The Laws of War Matter in Gaza

by Andrew C. McCarthy
No, Israel is not murdering Palestinians.

The Hamas charter proudly proclaims that the organization exists for the single purpose of destroying Israel, claiming all territory therein for Palestinians as part of the global Islamic-supremacist movement. Manifestly, Palestinians knew this when they voted to be led by this notorious Muslim Brotherhood franchise, which has ruled Gaza for nearly a decade.

They also knew that Hamas operatives wage war through barbaric jihadist methods: intentionally targeting civilians for mass-murder attacks; refraining from wearing uniforms or otherwise distinguishing themselves as military combatants; blending in among the non-combatant population, and using civilian infrastructure — schools, hospitals, mosques, homes, etc. — as the launch-pad for rocket attacks, the storage depot for their arsenal, and the safe-haven for jihadist training and plotting.

These tactics are gross violations of the centuries-old laws and customs of war, long codified in modern international law. Yet, as Palestinians are well aware, the mass-murderers they’ve elected are not interested in abiding by the enemy-West’s rules of civilized warfare. Hamas uses its atrocious tactics to make retaliatory attacks difficult and to exploit for propaganda purposes the carnage that inevitably results from its willful deployment of children and other non-combatants as human shields.

Here, I use the term “non-combatant” advisedly. Many Palestinians are not “civilians” in the ordinary sense of that word. Though not themselves violent jihadists, such Palestinians are more than willing to provide material support to the jihad — financial contributions, helping hide terrorists and store weapons, and so on. This goes a long way toward explaining how the terrorist organization could win a popular election: As the many streets and schools in Gaza named after terrorist commanders and suicide bombers attest, a high percentage of the populace is invested in the jihad.

Furthermore, Hamas places a high priority on the training of children for jihadist operations. Youngsters, already marinating in the Jew hatred that gushes from government-controlled schools and media, attend summer camps where terrorist tactics are taught. Article Seven of the Hamas charter instructs that the end times will be marked by a final battle in which rocks and trees will help Muslims kill all remaining Jews. The story, like tales of Allah turning Jews into apes and pigs, comes straight from Islamic scripture and is a leitmotif of Palestinian media. Not surprisingly, many Palestinians are already participating in violent jihad by their teen years.

This is not a setting conducive to the “two-state” solution — the enduring peace between neighboring Palestinian and Jewish states — that Western diplomats idealize but have no practical plan to achieve. I have been arguing that, if there is to be peace, Israel must be allowed to win Hamas’s war of aggression against it. Only the decisive defeat of the jihadists — the breaking of their will, the demonstration that the culture they’ve bred is hopeless — could conceivably induce the Palestinians to abandon the dream of annihilating the Jewish state. Without the smashing of Hamas and its allies, Palestinians will never make the three concessions that must be non-negotiable if there is to be real peace: (a) acceptance of Israel’s right to exist as a Jewish state; (b) renunciation of terrorism (or what Islamic-supremacists call “resistance”); and (c) abandonment of the “right of return” demand “that would, by design, end Israel as a Jewish state,” as Alexander Joffe and Asaf Romirowsky recently noted in Forbes.

On The Kelly File on Wednesday night, Fox News’s Megyn Kelly interviewed me about these contentions. She then elicited a contrary perspective from Harris Zafar, a spokesman for Ahmadiyya Muslim Community USA.

Like the Obama administration, Mr. Zafar wants an immediate ceasefire. This sounds evenhanded but would actually benefit Hamas enormously because Israel is now winning, its ground invasion doing major damage to the terrorist organization’s capabilities. Understand, though, that Mr. Zafar is not a Hamas or Muslim Brotherhood apologist in the familiar CAIR mold. As I’ve detailed in these pages, the Ahmadi branch of Islam he represents rejects violent jihad as an Islamic obligation; the Ahmadiyya are thus persecuted across the globe by Islamic supremacists, who regard them as blasphemous.

So, no, Mr. Zafar is not a dissembling Islamist . . . but he is a doctrinaire pacifist. Opposed to war — as if there were nothing worse — he seems to have no use for the laws of war. This insouciance led him, in our exchange, to make two slanderous allegations. First, he rebuked me for dismissing the charge that Israel has adopted the same reasoning as Osama bin Laden in excusing wartime “collateral damage.” Second, he insisted that Israel’s killing of non-combatants, casualties that include children, constitutes not “collateral damage” but murder. The laws of war, however, acknowledge the patent distinctions Mr. Zafar ignores.

Bin Laden, the late al-Qaeda emir, observed that Americans vote for their government and pay taxes that support their military. Having thus provided the essential support for what bin Laden maintained was our nation’s “war against Islam,” all Americans, he reasoned, should be regarded not as innocent civilians but as complicit combatants against whom it is legitimate to use lethal force. In his eyes, this justified the 9/11 atrocities.

Mr. Zafar would agree with me that bin Laden’s reasoning is specious. Nevertheless, he claims it is indistinguishable from Israel’s justification for mounting Palestinian casualties that include non-combatant deaths — as if, by pointing out that Palestinians voted for Hamas, the Israelis (and their supporters, like me) are saying that it is permissible to kill any and all Palestinians, under any circumstances, because they asked for it.

That is a ridiculous caricature. Israel justifies the killing of non-combatants only when those killings are collateral to the pursuit of legitimate military objectives. On that score, the fact that Palestinians voted for Hamas is irrelevant. Under the laws of war, a military unit composed of “privileged” or “lawful” combatants (a concept we’ll come back to) may use lethal force against a target that has strategic military value. The attack is legitimate, even if it is foreseeable that civilians will be harmed — in fact, even if it is certain that they will be killed.

Put more concretely, if Hamas is reasonably believed to be using a schoolhouse filled with children to facilitate missile attacks on Israeli civilian centers, Israel is within its rights to bomb the schoolhouse. It goes without saying that the resulting deaths of Palestinian children are tragic; but so would be the killing of Israeli children by continued Hamas missile strikes. If Israel does not attack, Hamas will keep firing. Israel is not required to refrain from protecting its own citizens in order to spare Palestinian children. Under the laws of war, the Israeli attack is justifiable; it is Hamas’s use of children as human shields that is condemnable.

Though this is common sense, Israel’s detractors endeavor to muddy the waters in two ways: (a) twisting the military concept of proportionality beyond recognition, and (b) imposing the proof protocols of peacetime due process. So, we are told, Israel’s attacks are “disproportionate” because there are so many more Palestinian than Israeli casualties. And what is Israel’s evidence, they ask, that this schoolhouse or that hospital was really being used to house or launch Hamas missiles?

These points are frivolous, notwithstanding their appeal to pacifists such as Mr. Zafar — and to the rabidly anti-Israeli United Nations, European chancelleries, the Obama administration, and the New York Times. As a law-of-war concept, proportionality has nothing to do with the comparative casualty count. A lopsided death tally is, instead, an indication of the relative competence of the opposing armed forces. In this particular instance, it also reflects the opposing societal values that Rich Lowry described this week, citing Prime Minister Benjamin Netanyahu’s assertion that Israel uses its missiles to protect its people, while Hamas uses its people to protect its missiles. (If Mr. Zafar wants to take a more apt page from The Wit and Wisdom of Osama bin Laden, it’s the one that says, “We love death more than you love life.”)

Proportionality actually involves weighing the military value of a potential attack against the likely harm to non-combatants and civilian infrastructure. Significantly, international law does not prohibit such collateral damage. There would be nothing humane about doing so: It would only prolong war and its carnage. Lethal attacks are legitimate unless the potential loss of innocent life clearly outweighs the military value. That is a military judgment call not amenable to precise measurement. It’s one that must take into account the deaths that would result from, for example, failing to attack a mosque that is being used as a fort.

And in wartime, courtroom proof that a target is a strategic enemy asset is not required before attacking. Again, targeting is a judgment call made by military professionals based on experience and battlefield intelligence. The United States armed forces do not conduct a trial or seek a judicial warrant based on probable cause before striking terrorist havens in Afghanistan, Pakistan, or Yemen. Why, as Iraq War vet David French pointedly asks, would we expect Israel — while fighting an existential defensive war against terrorists who repeatedly attack its territory — to abide by self-defense restrictions we would not tolerate for ourselves?

More fundamentally, Israel, like the United States, is a sovereign nation that enjoys a natural right of self-defense recognized in international law. When attacked or imperiled, it may respond with lethal force. This use of force is “privileged” — i.e., lawful — if it is carried out in accordance with certain requirements: The combatants must wear uniforms distinguishing them as such; belong to a regular army; carry their weapons openly; and direct their use of force against targets that have military value — meaning targets not selected for the purpose of harming non-combatants.

A national armed force that complies with these conditions engages in honorable warfare. The people it kills, even if they are children and other noncombatants foreseeably killed in legitimate attacks, are casualties of war. Mr. Zafar’s smear that they are victims of “murder” again contorts the facts and seeks to apply peacetime law-enforcement protocols to combat operations undertaken in a defensive war.

By contrast, terrorist organizations such as Hamas and al-Qaeda are unprivileged (or unlawful) combatants. Because they flout the laws of war — intentionally targeting civilians for the purpose of terrorizing governments into making concessions, and intentionally endangering civilians by hiding among them — their use of force is not legitimate. They may be prosecuted for their jihadist atrocities. It is thus no surprise that terrorists, unlike soldiers, are routinely tried in court for murder and war crimes.

In Gaza, however, terrorists are revered as heroic figures. That is because Palestinians overwhelmingly deny Israel’s right to exist as a Jewish state. Even among Palestinians who purport to favor a “two-state solution,” most see it as a mere transition phase en route to the one-state solution: Palestine, from the Jordan River to the Mediterranean Sea.

There is war because the Palestinian conception of peace is the elimination of Israel. That is why Palestinians chose Hamas and its jihad. To emphasize this incontestable fact is not to rationalize civilian deaths — deaths that are caused by Hamas. It is to illustrate that there can be no lasting peace unless Israel is permitted to quell the jihad.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book, Faithless Execution: Building the Political Case for Obama’s Impeachment, was released by Encounter Books on June 3.