The laws of armed conflict (also known as international humanitarian law, IHL) take center stage in the Israeli-Palestinian conflict, particularly during periods of intense violence. This dynamic was very visible during the May 2021 round of the ongoing conflict.
In the 2009, 2012 and 2014 hostilities, UN officials, human rights NGOs, and many members of the international legal community routinely – even casually – accused Israel of committing war crimes in Gaza. They repeatedly alleged that the IDF intentionally directed attacks against civilians, deliberately inflicted disproportionate harm to civilians, and caused wanton destruction of property without military justification.
So the accusations of disproportionate attacks that have been widespread in relation to the May 2021 fighting are not new – even as almost all politicize and incorrectly interpret the legal standard. IHL prohibits direct attacks on civilian objects, but they can become military objectives and subject to legal targeting if used for military purposes. Attacks must also comply with proportionality, which requires the weighing of civilian harm with the anticipated military advantage. This standard is judged by the information known to the attackers prior to any strike and not based on its outcome.
Despite this well-established legal framework, a new narrative has begun to emerge, namely that there is a fundamental problem with IHL itself.
The positing of this new standard seems directly tied to overwrought criticism of Israeli military operations in Gaza. The new argument claims that the laws of armed conflict are problematic because they reinforce the power imbalance between Israel and the Palestinians and perpetuate the supposed unfairness in Israel’s defensive ability. Under any interpretation of the law, however, Israel is permitted to respond to Hamas rocket attacks on its civilian population centers with overwhelming force, provided it complies with the rules of distinction and proportionality. This does not change even though Israel’s population is largely “protected” by the Iron Dome missile-defense system and shelters.