“The law of war can no more wholly dispense with retaliation than can the law of nations, of which it is a branch. Yet civilized nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous outrage.”

President Abraham Lincoln’s military orders resonate 160 years later, after Hamas’s barbaric invasion of Israel on the Jewish holiday of Simchat Torah, the worst attack against Jews since the Holocaust. Hamas-run Gaza, effectively an independent country, organized the massacre and murdered more than 1,200 Israelis and foreigners, the vast majority civilians, with widespread torture, rape, and mutilation.

Hamas bound victims, including young children, and burned them alive, leaving ashen remains that took weeks to identify. Hamas tortured and killed parents and children in front of each other, and, in one instance, sat down to eat the family’s holiday meal. Hamas broke into one home, tortured the father, raped the mother, murdered both, and burned alive their baby child in the oven. Hamas ripped open the stomach of a pregnant woman, stabbed the baby, and shot the mother. Hamas took 240 hostages, some of whom it raped and paraded around Gaza. Hamas videotaped its atrocities with GoPro cameras, and sometimes with the phones of its victims.

“It is the duty of every government to give protection to its citizens, of whatever class, color, or condition,” said President Lincoln. No government but Israel’s carries, or will fulfill, this responsibility to protect the Israeli people. To do so, the Israeli government must destroy Hamas and convince Palestinian Arabs that massacring Israelis will backfire. Its response must be devastating enough to deter Israel’s other enemies, chiefly Iran. The Islamic Republic wants to erase Israel from the map and may soon have the means to do so with a breakout time of a month to build multiple nuclear bombs.

This imminent peril seems immaterial to the Biden administration, whose repeated lectures about international law contradict America’s legal position, harm humanitarian objectives, and embolden our enemies. The administration wrongly asserts that Hamas’s use of human shields legally restricts Israel’s right to attack Hamas military targets. It also ignores the fact that a party suffering barbaric attacks has a right to reprisal—that is, to take steps otherwise prohibited by international law, such as attacking protected targets. Reprisals must be proportionate, but they do not have to mirror the actions for which the reprisal is being taken. Their purpose is not revenge but to deter further such attacks.

Reprisals are fraught but sometimes necessary against parties that wantonly violate international law. “Historically, reciprocity has been the major sanction underlying the laws of war,” State Department Legal Adviser Abraham Sofaer said in 1987. For example, Lincoln threatened reprisals against rebel prisoners of war in response to Confederate threats against black Union soldiers.

The 1949 Geneva Convention, ratified by the U.S., prohibits reprisals against prisoners of war. The Convention’s 1977 Additional Protocol I purports to prohibit reprisals against civilians. Though President Jimmy Carter signed the Protocol, the United States, after vehement opposition from President Ronald Reagan, refused to ratify it. The Protocol contains several provisions, such as those concerning reprisals, purporting to advance humanitarian objectives, but that would in fact do the opposite. The Protocol would do tremendous harm to international law by advantaging combatants based on whether they are supposedly “fighting against colonial domination, alien occupation or racist regimes.” It would also harm civilians by giving privileged combatant status to terrorists who do not follow the rules of war and base themselves among civilians, forcing the enemy to suspect that anyone could be a combatant.

The Department of Defense’s Law of War Manual (updated in July) maintains the view of the United States that the Protocol’s “provisions on reprisal are counterproductive and that they remove a significant deterrent that protects civilians and war victims on all sides of a conflict.” Even many countries that ratified the Protocol refuse to follow these provisions, which would encourage nations not concerned about international law—such as China, Russia, and Iran—to carry out atrocities without fear of reprisal.

Israel faces a similar calculation as Lincoln. Hamas has vowed to stage future rampages until Israel is destroyed. Polling shows Palestinian Arabs overwhelmingly support the October massacre, overwhelmingly oppose Israel’s existence, and view the attack as reinforcing their determination to destroy Israel. Fatah, led by Palestinian National Authority president Mahmoud Abbas, boasts of participating in the attack and has called for a repeat. The Authority refuses to condemn the slaughter, for which it obscenely blames Israel.

Thus far, Israel has not undertaken any reprisals for October 7. Further, Israel has gone to extraordinary lengths, well beyond the requirements of international law, to avoid civilian harms in attacks against clearly permissible Hamas military targets, at great risk to the lives of Israeli civilians and combatants. Whether to undertake a reprisal is a horrendously complex policy decision—but one that is Israel’s legal right to make, as it tries to survive an exterminationist threat.

Photo by MENAHEM KAHANA/AFP via Getty Images


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