As Israel prepares for an extended battle to eradicate the Hamas and Palestinian Islamic Jihad terrorist leadership in Gaza, the Jewish state has witnessed an outpouring of support across the globe, on social media, and from U.S. President Joe Biden, among many other world leaders.
Presently, Israel is bombing terrorist strongholds throughout the Gaza Strip, and although there have been many Palestinian casualties, the world is still standing by Israel’s side.
But this support is likely to reverse quickly if and when Israel decides to enter the Strip and Palestinian casualties mount even further. Israel will face growing pressure from the international community to de-escalate, prevent further Palestinian casualties, and avoid violating international law.
Israel respects and adheres to international humanitarian law, customary law and the Geneva Conventions, and contrary to what Israel’s detractors believe, the law is on Israel’s side. Hospitals, mosques and schools where Hamas terrorists hide are legitimate targets.
According to Avi Bell, a professor at the University of San Diego School of Law and at Bar-Ilan University’s Faculty of Law in Ramat Gan, “The laws of war permit Israel to target and destroy Hamas and all its members, and to destroy Hamas’s rule in Gaza.”
International humanitarian law delineates the laws of war for non-international armed conflicts, which applies in this case. Specifically, the law insists on distinction and proportionality.
Hamas violates the laws of distinction by not distinguishing between soldiers and civilians. In years past, the international community often focused on the laws of proportionality, which it believes Israel violates.
However, Bell said, “The relevant rule of proportionality states that Israel is allowed to strike at Hamas, even as the terrorists surround themselves with human shields, so long as the collateral damage to civilians is not clearly disproportionate to the military gain.”
Legal authority to attack
The problem is that there has never been a clear definition of what that proportion actually is. This leaves the rule open to interpretation and provides Israel’s detractors the freedom to interpret it as they wish—always to Israel’s detriment.
International law is vague and malleable, which explains why Israel believes it adheres to the laws and many other nations and human rights organizations claim it doesn’t.
Bell asserted that “given the damage Hamas terrorists can create, Israel has the legal authority to attack despite a large number of expected Palestinian civilian casualties.”
In fact, according to the professor, “Israeli government lawyers, courts and academics tend to adopt very strict interpretations that greatly limit Israel’s scope of action.”
He agreed that the law’s vagueness “also lends itself to opponents of the Jewish state slandering Israeli soldiers and leaders. The opponents use international law rhetoric to falsely claim that Israel violates the law, and the vagueness of international law makes it difficult to disprove the slanders.”
Bell noted to JNS that “there is international law precedent for the kind of war that Israel is facing.”
He explained that al-Qaida’s 9/11 attacks “gave the U.S. the right to self-defense, to capture the entirety of Afghanistan, to pursue and kill al-Qaida and Taliban terrorists around the world, and to demand a full degree of cooperation from the United Nations and law-abiding nations around the world.”
The problem here is not with the law itself, he said. “Of course, Hamas violates the law of distinction, violates the law by using human shields, commits crimes by taking hostages, by torturing and raping captives, by massacring civilians, by shooting at ambulances, and in so many other ways.
“Israel is entitled to strike Hamas terrorists despite their use of human shields,” he confirmed.
“The problem is that when it comes to Israel, many fabricate international law, or selectively ignore international law, in order to protect the antisemitic terrorists and falsely accuse the Jewish state,” Bell said. “We cannot prevent people from lying in this way, but it would be a mistake to alter our course of action to accommodate the liars.”
Actual war crimes
Orde Kittrie, a senior fellow at the Foundation for Defense of Democracies and law professor at Arizona State University who previously served as a U.S. State Department attorney, told JNS that “one of Israel’s major challenges in fighting Hamas is Hamas’s expertise in hiding behind human shields and then blaming their deaths on Israel.
“Hamas itself has no compunctions about intentionally targeting Israeli civilians or purposefully sacrificing Palestinian civilians,” he said. “Hamas regularly engages in the actual war crime of using human shields in order to create a situation in which Israeli troops can more readily be falsely accused of engaging in war crimes such as the intentional killing of civilians.”
Kittrie noted that the law of armed conflict prohibits the intentional targeting of civilians.
“However,” he said, “it recognizes that in war, incidental civilian deaths and injuries are unfortunate and tragic, but inevitable.”
He agreed with Bell that the principle of proportionality “creates obligations to refrain from attacks in which the expected civilian harm incidental to such attacks would be excessive in relation to the military advantage to be gained.”
Kittrie also pointed out that the IDF “has a very strong record of complying with the law of armed conflict.”
As we are seeing this week in Gaza, Israel consistently implements advance warnings and other precautions to mitigate risk to Palestinian civilians.
Kittrie pointed out that Israel “is known for implementing more extensive such precautions than those undertaken by U.S. and other NATO forces in similar circumstances.”
Principle of proportionality
Like Bell, Kittrie noted to JNS that the principle of proportionality “is a balancing test.”
But Kittrie accused some actors, “particularly terrorist groups which use human shields, and their supporters,” of applying to Israel a set of standards “which bear no resemblance to the actual law of armed conflict.”
The problem is that international law does not sufficiently address how democracies like Israel can fight terrorist organizations that break every law of war. How can democracies fight terrorism without being accused of violating international law?
According to Kittrie, the use of human shields by terrorist groups “is an exceptionally difficult challenge for both the IDF and other Western militaries.”
He raised the example of U.S. Army Gen. (ret.) Curtis Scaparrotti, former NATO Supreme Allied Commander Europe, who stated in 2019 that he considered the use of human shields “an important obstacle for the effectiveness and success of current and future NATO operations and missions.”
Scaparrotti explained that NATO’s adversaries, notably in the Middle East, “have not hesitated to use the prohibited practice of human shields as it provides them with undeniable operational advantages.”
NATO troops were then “forced to choose between not taking action against legitimate military targets or seeing their actions, and the overall mission, delegitimized.”
Prime Minister Benjamin Netanyahu has made it clear, however, that Israel will no longer allow the presence of civilians in Gaza to prevent a legitimate and legal attack on Hamas’s leadership.
Non-state actors such as Hamas should be culpable for their war crimes and brought to trial in the International Criminal Court. However, Israel has no intention of allowing Hamas terrorists to live long enough to see their day in court.