Hamas bears ultimate responsibility for Rafah 

The reported deaths of several dozen civilians in an Israeli air strike on Hamas terror targets in Rafah this week was a profound tragedy.  

One cannot be human without feeling both empathy and outrage — empathy that innocent people, especially children, died, and outrage that Hamas would cynically and deliberately put them in such a situation.

It is important to remember that we are only in this awful situation because of the heinous acts committed by Hamas on Oct. 7, as well as the organization’s ongoing holding of hostages in Gaza and continued use of civilians as human shields. This has been noted by world leaders including President Biden. 

There are those who, without pause or consideration, have immediately sought to ascribe blame and intention upon Israel, alleging that the Israel Defense Forces either knowingly or recklessly targeted civilians. That could not be further from the truth.  

For Israel, every civilian death is a tragedy. For Hamas, civilian death is their strategy.  

Experts such as John Spencer, who heads up the urban warfare program at the West Point military academy, and Col. Richard Kemp, former commander of British forces in Afghanistan, note that Israeli forces have gone to lengths not seen in the history of modern warfare to avoid harm to civilians and abide by the laws of war. 

It is an inevitable consequence of war that in the fog of battle, especially in a dense and challenging urban battlefield, errors will occur.  But under international law, not every error is necessarily a war crime. To say so only demeans real victims of war crimes. 

In the case of the Rafah attack this week, Israel specifically targeted senior Hamas terrorists Yassin Rabia and Khaled Nagar, who are responsible for numerous attacks on Israelis. This was therefore a legitimate military operation. It did not, contrary to Hamas’s lies and media misinformation, target a refugee or tent camp, nor did they hit the Al-Mawasi Humanitarian Area, which was at least a mile away from the intended target.   

According to preliminary indications, as well as U.S. officials, it appears that there was a secondary explosion from a Hamas ammunition warehouse near the compound, where Israel targeted the Hamas terrorists, that might have ignited the fire and resulted in the loss of civilian lives.

Immediately following the incident, Israeli Prime Minister Benjamin Netanyahu admitted that, “despite [Israel’s] utmost effort not to harm non-combatants, something unfortunately went tragically wrong,” and that “we are investigating the incident.” 

Israel has also announced that the incident is being investigated by the General Staff’s Fact-Finding and Assessment Mechanism, an independent and professional body, including what caused the ignition of the fire beyond the target and the tragic result, despite the precautionary measures, including surveillance, precise munitions and additional intelligence to limit civilian casualties.

This is how a democracy operates — when mistakes are made, however unintended, they are admitted. People take responsibility and appropriate lessons are learnt.  

The response by the international community to the incident in Rafah has also been telling, with immediate worldwide condemnations and the United Nations Security Council already scheduling an emergency session. One cannot help but wonder, where was this same international community when a video was released last week of five terrified young Israeli girls, bloodied, beaten and being abducted by Hamas, with horrific threats of being impregnated? Where was the international community when Hamas rained down a barrage of rockets from Rafah on central Israel, including Tel Aviv? 

We would not be in this situation at all were it not for Hamas carrying out the October 7 massacre and continuing to hold in Gaza more than 100 hostages, including five U.S. nationals. 

This of course does not absolve Israel of its obligation to abide by the rules of war and international humanitarian law — a duty it has fulfilled and in many documented respects exceeded. However, it is Hamas, an internationally designated terrorist group, that continues to willfully violate every imaginable international law, including embedding combatants in civilian areas. 

It is therefore Hamas that bears ultimate responsibility for every innocent life lost, Palestinian and Israeli. The West’s failure to make this distinction only emboldens Hamas and perpetuates the violence. 

Arsen Ostrovsky is a human rights lawyer and CEO of The International Legal Forum. He is also a senior fellow at the Jerusalem-based Misgav Institute for National Security.