The brutality of Hamas’s October 7 massacre shocked even seasoned terrorism-watchers, as it killed over 1,200 Israelis, mostly civilians, and fired thousands of rockets at Israeli cities and towns. Over 200 hostages, including many children, remain captive in what must be nightmarish conditions beneath Gaza. Hamas has vowed to murder them if Israel continues its military response.
The initial shock of Hamas’ atrocities garnered support from world leaders like Biden, Blinken, and Blinken. However, media coverage has shifted from the brutality of Hamas’s onslaught to the proportionality of Israel’s response, with unintended civilian casualties increasing as a ground offensive and airstrikes advance.
The Israeli-Hamas conflict is a complex and controversial issue, with casualty counts often commingling deaths that are viewed differently by the laws and ethics of warfare. The majority of the Israeli toll consists of civilians intentionally targeted by Hamas, a violation of the law of armed conflict. The growing civilian toll on the Palestinian side is tragic, and it is essential to hope that Hamas is defeated with minimal innocent suffering. Incidental civilian casualties in strikes on lawful Hamas targets can be consistent with the laws of war, and Hamas is responsible for many of these civilian deaths due to its cynical actions.
The “cardinal” principle of the law of armed conflict states that armed forces must distinguish between combatants and civilians. Hamas has ignored this principle throughout the conflict, and its actions have been designated as a terrorist organization by the United States and other governments.
Hamas’s October 7 rampage primarily targeted unarmed civilians in Israeli towns and kibbutzim, making them illegal and not legitimate acts of war. Since Oct. 7, a smaller number of Israelis have been killed by rockets fired by Hamas, but the key question is whether they were fired at civilian areas, which are not valid targets and Hamas does not claim to be aiming for military objectives. Deaths from these indiscriminate bombardments also result from Hamas’s violations of the laws of war.
Hamas, a terrorist group, has been targeting Palestinian civilians in Gaza, despite the fact that military personnel are generally valid targets. Hamas’s combatants often do not distinguish themselves from civilians by wearing a distinctive uniform or insignia, which protects civilians from being fired upon in confusion. This ignores the requirement that combatants wear a distinguishing uniform or mark, putting Palestinian civilians in further danger.
Hamas has violated the law of armed conflict by seizing Israeli civilians as hostages. While combatants can be held captive, enemy civilians can be interned in rare cases. International law requires humane treatment and preventive detention, and hostage-taking is a war crime. The deaths of Palestinian civilians in Israel’s response are a human tragedy, as they suffer most for Hamas’s choice. The question arises how observers should categorize these deaths and whether it makes sense legally and morally to juxtapose them with the Israeli civilians intentionally murdered and bombarded by Hamas. Israeli forces in Gaza can only attack military objectives, including enemy combatants, civilians, and military objects, while Hamas uses civilian areas for weapons storage and command centers.
Intentionally targeting a civilian object not being used for military purposes would violate the principle of distinction, which requires granular knowledge of the factual context and the commander’s state of mind. In this conflict, Hamas has an affirmative legal duty to protect Palestinian civilians by “removing them,” to the extent feasible, from the vicinity of military objectives. Hamas will not do that because it is infeasible. Instead, Hamas could have designated certain places in the Gaza Strip as military enclaves and concentrated its fortifications, bunkers, weapons stores, fuel depots, rocket bases, and command centers there.
Hamas refuses to separate civilians from its military activities, as it would be disadvantageous. They use civilian areas to hide assets, complicating Israeli targeter choices. Israeli forces can either forgo strikes or launch them, causing civilian suffering. International reactions make this kind of “lawfare” effective, as Hamas knows that credulous observers will attribute these casualties to Israel. The failure to assign responsibility for Hamas’ actions, insisting on its military assets being moved away from civilians, encourages Hamas to further harm civilians.
Hamas’ cynical incentives undermine the law’s humanitarian goals, putting Palestinian civilians at risk. Israel must consider potential harm to civilians, even when striking a legitimate military target. Hamas’ intentional commingling of civilians and military assets has led to numerous civilian deaths.
The laws of war are essential in determining the legality of armed conflict. They require armed forces to refrain from attacks that would inflict excessive civilian harm, which is difficult to quantify due to the fact that civilian harm, military advantage, and feasibility are difficult to quantify. These principles are subject to reasonableness, not perfect hindsight, and their application often depends on the circumstances on the ground during the chaos of war.
Proportionality and precautions are also fact-bound, with their application often depending on the circumstances on the ground. Assessing proportionality after-the-fact requires considering the individual’s application of the principle in the given context, considering all available information and considering humanitarian and military considerations, ensuring appropriate precautions.
The use of advanced technology in combating terrorist groups often leads to numerous civilian deaths due to their decision to fight in densely populated areas. This is true even if the organized military uses precision weapons and cares deeply about the law. Hamas, for example, stores weapons in schools and launches rockets from civilian neighborhoods fully aware that Israeli strikes on those military assets will harm civilians.
The meta-questions arise: are the laws of war the right rules to apply to both parties’ conduct? Some argue that different rules should apply to each side, such as Hamas’s massacres, which could be seen as an occupied people exercising a right to resist violent and illegal occupation. Advocates of this idea should consider what it would do to the centuries-long humanitarian quest to humanize warfare and the struggle for the “civilizationally relevant” idea that it is not right to intentionally try to kill innocents to advance political or social goals.
The modern law of war relies on reciprocal agreements among states to reduce unnecessary suffering on both sides, including combatants, civilians, prisoners of war, injured, and shipwrecked individuals. These fundamental humanitarian prohibitions apply without considering the justness of each side’s cause.
The jus in bello regulates war conduct, while the jus ad bellum governs war commencement. The Geneva Conventions’ first Additional Protocol does not grant resistance fighters the right to murder innocents or wage war without limits. Modern law’s humanitarian guarantees must apply equally to all parties. Supporters of the weaker party argue that the laws of war should apply equally to all, as it benefits the weak, not the strong, most from universal restraint. The alternative to universal rules is a ruthless world where the strong do what they can and the weak suffer what they must.
