Australia / Israel Review

War, especially in places as densely populated as Gaza, is awful. No matter how hard military forces try to avoid inflicting death and suffering on civilians, that outcome seems inevitable. But while the rules of war demand that both sides respect the law equally, there is simply no requirement for equality of condemnation for that suffering. Yet again, the near-obsession to condemn both sides of the conflict for war crimes is on full display. The immediate international assumption that Israel was responsible for the tragic hospital incident, an assumption subsequently discredited based on compelling evidence, is the latest example of this phenomenon.

Legal responsibility for civilian suffering cannot be validly assessed simply by asking which side dropped the bomb. In this conflict especially, that responsibility falls at the feet of Hamas – the side that not only deliberately attacks civilians, but uses its own civilians as camouflage and human shields.

The barbaric actions of Hamas when it attacked Israel generated what is arguably unprecedented condemnation around the world. No one needed a degree in international law to understand these actions were war crimes of the greatest magnitude. And while Hamas operatives are not conducting operations on behalf of a state, they are bound to the identical rules of war, or the law of armed conflict, that applies to Israeli armed forces. This “equality of application” is a bedrock principle of the law – the law applies equally to both sides.

This principle is not impacted by why each side fights; it is focused exclusively on how they fight. Even if one side believes it is fighting for a just cause and the other is not, the law of armed conflict regulates the conduct of all sides. This may seem illogical, but any other approach would exacerbate the humanitarian suffering of war. 

Sadly, this principle of equal application often fails, and Hamas is a prime example. It has confirmed what Israel and many experts have known for years: a complete disregard for the most basic rules of war. The Israel Defence Forces (IDF) will try to mitigate civilian risk, while Hamas will try to exacerbate it.

Even worse, Hamas knows that the IDF’s respect for the law is a tool it can leverage to gain tactical and strategic advantage. One need only consider its demand that civilians in Gaza ignore Israeli calls to evacuate. Hamas knows that the presence of civilians will substantially complicate IDF combat operations in Gaza. Why? Because, unlike Hamas, the IDF will try to mitigate civilian risk. Hamas knows that the presence of those civilians will either result in attack cancellation or the difficult decision to attack the target because the importance of the attack outweighs the collateral risk to civilians.

If the attack is cancelled, the target is spared; if the attack is conducted, the unavoidable civilian casualties will be exploited in the strategic information war. Either way, Hamas wins, but only if the instinct for equality of condemnation ignores a credible assessment of who bears true responsibility for civilian harm.

The current focus on humanitarian suffering in Gaza also demonstrates this instinct. The decision to cut off resources allowed into Gaza was quickly condemned as a war crime. In fact, the legality assessment is far more complex than simply highlighting the impact on civilians. This is not to say that Israel should be indifferent to that impact; it should seek (and is seeking) to offset the impact of such measures when doing so will not compromise its military objectives. But to immediately and almost automatically equate civilian suffering that is incidental to efforts directed at weakening and defeating enemy forces with the intentional murder, mutilation, and attack on civilians reveals not only a misunderstanding of the law that regulates war but a false equivalency of condemnation.

The instinct that fairness demands equality of condemnation is invalid. True fairness demands accusations of war crimes are based on credible facts and an accurate understanding of the law. 

Geoffrey S. Corn is the George R. Killam, Jr. Chair of Criminal Law and Director of the Center for Military Law and Policy at Texas Tech University School of Law and a Distinguished Fellow at the JINSA [Jewish Institute for the National Security of America] Gemunder Center for Defense & Strategy. © JINSA (JINSA.org), reprinted by permission, all rights reserved.