By: John Spencer
Published: Nov 7, 2023
Editor’s Note: John Spencer is chair of urban warfare studies at the Modern War Institute (MWI) at West Point, codirector of MWI’s Urban Warfare Project and host of the “Urban Warfare Project Podcast.” He served for 25 years as an infantry soldier, which included two combat tours in Iraq. He is the author of the book “Connected Soldiers: Life, Leadership, and Social Connection in Modern War” and co-author of “Understanding Urban Warfare.” The views expressed in this commentary are his own. View more opinion on CNN.
CNN — All war is hell. All war is killing and destruction, and historically civilians are inordinately the innocent victims of wars. Urban warfare is a unique type of hell not just for soldiers, who face assaults from a million windows or deep tunnels below them, but especially for civilians. Noncombatants have accounted for 90% of casualties per international humanitarian experts in the modern wars that have occurred in populated urban areas such as Iraq’s Mosul and Syria’s Raqqa, even when a Western power like the United States is leading or supporting the campaign.
The destruction and suffering, as awful as they are, don’t automatically constitute war crimes – otherwise, nearly any military action in a populated area would violate the laws of armed conflict, rules distilled from a complicated patchwork of international treaties, court rulings and historic conventions. Scenes of devastation, like Israel’s strikes on the Jabalya refugee camp in northern Gaza earlier this week, quickly spark accusations that Israel is engaging in war crimes, such as indiscriminately killing civilians and engaging in revenge attacks. But war crimes must be assessed on evidence and the standards of armed conflict, not a quick glimpse at the harrowing aftermath of an attack.
Hamas forces indisputably violated multiple laws of war on October 7 in taking Israelis hostage and raping, torturing and directly targeting civilians, as well continuing to attack Israeli population centers with rockets. Years of intelligence assessments and media reports have shown that Hamas also commits war crimes by using human shields for its weapons and command centers and by purposely putting military capabilities in protected sites like hospitals, mosques and schools.
On the other hand, nothing I have seen shows that the Israel Defense Forces are not following the laws of wars in Gaza, particularly when the charges that the IDF is committing war crimes so often come too quickly for there to have been an examination of the factors that determine whether an attack, and the resulting civilian casualties, are lawful. The factors that need to be assessed are the major dimensions of the most commonly agreed to international humanitarian law principles: military necessity, proportionality, distinction, humanity and honor.
President Joe Biden and multiple European countries, including the UK, Germany and France, are supporting Israel’s self-defense even as they express concerns over the humanitarian situation in Gaza. Though Gaza’s legal status is unresolved under international law, Israel needs no permission to enter the territory and resort to using force in order to wage defensive operations because Israel’s right to immediate and unilateral self-defense in accordance with Article 51 of the UN Charter is universally recognized.
Israel has pledged to obey international law, and one of its cornerstones is proportionality. The concept is often misunderstood to allow only for equal numbers of civilian casualties on both sides, with any lopsided numbers considered disproportionate. But proportionality is actually a requirement to take into account how much civilian harm is anticipated in comparison to the expected concrete and direct military advantage, according to UN protocols. In other words, a high civilian death count in Jabalya could potentially be considered legal under international law so long as the military objective is of high value. The Israel Defense Forces said the intended target in this case was the senior Hamas commander who oversaw all military operations in the northern Gaza; neutralizing him is an objective that most likely clears the proportional bar. Furthermore, Israel pointed out that the loss of life was compounded because Hamas had built tunnels that weakened the targeted structure that then collapsed in the strike.
The attack also passes muster on the level of “military necessity,” the principle that the action was necessary to pursue an allowed military goal (killing enemy troops), rather than an illegal goal (causing civilians to suffer). The IDF has said that its aim is to remove the rockets, ammunitions depot, power and transportation systems Hamas has embedded within their civilian population. So far, a number of military experts have assessed that Israel appears to be trying to follow the law of armed conflict in its Gaza campaign.
Of the remaining principles of the law of war – distinction, humanity (which, as the International Committee of the Red Cross phrases it, “forbids the infliction of all suffering, injury or destruction not necessary for achieving the legitimate purpose of a conflict”) and honor in conduct of waging war – the principle of distinction is the most complex. Distinction requires Israel to “distinguish between the civilian population and combatants” and between civilian facilities and military targets, while taking all feasible precautions to avoid civilian casualties. So far I have seen the IDF implementing – and in some cases going beyond – many of the best practices developed to minimize the harm of civilians in similar large-scale urban battles.
These IDF practices include calling everyone in a building to alert them of a pending air strike and giving them time to evacuate – a tactic I’ve never seen elsewhere in my decades of experience, as it also notifies the enemy of the attack – and sometimes even dropping small munitions on top of a building to provide additional warning. They have been conducting multiple weeks of requests that civilians evacuate certain parts of Gaza using multi-media broadcasts, texts and flyer drops. They’ve also provided routes that will not be targeted so that civilians have paths to non-combat areas, though there have been some tragic reports that Palestinians from northern Gaza who have relocated to the south were subsequently killed as the war rages throughout the strip.
When Hamas uses a hospital, school or mosque for military purpose, it can lose its protected status and become a legal military target. Israel must still make all feasible attempts to get as many civilians out of the site as possible, but the sites don’t need to be clear of civilians before being attacked.
Unfortunately, it’s essentially impossible to empty a city of all civilians before conducting an urban battle. Some people always stay, and it can be impossible for the elderly, infirm, hospitalized and similar to evacuate. In the densely populated Gaza Strip, where most Palestinians have nowhere to fully escape the dangers of the war, the proportion of those who remain is likely to be higher, as border crossings remain closed to nearly all Gazans, many Palestinians object to leaving and Hamas has warned others not to go.
Still, even if Hamas has no interest in meeting its obligation to take all feasible precautions to minimize harm to civilians, Israel does and should. The IDF should take steps like constraining its forces to smaller portions of larger urban areas while continuing to provide safe areas and routes out of the combat areas. It should continue its calls for civilian evacuations. It should restrict the use of air strikes and artillery near certain safe areas or gatherings of civilians. It should continue to cooperate with the US in facilitating the entry of humanitarian supplies into Gaza (though it’s reasonable to block fuel, which Hamas can use in its attacks and which the group is also stockpiling while refusing to share it with its own people).
There is no escaping that pursuing a terrorist organization touches off a nightmarish landscape of war. The visually repulsive imagery in Gaza essentially recreates the same scenes that unfolded under American and allied campaigns fighting Al Qaeda, ISIS and other terror groups, because that is what it looks like when you are forced to uproot a sadistic terror organization embedded in an urban area. Sadly, successful US-led or supported campaigns in places such as Mosul and Raqqa caused billions of dollars in damage and killed and displaced hundreds of thousands of civilians; that is the hellish reality of defeating terrorism.
Like all similar conflicts in modern times, a battle in Gaza will look like the entire city was purposely razed to the ground or indiscriminately carpet bombed – but it wasn’t. Israel possesses the military capacity to do so, and the fact that it doesn’t employ such means is further evidence that it is respecting the rules of war. It is also a sign that this is not revenge – a gross mischaracterization of Israeli aims – but instead a careful defensive campaign to ensure Israel’s survival.
==
In the international laws relating to the rules of war, certain people, places and things have protected status. Civilians have protected status (as mentioned above, uniforms are supposed to distinguish combatants from civilians). Hospitals and schools have protected status. Medical equipment has protected status.
But protected status can be forfeited. When a Gaza citizen picks up a weapon and starts firing it at the IDF, they lose protected status. When Hamas fires rockets from a school, it loses protected status. If a doctor uses medical equipment as a weapon, the doctor and the equipment both lose protected status.
This is why the October 7 attacks were a terrorist attack, not "freedom fighting" or "justified resistance." They didn't attack military targets. They attacked Israeli civilians. Some of the targets fought back as a result of the attack, and many Israelis rushed to the locations of the attacks to fight the terrorists off. But at the time they were initiated, the Israelis had protected status. That's why it was an illegitimate, illegal terrorist action.
There's no such thing as an "innocent civilian." There are civilians and there are combatants. There are no subclasses of "guilty civilians" or "innocent civilians." A combatant doesn't have to be a member of the military - or in the case of Gaza, a member of the Hamas terrorist regime. The doctor who uses the medical equipment as a weapon becomes a combatant.
Everyone's seen the videos of Gazans chanting that they support Hamas and are determined to destroy Israel. They don't have to be members of Hamas; if they make good on their chanted threat, they become fair game. Through their own actions.
Keep that in mind when you hear the wails of the mythical "genocide" that's supposedly going on, the "civilians" being killed. Undoubtedly there will be actual civilians, which is unfortunate but a fact of war.
But there will be plenty of citizens who crossed over and lost their protected status as combatants instead. By making themselves combatants. If Hamas were concerned about "civilian deaths" - they're not, and they proudly state that they love death - they would take great pains to ensure citizens were not taking action, to prevent them from losing their protected status.
Israel does not have to hold their fire on combatants just because they're Gazan citizens rather than members of Hamas. Because even if they're citizens, they're not necessarily civilians.