One of Hamas’s heinous tactics is locating its terror infrastructure in hospitals and civilian centers. National Security Advisor Jake Sullivan claims that this wicked strategy “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.” This perverse interpretation of international law, if left unchallenged, will cause needless civilian casualties in Gaza, Israel, and ultimately around the world.
Under international law, countries generally may not target enemy civilians. That does not prohibit lawful attacks on military targets, which often harm nearby civilians, as Sullivan seems to concede. Combatants are generally bound by the proportionality rule, which requires them to avoid attacks expected to cause civilian harm clearly excessive to the military advantage gained in the context of that attack or the entire war.
Each party in a conflict has the primary burden, under international law, of protecting its own civilians by separating them from military facilities. The law places a secondary burden on the civilians themselves to move out of harm’s way. Tens of thousands of Israeli citizens have recently relocated from the vicinities of Gaza and Lebanon to avoid the conflict.
Sullivan is effectively claiming that Hamas can break international law to place added international-legal burdens on Israel. This is an absurd proposition that gives America’s adversaries cover to smear both Israel and the United States.
Even the Biden administration’s own July edition of the Department of Defense Manual on the Law of War contradicts Sullivan:
When the enemy attempts to use the presence or movement of the civilian population or individual civilians in order to shield military objectives from seizure or attack . . . such conduct by the adversary does not increase the legal obligations of the attacking party to discriminate in conducting attacks against the enemy. Violations by the defending party are not a basis for that party to assert additional legal rights against the attacking party.
The Manual, quoting scholar Charles Dunlap Jr., warns that “reward[ing] a belligerent for flaunting the LoW [law of war] in that way” would violate the international-legal principle ex injuria non jus orituror, which provides that “legal rights should not be understood to result from the commission of wrongful acts.” Dunlap cautioned against “any reading of the LoW that seems to result in privileging such lawbreakers because of their lawbreaking.”
For 15 years, Hamas carried out attacks on Israeli civilians from behind human shields in Gaza. Hamas protected its military capabilities only by enlisting heavy pressure from the Obama and Biden administrations on Israel to refrain from effectively defending itself in the interest of avoiding civilian harms caused by Hamas’s human shields. This successful perversion of international law enabled Hamas to conduct the worst massacre of Jews since the Holocaust. International pressure against Israel, purportedly aimed at protecting Gaza civilians, encouraged Hamas to locate its military assets in hospitals, schools, and densely populated areas; this is now backfiring on Gazans. The October 7 slaughter leaves Israel no choice but to defend itself from Hamas, no matter where it is located.
Contrary to U.S. criticism, Israel is going well beyond the requirements of international law, even as defined by Sullivan, to limit harm to Gazan civilians, at great cost to Israeli civilians and combatants. To clarify Israel’s right to defend itself, and to prevent America’s adversaries such as China, Russia, and Iran from exploiting international law to gain military advantage, President Biden should restore an important sentence to the manual that the Obama administration deleted: “If the proportionality rule were interpreted to permit the use of human shields to prohibit attacks, such an interpretation would perversely encourage the use of human shields and allow violations by the defending force to increase the legal obligations on the attacking force.”
The United States should once and for all declare that a country’s use of human shields does not increase its adversary’s burden under international law. Accordingly, as U.S. military law expert William Hays Parks wrote, a country undertaking an analysis of possible harm to civilians under the proportionately rule described above is not required to take into account “civilians injured or killed as a result of the enemy placing them around a lawful target in an effort to shield it from attack.” The United States should formally adopt this principle, which is already implicit in the Manual. Israel’s security, and our own, may depend on it.
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