Israel, Hamas and the Law of War

If the State Department’s criticisms are serious, they imperil the defense of all civilized countries.

By David B. Rivkin, Jr., and Lee A. Casey

May 30, 2024, in the Wall Street Journal

As it defends itself against Hamas in Gaza, Israel has come under sustained political, media and legal attack for supposedly violating international law—and not only from hostile countries and bodies like the International Criminal Court and the International Court of Justice. On May 10 the U.S. State Department sent a report to Congress that concluded U.S.-provided arms have been used by Israel “in instances inconsistent with its IHL”—international humanitarian law—“obligations or with established best practices for mitigating civilian harm.”

These criticisms are based on a distorted view of the law of war and its crucial legal principles—distinction, proportionality, and the obligations owed to enemy civilians. They threaten Israel’s strategic interests and the ability of all law-abiding nations to defend themselves.

The law of armed conflict is a practical set of rules directed at ameliorating the harms of war—originally with respect to those engaged in combat, and over the years expanding to noncombatants associated with the military and ultimately to civilians. Protecting civilians and civilian property is an important goal of the laws of war, but not their paramount goal.

Other equally important goals are regulating the means and methods of warfare, ensuring appropriate treatment for wounded combatants and prisoners of war, and ensuring that the war aims of belligerents—generally understood as “military necessity”—can be pursued within these rules and requirements. But the law of war is in no way intended to level the playing field in favor of the weaker party.

The law of war has many sources, but the Biden administration should have followed the standard U.S. position, as laid out in the Law of War Manual. One of its most important teachings is that “although military necessity cannot justify actions that have been prohibited by the law of war, some law of war rules expressly incorporate military necessity.” That’s especially true of rules meant to protect civilian populations affected by armed conflict, largely embodied in the principles of “distinction” and “proportionality.”

The principle of distinction provides that civilians can’t be deliberately targeted for attack, as Hamas did on Oct. 7 and routinely does. In choosing how and what to attack, military commanders must make good-faith efforts to distinguish between civilian and military targets. “The law of war does not require that commanders and other decision-makers apply a fixed standard of evidence or proof,” the manual says. Rather, they “exercise professional judgment in making any assessment that a person or object is a military objective.”

Equally important is the principle of proportionality, whose meaning is widely misunderstood. Proportionality requires that the expected harms to civilians and civilian property from an attack can’t be “excessive” when compared with “the concrete and direct military advantage expected to be gained.” The comparison isn’t to the number of soldiers killed or to the number of casualties on each side of the conflict. Nor is there any upper limit on the number of civilian deaths that will trigger “war crimes” if exceeded.

The manual clearly states that “in assessing the military advantage of attacking an object, one may consider the entire war strategy rather than only the potential tactical gains from attacking that object.” There is a significant subjective component in making proportionality determinations. “It could often be the case that reasonable persons might disagree as to whether the expected civilian casualties from an attack would be excessive,” the manual states. “Similarly, reasonable commanders might make different decisions in applying the principle of proportionality.”

Commanders are also enjoined to take “feasible” precautions to protect civilians during an attack. Such measures might include attacking at times when civilians are less likely to be present and giving advance warnings. But the “standard for what precautions must be taken is one of due regard or diligence, not an absolute requirement to do everything possible.” Moreover, “a commander may determine that a precaution would not be feasible because it would result in increased operational risk (i.e., a risk of failing to accomplish the mission) or an increased risk of harm to his or her forces.”

A critical and too often ignored aspect of the laws of war is that each party to a conflict is primarily responsible for protecting its own civilian population by moving them away from military targets and taking other measures to shield them. Hamas not only fails to meet these obligations; it uses civilians as human shields and invites casualties for propaganda purposes. That doesn’t relieve Israel from its proportionality obligations, but the manual makes clear that additional civilian injuries resulting from this illegal tactic are “a factor that may be considered in determining whether such harm is excessive.” Hamas is also looting aid shipments, making it more difficult for assistance to reach Gaza civilians.

Based on these rules and currently available credible evidence, there is no reasonable case that Israel has violated the laws of war. Such claims are grounded at best in speculation, which is unlikely to be entirely accurate. To the extent that Israel hasn’t followed U.S. “best practices,” as the State Department complains, it doesn’t mean there have been violations. Such measures are prudential and not required by law. Hamas, by contrast, indisputably commits war crimes by deliberately attacking civilians, brutalizing Israeli women and children, taking hostages, systematically locating military facilities in or near civilian installations, and using Palestinian civilians as human shields.

Other antagonists of Israel, including at the ICC and the ICJ, have argued in addition that the Jewish state, as an “occupying” power, is obligated to feed, clothe and protect Gaza’s civilian population. But Israel left the strip in 2005. Hamas initiated the current armed conflict, and Israel won’t have the obligations of an occupying power unless it takes control of the territory after hostilities are ended.

If the U.S. and other civilized countries follow the logic of these criticisms of Israel, the consequences will be dire. Most immediately, U.S. condemnations will embolden the Jewish state’s enemies—most of which are also hostile to the U.S.—and could impede Israel’s ability to defeat Hamas. In the future, the administration’s standards of conduct could impair the ability of all law-abiding nations to defend themselves.

Nuclear deterrence, the mainstay of U.S. defense strategy, would be delegitimized if obligations to the civilian population are expanded so that injury to civilians is elevated over all other considerations in determining whether a particular combat operation is lawful. Even in peacetime, this approach would be terrible statecraft. At a time when rogue states and terrorist organizations are waging numerous wars, it’s a formula for global anarchy.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.


The Primitive Pacifism of Pope Francis’ Lecture to Israel

The Catholic Church developed just-war theory, but the pontiff doesn’t seem to understand it.

By David B. Rivkin and Peter Berkowitz

December 13, 2023, in the Wall Street Journal

Pope Francis reportedly warned Israeli President Isaac Herzog in a phone call that it is “forbidden to respond to terror with terror.” Assuming he meant this as a criticism of Israel’s efforts to defend itself against Hamas, one might dismiss it as the ill-informed opinion of a left-leaning politician. But the pope’s error is worth taking seriously, because he speaks with some authority on matters of war and peace. Catholic theology has shaped the Judeo-Christian “just war” theory that midwifed the modern laws of war.

If the pope believes there is a certain level of civilian casualties in Gaza that is per se impermissible, he is fundamentally wrong. That view, common though it is, conflicts with key just-war precepts that demand careful balancing of competing imperatives.

Just-war doctrine, while refined over the centuries, was largely developed within the Christian tradition by St. Augustine of Hippo in the fourth century. Augustine rejected primitive Christian pacifism and argued that war, waged in compliance with proper rules, is a necessary tool of ethical statecraft. Acknowledging the sanctity of human life and expressing concern about the harm inevitably caused by a clash of arms, just war’s principal role is to protect the innocent to the extent possible, a task that pacifism can’t accomplish.

Just-war precepts, as incorporated into the traditional laws of war, have two distinct components. The first, jus ad bellum, comprises the rules governing when force may be rightly used. These include just cause, legitimate authority, public declaration, proper intent, proportionality, use of arms as the last resort, and reasonable hope for success. Given Hamas’s longstanding resolve to destroy the Jewish state, the failure of several Israeli military campaigns over the years to deter the terror group, and the Oct. 7 massacre, Israel unquestionably meets these criteria.

The second component, jus in bello, encompasses the rules governing how force may be lawfully used, including at whom it may be directed. This component underwent considerable doctrinal refinement between the 17th and 19th centuries. On April 24, 1863, the U.S. became the first military power to promulgate a comprehensive jus in bello manual, known as the Lieber Code.

Combatants must comply with both jus in bello and jus ad bellum, and violations by one side don’t justify violations by the other. Yet defining a war crime isn’t a simple matter of counting bodies. The weighing of conflicting imperatives permeates every facet of just-war theory. Guiding this balancing is the principle of double effect, which holds that it is morally permissible to act in pursuit of a good goal even if doing so would produce unintended but foreseeable harm. This principle is undergirded by a broad proportionality requirement, which measures the totality of positive and negative consequences of prosecuting a given war.

Jus in bello law contains two basic principles. The principle of discrimination forbids deliberate attacks on civilians and civilian infrastructure. It is absolute and brooks no departures. The principle of proportionality holds that in attacking legitimate military targets—which include military facilities that Hamas has integrated into civilian infrastructure—combatants are permitted to cause unavoidable collateral damage to civilians and civilian infrastructure, provided the harm is proportional to the value of the legitimate military objectives being sought. Destroying Hamas qualifies as a paramount military objective.

The principle of proportionality has been traditionally applied with considerable flexibility, in part because balancing its imperatives depends on combat circumstances that involve complex technical matters that are inherently difficult to gauge.

The laws of war used to play no favorites. Since World War II, however, humanitarian organizations, led by the International Committee of the Red Cross, have sought to provide special privileges for national liberation movements, an imprecise term that could include Hamas. These organizations have also tried to dilute rules that classify as unlawful enemy combatants fighters who don’t bear arms openly, don’t wear distinctive uniforms, and don’t operate in military organizations that feature well-defined command structures. Those efforts have constrained the military flexibility of law-abiding powers.

Equating unintended and proportional collateral damage with terrorism, as Pope Francis apparently did, goes further. It undermines the right to self-defense, the cornerstone of the laws of war. If the characterization of Israel’s exercise of its right of self-defense as terrorism were to prevail, the laws of war, instead of reflecting the military imperatives of law-abiding powers, would give a decisive advantage to terrorists and rogue states.

This is particularly dangerous at a time when Hamas jihadists commit horrific war crimes and Russia attacks, tortures and rapes civilians and brutalizes prisoners of war. For rogue entities like these, war crimes aren’t a cruel aberration but an integral part of their battle plans.

The pope’s comments to Mr. Herzog amount to a rejection of just-war theory and an embrace of primitive pacifism. They fail to understand that what happens in Gaza won’t stay in Gaza. If the laws of war were rewritten to preclude law-abiding powers like Israel and the U.S. from defending themselves against lawless combatants like Hamas, Hezbollah and Iran, lawlessness would inevitably prevail.

Mr. Rivkin practices appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Berkowitz is a senior fellow at Stanford’s Hoover Institution. He served as director of the U.S. State Department’s policy planning staff, 2019-21.


Let the President Decide on Jerusalem

Since the 1990s, Congress has maintained that Jerusalem should be recognized as Israel’s capital. Since Israel’s founding in 1948, presidents have stated that Jerusalem’s status can only be decided as part of a broader peace settlement. On Monday this dispute again reached the Supreme Court, and it offers the justices a unique opportunity to elucidate the proper way to resolve separation-of-power disputes between Congress and the executive.

Zivotofsky v. Kerry involves Menachem Zivotofsky, a 12-year-old Jerusalem-born American citizen. His parents want Israel identified as his birthplace on his passport. Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, permits this choice, but the secretary of state refused to comply, listing Jerusalem alone as his place of birth. The secretary argues that the law violates established U.S. foreign policy and interferes with the president’s exclusive power to recognize foreign states and their territorial extent.

In the first round of this litigation, the U.S. Court of Appeals for the District of Columbia concluded that this contest presented a political question that the courts could not answer. The Supreme Court reversed that decision, explaining that however “political” the circumstances, the question was a straightforward one of constitutional law suitable for judicial resolution.

The D.C. Circuit reheard the case last year and concluded that section 214(d) is unconstitutional because the president has the exclusive authority to determine the territorial boundaries of foreign states, their capitals and their governments—at least for purposes of U.S. diplomatic intercourse.

This authority is based in clear constitutional text that gives the president the power “to receive Ambassadors and other public Ministers.” Although the court found this language ambiguous (relying instead on historical practice and Supreme Court statements that the president alone has the power to recognize a foreign state as sovereign), the framers used this language precisely and to a purpose.

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The myth of occupied Gaza

By David B. Rivkin Jr. and Lee A. Casey

(originally published in The Washington Post on Saturday, May 10, 2008)

Hamas claims that former president Jimmy Carter’s recent meeting with its leader, Khaled Meshal, marks its recognition as a “national liberation movement” — even though Hamas rockets fired from the Gaza Strip, which Hamas rules as an elected “government,” continue to rain down on Israel’s civilian population. While Hamas is clearly trying to bolster its legitimacy, the conflict along Israel’s southern border has a broader legal dimension — the question of whether, as a matter of international law, Israel “occupies” Gaza. The answer is pivotal: It governs the legal rights of Israel and Gaza’s population and may well set a legal precedent for wars between sovereign states and non-state entities, including terrorist groups such as al-Qaeda.

Israel’s critics argue that Gaza remains “occupied” territory, even though Israeli forces were unilaterally withdrawn from the area in August 2005. (Hamas won a majority in the Gazan assembly in 2006 and seized control militarily in 2007.) If this is so, Jerusalem is responsible for the health and welfare of Gazans and is arguably limited in any type of military force it uses in response to continuing Hamas attacks. Moreover, even Israel’s nonmilitary responses to Hamas-led terrorist activities — severely limiting the flow of food, fuel and other commodities into Gaza — would violate its obligations as an occupying power.

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Criticizing Netanyahu, Barak on Iran is a luxury Israel can’t afford

The critics should look no further than the U.S. to see what consequences can ensue.


While the Israeli political scene is no stranger to strident criticisms directed at senior government officials and their policies, the recent attacks on Prime Minister Benjamin Netanyahu and Defense Minister Ehud Barak over their policies toward Iran are a dangerous luxury.

Numerous retired security officials who do not lack a private voice or influence within a small nation. including former Shin Bet head, Yuval Diskin, ex- Mossad chief, Meir Dagan, and Former IDF Chief of General Staff Gabi Ashkenazi, have launched broadsides against the current Israeli government’s dire assessments of the Iranian threat and the best ways of dealing with it.

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