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Frequently Asked Questions about the 2023 War with Hamas

(Jerusalem Center for Public Affairs) Lt.-Col. (res.) Maurice Hirsch - As Israel responds to the Hamas atrocities, several basic principles of International Humanitarian Law (IHL) are essential to recall. The principle of distinction requires that all attacks be focused on military targets instead of purely civilian targets. The principle of military necessity dictates that the warring sides must avoid wounding or permanently injuring combatants except as part of the fight. The principle of unnecessary suffering prohibits the warring sides from using weaponry that causes superfluous injury or unnecessary suffering. The principle of proportionality refers to a situation in which a military target is attacked, and that attack causes incidental or collateral damage. Attacks of this nature are legitimate so long as the loss of life and damage to property incidental to the attack are not excessive in relation to the concrete and direct military advantage expected to be gained. As the value of the military target grows, so too does the extent of permitted incidental damage. When Hamas deliberately locates its operational headquarters in high-rise buildings, no provision of IHL would prevent attacking that target, even if it means destroying the entire building. Medical facilities and places of worship enjoy specific safeguards and should not be attacked as a general rule. However, when the enemy uses these sites to facilitate military operations - including using them as command centers or warehouses and storage areas to stockpile ammunition and weapons - the installations become legitimate military targets. Moreover, those wearing civilian clothes who directly participate in hostilities are considered combatants and legitimate military targets. The electricity provided by Israel to Gaza is essential for the terrorist war effort. Limiting the flow of electricity into Gaza from Israel would substantially impair the enemy's military capabilities. No provision in IHL requires Israel to provide the enemy, which slaughtered 1,200 Israelis, injured thousands of others, and kidnapped scores more, with a resource essential to further its homicidal terrorist goals. Cutting the flow of electricity from Israel does not meet the definition of collective punishment under IHL. IHL takes into account that civilians, including children, will be killed during an attack on a legitimate military target. In as much as Israeli forces do not knowingly and intentionally target a child who was not participating in the hostilities, the incidental death of a child during the fighting would certainly not constitute a crime of any nature. The writer, Director of the Palestinian Authority Accountability Initiative at the Jerusalem Center, served for 19 years in the IDF Military Advocate General Corps and was director of the Military Prosecution in Judea and Samaria.
2023-10-13 00:00:00
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