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Who Are the Real Criminals in the Israel-Hamas War?

Armchair experts on International Humanitarian Law calling balls and strikes on Israel's ground assault.

As news of civilian casualties fills Hamas media narratives, US officials are becoming more insistent Israel must protect noncombatants in Gaza. Pundits warn Israel not to violate International Humanitarian Law, with little understanding of what that means. The Biden administration insists that Israel is responsible for identifying the difference between civilian-clad Hamas terrorists and civilians.

War Environment Expanding for Israel

Israel faces an expanding battle space. Yemen has effectively declared war on Israel and has launched a ballistic and cruise missile assault from the south. In the north, Lebanese Hezbollah fighters are attacking daily. Palestinian militants keep up persistent attacks on Israeli civilians from the West Bank. Then there is the Gaza Strip, where Hamas and Islamic Jihad are relentless in targeting Israel with rockets even while IDF troops are moving through Gaza. Meanwhile, National Security Advisor Jake Sullivan, in an interview on CNN’s State of the Union Sunday show, said:

“Hamas is making life extremely difficult for Israel by taking civilians as human shields and by putting their rocket infrastructure and terrorist infrastructure among civilians. That creates an added burden for Israel, but it does not lessen Israel’s responsibility, under international humanitarian law, to distinguish between terrorists and civilians and to protect the lives of innocent people. And that is the overwhelming majority of the people in Gaza. Those are innocent people whose lives should be protected.”

GettyImages-1716879481 Jake Sullivan

Jake Sullivan (Photo by Drew Angerer/Getty Images)

It seems somewhat bold of the United States to lecture Israel on International Humanitarian Law (IHL). In other words, Sullivan is holding the Israel Defense Force to a standard of warfare that does not seem to apply to Hamas and other Palestinian militant enemies. What is that standard?

When people talk about the IHL in terms of protecting civilians, they most often refer to Article 51 of the Geneva Convention, protection of the civilian population, and the second paragraph, which warns, “The civilian population, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” From all accounts of the Israel-Hamas war, only Hamas has been guilty of this behavior on Oct. 7.

Israel Doesn’t Use Human Shields, Hamas Does.

Paragraph seven, Article 51, counsels combatants: “The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor or impede military operations.” The IDF does not use human shields. Hamas does.

New Banner Military AffairsArticle 52: General protections of civilian objects define military objectives. “In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” When Hamas or Islamic Jihad sets up a headquarters in an apartment building, it becomes by definition a legitimate military objective.

But implicit in Article 57, Precautions in attack, the Geneva Convention requires “constant care shall be taken to spare the civilian population.” The rules also require “effective advance warning [to] be given of attacks which may affect the civilian population unless circumstances do not permit.” Immediately after the vicious Hamas attack on southern Israel and the beginning of Hamas’ continuous barrage of rockets, the IDF warned innocent civilians to leave Gaza in anticipation of an Israeli operation. Hamas didn’t warn Israelis in southern Israeli kibbutzim they were going to execute a barbaric attack. Additionally, Hamas and Palestinian militants routinely place rocket launchers and military headquarters in densely populated areas, which is a violation of Article 58 of the Geneva Convention protocols.

The allegations of Israeli war crimes are seemingly ignorant of what a war crime is. The IDF appears to have been as careful as possible in its expanding operations in northern Gaza to protect innocent civilians. But war is violent, often unpredictably so. Though Israeli combat troops’ movements are methodical in rooting out Hamas and other Palestinian terrorists, civilians unwilling to leave the field of battle make urban warfare in Gaza a challenge. When adversaries use civilians and their property as shields, those actions are war crimes, and the IHL does not prohibit troops from engaging them with deadly force.

In a recent Defense Department briefing, Deputy Pentagon Press Secretary Sabrina Singh said, “We are going to continue to engage with the IDF and with the Israelis on their operations and making sure that they are, in their thinking, prioritizing civilian lives.” But Singh prefaced these remarks with, “I will reiterate that it’s the IDF operation.” What has been missing from White House and Pentagon advice to the IDF is how Israel can spare civilians when its enemy does not play by the rules and it is under attack from every quarter. US ground forces in Iraq and Afghanistan unfortunately were not able to do that, despite every effort being made to ensure the safety of noncombatants. Like all wars, the Israel-Hamas hostilities are a gruesome, deadly undertaking.

The views expressed are those of the author and not of any other affiliation.

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