“The laws of war offer a guide to what matters most, and to what should happen next.”[1]  First, the “why” and the “how” of war are different, separate things.  Opponents may have a just or unjust cause, but nothing allows either side to wage war in an unjust way.  Second, “civilians are entitled to protection.”  However, “protection” does not mean that civilians must escape unscathed from a conflict.  It means that military forces can neither specifically target civilians nor inflict disproportionate harm on them when harm cannot be avoided. 

            “There is no question” that Hamas has committed “war crimes and crimes against humanity,…  Those are not close calls.”[2]  In addition to targeting mostly civilians for death, Hamas soldiers seized at least 150 hostages whom it has threatened to execute.  According to the U.N. High Commissioner for Human Rights, this is not allowed under international law. 

            On the other hand, according to the U.N. High Commissioner, the “imposition of sieges that endanger the lives of civilians by depriving them of goods essential for their survival is prohibited under international humanitarian law.”  In the view of one expert, Israel’s siege of Gaza is both “a crime against humanity and a war crime.”  On top of the siege, Israel has been raining down bombs on buildings in Gaza.  Israel asserts that they are striking military targets hidden among the civilian population.  Citing another expert on international law, the NYT reports that “even attacks on legitimate military targets are illegal if they disproportionately harm civilians.”  Claiming that some act of violence will reduce future violence is not an acceptable rationale.  Admittedly, deciding what is proportional is not an exact science. 

            All this seems admirable in theory[3] and with deep historical roots.[4] 

It is also wildly out of touch with reality.   

First, Hamas is a government in control of a micro-state, not a finite outlaw gang.  This guarantees Hamas an existential continuity which insures that its policies will continue.  Hamas is committed to destroying the state of Israel, rather than to co-existing with it.  Hamas has repeatedly attacked Israel.  The people of Gaza are either captives of that government or supporters of it.  International law–and lawyers–offer no solution to this problem. 

Second, Hamas forces hide their soldiers and offensive weaponry among civilians.  They do so for two purposes.  One is to camouflage them from Israel’s observation.  “The better to eat you with, my dear.”[5]  The other is to use the civilians as human shields to limit pre-emptive or counter-attacks by Israel.  Israel has now warned the civilians to evacuate north Gaza; Hamas has ordered them to remain.  Israel is seeking to spare the lives of civilians it hates; Hamas to sacrifice lives of civilians it claims to represent and to love. 

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[1] Amanda Taub, “Binding Laws of War Already Being Broken,” NYT, 13 October 2023. 

[2] Professor Tom Dannenbaum, Fletcher School of Law and Diplomacy, “an expert on humanitarian law” quoted by Taub. 

[3] Most Americans should repent the decision by the George W. Bush administration to treat captured al Qaeda fighters as “unlawful combatants” not subject to the Geneva Conventions.  Better they had been considered P.O.W.s protected by those international agreements and held until the conclusion of a peace treaty with al Qaeda. 

[4] In the Early Middle Ages, the Latin Church sought to limit the overwhelming violence by declaring “The Peace of God” (banning attacks on clergy, Church property, and holy days) and “The Truce of God” (banning war on some days of the week and during an expansive number of parts of the year).  The truces were backed by the threat of excommunication.  This was rather more effective power than is now possessed by the U.N. or international law. 

[5] The Brothers Grimm, “Little Red Riding Hood.”