David B. Rivkin Jr. and Lee A. Casey
As it defends itself against Hamas in Gaza, Israel has come under sustained political, media and legal attack for supposedly violating international law—and not only from hostile countries and bodies like the International Criminal Court and the International Court of Justice. On May 10 the U.S. State Department sent a report to Congress that concluded U.S.-provided arms have been used by Israel “in instances inconsistent with its IHL”—international humanitarian law—“obligations or with established best practices for mitigating civilian harm.”
These criticisms are based on a distorted view of the law of war and its crucial legal principles—distinction, proportionality, and the obligations owed to enemy civilians. They threaten Israel’s strategic interests and the ability of all law-abiding nations to defend themselves.
The law of armed conflict is a practical set of rules directed at ameliorating the harms of war—originally with respect to those engaged in combat, and over the years expanding to noncombatants associated with the military and ultimately to civilians. Protecting civilians and civilian property is an important goal of the laws of war, but not their paramount goal.
Other equally important goals are regulating the means and methods of warfare, ensuring appropriate treatment for wounded combatants and prisoners of war, and ensuring that the war aims of belligerents—generally understood as “military necessity”—can be pursued within these rules and requirements. But the law of war is in no way intended to level the playing field in favor of the weaker party.
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