A Primer on Hamas; Part 7: What Are the Rules of War?

The rules of war President Biden was referring to are something known as “International Humanitarian Law” (IHL). The core of IHL is the Geneva Conventions, a set of rules for war negotiated after WWII. IHL attempts to achieve a balance between the necessity of defeating an opponent by winning the war on the one hand, and limiting needless suffering on the other. IHL is grounded in Western (i.e. Judaeo-Christian) understandings of the concept of a “just war.”

IHL rules rely on a fundamental distinction between civilians and combatants. They require that military action should always be directed against combatants, never against civilians; civilians should always refrain from fighting; and combatants should act in a way which minimizes harm to civilians, for example, by not using civilians as human shields, and when attacking military targets, doing this in a way which minimizes disproportionate civilian casualties.

IHL rules also stipulate that if a combatant is taken prisoner, he (or she) cannot be killed for being a combatant, but should be treated humanely, in a way which is consistent with rights determined by IHL.

Let’s consider an example. If Israel wishes to kill a Hamas military leader using an airstrike, it must first weigh up the likely impact on civilians, go about it in a way which minimizes the impact, and refrain from proceeding if civilian casualties will be disproportionate to the military advantage gained.

If one side is trying to follow IHL rules while the other side rejects these same rules, the side which rejects the rules will have an advantage in battle. It is much easier to defeat your enemy if you don’t have to count the civilian cost. Consider the example of Mariupol. When the Russians were besieging Mariupol, trying to get rid of the last remaining Ukrainian marines, for a time they allowed no humanitarian corridor for civilians to escape. Why was this? It was most likely because the more civilians that stayed, the quicker the Ukrainians’ food would be used up, and the quicker their fighters would be forced to surrender. Although IHL rules forbid starving out your enemy when civilians are impacted, the alternative for the Russians would have been that many more of their own soldiers’ lives would have been lost in their attacks on the Ukrainians’ fiercely defended positions. How much blood should following the rules of war cost?

In reality, in all the wars in the world over the past century, laws of war have been honored more in the breach than in the observance. For example, during World War II both UK and US air forces carried out extensive incendiary bombing raids targeting urban areas of Germany and Japan. These attacks killed hundreds of thousands of civilians. The allies did this because they believed it would help them win.

It is important to grasp that Hamas completely rejects the IHL framework. More than this, it knows how to exploit Israel’s commitment to follow such rules. But this does not mean Hamas is without rules: its commitment to Islam implies that it is bound to follow Islam’s rules of war, but these are completely different from IHL.

A key point of difference is that the principal distinction Islamic rules of war make is not between combatants and non-combatants, but between adult men on the one hand, and women and children on the other. In contrast to IHL rules, Islamic law allows any men – combatants or not – who are taken prisoner to be killed, and it considers enemy prisoners, whether men, women or children, to be slaves who can be bought and sold. (ISIS proudly did this with its prisoners in Iraq and Syria.) Islamic law also allows the rape of captive females by their owners, and enslaved children can be kept and be brought up as Muslims. (A source of soldiers for Islam in Islamic history has been enslaved boys, taken captive, then forcibly converted, and raised to be fighters.)

Furthermore, Islamic military strategy has always approved of taking hostages and using them as bargaining chips: threatening to kill them, offering to swap them for the other sides’ captives, or exchanging them for ransom to fund the jihad. All of this is regulated by the sharia (Islamic law).

Consider this situation. Two men are involved in a fire fight, a jihadi and an infidel who has been taught to follow IHL rules. The jihadi knows that if he is wounded or thinks he is losing, all he has to do is throw down his weapon and come out with his hands up. The infidel’s IHL rules of engagement mean he must take the jihadi prisoner without harming him further. But if the infidel surrenders, sharia rules of engagement will permit the jihadi to shoot him dead on the spot.

When one side is fighting by IHL rules, and the other side is fighting a genocidal war by sharia rules, the result is an asymmetrical struggle, with one side having many options which are not available to the other. One side can kill, enslave, and rape while the other side is constrained to treat captives humanely. One side can use terror attacks on civilians while the other side should only deliberately target combatants.

Of course Hamas is fully aware of the limitations imposed upon the IDF by its rules of engagement. Indeed, Hamas leaders regard fighting by IHL rules as a sign of weakness.

Add to this inequality the fact that the war with Hamas is not a struggle over land, but a struggle for survival against a genocidal foe. If Hamas laid down its weapons, it would usher in peace. If Israelis laid down their weapons, a great massacre of Jews would result.

As discussed above, Islam’s rules of law allow men to be killed, and women and children to be enslaved. Using captive women as sex slaves is permitted. Although in principle, killing children or women is not allowed in the sharia, the prohibition on killing women and children is not absolute, and contextual exceptions have been made by Muslim jurists. Ibn Taymiyya (d.1328 CE) wrote, “some (jurists) are of the opinion that all of them may be killed, on the mere grounds that they are unbelievers, but they make an exception for women and children since they constitute property for Muslims.”

Although it is true that Islamic law forbids killing women and children, in reality, this has happened many times in Muslim wars and when it happens perpetrators are not punished. Moreover, many rulings from contemporary Muslim scholars have allowed “martyrdom” attacks on Israelis in which men, women, and children are targeted indiscriminately.

Islam can be very flexible. Al Qaida also found a way to justify killing women in the 9/11 bombings, on the grounds of reciprocity, citing Sura 2:194, which tells Muslims to attack the enemy “as he has attacked you.” Al-Qaida argued that Americans could be killed indiscriminately because the US supports Israel, and Israel had killed Palestinian women and children with bombs. It is certain that Hamas will have supplied its fighters with similar arguments when it sent them into Israel on October 7.

For decades Israel has pursued a policy of deterrence, which meant that after terrorist attacks on Israelis, there would be a violent reprisal to deter future attacks. This idea of deterrence is different from reprisals, in which one side exacts casualties from the other side, as tit-for-tat revenge.

It seems the current Israeli plan to invade Gaza is not meant to be a deterrence. The strategic purpose now is neither to discourage Hamas from killing Israelis, nor to achieve revenge, but to defeat Hamas and destroy it completely. The point of this attack is neither revenge nor deterrence, but victory.

In this light, the question to be asked about the battle for Gaza is not “Is this a proportionate deterrence?” but: “Is this the best and least costly path to victory?” or: “Is this war to achieve victory a proportionate response to Hamas’s credible threat of genocide?”