Israel Has Committed No War Crimes—Hamas Has

Alan Dershowitz

Israel Has Committed No War Crimes—Hamas Has

Critics of Israel have charged the Jewish state with committing atrocities and even “genocide” in its ongoing war with Hamas. The South African government has even brought these charges before the International Court of Justice. The accusations are without merit: Israel has committed no war crimes in seeking to degrade and destroy Hamas in Gaza. Hamas, by contrast, has committed at least four categories of war crimes.

First, Hamas waged an aggressive war against Israel, crossing its border and murdering, raping, and kidnapping civilians. Second, it has targeted civilians with its rockets. Third, it has dressed its terrorists in civilian clothing, thus eliminating the important distinction between combatants and civilians. And fourth, it has used its own civilians as human shields.

Unlike Hamas, which began this war, Israel has acted in self-defense. Under international law it has the right and obligation to defend its citizens by all reasonable and lawful means.

In doing so, the Israel Defense Forces have made extraordinary efforts to target only combatants. Notwithstanding these efforts, Palestinian civilians have been killed, largely because Hamas has deliberately embedded its war machinery among civilians to produce dead bodies to display to the media.

Hamas-controlled health authorities have claimed about 22,000 Palestinians have been killed thus far. But they haven’t distinguished between combatants and civilians. Israel claims to have killed approximately 7,000 combatants. Hamas claims that many of those killed were children and women. But they haven’t revealed the ages of the dead children, whom the terror group defines as anyone under 19. Hamas actively recruits terrorists from the age of 13. This brutal strategy, itself a war crime, raises discomfiting questions about Hamas’s fatality claims: An 18-year-old with an RPG or an assault weapon is as much a combatant as a 30-year-old.

The same is true of women. Hamas regards women as incapable of performing many roles, but one role many are recruited to perform is that of terrorist and combatant. And so it can’t be assumed that all of the women who have been killed were civilians.

Then there are those who have been killed by “friendly fire”—including misfired rockets and bullets fired by Hamas against Palestinians who were trying to flee to safe areas.

Although it is impossible to know for certain how many actually innocent civilians have been killed, the number is certainly far lower than estimates put forward by Hamas and its supporters. Even if it is as high as 14,000, that would produce a ratio of civilians to combatants killed of roughly 2 to 1—that is, for every combatant killed, two civilians would have been killed.

“Israel’s record is far better than that of any other country in the history of modern urban warfare.”

If this ratio is close to being true, then Israel’s record is far better than that of any other country in the history of modern urban warfare facing comparable enemies and tactics. Typical ratios of civilian to combatant deaths range from 3 to 1 to 10 to 1, as in the cases of Afghanistan, Iraq, Yemen, and Syria. And those ratios occur in situations where civilians aren’t used as human shields.

This brings us to the law of war. The only requirement of proportionality under international law is that when combatants are targeted in areas where civilians are present, the value of the military target must be proportional to the number of anticipated civilian deaths. This highly subjective judgment can’t be the basis of a war-crime prosecution, unless the judgment is utterly unreasonable. The 2-to-1 ratio is not only reasonable, but far better than that achieved by other armed forces facing comparable situations. Thus, were Israel to be prosecuted for violating the principle of proportionality, that would necessarily involve the application of a double standard against the Jewish state.

The charge of genocide made by South Africa is even less persuasive. Real genocides have taken place in the world today, especially in Africa. South Africa has been silent about these neighboring genocides. And it is weakening the term itself by selectively politicizing it against Israel. Gaza has grown in population during the period in which genocide is charged. Israel has provided health care to Gazans in need of Israeli hospitals. It provided high-paying jobs in Israel to thousands of Gazans. These aren’t the actions of a nation engaged in genocide.

Genocide is directed against an entire people, not just criminals and terrorists among them. To accuse Israel of genocide is to fail to distinguish between the legitimate military goal of ending a terrorist organization, such as Hamas, and the illegitimate goal of ending the existence of an entire ethnic or religious group.

The term genocide was coined to describe the Nazi effort to rid the world of all Jews. Accusing Israel of genocide is a form of Holocaust denial, since no one even suggests that Israel has extermination camps, gas chambers, or other mechanisms that exemplified the Holocaust. If Israel were to be found guilty of genocide, the very meaning of that horrible crime would be diluted beyond recognition. It would then apply to the US bombing of Hiroshima, the British bombing of Dresden, and the killing of civilians during the Afghan, Iraqi, and Syrian military actions.

Every civilian death in wartime is a tragedy, and Hamas knew it was signing the death warrants of many civilians when it attacked Israel and then hid its war machinery among Gaza’s civilian population. The death of a human shield is the legal and moral responsibility of those who deliberately placed civilians in harm’s way. Consider the following example: A bank robber starts shooting at customers. When the police arrive, the robber grabs one of the customers and uses her as a human shield. A policeman, in an effort to save the lives of customers, tries to shoot the robber. But the hostage suddenly makes a move, and then the policeman’s bullet hits and kills her. Under the law of every nation, it is the hostage taker, not the policeman who is guilty of killing the hostage, even though the bullet that killed her came from the policeman’s gun.

It is Hamas and its Iranian patrons that should be on trial, not the victims of Hamas barbarism.

Alan Dershowitz is a professor emeritus at Harvard Law School and author, among many other books, of Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law.