Who is Targeting Gazan Civilians and Who is Trying to Protect Them?

This article compares the war behavior of Israel and Hamas using the Internationally-accepted Laws of Armed Conflict (LOAC):

Under the laws of armed conflict (LOAC), also known as international humanitarian laws (overlapping but distinct from human rights law), it is illegal to take hostages and to intentionally target and to kill civilians. These laws, including the 1949 Geneva Conventions, came about due to the mass civilian casualties experienced in WWII after the cities of Dresden, Hiroshima and Nagasaki were decimated in the effort to stop aggressors Germany and Japan.

The 1949 conference approving the Geneva Conventions (Bettmann Archive/Getty Images)

To answer questions of legality during armed conflicts, we must turn to the standards set by the LOAC. How do these standards apply to both the actions of Hamas and the Israeli Defense Forces (IDF)? Is the taking of hostages legal under LOAC? In wartime, how many civilian deaths are too many? Is there a proportion of military personnel vs. civilians that is acceptable under international standards? What about legal vs. moral standards?

The LOAC applies to Hamas as well as Israel. Though Hamas may be considered a non-state as opposed to a state actor (Israel), the International Committee of the Red Cross includes Palestine as acceding to the 1949 Geneva Convention as well as other LOAC treaties. In its 2011 publication, “International Legal Protection of Human Rights in Armed Conflict,” the United Nations Office of the High Commission further stated, “It is also recognized that rules of customary international law related to non-international armed conflicts, such as the principles of distinction [of civilian vs. military] and proportionality, are applicable to non-state armed groups.”

The taking of hostages is strictly forbidden. Such action constitutes a war crime. The abductions by Hamas and other parties in Gaza are unequivocally illegal.

States have a right to defend themselves and to use the force required to eliminate threats. Under the LOAC, Israel has a right to defend itself not only from the attack on October 7, 2023, but from the continuing threats posed by Hamas, and other terrorist groups in Gaza. It is difficult to distinguish exactly who all perpetrators are because, as was documented on October 7, civilians from Gaza joined the invasion into Israel and committed atrocities alongside recognized terrorist groups. Those returning to Gaza were greeted in celebration of the atrocities and display of the bodies of victims, thus raising the question of which individuals in Gaza just happen to live there and are innocent and which individuals continue to pose a threat.

How to Plan for The Elimination Of Threats Under The LOAC

The key focus of the LOAC is the planning of each specific operation. The attacking party can only be evaluated on what it knew in advance – how the risk of collateral damage was assessed based on known information – not what became known after the operation took place. Compliance with the LOAC is evaluated based on a specific operation, not the general campaign or entire war.

Three major factors guide the process of planning for the elimination of threats under the LOAC.

  1. Distinction of military vs. civilian targets: Operations should target militants or military targets as opposed to civilians or civilian targets.
  2. Precautions in differentiating military vs. civilian targets: The attacking party should do what it can, what is feasible and what is reasonable to differentiate military and non-military targets. This may include warning civilians prior to a strike.
  3. Proportionality of military advantage to be gained vs. foreseeable civilian casualties: The use of force should be proportional to the military advantage to be gained. There is no determination of excess based on the ratio of civilian loss to one party as opposed to the other party to a conflict. The legality of civilian loss is not a raw calculation as an allowable proportion between the conflicting parties. It concerns the proportion of foreseeable civilian casualty vs. expected military gain based on prior knowledge, operational planning and execution.

Israel’s Positive Scorecard for Following LOAC Principles

This section discusses how the IDF and Hamas score on:

Distinction of military vs. civilian targets

Israel does not intentionally target civilians. In contrast, what happened on October 7 and the continued action taken to prioritize the safety comfort and security of its own members over the civilians they govern simply shock the conscience.

Hamas intentionally planned the October 7 attack to inflict the most harm on the people of Israel and within Israel. The targets were not specifically military. Hamas and its accompanying civilians indiscriminately and intentionally attacked civilians. Babies, toddlers, children, women, men, elderly and disabled people, foreign workers, tourists, Arab-speaking, Hebrew-speaking, Jewish, Christian, Muslims and Buddhists and other civilians were tortured, maimed, injured, killed or taken hostage.

Hamas had no military objective. Hamas made no attempt to take over or claim a piece of land or expand the border of Gaza. This was not about land. The aim was to defile and to eradicate any individual who is not a fellow jihadi. That includes Muslims who live in Israel. The target as determined by Hamas was every person whom they consider not to conform with their intent to form an Islamic caliphate under Sharia law.

At the same time, the barrage of rockets that was and are still launched from Gaza are not specifically aimed at military targets. No attempt is made to warn civilians of their launch. Though the density of Tel Aviv is greater than the cumulative population in the Gaza Strip, there is no plan to minimize harm to civilians. Instead, the aim was to kill as many people as possible.

Precautions in distinguishing between military vs. civilian targets

In terms of military planning, Israel strives for a gold standard in compliance with the LOAC. It is compulsory to include a legal team (the advocate general’s office) and abide by international law in war planning. In other countries with a similar professional military, such as the United States, a legal team only plays an advisory role.

Prior to starting air strikes in northern Gaza, Israel provided advance warning to Gazans living in the north to relocate to the south within a specified time span. Israel announced corridors of escape and refuge and it respected them during the conflict. However, Hamas deliberately blocked passage and even killed civilians attempting to flee what Israel announced would become a war zone.

Outside observers concur with the extraordinary steps taken by the Israeli Defense Forces (IDF)  to preserve civilian lives, even at the expense of sacrificing the element of surprise in war, even putting themselves at greater risk. Newsweek reported this on March 25, 2024: On a recent trip to Gaza, John Spencer, chair of the urban warfare studies at the Modern War Institute at West Point, who served 25 years as an infantry soldier, including two tours in Iraq, witnessed firsthand a number of measures Israel took to preserve civilian lives. For example, during the IDF operation at the al-Shifa Hospital in Gaza, Israel brought doctors to help Palestinian patients and carried food, water and medical supplies for the civilians inside. Israel gave warning, sometimes weeks in advance, for civilians to evacuate.

From the very start of the war, Israel deployed technologies never used in war anywhere in the world to direct civilians to safe spaces. In addition to distributing seven million flyers (to a population a little over 2 million), Israel made over 70,000 direct phone calls, sent over 13 million text messages and left over 15 million pre-recorded voice mails to notify civilians to leave impending combat areas. Drones with speakers and giant speakers dropped by parachute to broadcast the news. As a result, notes John Spencer, Israel was able to evacuate upwards of 85 percent of the urban areas in northern Gaza before the heaviest fighting began. This he compares with his research on urban warfare history, which shows that, no matter the effort, about 10 percent of the population stays.

Overall, as observed by Professor Spencer, “In my long career studying and advising the US military, I’ve never known an army to take such measures to attend to the enemy’s civilian population, especially while simultaneously combatting the enemy in the very same buildings. In fact, by my analysis, Israel has implemented more precautions to prevent civilian harm than any military in history – above and beyond what international law requires, and more than the U.S. did in its wars in Iraq and Afghanistan.”

Proportionality of military advantage to be gained vs. foreseeable civilian casualties

Despite the unique challenges posed by the density of the population in Gaza, the ratio of civilian to military deaths in Gaza is considered to be considerably lower than in the US conflict in Iraq.

The concept of proportionality under the LOAC is not completely captured by the ratios of military to civilian personnel. The total number of civilian casualties is not at issue. Rather, it is the number of civilians killed during a specific operation measured in light of the risks known or foreseeable prior to the operation and the military advantage expected to be gained. The LOAC calculation is based on available intelligence and foreseeable risk, not what is discovered after the operation is completed.

Not all risks are foreseeable. Hamas agents do not wear distinctive clothing and may blend in with the civilian population. They do not plan or act as a formal army and make no effort to protect the civilian population. The terrorists in the tunnels protect themselves, not the Gazans whom they have not intent to protect. In addition, a simple calculation of military vs. civilian casualties does not take into account the risk posed by the threat and what would happen if the threat is not eliminated.

Challenges to Applying LOAC in Gaza

Gaza’s situation makes it particularly hard to plan for minimizing civilian deaths. For example, how is the attacking party able to protect the civilians of the opposing side of the conflict when it is the intention of those civilians’ own governing power to prevent them from evacuating?

If there were a map of the elaborate tunnel system under Gaza ― what is there, who is hiding within and where hostages are held ― then Israel could plan accordingly. Instead, every building and structure is a potential source for a rocket launch, arms cache, military infrastructure or sanctuary for Hamas members and supporters. Indeed, Hamas ambushes IDF soldiers from tunnels even in territory the IDF thought they had cleared.

Only after going into Gaza with boots on the ground has the IDF verified certain sites. What is known in advance is that Hamas uses civilian cites such as hospitals, schools, mosques and even United Nations sites as part of their military operations. Indeed, after IDF ground troops entered Gaza, videos revealed the use of hospitals to hide hostages. Tunnels open into the bedrooms of children. Weapons have been found in infant incubators. Textbooks of school children show the extent to which the jihadi goals are inculcated into the minds of the civilian population during their lifetime – changing the calculation of risk factors when ordinary Gazans have been raised on a diet of hatred and exclusion of non-jihadis.

Planning for the minimization of civilian loss in Gaza is foiled when Hamas uses civilians as human shields and when they operate in tunnels, leaving the civilian population at risk. There is no legal symmetry between the parties in such cases. Instead, Hamas defends its members with the sacrifice of civilians. With civilian loss, they claim a victory in public sympathy and support.

What About Morality?

Putting aside purely legal matters, what about morality? Are Hamas and the IDF acting ethically in this conflict? According to Professor Amichai Cohen of the Israel Democracy Institute, in his interview on December 15, 2023, with the Times of Israel, “[In the history of conflict] there are no conflicts without ethical violations.” In the current conflict, there are no illusions that Hamas has or shall act legally or morally. In contrast, every move made by the IDF is under intense scrutiny.

The IDF tragically fumbled in December, 2023, when it fired upon and killed the hostages it intended to rescue and then in April, 2024, when it struck a convoy of World Central Kitchen staffers. The IDF admitted its errors and faces the consequences. Reviewing its operations over more than half a year, however, the IDF has acted more responsibly than any other fighting force in the world. At the same time, Hamas has no intention of following the LOAC. The world has failed to either scrutinize them or hold them to account to follow even basic laws of humanity, much less the LOAC.

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