested in human rights.

This intentional blending of civilians and combatants is also the foundation stone of Islamist “military” strategy around the world, which is why last week’s conference was attended by so many lawyers from the armies of the United States, Great Britain, Canada, Australia and all of the world’s countries fighting ISIS and Al-Qaeda, as well as the Iranian proxies and ISIS cells causing problems everywhere from Somalia and Paris to Argentina and Venezuela.

This strategic choice works, of course, and is a settled part of the Islamist playbook, only because the terrorists know that the Western countries they face do indeed obey the law of armed conflict and do indeed try hard to distinguish between fighters and civilians. That’s the very reason why Islamists use their own people as human shields; the humans are only shields because the soldiers on the other side won’t shoot at a civilian.

The conference focused on the details of this essential problem facing civilized armies—every one of which is from a Western country—who face an enemy that is delighted by the death of people on either side of the conflict between Islamism and its foes. When an Islamist terrorist kills non-Muslim civilians—Jewish, Christian, Buddhist, Hindu—the terrorist has achieved the goal of murdering infidels. If those infidels had the temerity to live on land claimed as dar al Islam (the holy territory of the Muslim ummah, “community”), then so much the better, whether that territory is Jerusalem or Kashmir or Madrid.

And if the Western army responds or defends against terror and a civilian on the Islamist’s own side is killed, why then a shahid (“martyr”) has achieved paradise, and here on earth the Islamist has reaped a public-relations bonanza. For then the unarmed civilian, “murdered” by a well-equipped Western soldier, has created a photo to go with news article claiming that the U.S. military or the IDF or the British army has committed a war crime.

The accusation can have military effect: If that news article does its work, foolish Westerners, who live in democracies, will protest their government’s “evil” tactics. Or they will fuel attacks on the tactics of some other law-abiding nation, such as the United States or Israel, both of which are the objects of attention from the International Criminal Court on these issues. If those protests and legal challenges are effective, the Western army’s response tomorrow may be more limited, so the next Islamist can even more safely operate the rocket launcher he’s set up in a nursery-school playground.

This is the background against which the IDF held its recent Law of Armed Conflict conference. Unlike the typical newscaster or wooly-minded academic, the army lawyers and scholars who attended this conference understand that the law of war does not prevent effective defense against the illegal blending of combatants and non-combatants that lies at the heart of Islamist strategy. They understand that if a school playground is used as a firebase, then it has been militarized and has become a legitimate military target. The law of war was indeed violated in this scenario—not by the targeting, but by the decision to transform a civilian situs into a military location. These lawyers know that destruction of the playground rocket-launcher is a legitimate military objective, and that collateral damage to the school, so long as it’s no greater than necessary to achieve that military objective, is entirely legal under the law of armed conflict. It’s the planting of the rocket launcher between the swing set and the jungle gym that constitutes the war crime.

One important set of facts emphasized by the Law of Armed Conflict is the nature of the training the IDF provides on the subject to its soldiers. Every Israeli soldier learns about the distinction between combatants and non-combatants, and about the duty to protect the latter while attacking the former. IDF instructors train every combat soldier, and IDF lawyers teach every commander, starting at the platoon level and going all the way up to the general staff, how the law of war governs what they do when they set out to battle. Teaching its soldiers what is required by the Law of Armed Conflict is an essential tool that civilized armies use to ensure that those armies comply with the law.

One wonders whether Amnesty International knows—or even wants to know—about the vigorous programs run by the IDF to ensure its soldiers follow the law. One might also wonder where Hamas locates its schools for teaching about the Law of Armed Conflict. They’re probably somewhere between the swing set and the jungle gym.

Jerome M. Marcus is a lawyer and a fellow at the Kohelet Policy Forum in Jerusalem.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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