As explained previously, Hamas’s kidnapping and murder of three Israeli teenagers sparked the latest escalation in the ongoing war between Israel and Hamas.1 In response to the kidnappings, Israel launched Operation Brother’s Keeper in the West Bank, a search-and-rescue mission to find the missing teens.2 The Israeli investigation identified two Hamas operatives as suspects.3 While Hamas did not at first claim responsibility for the kidnappings, Hamas officials publicly praised the kidnappings and subsequent murder of the three Israeli teens as “heroic,”4 in itself a despicable act.
The kidnappings were followed by rocket fire.
On June 28, six rockets were launched from Gaza into Israel.5 In response, Israel struck twelve targets in Gaza on June 29.6 On June 30, the bodies of the three Israeli teens were found.7 Following the discovery of the slain Israeli teens, a Hamas spokesman warned that if Israeli prime minister Netanyahu “brings a war on Gaza, the gates of hell will open to him.”8 On July 1, Israel launched 34 air strikes on Gaza in response to 18 rockets fired at Israel from Gaza.9 On July 7, Israel Defense Forces announced from its Twitter account the commencement of “Operation Protective Edge in #Gaza against #Hamas, in order to stop the terror #Israel’s citizens face on a daily basis.”10
When it comes to the use of force against or by nation-states, international law is clear: the threat and the use of force against a U.N. member state are prohibited.11 Thus, every Hamas rocket attack violates international law. Every single one.
Article 51 of the U.N. Charter recognizes “the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.”12 It is essential to note that Article 51 does not create the right of self-defense; it is an inherent right of all states under customary international law.13 This inherent right of self-defense (and the responsibility for determining when self-defense is appropriate) lies, as it always has, with the government of each state. Customary international law also recognizes the right of self-defense against nonstate actors,14 like the terrorist group Hamas and its Islamist allies in the Gaza Strip.
Additionally, when one is acting in self-defense, international law “does not require a defender to limit itself to actions that merely repel an attack; a state may use force in self-defense to remove a continuing threat to future security.”15 In other words, to use a historical example, when Imperial Japan attacked the United States on December 7, 1941, our right of self-defense was not limited to merely shooting back at the planes attacking Pearl Harbor but included the right to declare war on Japan and fight its military until it surrendered. Hamas’s rocket attacks give Israel the right—should it choose to exercise that right—to destroy Hamas.
In addition, the standard for self-defense does not limit the defender to a totally like-kind response, but provides the necessary flexibility to reduce or eliminate the threat. In other words, the degree of force employed in self-defense can be considerably greater than that used in the original armed attack.16 So, yes, Israel can respond to rockets with F-16s.
This means that Israel, as a sovereign state, has the inherent right to defend its territory and citizens. It was legally justified in engaging in the 2014 conflict against Hamas, as it has been in every significant clash with Hamas since Hamas was formed. Since the most recent conflict began, Hamas repeatedly refused to accept a number of cease-fire proposals,17 while Israel consistently honored cease-fire requests to allow humanitarian assistance into Gaza.18 Hamas breached at least four cease-fires during the conflict.19 The fourth negotiation resulted in an agreement to have a seventy-two-hour cease-fire. Hamas militants broke the cease-fire a mere ninety minutes after it had begun by attacking and killing Israeli soldiers.20
Although more Palestinian civilians died than Israeli civilians, Israel was acting within the law of war while Hamas was not. War crimes are not proved merely by citing casualty statistics but by evaluating and understanding the reasons for casualties. Israeli civilian casualties occurred because Hamas was intentionally attacking civilians. Palestinian civilian casualties occurred because Hamas intentionally hid behind civilians and fought from civilian structures. Palestinian civilian casualties occurred despite Israel’s best efforts to minimize collateral damage.
Article 52 of Additional Protocol I to the Geneva Conventions requires that “attacks shall be limited strictly to military objectives.”21 Military objectives are defined as “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.”22 Notably, “[t]he presence of a protected person may not be used to render certain points or areas immune from military operations.”23 This means that the use of human shields cannot trump Israel’s (or America’s) right of self-defense.
Since the beginning of Operation Protective Edge in late summer 2014, many international organizations—including the U.N. and even, sadly, the International Committee of the Red Cross—roundly and publicly condemned Israel’s actions for damaging or destroying specific targets. Among such targets have been hospitals, schools, places of worship, and civilian areas that are normally protected objects under the law of war. In the Red Cross’s own words, however, “[i]n combat areas it often happens that purely civilian buildings or installations are occupied or used by the armed forces and such objectives may be attacked, provided that this does not result in excessive losses among the civilian population.”24 Determining whether incidental injury or collateral damage violates the law requires analysis of the military advantage anticipated by striking the relevant military target. Many states, including the United States, judge military advantage in the context of the entire operation, not just an isolated part.25 The “security of the attacking forces” is also a critical part of the consideration in assessing military advantage (in other words, soldiers don’t have to die to avoid civilian casualties).26 The standard is intended to prevent “[m]anifestly disproportionate collateral damage inflicted in order to achieve operational objectives.”27
Hamas repeatedly and continually used protected civilian sites for military attacks, rendering them legitimate military targets. An IDF study shows that Hamas fired rockets from amusement parks, first aid stations, U.N. facilities, playgrounds, hospitals, medical clinics, and schools.28 Consequently, Hamas, not Israel, is the party committing war crimes.
Incidental or collateral damage on both sides may occur during an armed conflict. Such damage, including deaths and injuries of innocent civilians, does not automatically (or necessarily) constitute a war crime. Only “willful killing” or “[i]ntentionally directing attacks against civilian objects, that is, objects which are not military objectives,” constitutes a war crime.29 Civilian casualties alone do not render those attacks unlawful. Only civilian casualties that are excessive in relation to the importance of the military objective are forbidden.
It’s important to go through Hamas’s actions and Israel’s response chapter and verse. The left has become all too good at simply reciting lurid casualty statistics, as if that proves Israel’s or America’s crimes. But in war—as always—facts matter. And as John Adams said, “Facts are stubborn things.”
So let’s look at the facts.