What does the law of war allow in response to the Hamas attacks? 

It did not take long at all for the usual anti-Zionist politicians, pundits and members of the public to regather their composure — even after seeing pictures of the shocking atrocities committed by Hamas terrorists this weekend against innocent Jewish babies — in order to justify the massacre by proclaiming that the victims had it coming. Now, as the Jewish state mounts a military response, these same pseudo-intellectuals are once again predictably accusing Israel of war crimes for daring to respond to the slaughter of its citizens.  

There is a lot of misinformation being spread by those who either do not understand or are purposely misusing the rules of international humanitarian law (IHL), also known as the law of armed conflict. Designed to create a framework that can help make sense of the chaos of war, it is important that any and all discussions remain firmly grounded in the facts.  

So let’s review. 

The central feature of the law of armed conflict is to prevent unnecessary casualties and protect innocent civilians. It does this primarily through the application of three fundamental governing principles: distinction, military necessity, and proportionality.  

Perhaps the most basic rule — and indeed the very first rule in the manual of customary IHL — is the principle of distinction, which requires that “[T]he parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.” 

Hamas completely and unabashedly disregards every aspect of that convention, and brazenly films themselves killing innocent and helpless non-combatants.  

Nevertheless, the Israel Defense Forces remain firmly committed to the rule of law, and will not target civilians. Per the Lieber Institute for Law & Warfare at West Point, despite Hamas’s openly slaughtering innocent civilians, “[t]here are no reliable reports that the Israel Defense Forces (IDF) have intentionally targeted civilians.” Nor will the IDF engage in spreading terror or make use of indiscriminate attacks.  

That does not of course, mean that Israel is not responding to Hamas, nor does it mean that there may not be additional tragic loss of innocent life as a result of that response. The principle of military necessity permits “measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by international humanitarian law.” As the International Committee of the Red Cross notes, almost by definition “Military necessity generally runs counter to humanitarian exigencies. Consequently, the purpose of humanitarian law is to strike a balance between military necessity and humanitarian exigencies.” That balance is generally struck by operation of the third fundamental principle, the principle of proportionality. 

The principle of proportionality forbids attacks in which the expected incidental loss of civilian life, injury to civilians, damage to civilian objects or any combination thereof would be excessive in relation to the anticipated military advantage gained.  

To be clear, the calculus involved in proportionality is not about revenge (i.e., it is not about striking back against your enemy in proportion to how hard you were hit). Nor is it a capabilities comparison that tries to balance weaponry or technological ability, nor is it an effects-based relative comparison that looks at the amount of damage, or the number of dead bodies, on both sides. Such perverse reasoning is one of the reasons why Hamas continues to engage in the use of human shields, murdering their own women and children to artificially widen the asymmetry — but not the legal proportionality — gap. It is instead a prospective analysis that legally permits the risk of collateral damage necessary to achieve a just military objective. The greater the objective, the greater the extent of permitted risk of incidental damage or even, God forbid, death. 

As it relates to Israel’s current operations, the legitimate military purpose is to wipe out Hamas, a genocidal terrorist organization that indiscriminately kills both Israeli and Palestinian men, women and children. Aside from the standard IHL principles of self-defense, under the  Convention on the Prevention and Punishment of the Crime of Genocide, they have an affirmative obligation on behalf of the international community to prevent and punish genocide.  

Saving millions of lives from terrorists who would demonstrably brutally end them if given the slightest chance is an overwhelmingly necessary and just military objective.  

That does not mean Israel should not do everything it can to minimize casualties, which is why Israel takes important measures, including warning civilians to leave endangered areas before attacks. This, of course, is made more difficult by the fact that Hamas continues to hide munition stores in hospitals and schools. (Another important rule, a corollary to the principle of distinction, requires that combatants “distinguish themselves from the civilian population, whether it be through distinctive insignia, clearly identified military vehicles, etc. Hamas, of course, does not.) But it does mean that any unavoidable loss of life or collateral damage is on Hamas’s account; it was caused by their decisions and actions, and not Israel’s legitimate, necessary and proportionate response to those actions.  

Any loss of innocent life is tragic, but sometimes it is lawful. Both things can be true. And as Israel exercises its right to defend its very existence, they very likely will be. As Israel does just what it needs to do, may God protect the innocent — because we know Hamas will not.  

Mark Goldfeder is director of the National Jewish Advocacy Center (@MarkGoldfeder).