The Casualties in Gaza Don’t Indicate War Crimes

A single death might be a tragedy and a million a statistic, as the saying goes, but there is no number of deaths that automatically constitutes a war crime.

Increasingly, Israel’s critics are using the number of Gazans killed to argue that Israel should cease its military campaign to destroy Hamas after the terrorist group’s barbaric Oct. 7 attack. “[F]ar too many Palestinians have been killed,” both Vice President Kamala Harris and Secretary of State Antony Blinken have lamented.

The casualty numbers are likely inaccurate and include thousands of terrorists. As National Security Council coordinator John Kirby has stated, “We can’t take anything coming out of Hamas, including the so-called Ministry of Health, at face value.” More importantly, casualties do not determine the legality, or morality, of military action. There is no magic number below which soldiers are law-abiding but, which, once crossed, renders them war criminals. Legality and morality must be judged on the specific intent of each attack, not its outcome.

According to the principles of necessity and distinction, attacks must be directed only at known military targets and never deliberately at civilians only. But that does not mean civilian casualties automatically constitute a war crime.

All responsible and respected scholars and international organizations acknowledge that, unfortunately, civilians will be injured and killed in war. The law of armed conflict does not prohibit such harm but, instead, attempts to limit it.

Once a military target is selected, proportionality requires only that the commander anticipate that the attack’s military advantage will be greater than the potential for incidental harm to civilians. However, commanders must exercise constant care to mitigate that harm as much as is feasible.

Succinctly, the law of armed conflict tolerates civilian casualties, however tragic, if they are not deliberately inflicted; if they occur while attacking significant military objectives; and if attempts are made to mitigate them. This means that an attack that kills no civilians could violate the law of armed conflict while another, which results in civilian casualties, might not. How could this be

Many legal experts believe that Hamas perpetrated war crimes by intentionally targeting civilians for murder, torture, rape, mutilation, and kidnapping. And Hamas likely commits a war crime with each of the roughly 12,000 rockets it has fired. Regardless of whether the rocket deliberately targets Israeli civilians or is haphazardly launched, regardless of whether it lands or is shot down, regardless of whether civilians die or not, Hamas’s desire to kill Israeli civilians — or even its complete disregard for whether its rockets hit a homemilitary base or a hospital — make its actions illegal because Hamas fails to distinguish between military and civilian targets.

When Israel targets an apartment building in which a Hamas commander is present or under which Hamas has hidden its rockets, even if civilian casualties ensue, it has likely acted legally. Civilian infrastructure, when used to hide terrorists or their weapons, is a legitimate military target. Israel intensely scrutinizes its targets to evaluate the possibility of civilian casualties and uses active notifications — making phone calls or dropping leaflets — to encourage civilians to flee targeted areas. If too many civilians nevertheless remain, Israel has called off strikes. But, when it judges that the risk to civilians does not outweigh the benefit of the strike, Israel attacks lawfully.

Because of the presence of terrorists or their weapons, because of the precautions Israel takes, because of the deliberate process of collateral damage estimation its professional military undertakes for each strike, Israel’s actions are legal — even when civilians tragically are killed.

This approach follows the reasoning of the Old Testament and New Testament, our own criminal codes, and basic morality: intention determines criminality. Unintended deaths might be overlooked. Deliberate murder brings harsher penalties than manslaughter; hate crimes — murder committed with racial, ethnic or religious malice — harsher still.

How could it be otherwise?

To outlaw any civilian casualties in war would be to grant impunity to terrorists willing to illegally hide among civilians, as Hamas does. Setting some numerical threshold of deaths above which war crimes are deemed to have occurred would only incentivize terrorists to expose their human shields to as much danger as possible.

This already is Hamas’s strategy. Counting on the international community to heap opprobrium on Israel, it deliberately puts Gazans in harm’s way. By blocking civilians from evacuating, allegedly shooting at them if they attempt to flee, and killing others with its own misfired rockets, Hamas feeds and weaponizes concerns for the well-being of Palestinians.

Raw numbers are meaningless, at least when it comes to judging the legality or morality of Israel’s and Hamas’s conduct. Indignation over casualty figures only rewards Hamas’s illegal and flagrant disregard for civilian lives, leading to more deaths.

Retired Rear Adm. Steven B. Kantrowitz served in the U.S. Navy’s Judge Advocate General’s Corps.

Retired Vice Adm. Herman A. Shelanski served as the Navy’s naval inspector general and was a participant in the Jewish Institute for National Security of America’s (JINSA) 2019 Generals and Admirals Program.

Originally published in TheMessenger.