The Law of War Permits Israel to Destroy Hamas

By David French

Monday, May 06, 2019

As of this moment, a fragile truce holds in southern Israel. After Hamas volleyed 600 missiles at Israeli civilian targets on Saturday and Sunday, prompting Israel to attack hundreds of targets in Gaza, the air-raid sirens have fallen silent, for now.

But over the weekend, when the rockets fell, we saw all the old arguments against Israel’s acts of self-defense crop up. The air raids were “disproportionate,” we were told. There were arguments over individual civilian casualties, as if it would somehow discredit Israel if its precision strikes killed more than a handful of noncombatants. Yes, there were rote condemnations of Hamas’s efforts to kill as many civilians as it could, but once again all too many voices on the left rose at once, demanding that the nation under attack — the nation defending its schools, hospitals, and homes from an indiscriminate rocket barrage — exercise restraint.

It’s important, however, to be very clear about Israel’s legal obligations. When it comes to Hamas, “restraint” is Israel’s choice — one it may make for tactical and strategic reasons of its own. The actual law of war would allow Israel to invade Gaza, utterly destroy Hamas, and occupy Gaza City until Israel’s safety is ensured, even if it burned in the fight.

Let’s break this down as simply as possible. First, firing 600 rockets at civilian targets in a neighboring country is an act of war. It’s an attack by an army against a nation-state, and as such it grants the nation-state the authority under the international law of armed conflict not just to disable the specific military assets used to carry it out but to destroy those who carried it out.

For example, when the Japanese attacked Pearl Harbor, America had the right not just to sink the Japanese fleet but to defeat Japan’s military, invade its sovereign territory, and overthrow its government. The threat to the United States came not just from the Japanese armed forces (which could be rebuilt after defeat) but from the government that built that military and empowered it to attack America. Similarly, when America and its allies launched their war against the ISIS caliphate, they had the right not just to destroy ISIS’s military assets but to take ISIS’s territory. They had the right to fight house to house in Mosul, Raqqa, and elsewhere to eliminate not just ISIS’s ability to fight but also its ability to govern.

Second, a terrorist army cannot lawfully protect itself from destruction by blending in with civilian populations, fighting from civilian structures, or using civilians as human shields. As the Department of Defense’s Law of War Manual states, the principle of distinction “enjoins the party controlling the population to use its best efforts to distinguish or separate its military forces and war-making activities from members of the civilian population to the maximum extent feasible so that civilian casualties and damage to civilian objects incidental to attacks on military objectives will be minimized as much as possible.”

This means physically separating military and civilian facilities. This means using uniforms, markings, and other measures to make sure that military forces and civilians are “visually distinguished from one another.” And this means refraining from using “protected persons and objects” — civilians or civilian structures — “to shield military objectives.”

Hamas violates every single one of these commands. It uses civilian facilities for military purposes, it tries to blend in with the civilian population, and it uses civilians as human shields. This is crucial — under the law of war none of these things in any way limit Israel’s right to defend itself. So long as Israel otherwise complies with the laws of war, the resulting civilian casualties and damages to civilian structures are Hamas’s moral and legal responsibility. It’s that simple.

Think of it like this: Nations have a right to defend themselves, and that right of self-defense is not abrogated when an opponent fights dirty. If an army tried to march into Philadelphia behind a wall of women and children, the citizens of Philadelphia would not have to surrender if fighting meant killing those human shields. Instead, they could fight back and then hold war-crimes trials against the attackers for the resulting civilian deaths.

Nor does the imbalance of power between Israel and Hamas tie Israel’s hands. The more-powerful nation has the right to use its power to win. It does not have to fight with one hand tied behind its back. Whenever Israel responds to Hamas, you see much misuse of the term “proportionality,” as if there is something inherently wrong with using more-powerful weapons to destroy a less-powerful foe. There is not. Under the law of war, “proportionality” doesn’t mean responding with similar force. It means avoiding attacks when the expected harm “incidental to the attack” would be “excessive in relation to the military advantage anticipated to be gained.” To take an example, if you know a sniper is in a building, and you can destroy the building without destroying the city block, then you use force against the building, not the entire block.

There’s nothing within that principle that grants any immunity to hostile armed forces. The right to defeat the hostile force remains; the response just must be mounted with an economy of force that’s consistent with the dictates of military necessity.

What does that look like when a hostile terrorist force embeds itself in a civilian population, disguises itself as civilian, and fights from civilian buildings? The recently finished Battle of Mosul is instructive. There, American forces fought alongside Iraqi allies and rooted out ISIS from the heart of one of Iraq’s largest cities. Here (from the New York Times) is just one before-and-after view of the sheer devastation in the city center. First, this is the Mosul Hotel area in November 2015:

And here’s the same area in July 2017:

This devastation is ISIS’s moral and legal responsibility. ISIS occupied Mosul. ISIS fought from civilian spaces. ISIS waged a futile fight from block to block and house to house. I could show you similar scenes of before-and-after devastation from America’s fights in cities such as Fallujah, Najaf, and Raqqa. This is what Hamas courts from Israel, and Israel would be well within its rights to oblige if it so chose.

But rather than recognize this legal reality, the international community subjects Israel to two separate anti-Semitic double standards.

First, attacks against its civilian population are rationalized and justified to an unprecedented extent. There are still all too many people who see Hamas as heroic freedom fighters facing off against terrible oppressors, rather than evil terrorists with genocidal aims.

Second, the world then holds Israel to a standard of military restraint that it applies to no other military force on the planet. If Israel even used American rules of engagement or applied American military doctrine, the devastation in Gaza would be orders of magnitude greater than anything we’ve yet seen. The Bush, Obama, and Trump administrations have been far more aggressive and “kinetic” than Israel in our response to terror. We’ve destroyed far more urban territory, and we’ve inflicted vastly more civilian casualties. Yet, with isolated exceptions, we’ve done so under self-imposed rules of engagement that are stricter than the law of war requires.

It’s time to change the terms of the international debate. It’s time for the world community to stop imposing these double standards on Israel, and start doing what international law requires: holding Hamas responsible for the devastation that results from Israel’s legal, necessary, and proper responses to its provocations. Only then will Hamas know that if it sows the wind, it could truly reap the whirlwind, and it will have no powerful international friends come to its aid.