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The Laws of War & Killing Civilians

The current conflict between Israel and the Palestinian group Hamas has led to numerous claims that both sides have violated the laws of war. Civilian casualties are inevitable in war; the question is when are they acceptable. There is no Book of the Laws of War sitting in a majestic courtroom where a tribunal of impartial World Jurists determines right and wrong. There are Conventions, Treaties, and more commonly the military regulations and laws of individual nations. None of these are all encompassing and different countries have widely varying degrees of compliance to any of them. An informed look at the actions of both parties will reveal the Israelis have adhered to just war doctrine and Hamas has repeatedly committed war crimes.

The simplest way to approach the legality and morality of civilian casualties is to start with intent. If you purposely kill non-combatants, you have a problem. If you do so indiscriminately without regard for their lives, you commit a war crime. If you do so specifically to demoralize or terrorize your enemy, you commit a war crime and several other crimes. If you do so while in the pursuit of a legitimate military objective you better have a darn good reason, and that is where a lot of the misunderstanding and disagreement occurs.

The most common understanding about the killing of non-combatants says it is not a war crime if the loss of life is not excessive in relation to the military objective. The problem there is the subjective judgment as to what is excessive and the relation of potential casualties to a particular objective. Those judgments are certainly open to commentary and criticism, and there has been plenty of that, but too much of it seems based on emotion rather than how the facts on the ground compare with the laws of war.

The war crimes Hamas has perpetrated are doubly heinous as they are aimed at hurting not only Israelis but their own Palestinians as well. They fire rockets with the avowed intention of killing and/or terrorizing Israeli civilians. In addition, they fire these rockets from locations purposely intermingled with their own populace. They use schools, mosques, hospitals and houses to build and store weapons and ammunition. When the Israelis attack these same targets the Palestinians place civilians on them to serve as human shields, and if killed, as propaganda material.

This puts the Israelis in the horrifying position of knowing they will have to face the prospect of dead women and children to stop the attacks on their own country.  Their intention was not to kill civilians until it became unavoidable to accomplish the mission. At that point the calculus changes and the onus of blame, both morally and legally, for the civilian casualties shifts to the terrorists using them as human shields.

Article 28 of the 1949 Geneva Convention IV provides: “The presence of a protected person may not be used to render certain points or areas immune from military operations.”

Israel has a policy of warning civilians they will be engaging in attacks prior to launching them in order to allow the civilians to leave. The Palestinians have used both coercion, and in some cases force, to prevent civilians from evacuating these areas. It cannot be expected that the Israelis will simply forego responding to attacks because Hamas has decided to barricade their positions with the living bodies of their own families.

Once the terrorists take these actions and commit these war crimes, the response from the Israelis or anyone else confronted with the dilemma must include killing the civilians in order to take out the terrorist criminals who have put them in harm's way. Yes, it is awful. Yes, it is grotesque. But place the blame where it belongs and support the lawful combatants, such as Israel, as they fight the barbaric criminals who caused these deaths and bear responsibility for them. Sadly it will take more of this before Hamas accepts defeat.  This video was made before the ground invasion, but all of the points are still valid.

The Red Cross has done a good job of compiling most of the relevant documents on this subject here in an index of International Humanitarian Law.