David E. Weisberg

The Law of War

Israel is currently counterattacking against Hamas in Gaza.  That counterattack is a response to the events of October 7, when several thousand militants/terrorists (you can choose the noun) invaded Israel and slaughtered some 1,200 Israelis, close to a thousand of whom were civilian men, women and children; they also took as hostages approximately 240 additional civilians.  Israel now seeks to destroy Hamas’s military and governmental capacities.

To accomplish that goal, Israel has both bombarded Gaza from the air and launched a ground assault against Gaza City, where the bulk of the militants/terrorists and their military infrastructure are located.  In the counterattack, civilian Palestinians, including children, have been killed.

In light of civilian deaths in Gaza, there have been allegations that Israel has violated international law by imposing “collective punishment” on everyone—civilians and militants/terrorists alike—in Gaza.  Antonio Guterres, the Secretary-General of the United Nations, has used precisely that language.  And some have gone so far as to allege that Israel is engaged in “genocide” against the Palestinians.  But the truth is that, from October 7 until this very moment, the only verifiable, provable war crimes that have been committed are ones in which Hamas militants/terrorists are the guilty parties.

Every Israeli civilian non-combatant who was killed by militants/terrorists on October 7 was the victim of a war crime.  Perhaps the most fundamental law of war is: “Civilians must not be made the object of attack.”  (Section 5.2.2 of the U.S. Department of Defense Law of War Manual, Updated July 2023.)  Moreover, with regard to Hamas’s seizure and abduction of hostages, the law of war is clear: “The taking of hostages is prohibited.”  (Section 5.16.3)  Finally, it is also a law of war that: “Measures of intimidation or terrorism against the civilian population are prohibited[.]”  (Section 5.2.2)

On October 7, militants/terrorists attacked and killed many civilians, took numerous civilians as hostages, and terrorized a large civilian population—each one of these multitudinous acts was a war crime.  And, since October 7, Hamas’s egregious commission of war crimes has only continued.

No combatant is permitted to use civilians “to shield or favor one’s own military operations or to impede the adversary’s military operations.”  (Section 5.16)  But, since retreating back into Gaza after October 7, Hamas’s militants/terrorists have sought to disappear among Palestinian civilians and inside military tunnels buried underneath civilian structures, including hospitals.

Hamas has no conventional military bases, clearly set apart from civilians, that can be attacked without endangering civilians.  Hamas and its apologists doubtlessly believe that if Hamas were organized along conventional military lines, it would simplify Israel’s plan of attack.  That is true, but irrelevant.  Combatants simply are not permitted to protect themselves by hiding behind or underneath civilians—that is a war crime.

The law of war further provides that combatants who unlawfully hide behind civilians may nonetheless be attacked.  War criminals cannot benefit from their crimes.  Rather, an adversary is permitted to attack a concealed military target, even if doing so endangers civilians.  And if a civilian human shield is injured or killed in the attack on an unlawfully concealed military target, both the moral and the legal responsibility for that unintended result lies solely with the war criminal, provided only that value of the concealed military target was proportionate to the risk to civilians. (Section 5.4.2)

The idea that Israel is committing “genocide” against Palestinians is scandalously absurd.  Before launching a ground offensive toward Gaza City, Israel warned Palestinian civilians to move away from the city to avoid harm; this is the exact opposite of genocidal intent.

The notion of “collective punishment” is similarly entirely inapposite.  The U.S. Department of Defense Law of War Manual says this about siege: “It is lawful to besiege enemy forces, i.e., to encircle them with a view towards inducing their surrender by cutting them off from reinforcements, supplies, and communications with the outside world.  In particular, it is permissible to seek to starve enemy forces into submission.” (Section 5.19.1)

Because Hamas deliberately hides among civilian populations and infrastructures, civilians inevitably suffer when Gaza City is encircled.  That suffering is caused by Hamas’s war crimes; if Hamas were not unlawfully hiding in Gaza City, the residents of that city would not be at risk.  The way to end civilian suffering in Gaza City is for Hamas to abandon all its military infrastructure in the city and to move all its militants/terrorists out of the city and away from civilians.

It is, to my mind, shocking that the U.N. Secretary-General would be so ignorant of the international law of war that he would characterize a valid, lawful encirclement of Gaza City as “collective punishment.”  But, notwithstanding the woeful ignorance of people like the Secretary-General, Israel has the right and the obligation to defend its citizenry.  It is doing so.  Hamas has the obligation to comply with the law of war.  It has blatantly failed, and continues to fail, to do so, and Palestinian civilians suffer as a result.

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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