The Deaths of Children

This is a photo of Hind Rajab:

(Family handout via AFP)

This is a photo of Ariel and Kfir Bibas:

(Hostage Family Forum)

These were three precious, beautiful children who should have enjoyed long, happy, productive lives.  But that was not their fate.

On January 29, 2024, Hind Rajab, a six-year-old Gazan girl, was riding in a car with members of her extended Palestinian family.  The car was reportedly hit by Israeli weaponry that immediately killed five of the occupants, leaving Hind and her cousin still alive.  Hind then spent hours on the phone, pleading with her mother and with emergency dispatchers for help.  (Harrowing audio tapes of those pleas have been widely circulated.)  A Palestinian ambulance was dispatched to the scene, but it also was hit by Israeli fire and two paramedics were killed.  Days later, when the scene was secured, Hind and her cousin were among the dead.

On October 7, 2023, Ariel and Kfir Bibas were kidnapped by Palestinian terrorists and abducted, along with their mother, to Gaza.  Kfir was a baby boy, ten months old, and his brother Ariel was four years old.  The corpses of the two boys were returned by Hamas to Israel in 2025, as part of a hostage exchange agreement.  (The body of a woman who was not the boys’ mother was also returned by mistake, according to Hamas.  The mother’s body was subsequently released.)  Israeli authorities asserted that forensic examination revealed that the boys had been killed by the captors “with their bare hands” sometime in November of 2023.  Hamas claimed that the boys and their mother died as the result of an Israeli airstrike.

The horrible tragedy of these deaths, and of many other additional deaths, might well overcome our ability to analyze carefully the relevant circumstances in which they occurred.  But I believe we should not allow our emotions to paralyze our rationality.  These three deaths, although equally tragic, are quite unequal in terms of legality and morality.

Hamas characterizes the attack of October 7, 2023 as “resistance” that was fully justified by alleged Israeli theft and colonization of Palestinian land and oppression of the Palestinian people.  Indeed, a substantial majority of Palestinians opined, soon after the attack, that Hamas had made a “correct decision.”  But a few moments of reflection will reveal to any fair-minded person that “resistance,” even if justified and correct, must comply with the basic premise of the law of war: all reasonable efforts must be taken to avoid civilian casualties.

To take an example unrelated to the Israeli/Palestinian conflict, consider the war in Ukraine.  Fair-minded people recognize that Russia illegally invaded Ukraine, and that Ukraine has every right to forcibly repel that invasion; that is, Ukraine’s resistance is justified.  But it is true nevertheless that, if Ukraine were to deliberately and knowingly bomb a school filled only with Russian children and their teachers, killing all of them, that act would be a particularly vicious war crime.  The right to resist aggression does not confer the right to violate the laws of war, and that means it does not confer the right to deliberately kill civilians who happen to be citizens of or located in the aggressor nation.

When Hamas abducted hundreds of civilians from Israel and took them to Gaza, each one of those abductions was a war crime.  Moreover, it is impossible to believe that the Hamas gunmen imprisoning children ten months’ and four years’ of age might think that those children were members of the I.D.F., and thus could properly be held as prisoners of war.  A ten-month-old baby could not be mistaken for an I.D.F. soldier.  The capture and imprisonment of that infant was a war crime.

Hamas says that baby Bibas and his brother were killed by an Israeli bomb; Israeli says that forensic pathology indicates that both children were strangled to death.  From the perspective of both law and morality, it makes no difference.  Hamas is the organization that put baby Bibas in mortal danger, and when the child succumbed to that danger, it is only Hamas that is legally and morally responsible for the death.  No Israeli could have been aware that a bombing raid on a Hamas tunnel would kill an Israeli infant (if one assumes that is how the infant died), but Hamas knew at every relevant moment that the abduction of the baby boy into a Hamas tunnel in Gaza exposed the child to mortal danger.

Now let us turn to Hind Rajab.  This beautiful child was riding in a car with members of her extended family.  It would be fair to assume that the I.D.F. forces that fired on that car were not able to see into the vehicle and definitively establish the identity of each passenger.  Do we know whether any adult passenger in the car was a member of Hamas or any other Gazan terrorist organization?  I think we do not.  Do we know whether the I.D.F. had intelligence information indicating that there indeed was such an adult in that car?  Again, I think we do not.  But if the answer to either of those two questions is ‘yes’, then it might well be the case that, under the law of war, the attack on that car was fully justifiable, even though the attack resulted in Hind’s death.

Whether or not the attack on the car in which Hind was a passenger was justifiable would depend on whether the value of the military objective of the attack was proportional to the risk to any civilians who might be harmed in the attack.  Here is what the U.S. Department of Defense Law of War Manual (p. 61, footnotes omitted) asserts:

Proportionality generally weighs the justification for acting against the expected harms to determine whether the latter are disproportionate in comparison to the former. In war, incidental damage to the civilian population and civilian objects is unfortunate and tragic, but inevitable. Thus, applying the principle of proportionality in conducting attacks does not require that no incidental damage result from attacks. Rather, this principle creates obligations to refrain from attacks in which the expected harm incidental to such attacks would be excessive in relation to the concrete and direct military advantage anticipated to be gained and to 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.

If Israeli soldiers had a good-faith belief that Hamas operatives were in the car with Hind (even if that belief ultimately turned out to be incorrect), they would have been justified in firing on that car, and Hind’s death would have been an instance of the “unfortunate and tragic, but inevitable” harm to civilians that armed conflict creates.  In contrast, there are no conceivable circumstances in which Hamas gunmen would have been justified in abducting Ariel and Kfir Bibas and placing them in mortal danger, which ultimately resulted in their deaths.