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Kenneth Roth, former director of the anti-Israel NGO Human Rights Watch, has published an op-ed in The Daily Princetonian accusing Israel of violating international humanitarian law (IHL). Like the Gaza solidarity letter signed by hundreds of Princeton professors, students, and alumni, it receives high marks for deception.
Roth’s indictment of Israel centers on two speculative claims: that the Israeli military (IDF) “appears” to target civilian areas “indiscriminately,” and that the IDF’s campaign “seems” to be “disproportionate.” To substantiate these criminal charges, Roth mostly draws on the Fourth Geneva Convention. But the charges are false, and the Geneva Conventions (GC) do not support him.
Article 28 of the Fourth Geneva Convention establishes that “the presence of a protected person may not be used to render certain points or areas immune from military operations.” Protocol 1 Article 51 reaffirms this point and elaborates: “The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks.” Hamas violates this and other IHL obligations daily as it uses hundreds of thousands of Gazans as human shields — forcefully blocking safety corridors, instructing civilians to remain at home, apparently shooting at civilians attempting to flee, and, as I explain below, locating military infrastructure in civilian zones. (See also Protocol 1 Art. 58, regarding civilian zones; 4th GC Art. 34, regarding hostages; and Protocol 1 Art. 48, on distinction).
Israel, on the other hand, not only meets but exceeds the requirements of international humanitarian law by using precision airstrikes and issuing incessant warnings — dropping leaflets, placing calls, sending texts, and dropping non-explosive munitions on roofs — in advance of each strike. The 1987 Commentary on Protocol 1 Article 57 explains that the obligation to warn civilians is a rule that admits of “derogation” when “the element of surprise in the attack is a condition of its success.” Israel’s practice of warning civilians inhibits the IDF’s effectiveness in eradicating terrorists who invariably flee to their vast network of underground tunnels built with funds diverted from humanitarian aid sources. In spite of this, Israel warns.
I recognize that Roth and others may challenge the efficacy of these warnings. But consider this: On Oct. 12, after nearly one week of war, the IDF announced that it had dropped over 6,000 bombs on Hamas targets in the Gaza Strip. On that very same day, the Hamas-controlled Gaza Health Ministry announced that 1,537 Gazans had died as a result of Israel’s operation. The Gaza Strip is one of the most densely populated places in the world, and yet Israel’s strike-to-death ratio was four to one. No doubt, if Israel were to abandon its practice of warning civilians, deaths in the Strip would be astronomically higher. The cause of Israel’s impressively low civilian casualty rate is its practice of warning — not required as a matter of international law, but a core and righteous piece of the Israeli defense ethic.
What about Roth’s charges of indiscrimination and disproportionality? Protocol 1 Article 51 of the GC addresses both. Among other things, it considers “indiscriminate” those attacks which are “not directed at a specific military objective” and are “of a nature to strike military objectives and civilians or civilian objects without distinction.” Israel is plainly not in violation of the principle of distinction. As I explained above, Israel takes painstaking measures to warn civilians, constantly discriminating between terrorists and non-combatants. The data bear this out, and so far as anyone without direct access to Israeli military intelligence can tell, the IDF targets terrorists only.
Protocol 1 Article 51 considers disproportionate those “attack[s] which may be expected to cause incidental loss of civilian life … which would be excessive in relation to the concrete and direct military advantage anticipated.” It is important to note that even enormous civilian casualties can be the incidental effect of a proportionate response in particular circumstances. All Roth has to say about disproportionality is that Israeli strikes on apartment buildings from which Hamas terrorists operate “seem” to be excessive. But “excessiveness” and “proportionality” are relative terms, and the 1987 Commentary on Protocol 1 Article 51 is of almost no help in establishing a clear standard for excessiveness; the criterion it repeats over and over is merely the vague “military advantage anticipated” standard. Does Roth have access to Israeli military intelligence? I would like to know how he or any NGO can make credible determinations from afar about the concreteness of particular, strike-specific advantages.
Besides, proportionality changes with respect to practical possibilities in addressing terrorist threats. For example, if it were possible to consistently eliminate Hamas assets without causing harm to civilians whatsoever, Israel would have an obligation to abstain from any strike where incidental civilian casualties were foreseeable (see Protocol 1, Article 57, Paragraph 3). But Hamas, by nesting their weapons caches, rocket launchpads, operations cells, and headquarters in apartment buildings, mosques, kindergartens, hospitals, and other civilian areas, has deliberately ensured outrageous civilian casualties as the result of any operation targeting Hamas in a significant way.
Roth admits that Israel’s military response is “understandably” prompted, so he presumably supports some military operation in Gaza. But how exactly would Roth propose Israel accomplish its mission of dismantling Hamas without causing great incidental damage to the areas of civilian life that Hamas has rendered legitimate targets? The reality is that Israel faces two mutually incompatible options. It can deal a decisive — not merely symbolic — blow to the Hamas terror regime, or it can avoid immense civilian casualties. Israel’s imperative to remove the extremist Iranian proxy in its backyard comes with an inevitable and tragic human cost, but that does not nullify the imperative, morally or legally.
Finally, Roth declares Israel’s decision to stop supplying Gaza with water, fuel, electricity, and food a violation of international law. On this score, the facts, ethical dilemmas, and international law are vastly more complicated than the discussion above, but a few important considerations are to be set out.
First, context: Israel supplies only 10 percent of the Gaza Strip’s water supply, and I support Israel’s Oct. 15 decision to restore Israeli water supply to the southern portion of the Gaza Strip. Gaza’s long-term water crisis is the result of Palestinian Authority and Hamas mismanagement, causing much of Gaza’s coastal aquifer to become tainted. Hamas has also boasted of digging up water pipelines, including those installed for them by the European Union, to make the rockets it indiscriminately launches at Israeli towns.
Regarding fuel and electricity: Until Oct. 7, Israel supplied about 50 percent of Gaza’s electricity free of charge. Gaza’s electricity infrastructure has been damaged by misfired Hamas rockets, and Hamas has notoriously diverted humanitarian aid away from restoring such infrastructure in order to build over 500 kilometers of terror tunnels, weaponry, and the like. Hamas is also famous for stealing fuel from civilian supplies. Just last week, they stole 24,000 liters of fuel from the United Nations Relief and Works Agency, and even now is hoarding upwards of 500,000 liters of diesel for the purposes of sustaining its terrorist war machine.
The law of siege is complicated because it largely turns on questions of customary international law, the loose body of uncodified but general practices of war accepted as binding. I am unaware of any example of a country continuing to supply electricity and fuel to an enemy territory knowing beyond any doubt that such supplies would be diverted to enhance the enemy’s capacities. When Roth or others make the claim that Israel is under legal obligation to provide electricity or fuel to Gaza, the burden is on them to establish the origin of the principle as a matter of international law. It will not do to simply cry “collective punishment.”
Regarding international law on humanitarian aid, I direct readers to Article 23 of the Fourth Geneva Convention. This article requires states to “allow the free passage of … medical and hospital [supplies] … foodstuffs, clothing, and tonics.” This obligation is explicitly waived, however, if Israel has serious reasons for fearing that “the consignments will be diverted,” that “control [of distribution] may not be effective,” or that “a definite advantage will accrue to the military efforts or economy of the enemy through [the supply of such consignments] which would otherwise be provided or produced by the enemy.” No one can seriously doubt that Israel has a clear reason to fear that such an advantage would accrue to Hamas, given the organization’s undeniable history and present practice of diverting aid away from civilian use in order to bolster its terrorist enterprise.
Here’s the bottom line. Hamas and its Iranian paymasters are waging a war to eradicate Jews from Israel — the very same land from which Jews were once expelled by colonizers to face inquisitions, pogroms, and a Holocaust. Israel must respond somehow, and its right to destroy Hamas is not defeased by Hamas’s criminal decision to sacrifice Gaza’s civilians. Thanks to Hamas, many of Gaza’s innocent will perish. This is a tragedy of the highest possible order. But the blame rests with Hamas — both as a matter of common sense and as a matter of “international law.”
Myles McKnight is a graduate of the Class of 2023. He can be reached at mylesm@princeton.edu.
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