Five ideas to counter Hamas’ lawfare strategy…and why
On October 7 the world witnessed yet another horrific tragedy when the terrorist organization Hamas conducted a savage surprise attack on Israel. The casualties have been substantial. NBC News says that as of October 15:
More than 2,450 people have been killed in Gaza and 9,200 have been injured. In Israel, 1,400 people have been killed and 3,500 have been wounded. The death toll for Americans from Hamas’ attack on Israel and the subsequent war stands at 30, a State Department spokesperson said today.
Many of those killed died as a result of Hamas indiscriminately firing more than 5,000 missiles into Israel (where, incidentally, almost 200,000 Americans live). In addition, it is thought that at least 126 people were taken hostage (including as many as 14 Americans). As a result, Israel has formally declared war on Hamas, conducted hundreds of airstrikes into Gaza, and appears poised to launch a major land operation into the disputed territory.
This post will outline the legal environment, analyze Hamas’ strategy—which I contend is essentially a lawfare one—and then discuss some ideas as to how it might be countered.
Let’s begin by briefly reviewing what happened.
In his October 10 statement about the attack President Biden rightly condemned it as a “sickening” expression of “pure, unadulterated evil.” He shared these gruesome details:
Parents butchered using their bodies to try to protect their children. Stomach-turning reports of being — babies being killed. Entire families slain. Young people massacred while attending a musical festival to celebrate peace.
Women raped, assaulted, paraded as trophies. Families hid their fear for hours and hours, desperately trying to keep their children quiet to avoid drawing attention. And thousands of wounded, alive but carrying with them the bullet holes and the shrapnel wounds and the memory of what they endured.
Though directly contrary to international law, Hamas took hostages, and the President described the victims this way: “Infants in their mothers’ arms, grandparents in wheelchairs, Holocaust survivors abducted and held hostage — hostages whom Hamas has now threatened to execute in violation of every code of human morality.”
The President also said – correctly – that: “Like every nation in the world, Israel has the right to respond — indeed has a duty to respond — to these vicious attacks.” Further, he cited Hamas’ genocidal purpose;
Hamas does not stand for the Palestinian people’s right to dignity and self-determination. Its stated purpose is the annihilation of the State of Israel and the murder of Jewish people.
Notably, the President also pointed out Hamas’ war crimes against Palestinian civilians by using them as human shields: “They use Palestinian civilians as human shields. Hamas offers nothing but terror and bloodshed with no regard to who pays the price.” Hamas’ indifference to Palestinian deaths is something to which we’ll return later in this post.
The legal architecture
Here are a few basics about the legal situation:
Hamas is a non-state armed group that has controlled Gaza since 2006. The “U.S., the U.K, Israel, Australia,Japan and the European Union are among other countries and regional blocs that have officially designated Hamas as a terrorist organization.”
As will be discussed in more detail in future posts, the U.S.’s designation of Hamas as a Foreign Terrorist Organization (FTO) in 1997 triggers the application of 18 U.S.C. § 2339A and § 2339B which makes a rather wide range of activities amounting to “material support” of Hamas serious felonies with penalties that include, under certain circumstances, death.
This is especially relevant given the number of Americans known to have been killed in Hamas attacks, as well as the number still missing – at least some of whom are believed to be held hostage by Hamas. (Hostage taking is also not just an international crime, but is also another serious felony under 18 U.S. Code § 1203. That statute says that “if the death of any person results, [hostage taking] shall be punished by death or life imprisonment.”
Rationale for attack
Hamas has said it was motivated to launch the attack essentially as the culmination of long-building anger over Israeli policy, including recent outbreaks of violence at the Al-Aqsa Mosque in Jerusalem, but more generally over the treatment of Palestinians and the expansion of Israeli settlements.
Israel and the U.S. have made it clear that both governments believe there’s no “moral equivalence” to draw between Hamas’ attacks on Israeli citizens — including the slaughter of families in their homes and hundreds of young people at a music festival — and the measures the Jewish state says it has had to take to defend itself from terrorism.
In one of a series of excellent articles about the current conflict, Prof Mike Schmitt contends that notwithstanding some claims to the contrary:
[T]here is no “right” on the part of a non-State group or individuals to [use force] except when unlawful violence is being used against them directly and immediately, as in a specific case of acts of ethnic cleansing that are underway. At the time of Hamas’s attack, Israel was not employing unlawful violence directly against any individual in Gaza. Nor were Hamas’ actions crafted to directly defend against any particular unlawful acts of violence.
For these and other reasons, Prof Schmitt concludes that “Hamas had no international law right to launch Operation Al-Aqsa Flood, while Israel was entirely within its rights to mount Operation Swords of Iron.” (Mike does says that his conclusion is “subject to reasonable disagreement or qualification.”)
In my view, there is no construct under international law that can justify Hamas’ vicious attack. Period.
Limitations on the response
Nevertheless, as horrific and illegal as Hamas’ attack may be, the international law of armed conflict (LOAC) still governs the response. (The terms “law of armed conflict”; the “law of war” and “international humanitarian law” are virtually interchangeable).
Put another way, the LOAC “will apply regardless of the cause of a conflict.” Furthermore, as the Department of Defense Law of War Manual noted (¶ 126.96.36.199) “parties to the conflict must accept that the right of belligerents to adopt means of injuring the enemy is not unlimited.” This is true irrespective of how the conflict is characterized. (see below).
Israel does not dispute the application of international law. The Israel Defense Forces (IDF) have said it “remains committed to the law of armed conflict in the war with Hamas.” As will be discussed in more detail below, it is vitally important that this commitment be unambiguously communicated to the troops.
The characterization of a conflict can influence the applicable legal architecture. The international law of armed conflict (LOAC) characterizes belligerencies in two ways, each having similar but sometimes differing legal regimes. The International Committee of the Red Cross (ICRC) distinguishes them as:
- international armed conflicts [IAC], opposing two or more States, and
- non-international armed conflicts, between governmental forces and non-governmental armed groups, or between such groups only.
There is some disagreement among commentators as to which category the current conflict belongs (see e.g., here). More than a decade ago the Israelis expressed a nuanced perspective with respect to Hamas.
Specifically, its Ministry of Foreign Affairs said in its July 2009 report on Operation Cast Lead that “[a]t the end of the day, classification of the armed conflict between Hamas and Israel as international or non-international in the current context is largely of theoretical concern, as many similar norms and principles govern both types of conflicts.”
The report also indicated:
In particular, Israel‘s High Court of Justice has confirmed that in the ongoing armed conflict with Palestinian terrorist organizations, including Hamas, Israel must adhere to the rules and principles in (a) the Fourth Geneva Convention, (b) the Regulations annexed to the Fourth Hague Convention (which reflect customary international law), and (c) the customary international law principles reflected in certain provisions of Additional Protocol I to the Geneva Conventions on 1949. Israel is not a party to the Additional Protocol I but accepts that some of its provisions accurately reflect customary international law.
Nevertheless, focusing on the current conflict, I agree with Mike Schmitt that:
The better argument would be that Hamas is conducting its own campaign in a non-international armed conflict (NIAC) against Israel, especially after it forcibly expelled Fatah from Gaza in 2007 (Fatah is the most significant political/military element of the Palestinian Authority, which represents the Palestinian people in fora like the United Nations).
Law applicable to non-international armed conflicts (NIACs)
Surprising to some, the bulk of the Geneva Conventions do not apply to NIACs; they mostly only apply to IACs. One exception is Common Article 3 to the Conventions. Here’s a key part of it:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
Beyond Common Article 3, there is a dearth of applicable treaty law. However, there is a body of customary international law. This is law that reflects:
International obligations arising from established international practices, as opposed to obligations arising from formal written conventions and treaties. Customary international law results from a general and consistent practice of states that they follow from a sense of legal obligation.
In 2006 an influential private organization–The International Institute of Humanitarian Law—produced The Manual on the Law of Non-International Armed Conflict. This effort sought to identify all the rules of customary international law applicable to NIACs. It does a good job and, impressively, identifies some of the instances where the U.S. interpretation differs. However, those seeking the most current U.S. perspective should crosscheck with the July 2023 edition of the U.S. Department of Defense’s Law of War Manual.
As already suggested, the legal regimes applicable to IACs and NIAC are frequently similar but there are still important differences. As the ICRC puts it:
The rules for NIACs remain less detailed than those for IACs. For instance, there is no combatant or prisoner-of-war status in the rules governing NIACs. That is because States have not been willing to grant members of organized non-State armed groups immunity from prosecution under domestic law for taking up arms.
The ICRC believes –and I agree- that the “important gap between treaty rules applying in IACs and those applying in NIACs is gradually being filled by customary law rules.”
Hamas’ strategy: the lawfare threat
In my view, Hamas probably recognizes that however much their recent attack represents a marked increase in their capabilities, it still doesn’t match up well with the IDF, and it could not militarily defeat it. Consequently, I believe lawfare is a central tenet of their strategy.
I’ve thought this for some time. In reaction to an earlier clash between Hamas and Israel, I wrote in 2014 about the Gaza war underway at that time that:
In the current Gaza conflict, the adversaries are employing very different strategies to achieve their operational objectives. Israel is executing a robust military strategy. By striking rocket launch capabilities, as well as tunnel complexes, Israel is conducting what the generals calls a “strategy of denial,” that is, operations that aim to “deny” its adversary the physical capability to wage war.
Hamas’ strategy is, however, quite different. Lobbing rockets indiscriminately at Israeli population centers along with engaging in a few firefights in an effort to kill at least some Israelis is not, militarily speaking, a meaningful warfighting effort.
Rather, Hamas is employing a “lawfare” strategy. A lawfare strategy uses (or misuses) law essentially as a substitute for traditional military means; it is employing law much like any “weapon” to create effects or obtain results in an armed conflict that can be indistinguishable from those typically produced by kinetic methods.
Regrettably, in nearly a decade since writing that, little has changed in terms of Hamas’ strategy. It continues to seek “victory” via lawfare and violence. As I said in the 2014 post:
There are many versions of lawfare, but in this case Hamas is attempting to use the fact of Palestinian civilian casualties to cast Israelis as war criminals. In doing so it seems that Hamas is hoping to achieve their aims not by defeating Israelis on a Gaza battlefield, but rather by delegitimizing Israel in the eyes of the world community by establishing them as lawbreakers in an era when adherence to the rule of law is so important to democracies.
As an analyst of the 2014 Gaza war concluded:
Even though Hamas, like the Taliban in Afghanistan, violated international laws by using civilians as human shields, Hamas has shed enough public doubt on Israel’s conduct to advance a “both sides are guilty” argument. The specter of this gives Hamas perpetual victim status and deters Israel from exercising the full range of its options against the group, one of which is its destruction. While not a triumph for Hamas, it gives them time to renew their resources and regroup.
Obviously, Hamas did regroup and, again, it appears that its lawfare strategy remains virtually the same.
Why urban combat facilitates a lawfare strategy.
Although Gaza is not, as the nation’s top urban warfare expert John Spencer points out, “one of the most densely populated territories on Earth” (it doesn’t make the top 50), combat operations there would still be very difficult, as is the case with most urban battlespaces.
In a 2017 blogpost about operations to oust the Islamic State (ISIS) from the Iraqi city of Mosul, I said:
Retaking a densely-populated city like Mosul is extraordinarily difficult. Indeed, chaotic urban combat is one of the toughest challenges for any military, as enemy fighters can take advantage of a city’s labyrinths to infest battlespaces with booby-traps and ambushes, and – most malevolently – it allows them to readily hide among civilians. This and more is exactly what is happening in Mosul. A coalition spokesman explained that ISIS was using “inhuman tactics [of] terrorizing civilians, using human shields, and fighting from protected sites such as schools, hospitals, religious sites and civilian neighborhoods.”
Sadly, we can expect very much the same—or worse—ruthlessness from Hamas in Gaza. Indeed, Secretary of Defense Lloyd Austin who once commanded US forces battling ISIS said he “believes the Hamas terror group’s activities are worse than what he witnessed carried out by the notorious Islamic State terror group a decade ago.”
The fact of the matter is that urban warfare “make[s] high civilian casualty figures almost inevitable.” Recently, University of Virginia law professor (and Lawfire® contributor) Paul Stephan noted:
Israel faces serious challenges under the law of armed conflict because of the difficulty of distinguishing legitimate military targets from civilian objects that may not be targeted. Gaza is densely urban and Hamas fighters generally do not identify themselves as such.
Hamas’ lawfare threat today
Hamas’ lawfare strategy for Gaza is readily apparent. In Spencer’s recent (11 Oct) ‘must read’ article “These are the Challenges Awaiting Israeli Ground Forces in Gaza” he illustrates it. Consider especially this excerpt:
It is well known that Hamas uses civilians as human shields. By doing so, the group is effectively engaging in what scholars have called lawfare, using the law of armed conflict and international humanitarian law—specifically their provisions on the protection of noncombatants—to restrict the actions an attacking military force can take in operations. And while Hamas has cynically used Palestinian residents of Gaza for this purpose in the past—establishing weapons caches and rocket firing points in densely populated areas—it is likely that it will also seek to use the 150 noncombatants kidnapped during the initial attacks over the weekend.
Spencer also makes these sobering observations:
Once an urban battle commences, history makes clear that with each passing day, as civilian casualties and collateral damage mount, international pressure to cease fighting increases. In order to fully achieve the objective of destroying Hamas military capability in Gaza, ground forces will require weeks, if not months. This is the unavoidable nature of clearing urban terrain.
Israel is very aware of the political and military challenge of time. It has fought almost every war of its history in a race against time, seeking to achieve its goals before international pressure forces it to stop operations.
Currently, Israel enjoys the advantage in the global narrative. Although a few nations support Hamas, many more have “condemned Hamas and decried its tactics as terrorism.” In the U.S. a recent survey “shows American voters are increasingly sympathetic to the Israeli side of the decades-long conflict with Palestinians.”
But public support can be fragile. In their 1994 book, The Laws of War: A Comprehensive Collection of Primary Documents on International Laws Governing Armed Conflict, Michael Riesman and Chris T. Antoniou insist,
In modern popular democracies, even a limited armed conflict requires a substantial base of public support. That support can erode or even reverse itself rapidly, no matter how worthy the political objective, if people believe that the war is being conducted in an unfair, inhumane, or iniquitous way. (Emphasis added).
After 9/11, the U.S. enjoyed overwhelming global support, only to see it squandered much as a result of LOAC incidents like Abu Ghraib and abuses at Guantanamo. Once the public is seized with a narrative—legitimate or not–it is hard to shake. In a 2010 New York Times article General David Petraeus, then head of U.S. Central Command, explained the battlefield effects of LOAC violations: he explained during an interview how violations of the law impact what happens on the battlefield:
“Whenever we have, perhaps, taken expedient measures, they have turned around and bitten us in the backside,” [Petraeus] said. Whenever Americans have used methods that violated the Geneva Conventions or the standards of the International Committee of the Red Cross, he said: “We end up paying the price for it ultimately. Abu Ghraib and other situations like that are nonbiodegradable. They don’t go away. The enemy continues to beat you with them like a stick.” (Emphasis added).
I believe the lawfare battlespace in this conflict (and more in the future) is a critical one. It is vital for Israel’s future that it prevail in the lawfare ‘domain.’
What can be done?
As Israelis deal with their almost unimaginable grief, they must gird themselves for not just the physical battle, but also the lawfare fight. This requires organization and deliberateness akin to that devoted to any other essential warfighting function that is integrated into military planning.
A starting place might be Joel Tractman’s outstanding 2016 article, “Integrating Lawfare and Warfare.” To the right is an extract from his article showing “a list of areas in which an integrated legal component may improve strategic and tactical outcomes.”
Allow me to supplement Tractman’s list by adding some ideas specific to the current situation. Consider the following (these are in no particular order):
1. Understand Hamas’ strategy is intended to goad overreactions.
Quite simply, the main feature of Hamas’ strategy is to exploit civilian casualties…on both sides. Hamas wants to use Israeli casualties to induce overreactions, and Palestinian casualties to inflame the Arab world (and beyond) against Israel.
In 2001 Time Magazine wrote about Bin Laden’s strategy, and today it eerily resonates with Hamas’ version:
This guerrilla war, with women and children as collateral damage, is part of a broader military strategy to ensnare the U.S. in a larger East-West conflict. Roland Jacquard, president of the International Observatory on Terrorism in Paris, believes that bin Laden intended the Sept. 11 attack to be so “audacious, impudent and massively inhumane” as to ensure a “massive, inordinate” U.S. retaliation that would further inflame Muslim opinion against the U.S. and against the Arab regimes allied with Washington. Says Jacquard: “His design is to create sufficient instability to bring about Islamic revolution.”
Substitute “Hamas” for “Bin Laden”; “Oct 7 attack” for “Sept 11 attack”; “Israel” for ‘U.S.” and “Jerusalem” for “Washington” and Hamas’ strategy becomes clear. Moreover, just today (October 15) retired Army LTG Jim Dubik put it plainly in a insightful commentary:
The sad reality is that Hamas planned and conducted the attack with a ferocity and barbarism that they knew would trigger a significantly intense and violent Israeli reply — one that would stop any peace or normalization process in its tracks, and one that, by their own design and intent, will result in an inordinate number of civilian casualties.
In short, the potential impact of lawfare strategies just can’t be overstated.
2. Educate the world, but especially Israeli forces, as to Hamas’ lawfare strategy.
In a 2017 essay about lawfare, I contended that:
It is important to have the troops understand the “why” about lawfare. The most obvious part of this process for tactical-level units is ensuring the troops understand that battlespace discipline is more than a matter of personal character and accountability; it directly relates to operational success. Consequently, commanders and other leaders need to explain the importance of denying adversaries incidents of real or perceived misconduct that can be exploited.
I added that this is part of what I call the ‘legal preparation of the battlespace.’ At the same time, no one should underestimate the difficulty. LTG Dubik observes that one of the complications Israeli forces faces is,
…whether the Israeli military can accomplish its missions on the urban battlefield Hamas has already shaped: full of non-combatants, hostages, and normally-protected targets — mosques, schools, hospitals, homes, for example — some of which Hamas has turned into legitimate targets of war by using them for military purposes. Fighting in this kind of environment has already begun. Even for a disciplined force like the Israel Defense Forces (IDF) following the Laws of War, it will be very difficult. (Emphasis added).
Similarly, the Economist warned:
Major acts of terrorism can unmoor even the most professional armed forces. America engaged in torture after 9/11. American, Australian and British special forces have all faced allegations of war crimes in Afghanistan and Iraq. A video published on October 10th appears to show Israeli troops executing Palestinian gunmen who were on their knees and waving a flag of surrender. “If you send tens of thousands of conscript soldiers on a revenge mission into a dense urban area that civilians can’t leave, the results are entirely predictable,” warns Jack McDonald of the Department of War Studies at King’s College London.
In addition, it would be helpful if senior Israeli leaders exercise what I would call “rhetorical discipline.” For example, emotional statements that imply that force will be used unlawfully, e.g., a declaration that Israel will impose a “mighty vengeance”, feeds into a narrative that undermines Israel’s lawful use of force (vengeance is not itself a basis for the lawful use of force under LOAC). Consider as well this report from The Economist:
On October 10th an Israeli official told a television station: “Gaza will eventually turn into a city of tents. There will be no buildings.” Daniel Hagari, an IDF spokesperson, boasted that “hundreds of tons of bombs” had been dropped on Gaza. Then, he added: “the emphasis is on damage and not on accuracy.” Neither statement can be squared with the law.
Again, rhetorical discipline is a must.
3. Emphasize – repeatedly – that Hamas wants Palestinians to die and is intentionally choosing to sacrifice the men, women and children in Gaza in their attempt to achieve their terrorist goals.
“John Kirby, the U.S. National Security Council spokesman, was correct today when he said that Hamas’ urging of Palestinians in Gaza to remain at home means Hamas is using these civilians as human shields. The use of human shields is a war crime. Hamas is engaging in this war crime in order to facilitate falsely accusing the Israel Defense Forces of engaging in war crimes, such as the deliberate killing of civilians.”
By attempting to demonize the IDF, Hamas advances its aim to delegitimize Israel and its efforts to defend itself. Washington Post columnist David Ignatius also explains why Hamas would want Palestinians dead:
The fear in the region is that, as Arabs watch civilian casualties, they will feel a rage similar to what Israelis felt last week after the slaughter of civilians by Hamas terrorists.
Ignatius explains that if Israeli Prime Minister Benjamin Netanyahu “conducts a war that punishes Palestinian civilians, rather than Hamas, he might lose global support and undermine his mission.”
Of course, this is what Hamas wants, and it is willing to have Palestinian civilians die to make it happen. It also explains why Hamas is trying to stop Palestinian civilians from leaving Gaza.
4. Provide detailed rebuttals to false and/or misleading allegations.
Consider this report:
Hamas attempts to use international law to promote its positions. After the attacks, it has tried to argue that the Israeli civilians in Otef Aza who were murdered or abducted were not actually civilians but combatants or that it waged its attack as a preemptive measure to a coming Israeli attack.
It is not enough to simply deny spurious allegations; facts and legal analysis do matter. A team ought to be assembled to provide just such responses (to include ‘law review’ type responses to news or other reports that misstate the law).
This also means being as transparent as possible about procedures and processes employed to avoid civilian casualties, even if military security suffers to some degree.
5. Mitigate impacts on civilians.
As already noted, it is virtually impossible to avoid civilian casualties in urban operations if civilians remain there. Though Israel has warned Gaza residents to leave certain areas, it should work with the U.S., Egypt, and other nations to allow particular persons to exit Gaza altogether.
Article 17 of the Fourth Geneva Convention provides a listing of persons whose exit from Gaza would not comprise Israel’s operations or strategic aims. Specifically, it provides:
The Parties to the conflict shall endeavour to conclude local agreements for the removal from besieged or encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage of ministers of all religions, medical personnel and medical equipment on their way to such areas.
Allowing such persons to leave Gaza would not only protect them, it would deny Hamas the opportunity to exploit any deaths or injuries that could occur if they remain. Israel also could–and should–open Gaza to receive necessary medical supplies. Regarding fuel and water, efforts should be made to provide them–on a basis supervised by reliable neutral parties–to hospitals as well those persons described in Article 17 who do not evacuate from Gaza.
It is quite possible that the Israelis are already assessing (or even implementing) these and similar ideas. Nevertheless, it is incumbent upon all mlitaries of rule-of-law countries to study the phenomena of lawfare and develop counters to it (while at the same time exploring how they can use it in a lawful and ethical manner).
There are other counters to lawfare strategies to be discussed in future posts. These could include, for example, more in-depth discussions as to how the law of NIACs applies to siege warfare as well as belligerent reprisals. Additionally, further examination is needed to explain how in this situation “direct participation in hostilities” can turn civilians into lawful targets; and even– given Hamas’ commission of serious crimes–how the international human rights law on the use of force may operate to expand the lawful target set for Israeli operations.
A caution: some may understandably believe that Israel faces what political theorist Micheal Walzer would call a “supreme emergency.” In this Walzer contends, as a scholar puts it, “that there are extreme circumstances in war in which political and military leaders are permitted (morally) to violate the normal moral and legal constraints of just war.”
Though fresh interpretations of international law may be needed given the unique circumstances of this conflict, it still isn’t necessary to abandon the “normal moral or legal constraints of just war.” Rather, the better perspective is that offered by the Nuremberg tribunals, that is, to understand that the “law is not static, but by continual adaptation follows the needs of a changing world.” There is much work yet to be done to accomplish that adaption, but it is doable.
The point is that lawfare is a reality of modern warfare, and rule of law countries need to adapt to it.
Remember what we like to say on Lawfire: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
Updated 16 Oct 2023