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Was the Hostage Rescue Disproportionate?

By Oren Rozen - Own work

The June 8th rescue of four hostages from Gaza was celebrated throughout Israel as joyful family reunions were broadcast throughout the country. Unfortunately, the rescue also resulted in numerous Palestinian casualties. This led to accusations that Israel had used disproportionate force in rescuing the hostages. For example, the Egyptian Ministry of Foreign Affairs called it “a blatant violation of all provisions of international law and international humanitarian law, as well as all values of humanity and human rights.” Other Arab leaders and their allies echoed the same. Here are some questions we should ask and factors to consider in evaluating whether this accusation has merit.

Facts in Doubt

First, the basic facts about what happened are not clear. Hamas claims over two hundred people were killed and hundreds more injured. Israel disputes this and says the death toll was much less. Another crucial factor is that Hamas refuses to distinguish between soldiers and civilians in its casualty figures. Israeli forces reportedly came under fire from small arms, rocket-propelled grenades, and anti-aircraft missiles, meaning there was a significant battle. Hamas soldiers must be among those killed and wounded, and they may potentially make up a large percentage. Whether most of the Palestinians killed were Hamas soldiers guarding the hostages and attacking the Israeli rescuers or civilians who happened to be nearby is critical. The truth about this is not yet known and may well never be.

Human Shields

Even if many civilians were killed, there is an additional legal and moral dilemma that must be faced. By placing the hostages in the midst of a residential area, Hamas was using nearby civilians as human shields. This means that Hamas deliberately put the hostages in a civilian area so that there would be no way for Israel to rescue them without causing a disproportionate number of civilian casualties, with the goal of therebye forcing Israel to refrain from launching such a rescue attempt at all.

How do we view human shields? One way to look at it is that these individuals should not lose their protected civilian status. It is not their fault that Hamas took hostages and hid them in their neighborhood, and in fact nearby residents may not even have been aware that the hostages were present. So even though by using human shields Hamas leaders are committing a crime, the punishment for this must fall exclusively on Hamas and not on the civilians they are illegally endangering.

But there’s another perspective too, which I’m quite sure is the view of Israel’s leaders. This is to say that no army should be forced to allow its enemy to cynically exploit the laws of armed combat to gain advantage. In this case Hamas is primarily responsible for whatever harm befalls the civilians it uses as shields, and therefore Israel is entitled to consider them differently in determining proportionality.

Here’s an example to clarify. Imagine if Hamas had hidden the hostages in a tunnel away from the civilian population, but just as Israeli forces were preparing their rescue a school bus passed by, got a flat tire, and decided to park. The Israeli military might therefore be obligated to wait for a different time to launch their operation when the innocent children would not be in danger.

However, what if Hamas purposely hid the hostages under those same children’s school and homes so there wouldn’t be a way for Israel to launch a rescue without harming the students? On the one hand, the children are still just as innocent. But on the other, Hamas is purposefully bringing the danger to them and should bear responsibility for what happens. There is no clear or straightforward answer to this question.

What is Proportionate?

What if it turns out to that hundreds of people were killed in this attack and the majority were civilians, Israeli leaders anticipated this would be a likely result of the operation, and they knew the rescue would be only of four hostages and not more? How should this be viewed?

The argument that this was disproportionate is clear. First, the number of civilian casualties is vastly higher than the number of rescued hostages. In addition, there seemed to be a reasonable possibility the hostages could have been freed via negotiations rather than military action, calling the operation’s necessity into question.

However, a case can also be made that the rescue was proportionate. This would begin by recognizing the gravity of the crime of hostage taking, particularly in this context as the holding of hostages is one of the main drivers of the entire war. It would also lean heavily on the view that Hamas bears responsibility for the fate of civilians it used as shields. At the very least, uncertainty about what actually happened and what Israeli authorities anticipated should give pause to anyone accusing Israel of disproportionate use of force.

Hypocrisy and Propaganda

Finally, we need to bear in mind that condemning Israel for using disproportionate force in rescuing the hostages without condemning the holding of hostages in the first place is the height of bias and hypocrisy. It’s hard to swallow Hamas passing itself off as the victim here- they launched an attack killing over a thousand Israeli civilians and taking hundreds more hostage, reportedly raped and tortured the hostages in captivity, used human shields, and then express outrage that when the Israeli military finally comes to the rescue it doesn’t take enough care not to harm civilians! Some media outlets have even labelled the operation ‘The Nuseirat Camp Massacre’, as though Hamas’s hostage taking wasn’t the cause of this whole disaster. That crosses a line from bias into pure propaganda.

While we are all elated that four of the hostages have been returned home, there’s no denying the rescue operation raises troubling legal and ethical questions. There is really only one good way forward- Hamas needs to free all the remaining hostages and end the war.

About the Author
Shlomo Levin received Rabbinic ordination from the Israeli Chief Rabbinate and Yeshivat Hamivtar, and an M.A. in International Law and Human RIghts from the United Nations University for Peace in Costa Rica. He is the author of the Human Rights Haggadah, which highlights human rights issues in the Passover story with Jewish and secular sources along and questions for discussion. Learn more at http://www.hrhaggadah.com.
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