Martyrs or Cowards?

The Hamas Charter boasts that the organization’s motto includes: “Death for the sake of Allah is [Hamas’s] most coveted desire.” And, since the terrorist attack of October 7th, multitudes have applauded Hamas and praised the “martyrs” who have been killed by the IDF. since that attack. But the truth is that these so-called “martyrs” were overwhelmingly war criminals and craven cowards.

The October 7th attacks were themselves almost uniformly acts of cowardice.  Except for relatively incidental forays against IDF. military installations, the bulk of the attacks were against purely civilian targets, specifically, kibbutzim close to the border with Gaza. Those targets were predictably unable to mount any defense against substantial numbers of armed invaders. And it is, of course, the most fundamental law of war that combatants must not deliberately target civilians for attack.

So, the majority of the Hamas terrorists had an easy time slaying approximately one thousand civilian Israelis—men, women and children. The terrorists also kidnapped more than two hundred civilians, including very young children and even infants.  The infants seem not to have presented much of a danger to the brave, courageous Hamas would-be “martyrs.”

The behavior of the terrorists after the October 7th slaughter has been even more revealing. It isn’t only Israeli civilians who have been killed at the hands of Hamas terrorists. Those same terrorists are responsible for the deaths of perhaps thousands of Palestinian civilians as well, and those Palestinian compatriots were sacrificed so that would-be “martyrs” could save their own skins.

A rule that is probably as old as war itself makes it a war crime for a combatant to hide among civilians or to use civilians as shields. Hamas commits that war crime every minute of every hour, every day. Hamas endeavors to disappear among civilian Palestinians, and it builds its military infrastructure in tunnels that are buried under civilian neighborhoods in Gaza City. There are no Hamas conventional military bases, separate from civilian infrastructure, that can be attacked by the IDF without endangering civilians.

Hamas and its apologists would no doubt say that if Hamas had organized itself in a conventional manner, it would have made it much easier for Israel to attack its members and their bases. That is true, but it is also entirely irrelevant. The law of war simply does not permit combatants to protect themselves by endangering non-combatant civilians. Armed combatants are supposed to put their own lives at risk, not the lives of their civilian compatriots.

The law of war further provides that a combatant who commits a war crime by hiding behind (or underneath) civilians does not thereby insulate himself from attack. War criminals are not supposed to benefit from their war crimes. Rather, an enemy of the hidden war criminal is permitted to attack that hidden enemy, even if that attack endangers the human shield behind whom the enemy is hiding. This is where the concept of “proportionality” applies.

In the law of war, “proportionality” does not mean that one side may not kill more of the enemy than the other side; it does not mean that one side may not use more powerful weapons than the other side; and it does not mean that civilian deaths must be equal on both sides. Rather, according to the authoritative US Department of Defense Law of War Manual, the principle of proportionality entails the following:

In accordance with the principle of proportionality, combatants must not exercise the right to engage in attacks against military objectives in an unreasonable or excessive way. Therefore, when prosecuting attacks against military objectives (i.e., the persons and objects that may be made the object of attack), combatants must exercise due regard to reduce the risk of incidental harm to the civilian population and other persons and objects that may not be made the object of attack. In particular, the following rules apply:

      • Combatants must take feasible precautions in planning and conducting attacks to reduce the risk of harm to civilians and other persons and objects protected from being made the object of attack; and
      • Combatants must refrain from attacks in which the expected loss of civilian life, injury to civilians, and damage to civilian objects incidental to the attack would be excessive in relation to the concrete and direct military advantage expected to be gained. (Law of War Manual, Section 5.10, footnotes omitted.)

The principle of proportionality thus permits the IDF to attack terrorists or terrorist infrastructure hidden among, or underneath, civilian non-combatants and/or civilian infrastructure, provided only that the value of the military target justifies the risk to civilian persons and property. And if a civilian is injured or killed in the attack on the hidden enemy, both the moral and the legal responsibility for that unintended result lies solely with the hidden war criminal, provided that the principle of proportionality was followed in planning and conducting the attack.

Since the beginning of recorded history, civilians have been killed in wars; it is the deliberate killing of civilians that is the fundamental war crime. The IDF does not permit the deliberate killing of civilians. In contrast, Hamas terrorists slaughtered a thousand defenseless civilians, and also tortured, raped and kidnapped others in cold blood. None of those atrocities were perpetrated by martyrs; they were perpetrated by cowardly war criminals who delight in attacking defenseless civilians. And hiding among a civilian population is not a tactic employed by martyrs; it is a tactic employed by cowardly war criminals. That is Hamas.

About the Author
David E. Weisberg is a semi-retired attorney and a member of the N.Y. Bar; he also has a Ph.D. in Philosophy from The University of Michigan (1971). He now lives in Cary, NC. His scholarly papers on U.S. constitutional law can be read on the Social Science Research Network at:
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