The Biden administration declared in July that the laws of war require presuming persons and structures in combat areas are civilian, overturning longstanding Department of Defense (DOD) rules. Secretary of State Antony Blinken, echoing the administration’s new position, has pressured Israel to limit its self-defense, citing the effect on Gazan civilians and infrastructure. Hamas, of course, regularly disguises its combatants as civilians, and uses civilian structures such as homes, mosques, schools, and hospitals as military facilities.
Hamas’s regular violations of the laws of war, including its use of human shields, make it impossible for Israel to defend itself without also killing Gazan civilians. Hamas has long sought to force Israel to harm Gazan civilian targets in order to stop the terror group’s genocidal violence. Blinken’s blaming Israel for Gazan casualties reverses causality and rewards Hamas’s strategy.
The actual extent of civilian harm in Gaza is unknown, and given the fog of war, likely unknowable. It is also impossible to know what portion of the damage to Gaza was caused by Israel, by Hamas attacks targeting Israelis that misfired and killed Gazans, or by the explosion of Hamas munitions hidden throughout Gazan population centers. As President Biden stated, Hamas Health Ministry casualty statistics are not credible; the ministry’s reported causes of such casualties are no more reliable.
Blinken’s declaration that “far too many” civilians have been harmed in Gaza sidesteps the questions of who is a civilian, and what constitutes civilian infrastructure. As the current Department of Defense Law of War Manual notes, combatants include not just those firing weapons, but all those performing “acts that are an integral part of combat operations or that effectively and substantially contribute to an adversary’s ability to conduct or sustain combat operations.”
Gazans involved in Hamas infrastructure-building, weapons-production, transportation, and logistics are not civilians, but combatants. So are those aiding Hamas’s military operations, such as spotters, including women and children, who help gunmen target Israelis and monitor troop movements. Gazan families imprisoning in their homes kidnapped Israelis are combatants committing war crimes.
Part-time war participants do not attain protected civilian status during their down time. The DOD’s Law of War Manual rejects the 1977 Protocol I to the Geneva Convention (a document that the U.S. signed but has refused to ratify) provision stating that “civilians shall enjoy the protection [from being made the object of attack], unless and for such time as they take a direct part in hostilities.” In addition, Hamas combatants do not magically become civilians because they are not wearing uniforms, even if some are also reporters. In fact, Hamas’s practice of disguising its fighters as civilians constitutes “perfidy” under international law, which refers to “acts that invite the confidence of enemy persons to lead them to believe that they are entitled to, or are obliged to accord, protection under the law of war, with intent to betray that confidence.”
Combatants legally can engage in deception of many kinds, such as feinting an attack from one direction and striking from another. International law bars combatants from disguising themselves as civilians, however, because the enemy can only distinguish between combatants and noncombatants when combatants are clearly identified. It also protects noncombatants only when they are not being used as human shields.
Hamas resorts to such illegal tactics in part because its fighters are no match for Israeli security forces. The terror group’s fighters disguise themselves as civilians, for example, and pop out of hiding in “civilian” structures to attack Israeli forces in Gaza and launch rockets at Israel. Hamas has integrated its military infrastructure into densely populated neighborhoods; in some neighborhoods, nearly every house contains guns and other weapons, often hidden in children’s rooms and under cribs.
Hamas’s deceptions require that Israeli soldiers make split-second decisions involving life and death. Those soldiers may have good reason to believe a person who appears to be an unarmed civilian is in fact a combatant hiding a gun or is trying to draw Israelis into an ambush, or that a Gazan home, mosque, hospital, or school is functioning as a Hamas base.
The United States has long opposed any international-law presumption that persons or objects in combat zones are civilians. Such a presumption would endanger American soldiers and encourage enemies to act with perfidy. President Obama’s Law of War Manual, for example, stated: “Under customary international law, no presumption of civilian status exists for persons or objects, nor is there any rule inhibiting commanders or other military personnel from acting on the information available to him or her in doubtful cases.” The U.S. refused to accept as law a Protocol I provision that would create such a presumption, one of the protocol’s several problematic, civilian-endangering sections.
That longstanding opposition changed when the DOD reversed its position last July to claim, in line with Protocol I, that persons and objects in combat zones must be presumed to be civilian under international law. International law is established by consistent state practice “out of a sense of legal obligation.” Remarkably, the DOD cited no such evidence to justify its new position.
Biden officials argue that the presumption still allows soldiers to make “timely decisions” in combat situations. But long and bitter American experience supports the DOD’s prior conclusion: “A legal presumption of civilian status in cases of doubt would demand a degree of certainty that would not account for the realities of war,” and “likely would increase the risk of harm to the civilian population and tend to undermine respect for the law of war.”
Perhaps the professionalization of the U.S. military and perceived weakness of the enemies it fights makes such battlefield dilemmas seem remote and clinical. But those dilemmas might be easier to understand if one considers soldiers who are otherwise everyday citizens, serving as conscripts or in the reserves, and are fighting to protect their nation’s existence and the lives of their families against a treacherous enemy. In a 1985 Washington Post article, then-Commerce secretary Malcolm Baldrige described his experience as a young GI in World War II:
On the front lines, it’s kill or be killed, and you have to be passable at it if you are going to last more than a night or two.
And the longer you last, if you’re going to beat the odds, the more you are brutalized. Question: Otherwise how could you give the order to fire on a bunch of Okinawan women looking for their dead near your lines on a quiet night lighted by a full moon? Answer: Because you suspected they were Japanese soldiers dressed in women’s robes. Question: Did you try to warn them off to see whether they were women and would leave? Answer: No. Thought about it, but a warning would have given away our location. Question: Shouldn’t you have been sure before firing? Answer: Being sure can get you killed—and they did turn out to be Japanese soldiers, every one.
Baldrige’s experience as a U.S. GI mirrors those of Israeli soldiers facing Hamas. Soldiers must be able to protect their own lives as they make split-second decisions, without response-slowing presumptions that could be fatal, even if their decisions might sometimes be mistaken.
Israeli civilians understand this. Consider the Israeli soldiers who tragically killed hostage Yotam Haim after mistaking him for a Hamas fighter. His mother Iris told those soldiers:
I am Yotam’s mother. I wanted to tell you that I love you very much, and I hug you here from afar. I know that everything that happened is absolutely not your fault, and nobody’s fault except that of Hamas, may their name be wiped out and their memory erased from the Earth.
As Iran and its minions escalate attacks against U.S. forces and international shipping, the Biden administration should not reward perfidy and other violations of the laws of war by handcuffing the American military and its allies with contrived legal obstacles that could endanger their lives and imperil our national security.
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